STATE OF HARYANA AND ORS. ETC.ETC. v. PIARA SINGH AND ORS. ETC. ETC.

A 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 (rom that special enactment under which even contracts of employment are open to adjustment and modification. The work-charged employees, therefore, are in a B 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 C 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 becomes unnecessary. Though the State of Punjab has not issued any such orders, it appears from the affidavit filed on its behalf (sworn to by Sri P.C.Sangar, D Deputy Secretary to the Government, Department· of Personnal dated 19.3.1991) that a scheme of regularisation of these employees has been prepared in pursuance of the impugned judgment. 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.

19Copy pinpoint19. 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 cas'ual 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. H While we agree that persons belonging to these categories continuing over

' STATE v. PIARA SINGH [REDDY, J.] 859

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 c - 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. 'fhe scheme shall be framed within six months from today. ~~-

20Copy pinpoint20. So far as temporary or time-bound schemes are concerned, the D matter is exhaustively dealt with and pronounced upon in Delhi Develop- ment 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. E y 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 refer- ence may now be made.

(i) On 24th March 1987 the Chief Secretary to the Government of F Haryana wrote to all the Heads of Departments and others stating the "'<'. following : "the matter relating to the regularisation of the work charged employees was engaging attention of the Government for some fime 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 com- G, pleted four years or more continuous service on 31.12.1986 should be regularised". All the authorities were directed to take immediate ap- propriate action in that behalf. (We have no reason to believe that the said '"'\ orders will not be given effect to iµ full).

(ii) On 5th February; 1990 the Chief Secretary to the Government of H

86u SUPREME COURT REPORTS (1992) 3 S.C.R

A 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 ad hoc appointment is required to be made B 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 inad~ by H.P .S.C./S.S.S.B. c (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 such a scheme contained in the Chief Secretary's letter dated~ 6.4.1990 addressed to all the Heads of Department: It coverslhe ad hoc >.-_ D 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

E From -,-: The Chief Secretary to Govt., Haryana

F 1. All Head of Departments, Commissioner Ambala, Hisar, Rohtak and Gurgaon Divisions and all the Deputy Commis- sions in the State. 7

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

G Dated Chandigarh, the

Subject: Policy regarding regularisation of adhoc/work-charged employees and causal/daily wagers etc. r ········································· H Sir,

~ STATE v. PIARA SINGH [REDDY, J.) 861

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

Category-I, Adhoc employees

(i) Only such afDwc class-III employees, who have completed two years service on 30.9.1988, shall be regularized to the 'C 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. A (iii) The employees possess the prescribed qualifications for D .. the post at the time of their appointment on adhoc basis.

(iv) The regularization will be against the posts/vacancies of the relevant categories only and in case, the employees belong- ing to general category have been appointed against reserved category posts/vacancies the services of such adhoc appointees shall not be regularized 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 appointment against the clear vacancies. G (vi) After !egularization of adhoc amployees under the policy, if some posts/vacancies still remain unfilled, these shall be filled in from· the recommendees of the SSS Board, if any. 'i If some shortfall remains even after than, the procedure laid down in the insts. issued vide No.50/35/88-5GSI, dated H

862 SUPREME COURT REPORTS [1992] ,3 S.C.R.

A 5.2.90 shall be followed, for making up the shortfall, if fek necessary.

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

B (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 deter- mined in accordance with the date of joining the post on adiJ.o_c basis. If the date of joining the post (s), on adhoc c ~basis by such adhoc employees was the same, then the elder employee shall rank senior to an employe younger in age. If the date of joining the direct recruit and the date of regularization is the same, the direct recruit shall be senior.

D Categary-IL 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 regularization these employees shall be liable for transfer anywhere in the State of Haryana on any E project/work.

Category-Ill Casual Workers/Daily rated employees

With regard to these employees, the following policy will be followed: F (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 G shall be entitled to an annual increment of Rs: 12 till their services are regularized. On regularization, 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 allowan- ces and benefits available to regular Govt. servants of the H corrosponding grade.

STATE v. PIARASINGH (REDDY,J.] 863

(ii) The casual or daily rated employees, who have completed A 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 B or retrenchment as the case may be.

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

10. years service respectively. c I

(v) In the case of those whose services are no longer required, they may be relieved of their duties at the earliest possible. _A Category-W. Workmen. 0 The employee, who come within the definition of 'Work- men'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. E y Category-V. Ad/we/temporary employees in temporary organiza- tion. ~ The services of the employees working in temporary or- ganization can be terminated at the abandonment of the scheme and they will not be eligible for regularization.

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 con- cerned for strict compliance.

Yours faithfully, H

864 SUPREME COURT REPOR'fS [1992] 3 S.C.R.

A 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 Constitu- B tion 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 c 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 Administrati.on Department (General Services), D 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 purview of the Subordinate Services · E Selection Board, Haryana and their services shall be regularised if they fulfil the following conditions, namely:-

(i) that the employees have completed two years service on 31st December, 1990, and were in service on 31st December, 1990; F (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 futlire recruitments only the candidates from reserve categories will be appointed G until the back log arising out of utilisation of reserve category vacancies by ge1:1eral category ad hoc employees is cleared:

(iii) that the employees should have been recruited through the H Employment Exchange or directly appointed by the ap-

STATE v. PIARA SINGH [REDDY, J.] 865

pointing authority after obtaining the non-availability cer- A tificate 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 B (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 Cla-..:. ill employees so C 1

regularised, viz-a-viz, the Class Ill 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 basi~. If the date of joining the post (s) on ad '1_oc basis by such ad hoc employees was the D same, the an old employees shall rank senior tu 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. E KULWANT SINGH

Chief Secretary to Government Haryana."

22Copy pinpoint22. So far as the Punjab Government is concerned, an affidavit sworn F ~ to by Sri G.K. Bansal, Under Secretary to the Government, Department of Personnal, 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 mulatis mutandis. G 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:- H

866 SUPREME COURT REPORTS [1992) 3 S.C.R.

A (i) That the adhoc/temporarily appointed employees should have completed a minimum of two years service on 31/12/1990 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 B 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 c reasons, or

(b) the adhoc/temporary appointment was against a post/vacan- cy for which no regular recruitment was intended/required to be made e.g. leave arrangements for filling of other short-term vacancies. D. (ii) that they fulfil 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/tem- porary appointment in accordance with the Departmental ser- E vice 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 Govermnent service and that their character and antecedents F 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 - G Departmental Selection Committees constituted in accordance with the instructions contained in Government circular letter No. 12/30/86/IGE/5139 dated 15/4/86; 'r (vii) The seniority of the adhoc/temporarily appointed class-III H employees so regularised vis-a-vis class-III employees ap-

STATE v. PIARA SINGH [REDDY, J.) 867

pointed on regular basis shall be determined w.e.f. 31.12.90. A 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 d~ie of joining the post(s) on adhoc/temporary basis by such adhoc/temporarily appointed employees was the same then an older emplo~ee 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 fulfil 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 D 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. E

23Copy pinpoint23. 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 ther~in. 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. H

868 SUPREME COURT REPORTS (1992] 3 S.C.R.

24Copy pinpoint24. With respect to direction No. 8 (equal pay fdr equal work) we find the judgment singul~rly 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. B 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 judgment in Piara Singh. c

25Copy pinpoint25. 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.

D 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 selec- E tion/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 witheld or kept in abeyance for the sake of such an adhoc/temporary employee.

F Secondly, an adhoc or temporary employee should not be replaced by another adhoc or temporary employee; he must be replaced only by a re6Ularly 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 neces- G sitated 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 ap- ~ propriate method consistent with the requirements of Article 16 should be followed. In other words, there must be a notice published in the ap-

STATE v. PIARA SINGH [REDDY, J.] 869

propriate 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 tor B 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. c - 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 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 labc;mr are con- cerned, 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 F 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. G

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. H

870 SUPREME COURT REPORTS (1992) 3 S.C.R.

A 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 im- mutable. 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. B

26Copy pinpoint26. 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 Govern- + ments. Even so, it is but appropriate that they adopt as far as possible, c keeping the exigencies and requirements of their administration in view, the criteria and principles underlyfug the orders issued by their Govern- ment in the matter of regularisation and pas~ appropriate orders. In short, the Statutory/Public Corporations in Haryana will follow the orders con- tained in the letter dated 6.4.1990 referred to above, as supplemented by the orders in the Notification dated 28.2.1991,"whereas the Statutory/Public ,l... D 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 function- ing within these States as are under the control of the Government of India. E 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. ~

27Copy pinpoint27. 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 r 19.

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

No costs. r H N.P.V. Appeals disposed of.