Gokel Chand Mital, J.@mdashIn this bunch of writ petitions filed by the different categories of employees of the States of Haryana and Punjab the
points involved can be grouped as under:
I. What would be the fate of the ad hoc employees of the cadre of Class III and IV. other than those, who fall within the definition of ''workman''
under the Industrial Disputes Act, 1947 (for short ''the 1947 Act''), serving for more than one year in the different departments of the States of
Punjab and Haryana, and the Corporations (which are State within the ambit of Article 12 of the Constitution of India);
II. What would be the fate of the employees employed on work-charged basis, daily wage earners and casual labourers (other than those who fall
within the definition of ''workman'' under the 1947 Act), serving in the different departments of States of Punjab and Haryana and Corporations
thereof;
III. What would be the fate of the aforesaid kind of employees working in the aforesaid department, whether on ad hoc work-charged and daily
wage basis or casual laboures, when they are covered by the definition of workman under the 1947 Act, on completion of 240 days or more in a
that is, when the provision of Section 25-F and other provisions of the 1947 Act become applicable to them
IV. What would be the fate of the ad hoc temporary employees, employed in temporary organisations like the Adult Education scheme and
Integrated Child Development scheme, when they have continued in service for more than one year with or without notional break; and
V. Whether the employees of the aforesaid categories, that is covered by item Nos. 1 to 4 above, are entitled to the parity of pay on the rule of
''equal pay for equal. work''.
BACKGROUND TO BE KEPT IN VIEW:
2. In the States of Punjab and Haryana, for the last nearly 18/19 years, class-Ill and IV employees in various departments and organisations have
been employed either on ad hoc basis, which period was extended from time to time, or they were employed as work-charged, and daily wages
or casual labourers. Such kind of workers continued for years together in the capacity they were appointed. Provision for ad hoc appointment for
six months was made so that within that period regular appointments are made in accordance with the Service Rules. Out of exigency it was the
policy of the State ''Government to extend the period of adhocism for one more similar term but not beyond that, so that if regular appointments
could not be finalised within the first six months, same could he finalised before the Close of the next six months. Both the State"" Government,
instead of making ''regular appointments through the Subordinate Services Selection Board (for short ''the SSSB'') kept on continuing the ad hoc
appointments even after the expiry of the initial two terms of six months. The Government many a times took certain posts out of the purview of the
SSSB so that they could justify the appointment on ad hoc basis beyond the initial two terms of six months each.
3. When this practice continued for quite a long period, the attention of the Governments was engaged to give relief to such ad hoc employees by
regularising their services because if they were to be ousted it would entail hardship and would create the problem of unemployment. In order to
take benefit of their experience besides the above the State of Punjab issued the following instructions from time to time for regularisation of
services of all ad hoc/temporary employees working in the cadre of class III and IV in various departments/offices:
Sr. Date of issue of Crux of the instructions so issued
No. instructions
1. 3.3.1969 To be regularised on completion
of one year on 29.2.1969.
2. 29.1.1973 To be regularised on completion
of one year on 1.1.1973.
S. 3.5.1977 To be regularised on completion
of one year on 1.4.1977.
4. 20.10.1980 To be regularised on completion
of one year on 1.10.1988.
5. 26.10.1982 To be regularised on completion
of one year on 26.10.1982.
6. 29.3.1985 To be regularised on completion
of two years on 1.4.1985.
7. 28.8.1985 Instructions issued on
29.3.1985, as mentioned at Sr.
No. 6, were modified on re-
consideration, and it was
ordered that all Class-Ill
employees who had one year
service to their credit on
1.4.1985, may be regularised.
4. In Punjab State, the matter for issue of fresh instructions for regularisation is pending consideration of the State Government.
5. As regards the employees of Haryana State, it is admitted that from 1970 to March, 1987 all Class-Ill posts in the Education Department were
kept out of the purview of the SSSB. There was no Subordinate Services Selection Board for more than ten years. Sometimes ad hoc
appointments were also made of the candidates selected by the Departmental Selection Committees. Vide Notification No. G.S.R. 27/Const./AR-
309/87, dated 1/4.3.1987, certain posts in the Education Department and other departments were brought within the purview of the SSSB.
Following are the instructions issued by the State of Haryana for regularisation of ad hoc/temporary employees from time to time:
Sr. No.Date of issue of Crux of the instructions so
instructions issued.
1. 1.1.1980 Providing for regularisation of
all Class-Ill employees, who
completed two years service
on 31.3.1979;
2. 3.1.1983 Providing for regularisation of
clerks-cadre class-Ill, who
completed two years service
on 15.9.1982;
3. 19.1.1984 Providing for regularisation of
class-Ill employees, who
completed two years on
15.9.1982. Those, who were
left out in instructions dated
3.1.1983, were also included in
this policy;
4. 16.2.1987 Providing for regularisation of
all class-Ill, ad hoc employees
other than teachers working
against the posts, which have
been taken out of the purview
of SSSB, Haryana, and
completed two years service
on 1.11.86, subject to the
terms and conditions detailed in
the policy.
6. In some of the circulars issued by both the States, besides fixing the date on which an employee has to complete one year or two years of
service, as the case may be, other conditions have also been imposed. In Haryana conditions like having been sponsored by the Employment
Exchange or being outside the purview of the SSSB, were added. Those, who fulfilled the conditions were regularised from time to time and those,
who did not fulfil any of the conditions were allowed to continue as ad hoc or temporary employees. In these writ petitions we are concerned with
those ad hoc/temporary, daily wage earners, work-charged and casual labourers, who continued in the same capacity with notional breaks and are
not considered as regular employees and they are left on tenterhooks to wait for a day when they would be chucked out of service arbitrarily. This
probably has been engaging the attention of Courts for the last about two decades but the changing trend favouring the aforesaid categories of
employees started within the last 4/S years only.
Court decisions on the subject:
7. To start with the Courts did not recognise if the ad hoc and similarly situated temporary employees had any right in service. When government
framed policy for regularisation, the instructions issued in this regard were considered to be having the force of law but with the rigour prescribed
for regularisation. With the passage of time, the Courts started taking liberal view in favour of ad hoc. and other temporary employees, and the one
of the first decisions of the highest Court of the land is contained in:
(i) Rattan Lal v. State of Haryana 1985(3) S.L.R. 548, this was a case of teachers of the State of Haryana, who were working on ad hoc basis.
Direction in this case was issued by a Bench headed by Venkataramiah, J. to allow the ad hoc teachers to continue without break and to allow
them salary and allowances for the period of summer vacations ""and maternity leave etc. in accordance with the Rules. The State Government was
given a direction to frame the policy in this regard for their regularisation.
In spite of the aforesaid direction, which was of general nature for all the State Governments in the country and the Central Government, when it
was seen by the highest Court in various cases that policies were being framed but with un-reasonable conditions, which did not stand the test of
fairness in terms of Articles 14 and 16 of the Constitution of India, the Apex Court while ordering the continuance of such employees in service
also laid guidelines for re-framing the policies for regularisation. When these guideline"" were not followed, the Supreme Court started directing the
concerned Governments or departments to frame policy to regularise the services of those who have put in more than one year of service and not
to terminate their services. For those, who had completed 240 days and were governed by the 1947 Act, benefit of the provisions of that Act was
allowed. In some cases regularisation after six months service was also ordered. The other authorities on the subject are as under:
(ii) Inder Pal Yadav v. Union of India 1985 (2) S.L.R. 248. In this case a scheme framed by the Ministry of Railways for regularising the services
of casual labour was considered. Under the scheme, those employees, who had completed 360 days of continuous service on 1st January. 1984
were to be regularised and others not. It was observed that the date was likely to introduce an invidious distinction and was thus held to be
arbitrary.
(iii) Surinder Singh and Another Vs. Engineer-in-chief, C.P.W.D. and Others, , in which it was honed that the Government will regularise the
services of all those employees who have been in continuous employment for more than six months as temporary or daily wage workers.
(iv) Dakshin Railway Employees Union, Trivandrum Division Vs. General Manager, Southern Railway and others, , in which casual labourers who
had been in continuous employment for 360 days were held to be entitled for absorption even though not in service on 1st January, 1981.
(v) Daily Rated Casual Labour Employed under P and T Department Vs. Union of India (UOI) and Others, . In this case a direction was issued to
the Union of India to prepare a scheme on rational basis for absorbing temporary or casual labourers, who have been continuously working for
more than one year in the Posts and Telegraphs Department. A reading of para 8 of the aforesaid judgment highlights the background wherein inter
alia it was observed that there was much of development to be carried in the Communication Department and more workers were needed,
(vi) U.P. Income Tax Department Contingent Paid Staff Welfare Association Vs. Union of India (UOI) and Others, . A direction was issued to the
Respondents to prepare a scheme on rational basis for absorbing as far as possible the contingent paid staff in the Income Tax Department, who
have been continuously working for more than one year as class IV employees.
(vii) Delhi Municipal Karamchari Ekta Union (Regd.) Vs. P.L. Singh and Others, . A direction was issued to the Delhi Municipal Corporation to
prepare a scheme on a rational basis for absorbing as far as possible the workers involved in the case. It was also directed that the scheme for
absorption shall be prepared within six months and process of absorption shall be completed within eight months from the date of the order.
(viii) Gainda Ram v. M.C.D. AIR 1988 (1) S.L.R. 327. A direction was issued to regularise the services of the persons employed in the Municipal
Corporation on the basis of total length of service giving preference to those who may be senior most among the lot.
(ix) The General Secretary, Bihar State Road Transport Corporation, Patna v. The Presiding Officer, Industrial Tribunal, Patna 1988 (1) S.L.R.
349 a Supreme Court judgment in which it was ordered that a workman within the meaning of 1947 Act on completion of 240 days would be
entitled to benefit of Chapter V-A of that Act.
Out of the above cited authorities, in most of the cases no regularisation policy was framed at all and guidelines were given for framing policy for
regularisation of those who had completed more than one year of service and in one case even on completion of six months'' service. However, in
Inderpal Yadav''s case (supra), there was a regularisation policy in which it was mentioned that those, who fulfil the requisite conditions on 1st
January, 1984, would be regularised. The date was held to have introduced invidious distinction and was not accepted and a direction was issued
to frame policy in such a way that all those employees, who had completed more than one year of service be regularised.
Constitutional Provisions:
8. Besides Articles 14 and 16 of the Constitution of India, the employees appointed in any of the capacities with which we are dealing in these writ
petitions, have the protection of Directive Principles contained in Articles 37 to 44 of the Constitution of India. The Directive Principles enjoin duty
on the State Governments to frame policy to secure social and, economic order for the employees and to provide just and human conditions of
work besides living wage. In pursuance of these Directive Principles, both the State Governments have been framing policies for regularisation but
the benefit of those policies could not be extended to the Petitioners before us because they are couched in such a way that they did not fall within
the four corners of the said policies although they fulfil the basic requirements:
(i) They are fully qualified;
(ii) They have served for more than the requisite period for regularisation.
9. As noticed in the foregoing paragraphs, rule of ad hoc service was created so as to give time to the Government or different organisations
thereof to fill in the posts in a regular manner in accordance with the Rules and in the meantime to appoint ad hoc employees to keep the work
going. The service Rules generally provide that move for finding out candidates should start six; months before the vacancies occur, also taking
note of the vacancies which are likely to occur within six months thereafter. Keeping in view one year''s vacancies the selection process should be
completed within six months and in no case beyond another six months. As the practice has been seen during the last more than 18/19 years
adhocism is going on and may be, during this period, some appointments may also have been made in regular manner. The Courts have
deprecated the ad hoc appointments and we also by doing the same observe that ad hoc employment should not be allowed to continue beyond
one year. All the same, we find the adhocism is allowed to continue not only beyond one year but for several years keeping the employees on
tenterhooks, which cannot be considered good. To keep them as temporary or ad hoc employees even after one year would be greater evil than
to appoint employees initially as ad hoc and allowed to continue for another term of six months. That is why, in the cases noted above, direction
was issued for regularisation of all those ad hoc employees, who have worked for more than one year by framing schemes.
GROUP (1): AD HOC EMPLOYEES
10. Both the States with which we are concerned, have framed numerous schemes and every time a date was fixed, by which an employee should
have completed one year or two years of service. The Government have multifarious duties to perform and remain busy and before they consider
to frame another policy, several years pass in between with the result that ad hoc employees continue to work for years together. In this context it
has become necessary for us to decide whether within the existing policies, we can order (i) that the services of the ad hoc and temporary
employees be regularised, or (ii) should they be made to wait for the new policy of the State Government.
11. On a consideration of this matter, we find that the following conditions stand in the way of the Petitioners for regularisation:
(i) the date by which they have to complete one year or two years of service for the purpose of regularisation has expired although they have
completed the tenure of service;
(ii) they were required to be sponsored through the Employment Exchange but were not so sponsored;
(iii) their posts are within the purview of the SSSB.
Now we deal with these conditions seriatim.
Validity of fixing date for regularisation.
There is no magic in fixing a date by which an employee has to complete the prescribed tenure of service for regularisation. When a policy is
sought to be made, a date when the policy is taken up for consideration or a notional date is fixed without having any nexus. Fixing of a date has no
reasonable basis or intelligible differentia for the object to be achieved. The real object is that on completion of one year of service, an employee
becomes entitled for regularisation. In this context fixing of a date is wholly arbitrary and meaningless. Once a clear guideline is known to the
Governments that there can be no adhocism after one year of service, then it should be clear to them that if an employee continues for more than
one year on ad hoc basis, adhocism will finish and he will be treated as a regular employee. In this manner, one policy would be enough and it
would not be necessary to waste time in making and framing fresh policies every time for ad hoc employees. On the other hand attention would be
diverted towards appointment of employees by regular method of selection within the period of six months or in any case within another six months
so that before an employee completes one year of service, regular employee'' takes his place. That is why in Inderpal Yadav''s case (supra), the
Supreme Court had held that the date 1st January, 1984 fixed for regularisation introduced invidious distinction. Following that view, we hold that
the dates fixed in the policy of regularisation of the two Governments are discriminatory. We only go by the period of regular/continuous service for
the purposes of regularisation. For this view we also take support from D.S. Nakara and Others Vs. Union of India (UOI), . There, the date fixed
for granting of enhanced pension to those employees who had retired on or after a particular date as compared to those who retired before that
date was held to be hit by Article 14 of the Constitution of India, and similarly we hold that here the various dates fixed from time to time in the
regularisation policies are hit by Articles 14 and 16 of the Constitution of India.
12. On behalf of the State Governments, Shri S. C. Mohanta, learned Advocate General, Haryana, placed reliance on Dr (Mrs) Sushma Sharma
and Others Vs. State of Rajasthan and Others, , in support of the proposition that date fixed in the various regularisation policies could not be held
to be bad in view of the aforesaid decision. We have gone through this judgment and find that the same is distinguishable. That case related to
appointment of lecturers and certain amount of experience was provided for and to find out the experience a date was prescribed. There, the
persons who had to be selected, had obtained a degree of doctorate after passing post-graduation whereas in these cases we are concerned with
Class III and IV employees, who are lowest in the service rank.
13. Reliance was also placed by the Advocate General, Haryana, on a Division Bench judgment of this Court in Gian Chand v. The Director,
Hydel Designs, Punjab, Chandigarh 1976 (1) S.L.R. 570. Wherein the second Punjab policy decision of regularisation fixing 1st January, 1973 for
the purposes of regularisation was held not to be arbitrary. It was also held therein that the policy decision for regularising ad hoc employees was
merely a concession and was not justiciable. In the wake of the authorities of the Supreme Court, referred to above, and particularly Inderpal
Yadav''s case (supra), and keeping in view the six/seven more regularisation policies framed by the State of Punjab, the decision in Gian Chand''s
case (supra) cannot be said to be a good law any longer. The attention of the learned Judges was not invited to the provision of Articles 37 to 44
of the Constitution of India, which enjoins upon the State to make provisions in this behalf nor by then the Supreme Court judgments had come.
Now it is too late in the day to argue that the policy decision for regularisation would be a mere concession and would not be justiciable in the
Court of law. Similar is the criticism about the Full Bench judgment reported in S.K. Verma and Others Vs. State of Punjab and Others, , and that
also does not hold good any longer in view of the Supreme Court decision particularly in Inderpal Yadav''s case (supra).
14. The Full Bench judgment reported in S.K. Verma''s case (supra), and the Division Bench judgment reported in Gian Chand''s case (supra), do
not stand in our way because of the two later decisions of this Court, one of which is by a Division Bench in Giani Ram v. The State of Haryana
1981 (2) S.L.R. 803, which was approved by the Full Bench of this Court in Jagdish Lal v. State of Punjab 1988 (1) P.L.R. 43. Before the Full
Bench, the Punjab policy decision of regularisation dated 28th August, 1985, which had modified the notification of regularisation dated 29th
March, 1985, providing therein that all class-Ill employees, who had one year''s service to their credit on 1st April, 1985, may be regularised,
came up for consideration and the learned Judges did not find favour with the interpretation given by the government on the reguiarisation policy.
The instructions were interpreted by the Full Bench to mean not completion of one year ad hoc service on 1st April, 1985 but at a time when he
was to be considered for regularisation. The relevant observations made by the Full Bench in Jagdish Lal''s case (supra), are as follows:
In our opinion the more rational and just view to be taken on the interpretation of the relevant notification is that minimum continuous period of
service of one year need not necessarily be a year immediately preceding April 1, 1985.
The Full Bench approved the dictum of the Division Bench in Giani Ram''s case (supra). Before the Division Bench in Giani Ram''s case (supra),
the first Haryana Government policy of regularisation, in which it was provided that only such ad hoc employees, who have completed a minimum
of two years service on 31st December, 1979, should be made regular, came up for consideration. While interpretating the policy of regularisation,
the Division Bench ruled as follows:
If the clause in dispute is interpreted keeping in view this purpose, then the only rational view would be to extend the benefit of this clause to all
those ad hoc employees, who have to their credit two years completed service, without a break of more than one month on the relevant date and
not necessarily to those only who have two years continuous service immediately preceding the said date.
Between these two judgments, that is Jagdish Lal''s case (supra) and Giani Ram''s case (supra), and the earlier two judgments, that is, Gian
Chand''s case (supra) and S. K. Verma''s case (supra), there is conflict of views, and we prefer to follow the view taken in Jaadish Lal''s case
(supra) and Giani Ram''s case (supra).
15. The learned Judges in Jagdish Lal''s case (supra) and Giani Ram''s case (supra), did not go into the question whether fixing of a date for
regularisation is arbitrary and violative of Articles 14 and 16 of the Constitution of India, Apart from it, in view of the Supreme Court judgment and
after going into this point, we find the fixing of a date for the purposes of regularisation is wholly arbitrary and it has no object to achieve. In the
aforesaid two judgments, while interpreting the policy decision, it was laid whether two years or one year''s is fixed for regularisation, on
completion of the requisite period, the incumbent would be entitled to regularisation. In the wake of these observations, it has become more
necessary to specifically say that fixing of a date is wholly besides the point and if a date is fixed instead of interpreting to mean that it has no
meaning, we rather like to say that this date is arbitrary so that the policy minus date already framed would hold field, and new policy, if at all to, be
framed, should be made keeping in view the observations, which we are going to make in this judgment in regard to other matters also.
16. In view of our above discussions, the decision of D.V. Sehgal, J., dated 30th March, 1987, challenged in L.P.A. No. 214 of 1987 and other
connected appeals and cross-objections, upholding the validity of the fixing of the cut off date for regularisation, that is 1st April, 1985, is hereby
set aside.
17. Similarly, the decision of M. R. Agnihotri, J. in (U.S. Sihag v. State of Haryana), CWP 120 of 1987 decided on September 22, 1988,
challenged in the LPA is hereby set aside.
EMPLOYMENT EXCHANGE''S SPONSORSHIP
18. In some of the regularisation policies, one of the conditions is that only those employees, whose names have been sponsored through the
Employment Exchange, would be considered for regularisation. The validity of this condition has been challenged on the same rule as advanced in
the matter of fixing of date namely that it has no nexus with the object to be achieved. There is Employment Exchange (Compulsory Notification of
Vacancies) Act 31 of 1959, (for short ''the 1959 Act''). The provision of this Act, which would fall for consideration, came up for interpretation in
Union of India (UOI) and Others Vs. N. Hargopal and Others, . After looking into the, scheme of the Act, it was held that government offices are
also included in the expression ''establishment in public sector'' and the purpose of the Act was not that the government or other establishments
could employ those persons only who have been sponsored by the Employment Exchanges.
The relevant passage in para 6 of this reported judgment is as follows:
It is, therefore, clear that the object of the Act is not to restrict, but to enlarge the field of choice so that the employer may choose the best and
provide an opportunity to the worker to have his claim for appointment considered without the worker having to knock at every door for
employment. We are, therefore, firmly of the view that the Act does not oblige any employer to employ those persons only who have been
sponsored by the employment exchanges.
In the aforesaid case, certain instructions issued by the Central Government to its departments to adhere to the rule of notifying the vacancies to the
employment exchanges and to fill the vacancies by such sponsored candidates came up for consideration. While holding that insistence of
recruitment through employment exchanges advances rather than restricts the right guaranteed by Articles 14 and 16 of the Constitution of India,
the following observations were made in para 9 of the reported judgment:
It was only when no suitable candidates were available, then other sources of recruitment were to be considered.
These observations were made after observing that the vacancies should be filled up from the candidates sponsored by the employment exchanges.
Therefore, 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 exchanges, and recruitment is made on ad hoc basis from the sources other than the
employment exchange, it cannot be said in the 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. To avoid the hardship to such ad hoc employees the regularisation policy has been
made. In the wake of this, it cannot be said that regularisation would be limited only to those, who were sponsored through the employment
exchange and not to others. The hardship, which was kept in view by the State would come in the way of all the ad hoc employees, even if they
come through the other sources. We find no justification in the policy of regularisation that the candidates sponsored through the employment
exchanges alone would be entitled to regularisation.
19. The Full Bench of our Court in Daljit Singh Minhas v. State of Punjab 1978 (1) S.L.R. 32, had the occasion to consider the regularisation
policy of the Punjab State, dated 3rd May, 1977 and one of the points raised was that if the ad hoc appointees were not selected through proper
advertisement, their services could not be regularised. The Full Bench turned down the argument in view of the observations contained in paras 12
to 15 of the judgment.
20. Therefore, while we agree that the appointment should be made as far as possible even on ad hoc basis from the candidates sponsored by the
employment exchanges, but if appointment from some other source is made, that would not be considered to be bad. In this view of the matter, we
consider the policy of regularisation to be creating an invidious discrimination having no object to be achieved rather contrary to the object to be so
achieved, and, is, therefore, arbitrary. The Government would be well advised in reframing its policy to bring in the matter of regularisation in
accordance with this judgment and till then the condition will not be given effect to.
POSTS WITHIN THE PURVIEW OF SSSB.
21. In the State of Haryana from the year, 1970 to 1987, till before the notification of lst/4th March, 1987, was issued, most of the class-III and
IV posts with which we are concerned, were kept out of the purview of the SSSB. Moreover, for over ten years there was no SSSB. By the
notification dated lst/4th March, 1987, certain posts have again been brought within the purview of the SSSB, and the regularisation policy
contains a clause that the ad hoc employees working on the posts, which are within the purview of the SSSB, shall not be considered for
regularisation. When the aggrieved Petitioners, whose posts have now come within the purview of the SSSB were appointed, these posts were
outside its purview. The basic question with which we are dealing is as to the fate of the ad hoc employees, who were so appointed by way of
administrative necessity and have been allowed to continue for more than one year. In one of the orders passed by the State of Punjab, for the
purposes of regularisation, the following object was mentioned:
Whereas by continuation of the ad hoc appointments made as above, as an administrative necessity, the ad hoc employees have acquired
necessary experience and their ouster after a considerable period of service would entail hardship to ad hoc employees as a whole and accentuate
the problem of unemployment, the President of India is pleased to decide ...
If the aforesaid is the background of regularisation, the employee hardly knows whether he is being appointed on ad hoc basis against the post,
which is within or outside the purview of the SSSB. This is making an invidious distinction having no reasonable basis or object to be achieved and
we hold it to be arbitrary. The State of Haryana would be will advised in reframing its policy by deleting this clause/condition in the instructions
issued by it. Till then it will not be given effect to. The decision of M. R. Agnihotri, J., dated 22nd September, 1987 in this behalf given in CWP
No. 120 of 1987, which is under challenge in the LPA before us is also hereby set aside.
22. In view of our aforesaid discussion, while the ad hoc employees in Class-Ill and IV service, who had completed more than one year service in
the State of Punjab would be entitled to be regularised; in the State of Haryana, the similarly situated employees would be entitled to regularisation
on completion of two years of service. Whether this disparity in the two neighbouring States should be allowed to continue or deserves to be
resolved?
23. On behalf of the employees of the Haryana State, it was strenuously argued that if on continuation of one year, a similarly situated employee in
Punjab is entitled to be regularised, and the Supreme Court has also found favour with the regularisation on completion of more than one year of
service, in Inderpal Yaduu''s case (supra), Daily Rated Casual Labour, P & T Department''s case (supra) and U. P. income tax Department
Contingent Paid Staff Welfare''s case (supra), the same period should be adopted for directing the State of Haryana to reframe the policy of
regularisation of the employees, who have completed more than one year of service. We find merit in this contention.
24. The erstwhile State of Punjab included the Haryana territory and Haryana was created on re-organisation with effect from 1st November,
1966. From 1968 to 1972 Haryana made so much of progress that economically and financially it surpassed the State of Punjab. Both the States
are like sister States carved out of the same erstwhile territory and once the financial position of Haryana State is equal to the State of Punjab if not
better, we find no reasonableness in fixing two years period for the purposes of regularisation.
25. In B.S. Yadav v. State of Haryana 1980 (3) S.L.R. 591, the Supreme Court had observed that the rules relating to the Superior Judicial
Service in the two States should be similar. Although, on the parity of reasoning, it may not apply to the facts of the case but taking over all view of
the matter, we direct the State of Haryana to reframe its policy to give benefit of regularisation to all Class-Ill and IV ad hoc employees, who have
completed more than one year of service, because the underlying object for regularisation in both the Spates is the same. Till such a policy is
framed by the State of Haryana, all ad hoc class III and IV employees, who have put in more than one year of service would continue. Of course
those who have completed two years of service would be regularised.
GROUP II: Work-Charged, Daily Wages and Casual Labour.
26. In Surinder Singh''s case (supra), Ddkhshin Railxvay Employees Union''s case (supra), Daily Rated Casual Labour Under P&iT Department''s
case (supra), U. T. income tax Department Contingent Paid Staff''s case (supra) and Delhi Municipal Karamchari Ekta Union''s case (supra),
direction was given to frame policy for absorption of all such type of workers. In Surinder Singh''s case (supra) six months period was fixed for the
purposes of regularisation, whereas in the other above-quoted cases, barring the last case, more than one year was considered for the purposes of
regularisation.
In Daily Rated Casual Labour P&T Department''s case . (supra) Venkataramiah, J. took note of the argument that in some of the departments
there may not be enough work for such type of employees and the argument was repelled with the following observations contained in para 8 of
the reported judgment:
...Is it for paying the lower wages? Then it amounts to exploitation of labour. Is it because you do not know that there is enough work for the
workers? It cannot be so because there is so much of development to be carried out in the communications department that you need more
workers. The employees belonging to skilled, semi-skilled and unskilled classes, can be shifted from one department to another even if there is no
work to be done in a given place. Administrators should realise that if any worker remains idle on any day, the country loses the wealth that he
would have produced during that day. Our wage structure is such that a worker is always paid less than what he produces. So why allow people
to remain idle? Anyway they have got to be fed and clothed. Therefore, why don''t we provide them with work? There are, several types of work
such as road making, railway construction, house building, irrigation projects, communications etc. which have to be undertaken on a large scale.
Development in these types of activities (even though they do not involve much foreign exchange) is not keeping pace with the needs of the society.
We are saying all this only to make the people understand the need for better management of man power (which is a decaying asset) the non-
utilisation of which leads to the inevitable loss of valuable human resources. Let us remember the slogan: ""Produce or Perish"". It is not an empty
slogan. We fail to produce more at our own peril. It is against this background that we say that non-regularisation of temporary employees or
casual labour for a long period is not a wise policy.
We, therefore, direct the Respondents to prepare a scheme on a rational basis for absorbing as far as possible the casual labourers who have been
continuously working for more than one year in the Posts and Telegraphs Department.
27. Apart from the observations made above, that working in the Government departments continues in one section or the other, we have seen
that such type of workers are allowed to go on till superannuation. One such matter came up for consideration before a Full Bench of this Court in
Kesar Chand v. State of Punjab 1988 (2) P.L.R. 223. There, the work-charged employees, who were made to work upto the age of
superannuation were not being paid pension and gratuity on the ground that they are only work-charged employees and are not governed by the
Civil Services Rules and for the purposes of pension and gratuity the service rendered by them as work-charged employees was not taken into
account for determining the qualified service. This Court ordered that whole of length of service from the date of initial appointment/joining as
work-charged should be taken into consideration for the purposes of payment of pension and gratuity and the rule to the contrary was hit by the
vice of arbitrariness and was opposed to Article 14 of the Constitution of India. The Supreme Court had noticed in the afore-quoted judgments
that such type of employees are allowed to continue for years and why should they be kept for years together under such labels. Whenever certain
posts are declared surplus or abolished, it is always open to the Governments or its departments to dispense with the services of such surplus staff
on the rule of ''last come first go'' but with a rider that as and when vacancy arises or new posts are created or revived, those people will have to
be called back on the rule ''last go first come''.
28. As regards work-charged employees, the State of Punjab has made rules for regularisation of their services on completion of five years
whereas the State of Haryana has made rules for regularising their services on completion of four years of service. This further adds to the fact that
temporary employees are generally allowed to continue year after year, with casual break, if any. The Full Bench in Kesar Chand''s case (supra),
has further noticed the ward of the Industrial Tribunal dated 1st June, 1972, wherein it was held that the work-charged employees, who have put
in continuous three years of service, are entitled to be made permanent. In view of the Supreme Court decisions, referred to above, it will be
reasonable to direct the State Governments to frame policies to regularise the services of all such employees on completion of more than one year
service, and till such policies are framed, their services shall not be terminated. Those employees, who have completed four years of service in
Haryana and five years of service in Punjab, shall be considered to be permanent under the existing policies with all other benefits with effect from
the date of initial appointment in temporary capacity with whatever nomenclature one is given.
GROUP III: Class III and IV employees, enumerated in Groups (I) and (II), but fall within definition of workman under the 1947 Act, on
completion of 240 days in a year.
29. The workmen who come within the definition of ''work-mart'' under the 1947 Act, on completion of 240 days service in a year, become
entitled to the benefit of the provisions of Chapter V-A of the 1947 Act, both within the meaning of the provisions of the said Act, as also in view
of the decision of the Supreme Court in The General Secretary Bihar State Road Transport Corporation''s case (supra). Wherever such workmen
have completed 240 days in a year, they are allowed the benefit of the provisions of Chapter V-A of the 1947 Act, and their services cannot be
dispensed with without following the procedure of that Chapter and in case these are dispensed with, the same will be void. If any one of them is
retrenched they would be entitled to retrenchment compensation and other benefits in accordance with the provisions of the 1947 Act. After
retrenchment whenever vacancy arises, they will have the preferential right to be taken back in service according to the provisions of the 1947 Act.
30. Moreover, certain policies have been framed by the two Governments to regularise the services of such workmen. On the regularisation of
their services under these policies, or the policy which the State Governments may frame in view of the directions issued by us, such workmen will
be entitled to the benefit of the provisions of the 1947 Act as also the Service Rules, which may be applicable to the departments in which they are
already working
GROUP IV: AD HOC/TEMPORARY EMPLOYEES IN TEMPORARY ORGANISATIONS:
31. Some ad hoc/temporary employees have been employed in temporary organisations like the Adult Education Scheme and Integrated Child
Development Scheme, and they have continued in service for more than one year with or without notional break. The fate of the employees of the
Adult Education Scheme came up for consideration before the Supreme Court in Bhagwan Dass and Others Vs. State of Haryana and Others,
both for purposes of giving ''equal pay for equal work'' with other benefits of service and for continuing in service, 1511 the temporary scheme
lasts. The employees under both the temporary schemes on the parity of reasoning given in the aforesaid judgment of the Supreme Court, would
be entitled to continue in case they have put in more than one year of service after ignoring the notional breaks and none of them would be
terminated from service except on abandonment of the scheme.
GROUP V: EQUAL PAY FOR EQUAL WORK:
32. This matter is concluded by now by various decisions of the Supreme Court and was subject matter of consideration in some of the
aforequoted judgments. The principle was not disputed by any of the State Counsel in view of the numerous binding decisions of the Supreme
Court.
33. However, the categories of the cases will be seen where the relief can be granted.
In the result, our conclusions are as follows:
(1) The State Governments should avoid making any ad hoc appointments. If they do so, it shall be for initial period of six months and not to be
extended beyond another 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 notional and permissible breaks in service, as noticed by the Supreme Court in various judgments and also by our Full Bench 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 notional 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 reframe 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 sponsoreded by the Employment Exchange
or that their posts are within or outside the purview of the SSSB. In ease 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 ''workman'' under
the 1947 Act) covered by Group II serving in the different departments of Government of Punjab 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
schemes 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 ''workman'' under the 1947 Act. On completion of 240 days,
which shall be counted keeping in view the decision of the Supreme Court in Workmen of American Express International Banking Corporation
Vs. Management of American Express International Banking Corporation, they would be entitled to benefits of all the provisions of Chapter V-A
of the 1947 Act. and their services would not be dispensed with without following the procedure laid down 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 notional breaks would be entitled to the benefits of service and
benefit of the directions issued by the Supreme Court in Bhagwan Doss''s case (supra), and the services 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 re-instated 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 SSSB 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 counter-parts, 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 appointment in service. The arrears should be
paid within six months from today.
34. 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.
35. Before parting, it deserves mention that Sarvshri Satya Narian Singla, G. K. Chatrath, Ravinder Chopra, Ramesh K. Chopra, R. K. Malik, M,
M. Kumar, J. L. Gupta and K. L. Arora, Advocates had rendered good assistance on behalf of the employees and Sarvshri S. C. Mohanta,
Advocate General, Haryana, Mani Subrat Jain, the then Additional Advocate General, Haryana, and D. S. Brar, Senior Deputy Advocate
General, Punjab, had rendered valuable assistance on behalf of their respective States.
36. The writ petitions stand allowed with costs in the aforesaid terms. The costs are quantified at Rs. 500 in each case.