Supreme Court of India

State Of Haryana And Ors. Etc. Etc vs Piara Singh And Ors. Etc. Etc on 12 August, 1992

Equivalent citations: 1992 AIR 2130, 1992 SCR (3) 826, AIR 1992 SUPREME COURT 2130, 1992 (4) SCC 118, 1992 AIR SCW 2315, 1992 LAB. I. C. 2168, (1992) 3 SCR 826 (SC), 1992 (2) UJ (SC) 692, 1992 (3) SCR 826, (1992) 5 JT 179 (SC), 1992 (2) UPLBEC 1353, 1992 SCC (L&S) 825, (1993) 83 FJR 173, (1993) 2 LABLJ 937, (1992) 2 LAB LN 1037, (1992) 2 PUN LR 547, (1992) 3 SCJ 416, (1992) 4 SERVLR 770, (1992) 2 UPLBEC 1353, (1992) 2 CURLJ(CCR) 557, (1992) 2 CURLR 890

Author:
B.P. Jeevan Reddy

Bench:
B.P. Jeevan Reddy
,
A.M. Ahmadi
,
Kuldip Singh

PETITIONER:
STATE OF HARYANA AND ORS. ETC. ETC.

Vs.

RESPONDENT:
PIARA SINGH AND ORS. ETC. ETC.

DATE OF JUDGMENT12/08/1992

BENCH:
JEEVAN REDDY, B.P. (J)
BENCH:
JEEVAN REDDY, B.P. (J)
AHMADI, A.M. (J)
KULDIP SINGH (J)

CITATION:
1992 AIR 2130 1992 SCR (3) 826
1992 SCC (4) 118 JT 1992 (5) 179
1992 SCALE (2)384

ACT:
Civil Services :
Constitution of India, 1950:

Articles 14
, 16
, 32
, 136
, 226
and
309-

Regularisation/absorption of adhoc and temporary employees
of State Governments and work-charged employees, daily
wage workers and casual labour-Directions of High Court-
Justification of-Orders of State Government prescribing
eligibility criteria for regularisation-Whether arbitrary,
unreasonable and discriminatory-Interference by Court in
service matters-when warranted-Guidelines for regularisation
issued.

HEADNOTE:
Over the last several years a large number of
appointments were made to Class III and IV services in the
two appellant State on ad hoc basis, i.e., without reference
to Public Service Commission or the Subordinate Services
Selection Board and without adhering to employment exchange
requirement. As a result, a large number of ad hoc
employees were continuing for several years without being
regularised and were agitating for their regularisation. To
meet the situation, both the appellant Governments issued
orders from time to time for regularisation of such
employees subject to certain conditions.
In pursuance of these orders a number of persons, who
satisfied the conditions prescribed in each of those order s
were regularised, but many could not be, for the reason that
they did not satisfy one or the other of the conditions
prescribed in the said orders. They were, however, allowed
to continue in service. This category of people approached
the High Court praying for issuance of writ, order or
direction for regularisation of their service. They
contended that the conditions in the said orders were
arbitrary, discriminatory and unrelated to the object.
The work-charged employees, daily-wagers, casual labour
and those
employed in temporary/time-bound projects also approached
the High Court for regularisation of their services. Some
of the petitioners also pleaded for equal pay for equal
work.
Accepting the pleas of the petitioners, the High Court
gave certain directions to the appellant-States for
regularisation of these employees.
Aggrieved by the High Court's orders, the two appellant
States filed appeals before this Court. Some of the
employees also filed Writ Petitions before this Court
directly, contending that they too were governed by the
directions given by the High Court and that they should be
given the benefit of the same.
On behalf of the appellants the validity and
correctness of the directions given by the High Court were
questioned on the grounds that the High Court had exceeded
its jurisdiction in virtually amending the Government orders
and was not justified in holding that the fixation of a
particular date in the respective Government orders was
arbitrary and/or that it was unrelated to the object sought
to be achieved; that the High Court also erred in holding
that the requirement of having been sponsored by the
Employment Exchange was invalid; that the High Court was not
justified in directing that all persons who had put in one
year's service should be regularised unconditionally; and
that such a direction would given rise to several
difficulties and complications for the administration, that
there could be a direction for regularisation, without a
post or a vacancy and the Government could not be directed
to create posts without number, and it was beyond the
capacity of any Government to comply with such directions;
that the direction with respect to work-charged
establishment, casual labour and daily wagers equally
unsustainable in law; that the rule prescribing minimum
qualifying service of one year in one State could not be
thrust upon the other State; that because of the directions
in question, while regularly selected persons would be kept
out of jobs, unqualified ineligible persons who had come
through back door and whose records of service might also
not be satisfactory would be regularised at one go and the
rule of reservation would also be violated and that it was
the prerogative of the Executive to create and abolish
posts, and that the Government could not be compelled to
create posts where there was no need for such posts or where
the need is no longer there.
It was contended on behalf of the respondents and the
writ petitioners that the directions had been given with a
view to curb the arbitrariness of the authorities and with a
view to give a satisfactory solution to a human problem
created by the policies of the Governments themselves, that
the work-charged employees should be treated on par with ad-
hoc employees and ought to be regularised on the 1st of
April of each year, and all those persons who where working
in the permanent posts ought to be regularised.
Disposing of the cases, this Court,
HELD : 1.1. Ordinarily speaking, the creation and
abolition of a post is the prerogative of the Executive. It
is the Executive again that lays down the conditions of
service subject, of course, to a law made by the appropriate
legislature. This power to prescribe the conditions of
service can be exercised either by making Rules under the
proviso to
Article 309
of the Constitution or (in the
absence of such Rules) by issuing Rules/Instructions in
exercise of its executive power. The court comes into the
picture only to ensure observance of fundamental rights,
statutory provisions, Rules and other instructions, if any,
governing the conditions of service. The main concern of
the court in such matters is to ensure the Rule of law and
to see that the executive acts fairly and gives a fair deal
to its employees consistent with the requirements of

Articles 14
and
16.
It also means that the State should not
exploit its employees nor should it seek to take advantage
of the helplessness and misery of either the unemployed
persons or the employees, as the case may be. [847 F-H]
1.2. The State must be a model employer. It is for this
reason it is held that equal pay must be given for equal
work, which is indeed one of the directive principles of the
Constitution and that a person should not be kept in a
temporary or ad hoc status for long. [848A]
1.3. Where a temporary or ad hoc appointment is
continued for long, the court presumes that there is need
and warrant for a regular post and accordingly directs
regularisation. While all the situations in which the court
may act to ensure fairness cannot be detailed, it is
sufficient to indicate that the guiding principles are the
ones indicated above. [848B]
Dharwad Distt. P.W.D. Literature Daily Wage Employees'
Association v. State of Karnataka and Ors., [1990] 2 S.C.C.
396 and Jacob v. Kerala
Water Authority, [1990] Suppl. 1 S.C.R. 562, referred to.
2.1. The court must, while giving directions, act with
due care and caution. It must first ascertain the relevant
facts, and must be cognizant of the several situations and
eventualities that may arise on account of such directions.
A practical and pragmatic view has to be taken, inasmuch as
every such direction not only tells upon the public
exchequer but also has the effect of increasing the cadre
strength of a particular service, class or category.
[852A,B]
2.2. In the instant case apart from the fact that the
High Court was not right in holding that the several
conditions imposed by the two Governments in their
respective orders relating to regularisation were arbitrary,
not valid and justified, it acted rather hastily in
directing wholesome regularisation of all such persons who
have put in one year's service, and that too
unconditionally. Several problems will arise if such
directions become the norm. Therefore, there is need for
fulled consideration and due circumspection while giving
such directions. [852C]
3.1. The Government orders in question were issued by
the Government from time to time. These orders are not in
the nature of a statute which is applicable to all existing
and future situations. They were issued to meet a given
situation facing the Government at a given point of time. In
the circumstances, therefore, there was nothing wrong in
prescribing a particular date by which the specified period
of service (whether it is one year or two years) ought to
have been put in. [853G]
3.2. The first order dated 1st January, 1980 issued by
one of the States says, a person must have completed two
years of service as on 31st December, 1979, i.e., the day
previous to the issuance of the order. It cannot be said
that fixing of such a date is arbitrary and unreasonable.
Similarly, the order dated 3rd January, 1983 fixes 15th
September, 1982 as the relevant date. This
notification/order does two things. Firstly, it excludes
Class III posts of clerks from the purview of the S.S.S.B.
in case of those who have completed a minimum of two years
of service as on 15th September, 1982, and secondly, it
provides for their regularisation subject to certain
conditions. No particular attack was made as to this date
in the High Court. Consequently, the Government had no
opportunity of explaining as to why this particular date was
fixed. Without giving such an opportunity it cannot be held
that the fixation of the said date is arbitrary.
What is more relevant is that the High Court has not held
that this particular date is arbitrary. According to it,
fixation of any date whatsoever was arbitrary, because, in
its opinion, the order must say that any and every person
who completes the prescribed period of service must be
regularised on completion of such period of service. The
next order dated 24th March, 1987 prescribes the date as
31.12.1986. i.e., the end of the previous year. In the
circumstances, there is no basis for holding that fixation
of the date can be held to be arbitrary in the facts and
circumstances of the case. [854A-D]
Dr. Sushma Sharma v. State of Rajasthan, [1985] S.C.
1367 and Inder Pal Yadav & Ors. etc. v. Union of India &
Ors. etc., [1985] 3 S.C.R. 837, referred to.
3.3. The Government orders say that all those who had
been sponsored by Employment Exchange or had been appointed
after issuing a public advertisement alone be regularised.
There is no unreasonableness or invalidity in the same. It
is a reasonable and wholesome provision and a requirement
designed to curb and discourage back door entry and
irregular appointments and ought not to have been
invalidated. Moreover, these are not cases where the writ
petitioners were appointed only after obtaining a non-
availability certificate from the Employment Exchange.
[855E-F]
Union of India v. Hargopal, 1987 S.C. 1227, referred to.
3.4. The further requirement prescribed in the orders,
viz., that the employees must have possessed the prescribed
qualifications for the post at the time of his appointment
on ad hoc basis is equally a valid condition. [855G-H]
3.5. The High Court was not justified in holding that
inasmuch as the two States were sister States and because
prior to 1966 one State was a part of the other State, the
rule relating to length of service requisite for
regularisation should be uniform in both the States. They
are two different States having their own Governments;
merely because one Government chooses to say that one year's
temporary ad hoc service is enough for regularisation it
cannot be said that the other State must also prescribe the
very same period or that it cannot prescribe a longer or
shorter period. The fact that there is a single High Court
for both the States and
the Union Territory of Chandigarh is no ground for saying
that the orders issued by them should be uniform. [856A-C]
3.6. It is not necessary to alter or modify the
directions of the High Court, in so far as one of the States
was concerned, that Class III and IV posts which were within
the purview of the S.S.S.B. should equally be within the
purview of regularisation orders issued by it. If any of the
petitioners have been excluded from consideration (for
regularisation) on the basis that most of the Class III and
IV posts were kept out of the purview of the S.S.S.B. they
may be considered and appropriate orders passed. [856D-E]
3.7. The High Court was also not justified in giving the
direction that all those ad hoc/temporary employees who had
continued for more than one year should be regularised. The
direction has been given without reference to the existence
of a vacancy. It, in effect, means that every ad
hoc/temporary employee who has been continued for one year
should be regularised even though (a) no vacancy is
available for him - which means creation of a vacancy (b) he
was not sponsored by the Employment Exchange nor was he
appointed in pursuance of a notification calling for
applications which means he had entered by a back-door (c)
he was not eligible and/or qualified for the post at the
time of his appointment and (d) his record of service since
his appointment is not satisfactory. Moreover, from the
mere continuation of an ad hoc employee for one year, it
cannot be presumed that there is need for a regular post.
Such a presumption may be justified only when such
continuance extends to several years. Further, there can be
no `rule of thumb' in such matters. Conditions and
circumstances of one unit may not be the same as of the
other. Just because in one case, a direction was given to
regularise employees who have put in one year's service as
far as possible and subject to fulfilling the
qualifications, it cannot be held that in each and every
case such a direction must follow irrespective of and
without taking into account the other relevant circumstances
and considerations. The relief must be moulded in each case
having regard to all the relevant facts and circumstances of
that case. It cannot be a mechanical act but a judicious
one. Judged from this stand point, the directions under
challenge must be held to be totally untenable and
unsustainable. [856F-H; 857A-C]
3.8. So far as the members of the work-charged establishment
are
concerned, though the work-charged employees are denied
certain benefits, they are industrial workers and are
entitled to the benefits of the provisions contained in the

Industrial Disputes Act
. Their rights flow from that special
enactment under which even contracts of employment are open
to adjustment and modification. The work-charged employees,
therefore, are in a better position than temporary servants
like the other petitioners who are liable to be thrown out
of employment without any kind of compensatory benefits.
[857D, 858A-B]
Jaswant Singh v. Union of India, [1980] 1 S.C.R. 426,
referred to.
3.9. In view of the orders issued on 24th March, 1987
and 6th April, 1990 by one of the States, the direction
given by the High Court becomes unnecessary. Though no
orders have been issued in this regard by the other States,
a scheme of regularisation of these employees is stated to
have been prepared by that State in pursuance of the
judgment under challenge. The said scheme is, however, not
made conditional upon the result of these appeals against
the judgment. The scheme is a reasonably fair one. It is
hoped and trusted that irrespective of the result of these
appeals, the said scheme would be given effect to by the
other State concerned.[858C-D]
3.10. The High Court has directed that all those
employees who fell within the definition of `workmen'
contained in the
Industrial Disputes Act
would also be
entitled to regularisation on par with the work-charged
employees and that they should be regularised on completing
five years of service in one State and four years of
service in the other State. This direction is given in
favour of those casual labour and daily wagers who fall
within the definition of workmen. Insofar as work-charged
employees, daily-wage workers and casual labourers who did
not fall within the definition of work-men are concerned,
the High Court has directed their regularisation on
completion of one year's service. This direction is as
untenable as in the case of ad hoc/temporary employees. The
direction regarding persons belonging to the above
categories and who fall within the definition of workmen,
the terms in which the direction has been given cannot be
sustained. While it is true that persons belonging to these
categories continuing over a number of years have a right to
claim regularisation and the authorities are under an
obligation to consider their case for regularisation in a
fair manner, keeping in view the prin-
ciples enunciated by this Court, the blanket direction given
cannot be sustained. However, in view of the orders of one
of the State Governments contained in the letter dated
6.4.1990 which provided for regularisation of these persons
on completion of ten years, no further directions are called
for at this stage. The other State Government, of course,
has not issued any such orders governing these categories.
Accordingly, the State Government concerned should verify
the vacancy position in the categories of daily-wagers and
casual labour and frame a scheme of absorption in a fair and
just manner providing for regularisation of these persons,
having regard to their length of service and other relevant
conditions. As many persons as possible shall be absorbed.
The scheme should be framed within six months. [858F-H; 859
A-C]
4. Further orders had been issued by one of the State
Governments, after the filing of the writ petitions and
during the pendency of the Special Leave Petitions in this
Court for regularisation of ad hoc/work-charged employees.
The other State Government has agreed by an affidavit before
this Court, to adopt the same mutatis mutandis so far as
Class III employees are concerned. It is hoped that many of
the employees would get regularised under the orders
aforementioned issued by both the Governments. [859D, 865F,
867E]
5.1. The instant case is not a case where the
Governments have failed to take any steps for regularisation
of their ad hoc employees working over the years. Every few
years they have been issuing orders providing for
regularisation. In such a case, there is no occasion for the
court to issue any directions for regularising such
employees more particularly when none of the conditions
prescribed in the said orders can be said to be either
unreasonable, arbitrary or discriminatory. The court cannot
obviously help those who cannot get regularised under these
orders for their failure to satisfy the conditions
prescribed therein. Issuing general declaration of
indulgence is no part of jurisdiction of this Court. In case
of such persons it is for the respective Governments to
consider the feasibility of giving them appropriate relief,
particularly in case where persons have been continuing over
a long number of years, and were eligible and qualified on
the date of their ad hoc appointment and further whose
record of service is satisfactory. [867 F-H]
5.2. The normal rule, is regular recruitment through the
prescribed
agency but exigencies of administration may sometimes call
for an ad hoc or temporary appointment to be made. In such a
situation, effort should always be to replace such an ad
hoc/temporary employee by a regularly selected employee as
early as possible. Such a temporary employee may also
compete along with others for such regular
selection/appointment. If he gets selected, well and good,
but if he does not, he must give way to the regularly
selected candidate. The appointment of the regularly
selected candidate. The appointment of the regularly
selected candidate cannot be withheld or kept in abeyance
for the sake of such an ad hoc/temporary employee. Secondly,
an ad hoc or temporary employee should not be replaced by
another ad hoc or temporary employee; he must be replaced
only by a regularly selected employee. This is necessary to
avoid arbitrary action on the part of the appointing
authority. Thirdly, even where an ad hoc or temporary
employment is necessitated on account of the exigencies of
administration, he should ordinarily be drawn from the
employment exchange unless it cannot brook delay in which
case the pressing cause must be stated on the file. If no
candidate is available or is not sponsored by the employment
exchange, some appropriate method consistent with the
requirements of
Article 16
should be followed. In other
words, there must be a notice published in the appropriate
manner calling for applications and all those who apply in
response thereto should be considered fairly. An unqualified
person ought to be appointed only when qualified persons are
not available through the above processes. If for any
reason an ad hoc or temporary employee is continued for a
fairly long spell, the authorities must consider his case
for regularisation provide he is eligible and qualified
according to rules and his service record is satisfactory
and his appointment does not run counter to the reservation
policy of the State. [868D-H; 869A-C]
5.3. The proper course would be that each State prepares
a scheme, if one is not already in vogue, for regularisation
of such employees consistent with its reservation policy and
if a scheme is already framed, the same may be made
consistent with the observations herein so as to reduce
avoidable litigation in this behalf. If and when such person
is regularised he should be placed immediately below the
last regularly appointed employee in that category, class or
service, as the case may be. [869D]
5.4. So far as the work-charged employees and casual
labour are concerned, the effort must be to regularise them
as far as possible and as
early as possible subject to their fulfilling the
qualification, if any, prescribed for the post and subject
also to availability of work. If a casual labourer is
continued for a fairly long spell - say two or three years -
a presumption may arise that there is regular need for his
services. In such a situation it becomes obligatory for the
concerned authority to examine the feasibility of his
regularisation. While doing so, the authorities ought to
adopt a positive approach coupled with an empathy for the
person. Security of tenure is necessary for an employee to
give his best to the job. In this behalf, this Court
commends the orders of one of the State Governments,
contained in its letter dated 6.4.1990 both in relation to
work-charged employees as well as casual labour. [869 E-G]
5.5. The orders issued by both the Governments providing
for regularisation of ad hoc/temporary employees who have
put in two years/one year of service are quite generous and
leave no room for any legitimate grievance by any one.
[869H]
5.6. These observations are not exhaustive nor can they
be understood as immutable. Each Government or authority has
to devise its own criteria or principles for regularisation
having regard to all the relevant circumstances, but while
doing so, it should bear in mind the observations made
herein. [870 A-B]
6.1. So far as the employees and workmen employed by
Statutory/Public Corporations are concerned, they have not
issued any orders akin to those issued by the two State
Governments. Even so, it is but appropriate that they adopt
as far as possible, keeping the exigencies and requirements
of their administration in view, the criteria and principles
underlying the orders issued by their Government in the
matter of regularisation and pass appropriate orders. The
orders contained in the letter dated 6.4.1990, as
supplemented by the orders in the Notification dated
28.2.1991 issued by one of the States should be followed by
the Statutory/Public Corporations located in that State,
whereas the Statutory/Public Corporations located in the
other State should follow the criteria and principles stated
in the affidavit of the Government of that State filed
before this Court. [870 C-D]
6.2. These directions would not, however, apply to these
Statutory/Public Corporations, functioning within these
States as are under the control of the Government of India.
These Corporations would evolve an
appropriate policy of regularisation in the light of this
judgment, if they have not already evolved one, or make
their existing policy consistent with the judgment to avoid
litigation. [870E]
7. As regards, equal pay for equal work, the judgment is
singularly devoid of discussion. The direction given by the
High Court is totally vague. It does not make it clear who
will get what pay and on what basis. Hence, this direction
is set aside.
Delhi Development Horticulture Employees' Union v. Delhi
Administration, (1992) 1 J.T. 394, referred to.

JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2979 of
1992 etc.etc.
From the Judgment and order dated 26.9.1988 of the
Punjab and Haryana High Court in C.W.P. No. 72 of 1988.
H.L. Sibal, D.S. Tewatia, D.S. Mehra, M.S. Gujral, M.K.
Ramamurthy, Hardev Singh, K.T.S. Tulsi, S.K. Bagga, S.P.
Goyal, J.K. Sibal, H.S. Mattewal, Adv. Genl. Punjab, Mrs.
Jai Shree Ananda, D.A.G., Punjab, Rajesh, S.K. Mehta, Dhruv
Mehta, Aman Vachher, H.S. Munjral, G.K. Bansal, H.S. Sohal,
P.P. Singh. Ms. Mridula Ray, Kartar Singh, H.M. Singh, S.C.
Paul, R.K. Agnihotri, G.K. Chatrath, P.L. Syngal, N.A.
Siddiqui, R.K. Kapoor, Syed Ali Ahmed, K.C. Bajaj, Ms.
Rupinder Sodhi Daulat, M.R. Bidsar, K.K. Gupta, Syed
Tanweer Ahmed, Mohan Pandey, Jitender Sharma, Naresh
Kaushik, Mrs. Lalitha Kaushik, Shankar Divate, S.S.
Khanduja, Yash Pal Dhingra, Baldev Krishan Satija, Kirpal
Singh, R.D. Upadhyay, S.N. Bhardwaj, J.D. Jain, S. Bala
Krishnan, Ms. Madhu Mool Chandani, R.S. Sodhi, Prem
Malhotra, Mrs. J.S. Wad, S.D. Sharma, B.S. Gupta, Ms.
Geetanjali Mohan, A.K. Mahajan, S.K. Gambhir, T.N. Singh,
B.M. Sharma, N.K. Aggarwal, S.M. Ashri, A.K. Goel, N.N.
Sharma, M.K. Dua, E.C. Agarwala, Ms. Kamini Jaiswal, C.V.
Subba Rao, K.R. Nagaraja, Manoj Swarup, P.K. Chakraborty,
P.N. Puri, Ashok Grover, P. Gaur, Mrs. Chandan Ramamurthi,
M.A. Krishnamoorthy, B.S. Malik, Pankaj Kalra, A.M.
Khanwilkar, Dr. Meera Aggarwal, R.C. Misra, Gian Singh, S.C.
Patel, M/s Mitter & Mitter & Co., M/s Agarwal Mishra & Co.
Mahabir Singh, R.C. Kaushik, K.K. Mohan, Mrs. Naresh Bakshi,
R.S. Suri, Sudershan Goel, R.K. Chopra, Ravinder Chopra,
Mrs. Sureshtha Bagga, Sanjay Bansal, Ms. Kanwaljit Kochhar,
Ms. Indu Malhotra, R.C. Gubrele, Ms. Renu George,
R.P. Sharma, D.K. Garg, Vishnu Mathur, Ms. Madhu Tewatia,
Ms. Kamakshi S. Mehlwal, Indeevar Goodwill, Ranbir Singh,
Ms. Savita Prabhakar, Ujjal Singh, Ms. Kusum Choudhary, J.L.
Puri, T.S. Arora for the appearing parties. Ramesh Chand and
Kuldeep Singh appeared in person.

The Judgment of the Court was delivered by
B.P. JEEVAN REDDY,J. 1. This batch of Special Leave
Petitions are directed against the judgment of a Division
Bench of Punjab and Haryana High Court in a batch of writ
petitions, the first among them being Writ Petition (C) No.
72 of 1988 (
Piara Singh and Anr. v. State of Haryana and
Ors.
). A large number of writ petitions arising both the
States of Punjab and Haryana were heard together and a
common judgment delivered giving certain directions in the
matter of regularisation of the adhoc/temporary employees,
members of work charged establishments, daily-wagers, casual
labour and those engaged temporarily in temporary schemes.
We have heard all the counsel appearing in this batch at
quite some length.

Leave granted in all the Special Leave Petitions.

2. Over the last several years a large number of
appointments were made to Class III and IV services in the
States of Punjab and Haryana on ad hoc basis i.e., without
reference to Public Service Commission or the Subordinate
Services Selection Board and without adhering to employment
exchange requirements. They were initially appointed for a
period of six months or so but were continued for years
together under orders passed from time to time. (In so far
as the State of Haryana is concerned, most of the class III
posts in the Education Department were kept out of the
purview of the S.S.S.B. during the period 1970 to 1987. For
a period of 10 years, it is stated, there was no Board in
existence in the State. Only in March 1987, almost all the
posts in Education Department and other Departments were
brought within the purview of the S.S.S.B.). As a result of
the above policy, a large number of ad hoc employees came
into existence in both the States, who were continuing over
several years without being regularised and were agitating
for their regularisation. To meet the situation, both the
Governments issued orders from time to time for
regularisation of such employees subject to certain
conditions. The orders issued by the Government of Punjab
are the following:
S.No. Date of issue Substance of the Order
1 2 3

1. 3.3.1969 Regularisation of ad hoc
employees completing one
year service on 28.2.1969.

2. 29.1.1973 Regularisation of ad hoc
employees completing one
year service on 1.1.1973.

3. 3.5.1977 Regularisation of ad hoc
employees completing one
year service on 1.4.1977.

4. 20.10.1980 Regularisation of ad hoc
employees completing one
year service on
1.10.1980.

5. 20.10.1982 Regularisation of ad hoc
employees completing one
year service on
26.10.1982.

6. 29.3.1985 Regularisation of ad hoc
employees completing two
years service on
1.4.1985.

7. 8.8.1985 Modifying the order issued
on 29.3.1985 and
directing that all Class
III ad hoc employees having
one year service on
1.4.1985 may be
regularised.

8. 1.9.1986 Regularisation of Class
III ad hoc employees
appointed after 1.4.1984.

The orders are issued by the Government of Haryana are
the following:

S.No. Date of issue Substance of Order
1 2 3
1 1.1.1980 Regularisation of all Class
III ad hoc employees who
have completed two years
service on 31.3.1979.
2. 3.1.1983 Regularisation of ad hoc
Clerks in Class III who
have completed two years
service on 15.9.1982.
3. 19.1.1984 Regularisation of Class
III ad hoc employees who
have completed two years
of service on 15.9.1982.
(The employees who were
left out in the orders
dt. 3.1.1983 were brought
within the purview of
this order.)
4. 15.2.1987 Regularisation of all
Class III ad hoc
employees other than
teachers working against
posts which have been
taken out of the
purview of the S.S.S.B.
and who have completed
two years service on
1.11.1986.

In pursuance of the above orders a number of persons who
satisfied the conditions prescribed in each of those orders
were regularised but many could not be. Their services could
not be regularised for the reason that they did not satisfy
one or the other of the conditions prescribed in the said
orders. They were, however, allowed to continue in service.
It is this category of people who approached the High Court
of Punjab and Haryana praying for issuance of Writ, Order of
Direction for regularisation of their service.

3. At this stage, it would be appropriate to notice the
conditions prescribed by the aforesaid orders which were not
satisfied by the writ petitioners and on account of which
they were not regularised. The order of the Government of
Haryana dated 1st January, 1980 prescribed the following
conditions for regularisation:

(1) He must have put in a minimum service to two years
on 31.12.1979.

(2) He must have been recruited through the Employment
Exchange.

(3) The service and conduct of such employee should be
of an overall good category.

(4) He must have possessed the prescribed qualifications
for the post at the time of his appointment on ad hoc basis.

In the Order dated 3rd January 1983, a further
condition, besides the aforesaid conditions, was imposed
viz., that the employee must belong to the category for
which the post stands reserved.

Similarly in the Order dated 29th March, 1985 issued in
the case of Government of Punjab (issued by the President of
India) the conditions prescribed were the following:

(1) He must have completed a minimum of two years
service on 1st
April, 1985.

(2) He must have fulfilled the conditions for
eligibility (academic qualifications, experience and age) at
the time of his first adhoc/temporary appointment.
(3) He must have been recruited through the Employment
Exchange or by open advertisement.
(4) His record of service has been satisfactory.
(5) He is found medically fit for entering the
Government service; his character and antecedent have been
duly verified and found suitable for Government service.
(6) A regular post/vacancy is available for
regularisation.

(7) He has been found fit for regularisation by the
Departmental Selection Committee.
(8) Among the persons regularised, interse seniority
would be observed. All these persons would be placed junior
to those working on regular basis.

These are the conditions common to all the orders issued
from time to time by the Government of Punjab and Haryana.
Only those ad hoc/temporary employees who could not be
regularised for want of satisfying one or the other of the
conditions prescribed in the respective orders that had
approached the High Court by way of Writ Petitions. They
contended that the conditions prescribed in the said orders
were arbitrary, discriminatory and unrelated to the object.
It is this contention which was examined at some length and
accepted by the high court.

4. Besides the ad hoc/temporary employees, certain other
categories of persons also approached the High Court whose
cases too have been dealt with in the judgment under appeal.
They are work-charged employees daily-wagers, casual labour
and those employed in temporary/time-bound projects. They
too wanted to be regularised. A plea of equal pay for equal
work was also advanced by certain petitioners. These pleas
too were considered and upheld.
5. The reasons for which the High Court held the
conditions prescribed in the orders of regularisation
aforementioned, as bad are to the following effect:

(a) VALIDITY OF FIXING A PARTICULAR DATE BY WHICH THE
SPECIFIED PERIOD OF SERVICE SHOULD HAVE BEEN COMPLETED.

The High Court held, "there is no magic in fixing a date
by which an employee was to complete the prescribed tenure
of service for regularisation.......fixing of a date has no
reasonable basis or intelligible differentia for the object
to achieve......following that view (the view taken by this
Court in Inder Pal Yadav, [1985] 3 S.C.R. 837) we hold that
the dates fixed for the policies of regularisation of the
two Governments are discriminatory.......we hold that the
various dates fixed from time to time in their
regularisation policies are hit by
Articles 14
and
of the
Constitution of India."

(b) VALIDITY OF THE REQUIREMENT THAT THE EMPLOYEE SHOULD
HAVE BEEN SPONSORED BY EMPLOYMENT EXCHANGE.

The High Court held that this Court has, in the
Union
of India v. Hargopal
(1987 S.C. 1227), held that "if at a
given moment suitable candidates amongst candidates
sponsored by the Employment Exchanges are not available or
no candidate has been sponsored by the Employment Exchange
and recruitment is made on ad hoc basis from the sources
other than employment exchange, it cannot be said in
regularisation policy that such candidates would not be
entitled to be regularised. The basic policy decision is
that ad hoc employees who have worked for quite some time
and have gained experience should be regularised and in case
they are shunted out, hardship would be caused in numerous
ways.......we find no justification in the policy of
regularisation that the candidates sponsored through the
Employment Exchanges alone would be entitled to
regularisation."
No finding was, however, recorded that the
petitioners or any of them were appointed without reference
to the Employment Exchange only after the Employment
Exchange intimated the concerned authority that no suitable
candidate is available with it.

(c) VALIDITY OF THE REQUIREMENT THAT THE CON-
CERNED POSTS SHOULD NOT BE WITHIN THE PURVIEW OF S.S.S.B.
The High Court held that inasmuch as most of the Class
III and Class IV posts were kept out of the purview of the
S.S.S.B. in the State of Haryana during the period 1970 to
March, 1987 and also because for a period of ten years there
was no S.S.S.B. in existence in this State, imposition of
this condition by the Government of Haryana is unreasonable
and arbitrary.

6. Having expressed the opinions above-mentioned, the
High Court referred to certain decisions of this Court and
of its own, and expressed the view that continuing employees
on adhoc basis for more than one year without regularising
them is arbitrary and unreasonable. This principle was also
held applicable to other categories of employees like daily
wagers, casual labour and others, who were - "workmen" as
defined in the
Industrial Disputes Act
. The court further
opined that inasmuch as the State of Haryana was
prescribing one year's service for regularisation (in its
orders) the Punjab Government cannot prescribe two years
qualifying service. Thus, one year service was declared as
the norm for all such employees to become entitled to
regularisation.

7. The directions ultimately granted by the High Court
while allowing the batch of writ petitions are to the
following effect:

(1) The State Government should avoid making any ad
hoc appointments. If they do so, it shall be for
initial period of six months and not be extended
beyond other six months. If their term is extended
beyond one year, to such employees the benefits
arising from our following conclusions will apply,
according to the group in which they fall.
(2) The Punjab State employees covered by Group
No. 1 would be considered as regular members of the
service on completion of more than one year after
ignoring national and permissible breaks in
service, as noticed by the Supreme Court in various
judgments and also by our Full Banch in Jagdish
Lal's case (supra). However, the concerned
departments would pass orders for their
regularisation and they would be entitled to all
benefits of service from the date of their initial
appointments.
As regards Haryana employees covered by Group No. 1
on completion of two years of service they would be
considered as regular members of service after
ignoring their national and permissible breaks as
noticed by the Supreme Court in various judgments
and also by our Full Bench in Jagdish Lal's case
(supra), and the concerned departments would pass
orders for their regularisation. In case of those,
who have completed more than one year of service,
their services shall not be terminated till the new
policy for regularisation in accordance with our
judgment, is framed, in which a direction has been
issued to re-frame the policy for regularisation on
completion of more than one year of service, and
without the condition which may hamper the policy
of regularisation, irrespective of the fact whether
or not their names were sponsored by the
Employment Exchange or that their posts are within
or outside the purview of the S.S.S.B. In case such
petitioners complete two years, then on completion
of two years, they will be considered as regular
members of service and appropriate orders for their
regularisation will be passed by the concerned
departments, and such employees would be entitled
to all service benefits from the date of their
initial appointments.

(3) The services of work charged, daily wage
workers and casual labourers (other than those who
fall within the definition of workmen under the
1947 act covered by Group III) Serving in the
different departments of Government of Punjab and
Haryana, as also their corporations who have put in
more than one year of service, would continue to
serve and their services will not be dispensed
with. The concerned departments shall frame scheme
for their absorption, as regular employees on
completion of more than one year of service, and
their services shall be regularised under those
schemes. On regularisation they would be entitled
to all service benefits from the date of initial
appointments.

As regards work charged employees, who have
completed five years of service, they shall be
considered to be regular employees under the scheme
of regularisation framed by the State of Punjab and
order for their regularisation shall be
passed. As regards work charged employees of the
State of Haryana, on completion of four years of
service they shall be considered to be regular
under the regularisation scheme framed by the State
and appropriate orders for their regularisation
shall be passed. However, they would be entitled to
all service benefits from the date of initial
appointments.

(4) The persons falling in group (III) are those
who come within the definition of `workmen' under
the 1947 Act. On completion of 240 days, which
shall be counted keeping in view the decision of
the Supreme Court in
The Workmen of American
Express International Bank Corporation v. The
Management of American Express, A.I.R.
1986 S.C.
458, they would be entitled to benefits of all the
provisions of Chapter V-a of the 1947 Act, and
their services should not be dispensed with without
following the procedure laid in that Chapter. For
the purposes of regularisation, what has been
stated for the employees falling in Group II, would
also be applicable to the employees falling in this
group. On regularisation they would be entitled to
the benefits of provisions of the 1947 Act as also
the Service Rules, from the date of their initial
appointments, as applicable to the departments
concerned from time to time.

(5) The ad hoc temporary employees in temporary
organisations like the Adult Education Scheme and
Integrated Child Development Scheme, covered by
Group IV, who have continued in service for more
than one year with national breaks would be
entitled to the benefits of service and benefit of
the directions issued by the Supreme Court in
Bhagwan Dass's case supra, and the service of none
of them would be terminated except on abandonment
of the scheme.

(6) In case services of an employee, who come
within the ambit of Groups I to III, have already
been terminated on the completion of his more than
one year of service, he shall have to be taken back
in service in case of a request being made by him
to the concerned department of the government
before the expiry of three years and two months of
such termination.

Some of the petitioners, who had put in more than
one year of
service are out. They would be reinstated forthwith
with continuity of service and all benefits.
(7) In case some posts are abolished or some
persons are found surplus, junior most would be out
on the rule of Last come first go? But if later on
vacancies arise or posts are created, they will
have to be called back first in the order of
seniority, that is, on the rule of last go first
come and if still some vacancies remain, new
incumbents through S.S.S.B. may be accommodated.
(8) The learned counsel for the State was asked to
point out if the claim made by the petitioners for
equal pay for equal work as being paid to their
counterparts, in view of the decision taken by the
Supreme Court in various cases, was not justified.
He was not able to point out if the claim so made
was not correct. Accordingly, they would be paid
wages as claimed from the date of initial
appointments in service. The arrears should be paid
within six months from today.

It is again made clear that till regularisation
policies are framed as directed by us and
regularisation orders are passed, the employees
shall continue and their services shall not be
terminated."

8. The States of Punjab and Haryana are questioning the
validity and correctness of the above directions in these
appeals. Some employees have also directly approached this
court by way of writ petitions contending that they too are
governed by the directions given by the High Court and
should be given the benefit of the same. The respondents in
these appeals and such writ petitioners are supporting the
judgment and directions aforesaid.

Mr. Sibal, learned counsel for the appellants questioned
the validity and correctness of the directions given by the
High Court on the following grounds:

(1) That the High Court has exceeded its jurisdiction in
virtually amending the Government orders on the subject of
regularisation. The learned Judges were not justified in
holding that the fixation of a particular date in the
respective G.Os. was arbitrary and/or that it was un-related
to
the object. The learned Judges have also erred in holding
that the requirement of have been sponsored by the
employment Exchange was invalid.

(2) The learned Judges were not justified in law in
directing that all persons who have put in one year's
service should be regularised unconditionally. No court has
gone so far nor is there any warrant for giving such a
direction. Such a direction gives rise to several
difficulties and complications for the administration which
were evidently not taken into consideration by the learned
Judges while giving the said directions.
(3) For regularisation, the first pre-condition is that
there must be a vacancy, whether permanent or temporary.

Such a vacancy must either be existing or may be created but
it must be there. There cannot be a direction for
regularisation without a post or a vacancy and the
Government cannot be directed to create posts without
number. It is beyond the capacity of any Government in India
to comply with such directions.

(4) The direction with respect to work-charge
establishment is equally unsustainable in law. So is the
direction with respect to casual labour and daily wagers.
(5) The learned Judges erred in directing the Government
of Punjab to reduce the minimum qualifying service to one
year just because the Haryana Government has been
prescribing only one year's qualifying service in its
orders. Both are independent States and the rule in one
State cannot be thrust upon the other.

(6) Because of the impugned directions, regularly
selected persons are being kept out of jobs. The effect of
the impugned directions is that unqualified ineligible
persons who have come through back door and whose records of
service may also not be satisfactory are all being
regularised at one go. The rule of reservation is also being
violated by the said directions.

(7) It is prerogative of the Executive to create and
abolish posts. The Government cannot be compelled to create
posts where there is no need for such posts or where the
need is no longer there.

(8) The above contentions are supported and reiterated
by the counsel appearing for the State of Punjab.
9. On the other hand, it is contended by the counsel for
the respondents and the counsel for the writ petitioners
that the directions given are perfectly warranted in all the
circumstances of the case and have been given following the
decisions of this court. It is submitted that the said
directions have been given with a view to curb the
arbitrariness of the authorities and with a view to give a
satisfactory solution to a human problem created by the
policies of the Governments themselves. It is submitted by
Shri R.K. Garg that the work-charged employees should be
treated on par with ad hoc employees and ought to be
regularised on the 1st of April of each year. All those
persons who are working in the permanent posts ought to be
regularised, says the counsel. Shri M.K.Ramamurthy,
appearing for the work charged employees contended that the
general concept as to work charge employees, viz., that the
employment is confined to a particular work or project is
not correct. He submitted that this is a legacy left behind
by the British. He submitted that the work charge employees
are employees of the work charge establishment and so long
as once or the other work is there, they should be
continued. Inasmuch as the Government, particularly at the
present stage of development, is never without a project or
work, these employees must also be regularised. Indeed,
according to the counsel the concept of work charge
establishment is a mere matter of accountancy. It is
distinct from project employment. It is really temporary
employment which in the nature of things must be treated as
regular. Other counsel appearing for the respondents in the
appeals and for the writ petitioners supported these
contentions.

10. Ordinarily speaking, the creation and abolition of a
post is the prerogative of the Executive. It is the
Executive again that lays down the conditions of service
subject, of course, to a law made the appropriate
legislature. This power to prescribe the conditions service
can be exercised either by making Rules under the proviso to

Article 309
of the Constitution or (in the absence of such
Rules) by issuing Rules/instructions in exercise of its
executive power. The court comes into the picture only to
ensure observance of fundamental rights, statutory
provisions, Rules and other instructions, if any, governing
the conditions of service. The main concern of the court in
such matters is to ensure the Rule of law and to see that
the executive acts fairly and gives a fair deal to its
employees consistent with the requirements of
Articles 14

and
16.
It also means that the State should not exploit its
employees nor should it seek to take advantage of the
helplessness and misery of either the unemployed persons
or the employees, as the case may be. As is often said, the
State must be a model employer. It is for this reason, it is
held that equal pay must be given for equal work, which is
indeed one of the directive principles of the Constitution.
It is for this very reason it is held that a person should
not be kept in a temporary or ad hoc status for long. Where
a temporary or ad hoc appointment is continued for long the
court presumes that there is need and warrant for a regular
post and accordingly directs regularisation.
While all the
situations in which the court may act to ensure fairness
cannot be detailed here, it is sufficient to indicate that
the guiding principles are the ones stated above. The
principle relevant in this behalf are stated by this Court
in several decisions, of which it would be sufficient to
mention two decisions having a bearing upon the issue
involved here. They are Dharwad Distt.
P.W.D. Literature
Daily Wage Employees Association v. State of Karnataka and
Ors.
[1990] 2
S.C.C. 396 and Jacob v Kerala Water Authority

alleged that about 50,000 persons were being employed on
daily-rated or on monthly-rated basis over a period of 15 to
20 years, without regularising them. It was contended that
the very fact that they are continued over such a long
period is itself proof of the fact that there is regular
need for such employment. In that view of the matter,
following directions were given,after reviewing the earlier
decisions of this court elaborately.

"From amongst the casual and daily rated employees
who have completed ten years of service by December
31, 1989, 18,600 shall immediately be regularised
with effect from January 1, 1990 on the basis of
seniority-cum-suitability.

There shall be no examination but physical
infirmity shall mainly be the test of suitability.
The remaining monthly rated employees covered by
the paragraph 1 who have completed ten years of
service as on December 31, 1989 shall be
regularised before December31,1990, in a phased
manner on the basis of seniority-cum-suitability,
suitability being understood in the same way as
above.

The balance of casual or daily rated employees who
become entitled to absorption on the basis of
completing ten years of service shall be
absorbed/regularised in a phased manner on the same
principle as above on or before December 31,1997.
At the point of regularisation, credit shall be
given for every unit of five years of service in
excess of ten years and one additional increment in
the time scale of pay shall be allowed by way of
weightage.

There was a direction that the claims on other
heads would be considered at the time of final
disposal. We have come to the conclusion that apart
from these reliefs no other would be admissible."

Having given the said direction, the Bench (Ranganath
Misra, M.M.Punchhi and S.C.Agarwal, JJ.) made the following
observations:

"We are alive to the position that the scheme which
we have finalised is not the ideal one but as we
have already stated, it is the obligation of the
court to individualise justice to suit a given
situation in a set of facts that are placed before
it. Under the scheme of the constitution the purse
remains in the hands of the executive. The
legislature of the State controls the Consolidated
Fund out of which the expenditure to be incurred,
in giving effect to the scheme, will have to be
met. The flow into the Consolidated Fund depends
upon the policy of taxation depending perhaps on
the capacity of the payer. Therefore, unduly
burdening the State for implementing the
constitutional obligation forthwith would create
problems which the State may not be able to stand.
We have, Therefore, made our directions with
judicious restraint with the hope and trust that
both parties would appreciate and understand the
situation. The instrumentality of the State must
realise that it is charged with a big trust. The
money that flows into the Consolidated Fund and
constitutes the resources of the State comes from
the people and the welfare expenditure that is
mated out goes from the same Fund back to the
people. May be that in every situation the same tax
payer is not beneficiary. That is an incident of
taxation and a necessary concomitant of living
within a welfare society."

11. The second case (Jacob) arose from Kerala. Upon the
establishment of Kerala Water Authority under
Kerala Water
Supply and Sewerage Act, 1986
, all the functions of Public
Health Engineering Department were also transferred to the
Authority. All the employees of the said
department were transferred to the Authority. After its
constitution, the Authority too recruited some persons. With
effect from 30.7.1988, the Authority came within the purview
of the Public Service Commission. The employees of the
Authority thus fell into four categories namely, (i) those
who were in the employment of PHED before the constitution
of the Authority and were transferred to the Authority, (ii)
those whom the Authority employed between 1st April, 1984
and 4th August, 1986, (iii) those who were appointed between
4th August 1986 and 30th July 1988, and (iv) those who were
appointed after 30th July, 1988. Rule 9 of the Kerala State
and Subordinate Services Rules empowered the Government to
appoint persons, in the case of an emergency, otherwise than
in accordance with the Rules. Such appointment was to be
valid only for a limited time and such appointee was bound
to be replaced by a regular appointee. At the same time,
clause (e) of the Rule provided that persons so appointed
may be regularised provided they completed two years
continuous service on 22.12.1973. Construing the said clause
in the light of the constitutional philosophy, this court
held:

"Therefore, if we interpret Rule 9(a) (i)
consistently with the spirit and philsophy of the
Constitution, which it is permissible to do without
doing violence to the said rule, it follows that
employees who are serving on the establishment for
long spells and have the requisite qualifications
for the job, should not be thrown out but their
services should be regularised as far as possible.
Since workers belonging to this batch have worked
on their posts for reasonably long spells they are
entitled to regularisation in service."

In the light of the said principle and in the light of
the principles emerging from the decisions of this court -
which were elaborately discussed-the following directions
were given:

"(1) The Authority will with immediate effect
regularise the services of all ex-PHED employees as
per its Resolution of 30th January, 1987 without
waiting for State Government approval.
(2) The services of workers employed by the
Authority between 1st April, 1984 and 4th August,
1986 will be regularised with immediate effect if
they possess the requisite qualifications for the
post prescribed on the date of appointment of the
con-
cerned worker.

(3) The services of workers appointed after 4th
August, 1984 and possessing the requisite
qualifications should be regulated in accordance
with Act 19 of 1970 provided they have put in
continuous service of not less than one year,
artificial breaks, if any, to be ignored. The
Kerala Public Service Commission will take
immediate steps to regularise their services as a
separate block. In doing so the Kerala Public
Service Commission will take the age bar as waived.
(4) The Kerala Public Service Commission will
consider the question of regularisation of the
services of workers who possess the requisite
qualifications but have put in less than one year's
service, separately. In doing so the Kerala Public
Service commission will take the age bar as waived.

If they are found fit they will be placed on the
list along with the newly recruited candidates in
the order of their respective merits. The Kerala
Public Service commission will be free to rearrange
the list accordingly. Thereafter fresh appointments
will issue depending on the total number of posts
available. If the posts are inadequate, those
presently in employment will make room for the
selected candidates but their names will remain on
the list and they will be entitled to appointment
as and when their turn arrives in regular course.
The list will enure for such period as is
permissible under the extant rules.

(5) The Authority will be at liberty to deal with
the services of the workers who do not possess the
requisite qualifications as it may consider
appropriate in accordance with law.

(6) Those workers whose services have been
terminated in violation of this Court's order in
respect of which Contempt Petition No. 156 of 1990
is taken out shall be entitled to the benefit of
this order as if they continue in service and the
case of each worker will be governed by the clause
applicable to him depending on the category to
which he belongs and if he is found eligible for
regularisation he will be restored to service and
assigned his proper place."
12. As would be evident from the observations made and
directions given in the above two cases, the court must,
while giving such directions, act with due care and caution.
It must first ascertain the relevant facts, and must be
cognizant of the several situations and eventualities that
may arise on account of such directions. A practical and
pragmatic view has to be taken, inasmuch as every such
direction not only tells upon the public exchequer but also
has the effect of increasing the cadre strength of a
particular service, class or category. Now, take the
directions given in the judgment under appeal. Apart from
the fact the High Court was not right-as we shall presently
demonstrate in holding that the several conditions imposed
by the two Governments in their respective order relating to
regularisation are arbitrary not valid and justified - the
high Court acted rather hastily in directing wholesome
regularisation of all such persons who have put in one
year's service, and that too unconditionally. We may venture
to point out the several problems that will arise if such
directions become the norm:

(a) Take a case where certain vacancies are existing or
expected and steps are taken for regular recruitment either
through Public Service Commission or other such body, as the
case may be. A large number of persons apply. Inevitably
there is bound to be some delay in finalising the selections
and making the appointments. Very often the process of
selection is stayed or has to be re-done for one or the
other reason. Meanwhile the exigencies of administration may
require appointment of temporary hands. It may happen that
these temporary hands are continued for more than one year
because the regular selection has not yet been finalised.

Now according to the impugned direction the temporary hands
completing one year's service will have to be regularised in
those posts which means frustating the - regular selection.
There would be no post left for regularly selected persons
even if they are selected. Such cases have indeed come to
this court from these very two States.

(b) In some situations, the permanent incumbent of a
post may be absent for more than a year. Examples of this
are not wanting. He may go on deputation, he may go on
Faculty Improvement Programme (F.I.P.), or he may be
suspended pending enquiry into charges against him and so
on. There may be any number of such situations. If a person
is appointed temporarily in his place and after one year he
is made permanent where will the permanent incumbent be
placed on his return? Two persons cannot
hold the same post on a regular or permanent basis.

(c) It may also happen that for a particular post a
qualified person is not available at a given point of time.
Pending another attempt at selection later on an unqualified
person is appointed temporarily. He may continue for more
than one year. If he is to be regularised, it would not only
mean foreclosing of appointment of a regular qualified
person, it would also mean appointment of an unqualified
person.

(d) Such directions have also the effect of
disregarding and violating the rule relating to reservation
in favour of backward class of citizens made under
Article
16(4).
What cannot be done directly cannot be allowed to be
done in such indirect manner.

(e) Many appointments may have been made irregularly -
as in this case - in the sense that the candidates were
neither sponsored by the Employment Exchange nor were they
appointed after issuing a proper advertisement calling for
applications. In short, it may be a back door entry. A
direction to regularise such appointments would only result
in encouragement to such unhealthy practices.

These are but a few problems that may arise, if such
directions become the norm. There may be many such and other
problems that may arise. All this only emphasises the need
for a fuller consideration and due circumspection while
giving such directions.

13 . Now we shall proceed to examine whether the High
Court was right in holding that the several conditions
prescribed in the orders issued by the two Governments from
time to time are bad. In particular, whether the High Court
was right in holding that prescribing a particular date by
which the prescribed period of service should have been put
in and the further condition that the candidate must have
been sponsored by Employment Exchange, are arbitrary and
unreasonable. These G.Os. were issued by the Government from
time to time. These orders are not in the nature of a
statute which is applicable to all existing and future
situations. They were issued to meet a given situation
facing the Government at a given point of time. In the
circumstances therefore, there was nothing wrong in
prescribing a particular date by which the specified period
of service (whether it is one year or two years) ought to
have been put in. Take for example, the orders issued by the
Haryana Government. The first order is
dated 1st January, 1980. It says, a person must have
completed two years of service as on 31st December, 1979,
i.e., the day previous to the issuance of the order. How
could it be said that fixing of such a date is arbitrary and
unreasonable? Similarly the order dated 3rd January, 1983
fixes 15th September, 1982 as the relevant date. This
notification/order does two things. Firstly, it excludes
class III posts of clerks from the purview of the S.S.S.B.
in case of those who have completed a minimum of two years
of service as on 15th September, 1982, and secondly, it
provides for their regularisation subject to certain
conditions. No particular attack was made as to this date in
the High Court. Consequently the Government of Haryana had
no opportunity of explaining as to why this particular date
was fixed. Without giving such an opportunity, it cannot be
held that the fixation of the said date is arbitrary. What
is more relevant is that the High Court has not held that
this particular date is arbitrary. According to it, fixation
of any date whatsoever is arbitrary, because in its opinion
the order must say that any and every person who completes
the prescribed period of service must be regularised on
completion of such period of service. The next order dated
24th March, 1987 prescribes the date as 31.12.1986 i.e., the
end of the previous year. In the circumstances, we see no
basis for holding that fixation of the date can be held to
be arbitrary in the facts and circumstances of the case.
In
this connection, reference may be made to the decision of
this court in
Dr. Sushma Sharma v. State of Rajasthan
,
(1985) S.C. 367. The Governor of Rajasthan had issued an
ordinance stating that "all temporary lectures as were
appointed as such on or before the 25th day of June 1975 and
are continuing as such at the commencement of the Rajasthan
Universities Teachers (Absorption of Temporary Lecturers)
Ordinance, 1978 (Ordinance No. 5 of 1978) shall be
considered by the University concerned for their absorption
and substantive appointment on the recommendation of the
Screening Committee constituted under
section 4
subject to
their fulfilling the conditions of eligibility including
minimum qualifications prescribed by the University
concerned under the relevant law as applicable on the
respective dates of their temporary appointments and subject
also the availability of substantive vacancies of lecturers
in the department concerned."

The validity of the said ordinance was questioned on
the ground that the fixation of the date, 25th day of June,
1975, was arbitrary and has been chosen only because that
was the date on which internal emergency was proclaimed. It
was also submitted that the further requirement that the
lecturer appointed should be continuing as such on the date
of commencement of the ordinance (12.6.1978) is an equally
arbitrary and unreasonable condition. Both these contentions
were rejected by this court. The court negatived the
contention that the prescription of the said date and the
further requirement of being in service on the date of
ordinance have the effect of excluding persons who have put
in long years of service but were not continuing on the date
of ordinance, making the said conditions discriminatory.
Such possibilities, it was held, were not enough to
castigate the said condition as aribitrary. It was observed
that there was no evidence to show any attempt on the part
of the Government to separate or penalise pre-emergency
appointees or for that matter any particular class of
oppointees. In this context, we must remember that what is
in issue is not the wisdom of the executive in issuing a
particular order or orders but the validity thereof. The
court may think it more desirable that the order should be
in particular terms as indicated by it, but that is not
enough.

14. The next question is whether the orders issued by
the two Government were arbitrary and unreasonable in so far
as they prescribed that only those employees who had been
sponsored by Employment Exchange should alone be
regularised. In our opinion, this was a reasonable and
wholesome requirement designed to curb and discourage back
door entry and irregular appointments. The Government orders
say that all those who have been sponsored by Employment
Exchange or have been appointed after issuing a public
advertisement alone should be regularised. We see no
unreasonableness or invalidity in the same. As stated above,
it is a wholesome provision and ought not to have been
invalidated. Moreover, as pointed out hereinbefore, it is
not found by the High Court that the writ petitioners were
appointed only after obtaining a non-availability
certificate from the Employment Exchange. The decision
relied upon by the High Court does not say that even without
such a certificate from Employment Exchange, an appointment
can be made or that such appointment should be consistent
with the mandate of
Articles 14
and
16.

We must also say that the further requirement
prescribed in the orders viz., that the employees must have
possessed the prescribed qualifications for the post at the
time of his appointment on ad hoc basis is equally a valid
condition. Indeed, no exception is taken to it by the High
Court.
15. We may now consider whether the High Court was
justified in holding that inasmuch as Haryana and Punjab are
sister States and because prior to 1966 Haryana was a part
of Punjab, the rule relating to length of service requisite
for regularisation should be uniform in both the states. We
see absolutely no basis for the said holding. They are two
different States having their own Governments, merely
because one Government chooses to say that one year's
temporary or ad hoc service is enough for regularisation it
cannot be said that the other state must also prescribe the
very same period or that it cannot prescribe a longer or
shorter period. The fact that there is a single High Court
for both the States and the Union Territory of Chandigarh is
no ground for saying that the orders issued by them should
be uniform.

16. The learned Judges have further directed that in so
far as the State of Haryana is concerned class III and IV
posts which were within the purview of the S.S.S.B. shall
equally be within the purview of regularisation orders
issued by it. The learned Judges have pointed out that for a
period of 10 years there was no such Board functioning and
further that from the year 1970 to 1987 "most of the class
III and IV posts with which we are concerned were kept out
of the purview of the S.S.S.B. "The correctness of the said
factual statement is not questioned before us. It is
therefore, not necessary to alter or modify the direction
made by the High Court on this aspect. In fact, no arguments
were addressed to us with respect to the said direction made
by the High Court. If any of the petitioners have been
excluded from consideration (for regularisation) on the
basis of the above condition, they may be considered and
appropriate orders passed.

17. Now coming to the direction that all those
adhoc/temporary employees who have continued for more than
an year should be regularised, we find it difficult to
sustain it. The direction has been given without reference
to the existence of a vacancy. The direction in effect means
that every adhoc/temporary employee who has been continued
for one year should be regularised even though (a) no
vacancy is available for him- which means creation of a
vacancy (b) he was not sponsored by the Employment Exchange
nor was he appointed in pursuance of a notification calling
for applications - which means he had entered by a back-door

(c) he was not eligible and/or qualified for the post at the
time of his appointment (d) his record of service since his
appointment is not satisfactory. These are in addition to
some of the problems indicated by us in pare 12,
which would arise from giving of such blanket orders. None
of the decisions relied upon by the High Court justify such
whole-sale , Unconditional orders. Moreover, from the mere
continuation of an adhoc employee for one year, it cannot be
presumed that there is need for a regular post. Such a
presumption may be justified only when such continuance
extends to several years. Further, there can be no 'rule of
thumb' in such matters. Conditions and circumstances of one
unity may not be the same as of the other. Just because in
one case, a direction was given to regularise employees who
have put in one year's service as far as possible and
subject to fulfilling the qualifications, it cannot be held
that in each and every case such a direction must follow
irrespective of and without taking into account the other
relevant circumstances and considerations. The relief must
be moulded in each case having regard to all the relevant
facts and circumstances of that case. It cannot be a
mechanical act but a judicious one. Judged from this stand
point, the impugned directions must be held to be totally
untenable and unsustainable.

18. So far as the members of the work-charged
establishment are concerned, the nature of their employment
is already pronounced upon by this court in
Jaswant Singh v.
Union
of india, [1980] 1 S.C.R.426
It is stated therein:

"A work-charged establishment broadly means an
establishment of which the expensed, including the
wages and allowances of the staff, are chargeable
to "works". The pay and allowances of employees
who are borne on a work-charged establishment are
generally shown as a separate sub-head of the
estimated cost of the work.

The entire strength of labour employed for
the purpose of the Beas Project was work-charged.
The work-charged employees are engaged on a
temporary basis and their appointments are made for
the executive of a specific work. From the very
nature of their employment, their services
automatically come to an end on end on the
completion of the works for the sole purpose of
which they are employed. They do not get any
relief under the
Payment of Gratuity Act
nor do
they receive any retrenchment benefits or any
benefits under the Employees State Insurance
Schemes.
But though the work-charged employees are
denied these benefits, they are industrial workers
and are entitled to the benefits of the provisions
contained in the
Industrial Disputes Act
. Their
rights flow from that special enactment under which
even contracts of employment are open to adjustment
and modification. The work-charged employees,
therefore, are in a better position than temporary
servants like the other petitioners who are liable
to be thrown out of employment without any kind of
compensatory benefits."

Be that as it may, so far as the State of Haryana is
concerned, this contention has become of academic interest
in view of the orders issued on 24th March, 1987 and 6th
April 1990, which we shall presently notice. In view of the
said orders, the direction given by the High Court becomed
unneccesary. Though the State of Punjab has not issued any
such orders, it appears from the the affidavit filed on its
behalf(sworn to by Sri P.C.Sangar, Deputy Secretary to the
Government, Department of Personnel dated 19.3.1991) that a
scheme of regularisation of these employees has been
prepared in pursuance of the impugned judgement. The said
scheme is, however, not made conditional upon the result of
these appeals against the judgment. On a perusal of the
scheme, we find it to be a reasonably fair scheme. We hope
and trust that irrespective of the result of these appeals,
the said scheme shall be given effect to by the State of
Punjab.

19. The High Court has also directed that all those
employees who fall within the definition of "workmen"
contained in the
Industrial Disputes Act
will also be
entitled to regularisation on par with the work-charged
employees in whose case it is directed that they should be
regularised on completing five years of service in Punjab
and four years of service in Haryana. This direction is
given in favour of those casual labour and daily wagers who
fall within the definition of workmen. In so far as work-
charged employees, daily wage workers and casual labourers
who do not fall within the definition of workmen are
concerned, the High Court had directed their regularisation
on completion of one year's service. We find this direction
as untenable as the direction in the case of adhoc/temporary
employees. In so far as the persons belonging to the above
categories and who fall within the definition of Workmen are
concerned, the terms in which the direction has been given
by the High Court cannot be sustained. While we agree that
persons belonging to these categories continuing over
a number of years have a right to claim regularisation and
the authorities are under an obligation to consider their
case for regularisation in a fair manner, keeping in view
the principles enunciated by this court, the blanket
direction given cannot be sustained. We need not, however,
pursue this discussion in view of the orders of the
Government of Haryana contained in the letter dated 6.4.1990
which provide for regularisation of these persons on
completion of ten years. We shall presently notice the
contents of the said letter. In view of the same, no
further directions are called for at this stage. The
Government of Punjab, of course, does not appear to have
issued any such orders governing these categories.
Accordingly, there shall be a direction to the Government of
Punjab to verify the vacancy position in the categories of
daily wagers and casual labour and frame a scheme of
absorption in a fair and just manner providing for
regularisation of these persons, having regard to their
length of service and other relevant conditions. As many
persons as possible shall be absorbed. The scheme shall be
framed within six months from today.

20. So far as temporary or time-bound schemes are
concerned, the matter is exhaustively dealt with and
pronounced upon in
Delhi Development Horticulture
Employees Union v. Delhi Administration
, (1992) 1 J.T. 394.

We need not add to it. In any event, the direction given by
the High Court with respect to this category has not been
assailed before us.

21. We may also point out that after the filing of the
writ petitions and during the pendency of the Special Leave
Petitions in this court, the Government of Haryana has
issued certain further orders to which reference may now be
made.

(i) On 24th March 1987 the Chief Secretary to the
Government of Haryana wrote to all the Heads of Departments
and others stating the following : "the matter relating to
the regularisations of the work charged employees was
engaging attention of the Government for some time past.
After careful consideration it has now been decided that
the services of all the work charge employees working in the
Haryana State who have completed four years or more
continuous service on 31.12.1986 should be regularised".
All the authorities were directed to take immediate
appropriate action in that behalf. (We have no reason to
believe that the said orders will not be given effect to in
full).

(ii) On 5th February, 1990 the Chief Secretary to the
Government of
Haryana wrote to all the Heads of Departments and others
apprising them of the new policy and procedure evolved by
the Government in the matter of making adhoc appointments.
The letter says that no adhoc appointment shall be made in
future on any posts unless a proper requisition has been
sent to Haryana Public Service Commission/Subordinate
Services Selection Board. It says further that if any adhoc
appointment is required to be made it shall be made only
through Employment Exchange or by advertising such post in
a daily newspaper after obtaining a N.A.C. certificate from
the Employment Exchange. Such appointment even if made
shall not last beyond nine months and will be subject to a
regular appointment being made by H.P.S.C./S.S.S.B.

(iii) In pursuance of the interim orders passed by this
court in this batch (recording the undertaking given by the
counsel for the State of Haryana to frame a scheme for
absorption) the Government of Haryana did frame of such a
scheme contained in the Chief Secretary's letter dated
6.4.1990 addressed to all the Heads of Department. It
covers the ad hoc employees, work charged employees, casual
workers/daily rated employees, workmen, ad hoc/temporary
employees in temporary organisation as also seasonal
workers. It is but appropriate that we set out the said
letter in full:

No.6/4/90-2GSI
From
The Chief Secretary to Govt., Haryana
To

1. All Head of Departments, Commissioner
Ambala, Hisar, Rohtak and Gurgaon Divisions and all
the Deputy Commissions in the State.

2. The Registrar, Punjab and Haryana High Court,
Chandigarh.

Dated Chandigarh, the
Subject: Policy regarding regularisation of
adhoc/work- charged employees and causal/daily
wagers etc.
c ........................

Sir,
I am directed to refer to the subject noted
above and to state that the matter regarding laying
down the policy with regard to regularisation of
the services of Class-III ad hoc employees, work-
charged/daily wagers etc. has been under
consideration of Govt. for some time past. After
careful consideration, it has been decided that the
Regularisation of these employees shall be on the
following terms and conditions:-

Category-I, Adhoc employees

(i) Only such adhoc class-III employees, who have
completed two years service on 30.9.1988,
shall be regularized to the extent of
available regular posts/vacancies on that date.

(ii) The work and conduct of such employees should
have been over all good category and no
disciplinary proceedings are pending against
them.

(iii)The employees posses the prescribed
qualifications for the post at the time of
their appointment on adhoc basis.

(iv) The regularisation will be against the
posts/vacancies of the relevant categories only and
in case, the employees belonging to general
category have been appointed against reserved
category posts/vacancies the services of such adhoc
appointees shall not be regularises and their
services shall be terminated in case, no general
category vacancy/post(s) is available on 30.9.88.

(v) The recommendees of the SSS board shall be
absorbed against the remaining vacancies, if any.

The names of such remaining recommendees as cannot
be absorbed shall be returned to the Board to
enable it to recommend their names to other
departments for appointments against the clear
vacancies.

(vi) After regularisation of adhoc employees under
the policy, if some posts/vacancies still remain
unfilled, these shall be filled in from the
recommendees of the SSS Board, if any. If some
shortfall remains even after than, the procedure

laid down in
the insts. issued vide No.50/35/88-
5GSI, dated
5.2.90 shall be followed, for making up the
shortfall, it felt necessary.

(vii) The employees, who are not covered under the
above policy, their services shall be terminated.

(viii) The seniority of the adhoc class-III
employees so regularised viz-a-viz class-III
employees appointed on regular basis shall be
determined w.e.f.30.9.88. The inter-se seniority
of such adhoc Class-III employees shall be
determined in accordance with the date of joining
the post on adhoc basis. If the date of joining
the post(s), on adhoc basis by such adhoc employees
was the same, then the elder employee shall rank
senior to an employee younger in age. If the date
of joining the direct recruit and the date of
Regularisation is the same, the direct recruit
shall be senior.

Category-II. Work-Charged employees
The work-charged employees who have completed 4
or more years of continuous service as on 30.9.88
shall be regularised. On Regularisation these
employees shall be liable for transfer anywhere in
the State of Haryana on any project/work.
Category-III. Casual Workers/Daily rated employees
With regard to these employees, the following
policy will be followed:

(i) Casual/daily rated employees appointed on or
before
30.9.1983 shall be treated as monthly rated
established employees on a fixed pay of Rs. 750
(minimum of Class-IV pay scale) or the rates as
fixed by the Deputy Commission concerned p.m.
without any allowance w.e.f. 1.10.88. They shall be
entitled to an annual increment of Rs. 12 till
their services are regularized. On Regularisation,
they shall be put in the time scale of pay
applicable to the lowest Group 'D' in the Govt. and
they would be entitled to all other allowances and
benefits available to regular Govt. servants of the
corresponding grade.
(ii) The casual of daily rated employees, who have
completed 10 years or more of service on 30.9.88
shall be regularized w.e.f. 1.10.88 on the basis of
seniority-cum-suitability.

(iii) In respect of all such daily rated employees
who have not yet completed 5 years service, a
special review should be carried out regarding the
requirement of their continuance or retrenchment as
the case may be.

(iv) In the case of those, who are required to be
continued in service, the same terms and conditions
will be applicable as in sub-paras (i) & (ii) above
on completion of 5 years and 10 years service
respectively.

(v) In the case of those whose services are no
longer required, they may be relieved of their
duties at the earliest possible.

Category-IV. Workmen.

The employee, who come within the definition
of 'Workmen' under the
Industrial Disputes Act
,
shall be entitled to the benefits under the Act and
their services should be dispensed with only after
following the procedure
laid down in
the Act and
after granting the requisite retrenchment benefits.
Category-V. Adhoc/temporary employees in temporary
organization.

The services of the employees working in
temporary organization can be terminated at the
abandonment of the scheme and they will not be
eligible for Regularisation.

Category-VI. Seasonal workers.

The services of seasonal workers appointed as
daily wager or on work-charged basis shall not be
regularized and they will be retrenched on
completion/abandonment of the work.

2. The above policy may be brought to the notice of
all concerned for strict compliance.

Yours
faithfully,
Sd/-

Under Secretary General
Administration
for Chief Secretary to Government,
Haryana.

(iv) On 28th February, 1991, yet another order has been
issued by the Governor of Haryana under the proviso to

Article 309
of the Constitution providing for regularisation
of class III employees who have put in service of two years
on 31st December, 1990 subject to usual conditions. This
order reads as follows:

"Notification
The 28th February, 1991
No. G.S.R. 11/Const./Art.309/91.- In exercise of
the powers conferred by the proviso to
article 309

of the Constitution of India read with the proviso
to clause 6 of Haryana Government, General
Administration Department (General Services),
notification No.523-3 GSI-70/2068, dated the 28th
January, 1970 the Governor of Haryana hereby
specifies such Class III posts as have been held
for a minimum period of two years on the 31st
December, 1990, by Class III employees on ad hoc
basis to be taken out of the perview of the
Subordinate Services Selection Board, Haryana and
their services shall be regularised if they fulfill
the following conditions, namely:-

(i) that the employees have completed two years
services on 31st December, 1990, and were in
service on 31st December, 1990.

(ii) that the employees shall be regularised
against the posts/vacancies of relevant categories.

The employees of general category may be
regularised in excess of their quota with the clear
stipulation that in future recruitments only the
candidates from reserve categories will be
appointed until the back log arising out of
utilisation of reserve category vacancies by
general category ad hoc employees is cleared:

(iii) that the employees should have been recruited
through the Employment Exchange or directly
appointed by the appointing
authority after obtaining the non-availabilty
certificate from the Employment Exchange;

(iv) that the work and conduct of such employees
shall be of over all good category and no
disciplinary proceedings are pending against them,
and

(v) that the employees possessed the prescribed
qualifications for the post at the time of their
appointment on ad hoc basis.

2. The seniority of the ad hoc Class III employees
so regularised, viz-a-viz, the Class III employees
appointed on regular basis should be determined
with effect from 31st December, 1990. The inter-
se-seniority of such ad hoc Class III employees
shall be determined in accordance with the date of
their joining the post on ad hoc basis. If the
date of joining the post (s) on ad hoc basis by
such ad hoc employees was the same, the an old
employees shall rank senior to an employee younger
in age. If the date of appointment of the direct
recruit and the date of regularisation of ad hoc
employees is the same, the direct recruit shall be
senior.

KULWANT SINGH
chief Secretary to Government
Haryana "

22. So far as the Punjab Government is concerned, an
affidavit sworn to by Sri G.K.Bansal, Under Secretary to the
Government, Department of Personnel, Government of Punjab
has been filed before us stating that the instructions
issued by the Haryana Government for regularisation of the
services of class III ad hoc employees contained in their
notification dated 28.2.1991 shall be adopted by the Punjab
Government mutatis mutandis. The relevant portion of the
affidavit may be extracted herein below:

"The policy instructions for the regularisation of
services of Class-III adhoc employees issued by
Haryana Government vide their notification dated
28/2/91 mutatis mutandis will be adopted as under:-
(i) That the adhoc/temporarily appointed employees
should have completed a minimum of two years
service on 31/12/90 and was in service on 31/12/90.

While calculating the period of service, any break
of notional nature not exceeding 30 days falling
between adhoc/temporarily appointments in the same
category of post (s) and in the same Department is
to be ignored. However, the break in
adhoc/temporary service would be ignored in cases
where:

(a) The employee concerned left service of his own
volition either to join some other Department or
for some other reasons, or

(b) the adhoc/temporary appointment was against a
post/vacancy for which no regular recruitment was
intended/required to be made e.g. leave
arrangements for filling of other short-term
vacancies.

(ii) that they fulfill the conditions of
eligibility as prescribed (i.e. they have been
recruited through the Employment Exchange or by
open advertisement) academic qualifications,
experience and the condition of age at the time of
their first/adhoc/temporary appointment in
accordance with the Departmental service rules and
instructions issued by the government.

(iii) that their record of service is satisfactory.

(iv) that they have been found medically fit for
entry into Government service and that their
character and antecedents have also been duly
verified and found suitable for Government service;

(v) that a regular post/vacancy is available for
regularisation;

(vi) that they have been found fit for
regularisation by the Departmental Selection
Committees constituted in accordance with the
instructions contained in Government circular
letter No.12/30/86/IGE/5139 dated 15/4/86;

(vii) The seniority of the adhoc/temporarily
appointed class-III employees so regularized vis-a-

vis class-III employees appointed
on regular basis shall be determined w.e.f.
31.12.90. The inter-se seniority of such
adhoc/temporarily appointed class-III employees
shall be determined in accordance with the date of
their joining the post on adhoc/temporary basis. If
the date of joining the post(s) on adhoc/temporary
basis by such adhoc/temporarily appointed employees
was the same then an older employee shall rank
senior to an employee younger in age. If the date
of joining of the direct recruit and the date of
regularisation of adhoc-temporarily appointed
employee is the same, the direct recruit shall be
senior;

The cases of such adhoc/temporarily appointed
employees who have already completed three years
service on 31st December, 90 and have satisfactory
record of service but who do not fulfill the
prescribed conditions with regard to
qualifications, age or mode of their initial
recruitment will also be considered for
regularisation in relaxation of these conditions if
the Departmental Service Rules applicable to these
employees provide for relaxation of these
conditions of recruitment."

We are sure that many of the employees would get
regularised under the orders aforementioned issued by both
the Governments.

23. This is not a case, we must reiterate, where the
Governments have failed to take any steps for regularisation
of their adhoc employees working over the years. Every few
years they have been issuing orders providing for
regularisation. In such a case, there is no occasion for the
court to issue any directions for regularising such
employees more particularly when none of the conditions
prescribed in the said orders can be said to be either
unreasonable, arbitrary or discriminatory. The court cannot
obviously help those who cannot get regularised under these
orders for their failure to satisfy the conditions
prescribed therein. Issuing general declaration of
indulgence is no part of our jurisdiction. In case of such
persons we can only observe that it is for the respective
Governments to consider the feasibility of giving them
appropriate relief, particularly in cases where persons have
been continuing over a long number of years, and were
eligible and qualified on the date of their adhoc
appointment and further whose record of service is
satisfactory.
24. With respect to direction No. 8 (equal pay for
equal work) we find the judgment singularly devoid of any
discussion. The direction given is totally vague. It does
not make it clear who will get what pay and on what basis.
The said direction is liable to be set aside on this account
and is, accordingly, set aside.

In the matters posted before and heard by us, there are
several S.L.Ps. preferred against orders of the High Court
allowing writ petitions following the judgment in Piara
Singh. Leave is granted in all such matters as well and the
appeals allowed in the same terms as the appeals against the
judgement in Piara Singh.

25. Before parting with this case, we think it
appropriate to say a few words concerning the issue of
regularisation of adhoc/temporary employees in government
service.

The normal rule, of course, is regular recruitment
through the prescribed agency but exigencies of
administration may sometimes call for an adhoc or temporary
appointment to be made. In such a situation, effort should
always be to replace such an adhoc/temporary employee by a
regularly selected employee as early as possible. Such a
temporary employee may also compete along with others for
such regular selection/appointment. If he gets selected,
well and good, but if he does not, he must give way to the
regularly selected candidate. The appointment of the
regularly selected candidate cannot be withheld or kept in
abeyance for the sake of such an adhoc/temporary employee.

Secondly, an adhoc or temporary employee should not be
replaced by another adhoc or temporary employee; he must be
replaced only by a regularly selected employee. This is
necessary to avoid arbitrary action on the part of the
appointing authority.

Thirdly, even where an adhoc or temporary employment is
necessitated on account of the exigencies of administration,
he should ordinarily be drawn from the employment exchange
unless it cannot brook delay in which case the pressing
cause must be stated on the file. If no candidate is
available or is not sponsored by the employment exchange,
some appropriate method consistent with the requirements of

Article 16
should be followed. In other words, there must
be a notice published in the appropriate
manner calling for applications and all those who apply in
response thereto should be considered fairly.

An unqualified person ought to be appointed only when
qualified persons are not available through the above
processes.

If for any reason, an adhoc or temporary employee is
continued for a fairly long spell, the authorities must
consider his case for regularisation provided he is eligible
and qualified according to rules and his service record is
satisfactory and his appointment does not run counter to the
reservation policy of the State.

The proper course would be that each States prepares a
scheme, if one is not already in vogue, for regularisation
of such employees consistent with its reservation policy and
if a scheme is already framed, the same way be made
consistent with our observations herein so as to reduce
avoidable litigation in this behalf. If and when such
person is regularised he should be placed immediately below
the last regularly appointed employee in that category,
class or service, as the case may be.

So far as the work-charged employees and casual labour
are concerned, the effort must be to regularise them as far
as possible and as early as possible subject to their
fulfilling the qualifications, if any, prescribed for the
post and subject also to availability of work. If a casual
labourer is continued for a fairly long spell - say two or
three years - a presumption may arise that there is regular
need for his services. In such a situation, it becomes
obligatory for the concerned authority to examine the
feasibility of his regularisation. While doing so, the
authorities ought to adopt a positive approach coupled with
an empathy for the person. As has been repeatedly stressed
by this court, security of tenure is necessary for an
employee to give his best to the job. In this behalf, we do
commend the orders of the Government of Haryana (contained
in its letter dated 6.4.90 referred to hereinbefore) both in
relation to work-charged employees as well as casual labour.

We must also say that the orders issued by the
Governments of Punjab and Haryana providing for
regularisation of adhoc/temporary employees who have put in
two years/one year of service are quite generous and leave
no room for any legitimate grievance by any one.
These are but a few observations which we thought it
necessary to make, impelled by the facts of this case, and
the spate of litigation by such employees. They are not
exhaustive nor can they be understood as immutable. Each
Government or authority has to devise its own criteria or
principles for regularisation having regard to all the
relevant circumstances, but while doing so, it should bear
in mind the observations made herein.

26. So far as the employees and workmen employed by
Statutory/Public Corporations are concerned, it may be noted
that they have not issued any orders akin to those issued by
the Punjab and Haryana Government. Even so, it is but
appropriate that they adopt as far as possible, keeping the
exigencies and requirements of their administration in view,
the criteria and principles underlying the orders issued by
their Government in the matter of regularisation and pass
appropriate orders. In short, the Statutory/Public
Corporations in Haryana will follow the orders contained in
the letter dated 6.4.1990
referred to above
, as supplemented
by the orders in the Notification dated 28.2.1991, where as
the Statutory/Public Corporations in Punjab shall follow the
criteria and principles stated in the affidavit of Sri
G.K.Bansal, Under Secretary to the Government of Punjab,
Department of Personnel referred to in para 22 above. These
directions shall not, however, apply to these
Statutory/Public Corporations functioning within these
States as are under the control of the Government of India.
These Corporations will do well to evolve an appropriate
policy of regularisation, in the light of this judgment, if
they have not already evolved one, or make their existing
policy consistent with this judgment to avoid litigation.

27. For the above reasons, all the appeals are allowed
and the orders under appeal are set aside. The directions
given by the High Court in the judgment in W.P.(C) No.72/88
namely direction Nos. 1,2,3,4,6 and 8 are set aside. The
only direction given herewith is the one contained in para

19.
The writ petitions seeking the benefits given in the
judgment under appeal are dismissed.

No costs.

H N.P.V.
Appeals disposed of.