ORDER [ENTITY], J.
[CASE NUMBER] connected with [CASE NUMBER]:
1. Facts of these cases are as under:
Petitioners in these petitions state that they are serving the respondents-Bangalore Electricity Supply Company Limited ('BESCOM' for short), since 1998 as ledger clerks. According to them the respondents appointed them for proper administration of work and maintenance of records in the offices of the BESCOM in its four zones called, Bangalore West, North, South and Central. The nature of duties of the petitioners is to maintain ledgers, undertaking the work of maintaining record of demand, collection and balance etc. They are being paid a consolidated salary. The Deputy Controller of Accounts informed the fifth respondent that appointment of the persons on contract basis was approved. They were appointed by the then Karnataka Electricity Board ('KEB' for short), but however no orders were issued. The Government passed an Act in the matter of functioning of KEB. Orders were issued in terms of Annexures-E1 to E3 protecting the service conditions of the employees. Consequent upon the [ACT], KEB ceased to exist and instead four companies namely, BESCOM, HESCOM, MESCOM and GESCOM came into existence. Petitioners were engaged to work for a period of six months. After the expiry of six months orders were issued for another period of six months. Wages on the last day of the first spell was not paid. This method was adopted to overcome the claim of continuity of service. Petitioners have filed a circular dated 6-9-1999 with regard to contract labour. Petitioners state that they made a request to absorb them in service. In the guise of deployment of excess staff in the light of computerisation policy, the fifth respondent by a notification dated 17-12-2003 directed the Superintending Engineer to identify the excess staff in revenue sections and to dispense with the services of the Ledger Clerks with effect from 1-1-2004. According to petitioners these orders are contrary to the provisions of the [ACT] and also contrary to [SECTION] of the [ACT]. The act of respondents is unfair and respondents are not to follow the policy of hire and fire. Petitioners are entitled for regularisation. Petitioners also say that protection is available to them in terms of [SECTION] and [SECTION] of the [ACT]. With these, allegations and averments petitioners are before me seeking for a writ of certiorari to quash the notification dated 17-12-2003 (Annexure-A) with a further prayer of continuation of petitioners in service and with an additional prayer to regularise all the petitioners in service on the facts of this case.
2. Statement of objections has been filed by the respondents. They state that the petitioners' services were utilised for the purpose of maintaining the ledgers on specific terms and conditions. The engagement was for a fixed duration. There is no appointment made on regular basis. They have not been engaged into service in accordance with the Rules by way of advertisement to the post and by way of examination of eligibility. The services of the petitioners have been availed purely on ad hoc basis on contractual terms for a fixed period. It is further stated that the respondent-Company has gone in for computerisation for maintaining the ledger accounts and for other allied purposes. They justify their action. They say that a policy decision has been taken keeping in mind the interest of the company and that of the general public and in order to introduce efficiency by adopting modern technic. Due to this the process of appointment of persons to maintain the accounts has been stopped since long. The services of the petitioners were availed as a temporary measure keeping in mind the design to implement and introduce computerisation. The programme is now fully ready for immediate operation. Huge amount of money running to Rs. 10.7 crores is already spent on computerisation. They say that the services of all the 453 ledger clerks who were engaged in maintenance of ledgers in revenue sections and other allied activities are being dispensed with "consequent on computerisation and stoppage of ledger system operated manually. They deny the other allegations. Petitioners have filed additional documents supporting their affidavits on 23-1- 2004.
[CASE NUMBER]:
3. Petitioners in these petitions are similarly situated employees seeking for almost the same or similar prayers as in [CASE NUMBER] connected with [CASE NUMBER]. Objection statement has been filed as in the connected cases. A rejoinder is filed disputing the averments made in the objections statement. It is further stated in these petitions that representations have been made to the Chief Minister, Managing Director, KPTCL, Managing Director, BESCOM and Minister for Power. It is farther stated that the work in BESCOM is permanent in nature. Along with the rejoinder they have filed certain documents. A further affidavit is filed and in which it is stated that a news report is available with regard to employment: They have also filed documents with regard to the requirement of Junior Assistants and that of Data Entry Operators. A second additional affidavit was filed enclosing 'Home Magazine' and also details with regard to conversion of Gangmen into Probationary Mazdoors and their consequent absorption as Junior Lineman.
3.1 An additional statement of objections and an additional affidavit are filed by the respondents. In the additional statement of objections it is stated that the allocation of persons as produced by the petitioner has no authentication nor it has got any relevance with regard to the claim of the petitioners. It is also stated that the newspaper publication is not to be relied by this Court. In the additional affidavit filed it is stated that Rs. 6,92,90,000/- has been spent towards the cost of computers.
3.2 An additional memo is filed by the petitioners in which it is stated that they agree and undertake to work in any capacity if the respondents regularise their services. A second additional statement has been filed along with certain other documents.
W.P. Nos. 893 to 9[SECTION], 1923 to 1949, 32[SECTION] to 3227, 702 to 718, 4473 to 4510 of 2004 and 547[SECTION] to 54744 of 2003:
4. All these petitions are same or similar with regard to facts and law as in other cases referred to above in this order.
5. Sri [ENTITY], learned Senior Counsel, appearing for the petitioners initially raised a legal plea with regard to applicability of the [ACT]. Learned Counsel says that the said Act provides for provisions relating to personnel in terms of [SECTION]. According to him [SECTION] provides protection to the petitioners and the present action of the respondents according to him runs counter to the said provision. Elaborating this provision, learned Counsel invites my attention to the tripartite agreement at Annexure-E and the subsequent transfer scheme in terms of Annexure-E1 to contend that the protection is available to the petitioners. He says that the petitioners are similarly situated like regular KEB employees and that therefore they are entitled for the protection in terms of [SECTION] of the Act. The second submission of the learned Counsel is that all the petitioners are working for fairly for a long time and that they have completed 240 days of service and that therefore action of the respondent would amount to retrenchment in terms of [SECTION] of the [ACT]. His further submission is that provisions contained in [SECTION] and [SECTION] of the [ACT] would come to the rescue of the petitioners. Learned Counsel says that even otherwise the condition as effected without complying with [SECTION] of the [ACT] is illegal. The next submission is that the act of the respondents is arbitrary in nature. Respondents are 'State' under [SECTION] of the [ACT] and that they are required to act in a fair manner and the present action would be contrary to [SECTION] of the [ACT]. He says that no acceptable material is placed on record with regard to computerisation. Learned Counsel says that the present action on the part of the respondents would amount to unfair labour practice on the facts of this case. He also says that the so-called policy decision cannot be accepted in the given circumstances. He refers to various judgments to contend that the absorption/regularisation in permissible in such cases. He also says that the Supreme Court has referred regularisation matter to a larger Bench recently.
6. Sri [ENTITY], learned Senior Counsel for the petitioners in [CASE NUMBER] invites my attention to the material facts to contend that the petitioners have been appointed for regular work against regular vacancy. The appointment according to him is against a sanctioned post and the present action by the management would be running counter to [SECTION] and [SECTION] of the [ACT]. He also says that this Court has to consider this case sympathetically. He further says that most of the petitioners who are thrown out of employment are in the age group of 25 to 30 years and if the jobs are not provided to them they would be hit by unemployment. He also says that the management has not placed any material in justification of its action. Learned Counsel files a memo in the course of his arguments that his clients are agreeable to work in any capacity if employment is offered to them. The other Counsel appearing for the petitioners in the other cases support the argument of Sri [ENTITY] and Sri [ENTITY].
7. In reply Sri [ENTITY], learned Counsel for the respondents invites my attention to the material facts to contend that policy of computerisation was taken by the Board in the larger interest of the customers. He says that these petitioners were not appointed against regular vacancy and that their appointment was for a fixed term. They were also not appointed in terms of the Rules as applicable, No interview was conducted and eligibility was taken note of by the management. He says that the appointments were made to meet the exigencies of work and that therefore the petitioners have no right at all either for absorption or for regularisation.
7.1 In respect of [SECTION] of the [ACT], learned Counsel says that same is not available to the petitioners. With regard to [SECTION] learned Counsel says that the action is not retrenchment in the light of [SECTION] of the Act. He says that KEB is not a factory and that therefore it is not an establishment. He relies on various decisions.
8. While replying to the submission of the learned Counsel for the respondent, petitioners reiterate their arguments with force and they say that there is violation of the provisions of the Act by the respondents. They say that the argument of non-availability of [SECTION] is not acceptable in law.
9. After hearing the learned Counsel, in my view the following points would arise for my consideration:
(a) Nature of employment. (b) Applicability of [SECTION] of the [ACT]. (c) Applicability of [SECTION], [SECTION] and [SECTION] of the [ACT]. (d) Violation of [SECTION] and [SECTION] of the [ACT]. (e) Relief. Nature of employment:
10. Admitted facts reveal that all these petitioners have not been subjected to any interviews pursuant to any notification issued by the Karnataka Electricity Board. Admitted facts further reveal that these petitioners have been paid some ad hoc payment by the respondent. In fact it is necessary to notice the pleadings itself in this regard. Petitioners say in these petitions that they have been paid consolidated salary. They further say that they were appointed on contract basis. They also admit that no individual order communicating their appointment was issued. The Board also admits in the statement of objections that petitioners' services were utilised for the purpose of maintaining ledgers and they were taken for a specific term and for a fixed duration. They were not appointed against any sanctioned post. In fact documents have also been filed in this regard. Annexure-B is a pro forma bill. It refers to sanction of payment to employees. Similar pro forma bills are filed in other annexures. Annexure-R1 is an agreement providing for engagement on contract basis for ledger assistant job. The said Annexure-R1 ought to have been signed by respondent 1. The same has not been done., There are several other blanks in the document. Annexures filed also would indicate that payments have been made over to these persons through Assistant Executive Engineer.
10.1 At this stage, I must also refer to Recruitment and Promotion Regulations. [ACT] provides for a definition of an employee. It further provides for method of recruitment in terms of [SECTION]. Promotion regulations are available in [SECTION], In fact the Karnataka Electricity Board admits that these appointments are not in conformity with the Rules. Therefore, a combined reading of the pleadings in the light of the documents available on record would point out that these appointments can but be termed as irregular appointments. It also shows that these appointments are not pursuant to any regulations for a regular vacancy. In fact petitioners say that though they are not appointed in conformity with the regulations still they are to be continued as employees. In law an employee appointed in terms of the regulations would stand on a different footing than an employee appointed on irregular basis. I am rather pained to see that a responsible Board has chosen to engage these persons without proper procedure known to law at the time of engagement. At any rate, they have been continued and that therefore I do not want to say anything more as it would not be in the interest of the parties. All that I would do is to hold that these appointments cannot be termed as regular appointments in terms of the Regulations. Learned Counsel for the petitioners would say that petitioners have no say in the matter on account of acute unemployment situation prevailing in the country. It may be so but even then this Court cannot shut its eyes to the Regulation and the procedure prescribed therein. While considering the case of the petitioners, though this Court has all the sympathy for these petitioners, still this Court cannot act against the regulations. In these circumstances, I am clear in my mind that this arrangement/ engagement has been made to meet a specific situation on irregular basis.
10.2 I must also notice the repeated argument of the petitioners that they have been appointed against regular vacancy. Admitted facts as mentioned earlier would reveal that no notification was issued calling for application for any vacancy and no appointments have been issued for any regular vacancy. In the event of a vacancy, the Board would have certainly issued a notification and called for applications. It is not as though the Board has not recruited employees for any permanent vacancy. Though the petitioners say that they have been appointed in regular vacancy, the material on record would not support their stand in the matter. In fact they have stated that only when permanent vacancies have arisen they have been appointed to discharge the work. This argument is not acceptable to me. Though petitioners have filed certain statements that by itself does not determine the existence of a vacancy at the time when the petitioners were engaged. I may refer to a few documents filed by them. Petitioners have filed some documents Annexure-H, dated 1-12-2003, letters dated 30-11-1999, 7-1-2003, 13-9-2000 (reference W.P. Nos. 54417 to 545[SECTION]), statement of rejoinder etc. These documents also evidence that the petitioners are not regularly appointed as against any regular vacancy. There should be positive material for the Court to draw inference with regard to an appointment against a vacant post particularly when the respondent-Board has stated that the engagement is not against any vacant post. I must also notice that the respondent is a Board and its statements cannot be totally discarded in the given set of circumstances. Taking notice of all these material on record, I cannot accept the argument of an appointment against permanent vacancy as alleged by the petitioners. In fact the material placed by the petitioners would cast a doubt with regard to their appointment. A combined reading of the petition, objections and other documents would lead me to a conclusion that these engagements are de hors of all the Regulations as applicable and it could be coined as 'irregular appointments', It may not be illegal in clearest terms of law. What rights have they, in law, would be considered while considering the legal pleas with reference to these engagements.
Applicability of [SECTION] of the [ACT]:
11. [ACT] is a consolidated law relating to generation, transmission and distribution etc., [SECTION] provides for a transfer scheme for transfer of employees in terms of [SECTION] of the Act. [SECTION] of the Act is with regard to vesting of properties of the Board in the State Government. Explanation to [SECTION] provides that for the purposes of this section and the transfer scheme, the expression 'officers and employees' shall mean all officers and employees who on the date specified in the scheme are the officers and employers of the Board or transferor, as the case may be. The main thrust of argument of the petitioners is that [SECTION] comes to their rescue. Let me see as to whether this argument is available to the petitioner or not. The [ACT] is an Act which provides for constitution of Karnataka Electricity Regulatory Commission. [SECTION] deals with the powers of the State Government. [SECTION] provides a power to issue policy directives on matters concerning electricity in the State including the overall planning and co-ordination. [SECTION] provides for reorganisation of the Board and transfer of Board's functions, transfer of properties and liabilities. [SECTION] provides for formation of a company known as Karnataka Power Transmission Corporation Limited, [SECTION] provides for reorganisation of the Board. Transfer scheme is available in terms of [SECTION] to give effect to the object and purpose of this Act. [SECTION] deals with provisions relating to personnel. 'Personnel' has been defined to mean all persons who on the effective date of the transfer, are the employees of the Board or KPTC, as the case may be. Sub-section (2) provides for such terms and conditions on the transfer shall not in any way be less favourable than those which would have been applicable to them before the relevant transfer scheme. [SECTION] has to be understood in the light of reorganisation of the Board in terms of [SECTION]. A reading of these provisions would show that they are not applicable to the petitioners. Petitioners as I mentioned earlier are irregular appointees, and the protection as such in terms of [SECTION] is not available to them. The intention is not to protect such employment. It was only with a view to reorganise the Board in the light of [SECTION] and [SECTION] of the Act. In these circumstances, I am unable to accept the contention of Mr. [ENTITY], learned Senior Counsel for the petitioners.
11.1 In this connection, I may also notice another submission of the petitioner that the tripartite agreement dated [SECTION]-9-1999 would also come to the rescue of the petitioners. A reading of the said agreement would show that it is with the Board Engineers' Association and that agreement cannot be automatically be made applicable to these petitioners. Each agreement has its own significance with reference to the parties to the said agreement. Mechanical applicability of an agreement cannot be done unless the material facts warrant such applicability. Learned Counsel also refers to the transfer scheme in terms of Annexure-E1, as I mentioned earlier, this is in pursuance to [SECTION] and [SECTION] of the [ACT]. The said scheme is for totally different parties and that cannot be made applicable to the petitioners. Therefore I am unable to accept the argument of the learned Counsel that the scheme in terms of [SECTION] would apply to them as well. This argument is rejected.
Applicability of [SECTION], [SECTION] and [SECTION] of the [ACT]:
12. Both the learned Counsels appearing for the petitioners emphatically argued before me that the act of the respondents would amount to retrenchment in the eye of law. They would say that there is non-compliance of [SECTION] and [SECTION] of the Act. Let me see as to whether this argument is acceptable in the given set of circumstances.
12.1 [SECTION] provides for a definition to retrenchment. But the said section would not include certain category of workmen. We are concerned in the case on hand with regard to [SECTION] of the Act. The argument of the petitioners is that [SECTION] would not be applicable to the facts of this case. I am afraid that this argument is not available to them in the light of the material available on record. Sufficient material has been placed by the petitioners themselves with regard to contract of employment between the petitioners and the respondents. The present act is nothing but non-renewal of the employment. [SECTION] provides for non-renewal and such non-renewal is held to be excluded from the definition of retrenchment. Both the parties have cited several judgments on the question of retrenchment.
(a) [PRECEDENT]., and [PRECEDENT]., are decisions rendered by the Supreme Court on retrenchment.
(b) [PRECEDENT]).
The Supreme Court has considered the scope of [SECTION] and held that the management did not prove the ingredients of [SECTION].
(c) 1987 Lab. I.C. 1607 (SC).
The Supreme Court has considered the scope of [SECTION] and [SECTION] to rule that [SECTION] cannot be extended to such cases where the job continues and the employee's work is also satisfactory.
(d) [PRECEDENT]., .
This is a case in which Supreme Court ruled termination of temporary employee is in violation of rules of natural justice. In the case on hand, petitioners were not selected as per regulations. Therefore, this judgment is not applicable.
(e) [PRECEDENT]).
The Bombay High Court has noticed that if the post continues and the work continues, clause (bb) cannot be said to operate as a charter for unscrupulous employers to jettison their workmen.
From these judgments what is clear to me is that retrenchment has to be proved and if vacancies are available Courts are to take note of the same notwithstanding [SECTION] of the Act. In the case on hand, the material available on record would show that there exists no job and no vacancy on account of computerisation, and therefore it is not possible for this Court to provide relief as pleaded by the petitioner.
12.2 [SECTION] deals with retrenchment in industrial establishment and it provides for permission. An industrial establishment has been defined in [SECTION] to mean a factory, mine or a plantation. Petitioner would say that the respondent is a factory and the same is disputed by the respondent. In this connection it is pertinent to notice a judgment of the Supreme Court in [PRECEDENT], . The Supreme Court in the said case has noticed a similar plea and ruled as under:
"The process of transforming electrical energy from a high to a low potential and the process of transmitting the energy through supply lines are both manufacturing processes. In a part of the premises occupied by the company the two processes are carried on with the aid of power by means of electrical gadgets and other devices. On the premises more than twenty persons were and are working. No part of the premises is used for purposes unconnected with the manufacturing processes. The premises therefore constitute a factory within the meaning of [SECTION] of the [ACT]. At the same time it could not be contended that every inch of the wide area over which transmission lines are spread is a factory within the meaning of [SECTION]"
In [PRECEDENT], this Court noticed the decision in the case of Nagpur Electric Company, supra and thereafter ruled that the factory is a premises where manufacturing process is carried on. No manufacturing proces's takes place either in the zonal stations or in the sub-stations and the workmen have no part in any manufacturing process.
Material on record would show that petitioners are not working in terms of a factory and therefore it cannot be said that the place of the work of the petitioner can be termed as industrial establishment warranting compliance under [SECTION] of the Act. Therefore, the argument with regard to violation of [SECTION] in the given circumstances and on the facts of this case does not appeal to me.
Violation of [SECTION] and [SECTION] of the [ACT]:
13. Both the learned Counsels vehemently argued that the orders are arbitrary in character. The same is opposed by the respondent. At the outset, I should say that the way in which these engagements have been made pains me. A Public Sector without reference to the Rules has engaged these clerks and they have continued them fairly for a long time. But, however, I should notice as to whether these engagements is arbitrary in the given circumstances, Most of the petitioners were doing some ledger work and they were engaged by way of contract or by way of payment to meet the exigencies of work. Computerisation has taken place and nobody could deny the factum of computerisation. In fact an affidavit dated 23-1-2004 has been filed by the Board and in the affidavit the Board has stated that it has incurred Rs. 6,92,50,000/- towards computerisation. In the proceedings dated 5-3-2002 the Board has decided to re-deploy the excess revenue staff in the light of computerisation. The Board has also taken a policy decision on 16-7-2003 to dispense with the existing system of maintaining ledgers with effect from 1-8-2003. Various circulars filed before this Court also would show that computerisation has taken place as a matter of fact. An affidavit filed by the Board would show that even regular clerks are deployed to some other agency on account of computerisation. Computerisation has become the order of the day. No organisation is free from computerisation. Therefore taking note of an over all view of the matter, it cannot be said that there is any arbitrariness in introducing computerisation and as a consequence, disengaging these personnel. Therefore, though this Court has all the sympathies for this workmen, no further engagement can be granted in the light of computerisation as a whole by the Board.
13.1 At this stage, I must also notice a judgment of the Supreme Court in [PRECEDENT], Judge of the Second Industrial Tribunal, Calcutta and Ors. . In the said judgment, the Supreme Court notice in para 12 as under:
"In [PRECEDENT], this Court held that if a scheme of reorganisation has been adopted by an employer for reasons of economy or convenience and it has been introduced in all the areas of its business, the fact that its implementation would lead to the discharge of some of the employees would have no material bearing on the question as to whether the scheme was adopted by the employer bona fide or not. In the circumstances, an industrial Tribunal considering the issue relating to retrenchment, should not attach any importance to the consequences of reorganisation. The resulting discharge and retrenchment would have to be considered as an inevitable, though unfortunate, consequence of such a scheme".
After noticing the judgment in Macropollo and Company's case the Supreme Court ruled in para [SECTION] as under:
"It is well-established that it is within the managerial discretion of an employer to organise and arrange his business in the manner he considers best. So long as that is done bona fide it is not competent of a Tribunal to question its propriety. If a scheme for such reorganisation results in surplusage of employees no employer is expected to carry the burden of such economic dead weight and retrenchment has to be accepted as inevitable, however unfortunate it is".
13.2 It true that [SECTION] provides for a meaningful life in terms of the [ACT] but the right of the employer in a given circumstances cannot be lost sight of.
Regularisution/Absorption:
[SECTION]. Petitioners plea is one of regularisation or absorption in the service of the Board notwithstanding the haphazard engagement by the Board. Several judgments have been cited at the Bar.
(a) [PRECEDENT], .
This case deals with a notification issued under the [ACT].
(b) [PRECEDENT], .
This is a case in which large number of extra temporary posts were created for a short period. The Supreme Court ruled in that case in para 18 the case of the petitioners can be considered as and when regular vacancies arise if such employees are otherwise qualified and eligible for these posts.
(c) [PRECEDENT]., .
The Supreme Court considered the question of regularisation in that case. The Court ruled daily waged employees ought to have been absorbed in the existing post in accordance with rules and if necessary by relaxing the qualifications and by creating necessary number of posts. The Court noticed in para 31 that where very large number of workers are required to be absorbed, this Court accepted the formula in the past to absorb such employees under a scheme in a phased manner.
(d) Daily Rated Casual Labour Employed under Post and Telegram Department through [PRECEDENT], .
In this case the Court considered equal pay for equal work. The Court ruled that a scheme is to be prepared for absorption of casual labourers continuously working in the department for more than one year.
(e) [PRECEDENT], .
In this case the Supreme Court ruled that the State Government has to consider the case of ad hoc appointees.
(f) [PRECEDENT], .
This is a case in which the Supreme Court has ruled that the termination of service not only affects the livelihood of the employees but also their dependents.
(g) [PRECEDENT]. .
The Supreme Court noticed the [ENTITY] and thereafter the Court noticed at page 796 as under:
"Although there is the [ACT] which requires recruitment on the basis of registration in the Employment Exchange, it has become a common practice to ignore the Employment Exchange and the persons registered therein, and to employ and get employed directly those who are either not registered with the Employment Exchange or who though registered are lower in the long waiting list in the employment register. The Courts can take judicial notice of the fact that such employment is sought and given directly for various illegal consideration including money. The employment is given first for temporary periods with technical breaks to circumvent the relevant rules, and is continued for 240 or more days with a view to give the benefit of regularisation knowing the judicial trend that those who have completed 240 or more days are directed to be automatically regularised. A good deal of illegal employment market has developed resulting in a new source of corruption and frustration of those who are waiting at the Employment Exchanges for years. Not all those who gain such back-door entry in the employment are in need of the particular jobs. Though already employed elsewhere, they join the jobs for better and secured prospects. That is why most of the cases which come to the Courts are of employment in Government Departments, Public undertakings or agencies. Ultimately it is the people who bear the heavy burden of the surplus labour. The other equally injurious effect of indiscriminate regularisation has been that many of the agencies have stopped undertaking casual or temporary works though they are urgent and essential for fear that if those who are employed on such works are required to be continued for 240 or more days have to be absorbed as regular employees although the works are time-bound and there is no need of the workmen beyond the completion of the works undertaken. The public interests are thus jeopardised on both counts".
The Court finally directed the Delhi Administration to keep them on a panel for future vacancies.
(h) J and [PRECEDENT]., The Supreme Court ruled that ad hoc appointment can be made in exercise of executive power.
(i) [PRECEDENT], The Supreme Court ruled in paras 13 and [SECTION] as under:
"The question of confirmation or regularisation of an irregularly appointed candidate would arise if the candidate concerned is appointed in an irregular manner or on ad hoc basis against an available vacancy which is already sanctioned. But, if the initial entry itself is unauthorised and is not against any sanctioned vacancy, the question of regularising the incumbent on such a non-existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given it would be an exercise in futility. Under these circumstances there was no occasion to regularise them or to give them valid confirmation. The so-called exercise of confirming these employees, therefore, remained a nullity. It is not possible to agree with the appellants' contention that the vacancies on the scheme had nothing to do with regular posts. Whether they are posts or vacancies they must be backed up by budgetary provisions so as to be included within the permissible infrastructure of the scheme. Any posting which is de hors the budgetary grant and on a non-existing vacancy would be outside the sanctioned scheme and would remain totally unauthorised. No right would accrue to the incumbent of such an imaginary or shadow vacancy".
(j) [PRECEDENT]., In this case the Supreme Court ruled that no direction would lie to compel the employer to keep posts/employees needed no longer.
(k) [PRECEDENT]., The Supreme Court ruled that when posts temporarily created for fulfilling the needs of a particular project or scheme limited in its duration comes to an end, person employed in such scheme cannot claim regularisation of service.
(1) [PRECEDENT] (sic).
A Division Bench of this Court ruled as under:
"(d) even if the State Government could be found to be guilty of regularising any illegal appointment of any section of daily wages employees pursuant to any misconceived policy decision by exercising its alleged executive powers in derogation of statutory provisions on any occasion in the past that cannot form a basis for claiming equality under [SECTION] of the [ACT] since equality can be claimed only vis-a-vis legal acts and not illegal acts".
(m) [PRECEDENT]., Another Division Bench of this Court has ruled that regularisation can be done for those who have served on daily wage basis for more than 10 years.
(n) [PRECEDENT]., The Supreme Court has ruled that while being sympathetic to the persons who come before the Court, the Courts cannot at the same time be unsympathetic to the large number of eligible persons waiting for a long time in a long queue seeking employment.
(o) Centre for Development of Telematics, New Delhi v. D. Suresh and Ors., 2003(5) Kar. L.J. [SECTION]3 (D[SECTION] : (D[SECTION] This Court has recently held that when respondents were engaged for a time-bound activity they cannot seek reinstatements when the work of the scheme had come to an end.
After noticing all these judgments, what is clear to me is that if illegal appointments are made or if illegal entries are created, then such illegal appointments/entries cannot be regularised by Courts of law contrary to legal provisions. It is also clear to this Court that if the appointments are irregular in character, there can be a scheme that could be framed providing for consideration for future vacancies subject to fulfilling certain requirements. This Court is also clear in its view that if posts are not available then no relief can be granted. In the case on hand, and on the facts of this case, I find that the Board has no vacant posts consequent upon its decision to computerise the revenue section in terms of the material placed by the Board. They have also deployed the regular employees to other sections. Therefore, there exists no vacancy in terms of the material available on record for the purpose of regularisation. In my view these persons are not strictly appointed in accordance with law but they were engaged for a fixed period for ledger work pending computerisation. In these circumstances no straightaway relief of regularisation can be granted and instead a scheme would be an answer in this case.
Relief:
[SECTION]. This case involves several young faces being deprived of their engagement resulting in their livelihood. Large scale of unemployment is prevailing in the State. Several persons are waiting in queues in employment exchanges. This Court as pointed out by the Apex Court has to weigh the circumstances and provide relief in terms of the law governing these matters. In such circumstances, the Apex Court and this Court have provided a scheme for providing employment to these persons in the event of any future vacancy that may arise in the respondent-Company. The scheme would be as under:
(i) The Board is to draw immediately the list of employees with particulars who are disengaged in terms of the impugned order.
(ii) Seniority is to be maintained in terms of their entry into service.
(iii) While providing future employment, reservation policy of the Government has to be strictly adhered to.
(iv) As when vacancy arises, the same may be notified and in the event of these petitioners applying in terms of the notification, the Board is to provide preference in terms of the seniority list maintained by them in terms of the scheme.
(v) The engagement in case of future vacancy is subject to the petitioners being found medically fit by the Board and subject to their eligibility and having necessary qualification. Their cases are to be considered not only for these jobs but also for other jobs in the light of the memo filed in this Court.
(vi) Age relaxation is to be provided.
The respondents are directed to prepare the scheme within eight weeks from the date of receipt of a copy of this order for the purpose of future vacancy.
[SECTION].1 At the time of arguments it is also brought to my notice that the provisions of [SECTION] of the [ACT]. In these circumstances, I deem it proper to observe that the Government may take appropriate steps in terms of [SECTION] by way of appropriate direction for consideration of these petitioners for future vacancies in other companies in the larger interest of solving the unemployment problem in terms of the scheme.
[SECTION].2 At the time of arguments it is brought to my notice that some of the employees are factually doing the computer work and not merely the ledger work. The same is denied by the Board. In these circumstances, notwithstanding this order, I deem it proper to direct those petitioners who are factually working on computers to file an appropriate representation with appropriate details to the Board within four weeks from today. The Board is to verify the details and provide employment subject to availability within eight weeks thereafter.
[SECTION].3 I also deem it proper to observe that in the event of the Board requiring any additional personnel for conducting computer work and if any of these personnel are fit enough to do the job with training, the Board in its discretion may consider providing training to these disengaged persons, to fight unemployment and for better trained, experienced persons in computer department.
[SECTION].4 Before concluding I also deem it proper to make some observations. India is highly populated country. Large number of unemployed youth are waiting for employment. Large number of young men are coming out of educational institutions with the fond hope of a future if not a bright future. They accept whatever employment provided to them to maintain themselves. It has come to the notice of this Court that the Government and Government Agencies do engage these employees and provide them a fond hope of continuation and that hope gets dashed as in the present case. A complaint is always levied that computerisation results in unemployment. Computerisation is welcome on account of various advantages. The complaint of unemployment in a vast populated country like ours requires consideration by the Government by going in depth of the problem to arrest this complaint, in terms of the directive principles of providing employment to the needy young men. This observation is made only for the purpose of drawing the attention of the Government to take serious view of the unemployment problem on account of computerisation as alleged and take such remedical steps as are necessary for providing a meaningful life in terms of [SECTION] of the [ACT] to the needy and deprived of this Country.
16. The Court also cannot but notice of correspondence with regard to non-receipt of the records in these cases. This tendency has to be arrested, as otherwise some unscrupulous elements would take advantage of such rejection and creates a havoc not only to the jobless youth but also to the Company.
17. This Court issued an interim order from time to time. The Board stated that they have no work to provide to these workmen. This Court at that time ruled that payment of wages would be considered at the final hearing stage. In these circumstances, I deem it proper to direct the Board to verify from the records as to how many of the workmen have factually worked till the date of this judgment and on verification if it is found that if any workmen have factually worked they may be granted wages as before.
18. In the result the following order is passed: These petitions stand rejected subject to.
(i) A direction to frame a scheme in terms of the direction in para [SECTION]. (ii) A direction in terms of [SECTION] of the Act in terms of para [SECTION].1 (iii) Representation and reply in terms of para [SECTION].2 and training in terms of para [SECTION].3.
(iv) A direction in terms of para 17. Respective parties to bear their respective costs.