Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.7922 OF 2002

Md. Abdul Kadir & Anr. … Appellants Versus

Director General of Police, Assam & Ors. … Respondents

O R D E R

R. V. Raveendran, J.

The Government of India formulated the Prevention of  Infiltration of Foreigners Scheme (PIF Scheme for short)  for  Assam,  for  strengthening  the  Assam  Governmental  machinery for detection and deportation of foreigners in  the year 1960. The scheme has been extended from time to  time  and  is  in  force  even  now.   By  communication  dated  3.6.1987,  the  Government  of  India  informed  the  Govt.  of  Assam about the sanction of the following additional posts  by the President under the PIF Scheme: Inspectors-5, Sub- Inspectors-323,  Head  Constables-306  and  Constables-646.

Under  the  said  PIF  Additional  Scheme,  the  Government  of  India agreed to reimburse the cost of pay and allowances of  persons employed in the additional posts provided all the  additional posts were filled by only ex-servicemen. It also  agreed to reimburse all other expenditure incurred by the  State for the said Additional Scheme. The PIF Additional  Scheme provided that the sanction will be valid for the  period of two years from the date of its issue (3.6.1987),  to   be   reviewed   thereafter  along  with  the  main  PIF  Scheme.  

2. A selection board was constituted for selection of ex- servicemen to the various posts which were sanctioned under  the Additional Scheme dated 3.6.1987. The first appellant,  an  ex-serviceman,  was  selected  and  appointed  as  a  sub- Inspector  on  1.9.1988  after  undergoing  the  selection  process in the time scale of pay of Rs.620-25-745-EB-30- 895-EB-35-1315 plus allowances. The second appellant, also  an  ex-serviceman,  was  selected  and  appointed  as  a  sub- Inspector on 17.3.1995 on a fixed basic pay of Rs.1375/-  (being  the  minimum  in  the  pay  scale  applicable  to  Sub- Inspectors) plus allowances. The appointment letters issued  to them by the Inspector General of Police (Border) Assam  made it clear that the appointments were purely on ad hoc  

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and  temporary  basis  and  that  they  could  be  discharged  without assigning any reason or notice, in any contingency  in future.  

3. The Inspector General of Police, (Border) Assam issued  a  Circular  dated  17.3.1995  laying  down  the  following  procedure for appointment/continuation of ex-serviceman as  ad hoc Border staff:

(i) All appointments shall be for a contract period of  one year. (ii) Termination notice should be issued to every ad-hoc  employee at least 45 days before the date of expiry of one  year from the date of appointment. (iii) The  ad  hoc  employee,  on  receiving  information  regarding termination from service, shall, if he desires to  continue, send an  application seeking fresh appointment  for  a  further  term  of  one  year.  The  application  should  reach the office of IGB (B), Assam at least 30 days before  the date of expiry of one year. (iv) The concerned DIGP (Range)/Superintendent of Police  shall send a performance report and medical certificate in  respect of each ad hoc employee to whom such termination  notice has been issued at least 30 days before the date of  such  termination  while  forwarding  the  applications  for  fresh appointment. (v) The  applications  for  fresh  appointment  shall  be  considered  with  reference  to  the  respective  performance  report  and  medical  certificate,  and  those  found  fit  and  suitable will be re-appointed at least 20 days before the  date of expiry of the contract period of one year.  (vi) Such fresh appointment letters shall be issued by the  Superintendent  of  Police  (Border)  Assam  and  the  ad  hoc  employees  cleared  for  fresh  appointment  shall  sign  an  agreement and submit his joining report.

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(vii) If application for fresh appointment is not received  in due time, it will be taken that the ad-hoc employee has  not sought fresh appointment and he will not be considered  for fresh appointment. 4. Aggrieved  by  the  process  of  termination  and  reappointment  introduced  by  the  said  circular  dated  17.3.1995 and the consequences thereof appellants 1 and 2  filed Civil Rule Nos.2065/1995 and 1698/1995 in the Gauhati  High  Court.  According  to  them,  but  for  such  yearly  artificial  terminations,  the  ad-hoc  employees  would  have  the  benefit  of  continuous  service  and  those  who  were  appointed in a time scale of pay would have also got annual  increments.  The  procedure  contemplated  by  the  circular  dated 17.3.1995, it was submitted, introduced an element of  uncertainty in regard to their service and gave room for  nepotism and corruption. The appellants pointed out that  the original PIF Scheme had continued from 1960 and the  Additional Scheme was continued from 1987 without break,  and  having  regard  to  the  importance  of  border  security  requirements,  it  was  a  misnomer  to  call  them  as  ad  hoc  appointees;  and  as  the  posts  were  sanctioned  by  the  President and the scheme was continuing for long number of  years,  their  services  should  be  regularized.  They  also  pointed  out  that  three-fifth  of  Assam  Police  Border  Organisation(PIF Additional Scheme) was earmarked for regular  

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police  personnel  and  two  fifth  was  reserved  for  ex- servicemen;  and  that  though  they  discharged  the  same  functions as their police-brethren, they were discriminated  by terming them as ad-hoc employees thereby denying them  security of tenure, benefit of pay scales and other service  benefits.  They  also  pointed  out  that  ex-servicemen  recruited  in  Assam  Special  Peace  Keeping  Force  were  extended  several  benefits  available  to  regular  employees  and  they  should  also  be  extended  such  benefits.  They  therefore prayed that (i) the system of appointing them on  one  year  contract  basis  be  quashed;  (ii)  the  various  benefits  extended  to  ex-servicemen  appointed  to  Assam  Special Peace Keeping Force under Office Memorandum dated  14.6.1984  may  also  be  extended  to  them;  and  (iii)  they  should be regularized in service of the Border organization  of Assam Police with all consequential benefits including  yearly increments in pay.

5. A learned Single Judge of the High Court allowed the  writ petition by order dated 29.2.1996. He held that the  appellants should be allowed to continue as long as the  scheme was continued by the Government of India and they  shall  be  entitled  to  all  service  benefits  as  regular  employees so long as the scheme continued. He also held  

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that  the  appellants  shall  be  entitled  to  the  benefits  extended under the State Government Scheme for enrollment  of  ex-service  personnel  in  Assam  Special  Peace  Keeping  Force,  vide  Official  Memorandum  dated  14.6.1984.  Feeling  aggrieved the Director General of Police, Inspector General  of Police (Border) and Superintendent of Police (Border),  Assam, filed a writ appeal (WA No.154/1996). The appeal was  allowed  by  a  division  bench  of  the  High  Court  by  the  impugned order dated 1.9.2000. The Division Bench held that  the  Scheme  contained  in  the  Office  Memorandum  dated  14.6.1984 of the State Government relating to Assam Special  Peace  Keeping  Force  will  not  apply  to  those  who  were  inducted under the PIF Additional Scheme dated 3.6.1987,  which is a completely different scheme. The Division Bench  therefore set aside the order of the learned Single Judge  and  dismissed  the  writ  petitions.  The  said  judgment  is  under challenge in this appeal by special leave.   6. At the outset, the learned counsel for the appellants  stated that the prayer for relief based on the Scheme dated  14.6.1984 relating to Assam Special Peace Keeping Force,  was not pressed. Therefore only two issues arise for our  consideration: (i) whether the persons engaged under the  PIF Additional Scheme, 1987, are entitled to be regularized  

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in  service;  (ii)  whether  the  procedure  introduced  by  circular dated 17.3.1995 is valid.

7. The fact that the appellants were employed under the  PIF Additional Scheme is not disputed. The duration of PIF  Additional  Scheme  under  which  they  are  employed  was  initially two years, to be reviewed for continuation along  with  the  original  PIF  Scheme.  The  said  scheme  is  being  extended from time to time and is being continued. If the  temporary  or  ad-hoc  engagement  or  appointment  is  in  connection with a particular project or a specific scheme,  the  ad hoc or temporary service of the persons employed  under  the  Project  or  Scheme  would  come  to  an  end,  on  completion/closure/cessation of the Project or the Scheme.  The fact that the Scheme had been in operation for some  decades or that the employee concerned has continued on ad  hoc basis  for  one  or  two  decades  would  not  entitle  the  employee to seek permanency or regularization. Even if any  posts  are  sanctioned  with  reference  to  the  Scheme,  such  sanction is of  ad hoc or temporary posts co-terminus with  the scheme and not of permanent posts. On completion of the  project  or  discontinuance  of  the  scheme,  those  who  were  engaged  with  reference  to  or  in  connection  with  such  Project or Scheme cannot claim any right to continue in  

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service, nor seek regularization in some other project or  service. (See Bhagwan Dass v.  State of Haryana – 1987 (4)  SCC 634, Delhi Development Horticulture Employees Union v.  Delhi Administration – 1992 (4) SCC 99,  Hindustan Steel  Works Construction Ltd., vs. Employees Union – 1995 (3) SCC  474, UP Land Development Corporation vs. Amar Singh – 2003  (5) SCC 388,  Madhyamik Shiksha Parishad UP v.  Anil Kumar  Mishra – 2005 (5) SCC 122, Secretary, State of Karnataka v.  Umadevi –  2006  (4)  SCC  31,  Indian  Council  of  Medical  Research vs. K. Rajyalakshmi – 2007 (2) SCC 332, and  Lal  Mohammed vs. Indian Railway Construction Co. Ltd. – 2007  (2)  SCC  513).  In  view  of  this  settled  position,  the  appellants will not be entitled to regularization.

8. We may next consider the challenge to the procedure of  annual  termination  and  reappointment  introduced  by  the  circular dated 17.3.1995. The PIF Scheme and PIF Additional  Scheme were introduced by Government of India.  The scheme  does not contemplate or require such periodical termination  and re-appointment. Only ex-servicemen are eligible to be  selected  under  the  scheme  and  that  too  after  undergoing  regular selection process under the Scheme. They joined the  scheme  being  under  the  impression  that  they  will  be  continued  as  long  as  the  PIF  Additional  Scheme  was  

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continued. The artificial annual breaks and reappointments  were  introduced  by  the  state  agency  entrusted  with  the  operation of the Scheme. This Court has always frowned upon  artificial breaks in service. When the ad-hoc appointment  is under a scheme and is in accordance with the selection  process prescribed by the scheme, there is no reason why  those appointed under the scheme should not be continued as  long  as  the  scheme  continues.  Ad-hoc  appointments  under  schemes are normally co-terminus with the scheme (subject  of  course  to  earlier  termination  either  on  medical  or  disciplinary grounds, or for unsatisfactory service or on  attainment of normal age of retirement). Irrespective of  the length of their ad hoc service or the scheme, they will  not be entitled to regularization nor to the security of  tenure  and  service  benefits  available  to  the  regular  employees. In this background, particularly in view of the  continuing  Scheme,  the  ex-serviceman  employed  after  undergoing selection process, need not be subjected to the  agony,  anxiety,  humiliation  and  vicissitudes  of  annual  termination  and  re-engagement,  merely  because  their  appointment  is  termed  as  ad  hoc appointments.  We  are  therefore of the view that the learned Single Judge was  justified in observing that the process of termination and  re-appointment  every  year  should  be  avoided  and  the  

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appellants  should  be  continued  as  long  as  the  Scheme  continues, but purely on  ad hoc and temporary basis, co- terminus  with  the  scheme.  The  circular  dated  17.3.1995  directing artificial breaks by annual terminations followed  by fresh appointment, being contrary to the PIF Additional  Scheme  and  contrary  to  the  principles  of  service  jurisprudence, is liable to be is quashed.  

9. Before parting we may however refer to two aspects.  One is with reference to the term of the scheme itself.  Second is with reference to the pay.

9.1) PIF Scheme has been in force for nearly five decades.  PIF Additional Scheme has been in force for more than two  decades.  The  object  of  the  Scheme  is  detection  and  deportation  of  illegal  immigrants/fresh  infiltrators/re- infiltrators, establishment of second line of defence on  Assam Bangladesh Border to man the areas not covered by  Border  Security  Force  and  monitoring  the  occurrences  on  international  border.  The  staff  entrusted  with  such  sensitive functions and duties can work wholeheartedly and  with commitment in adverse and hostile conditions only if  they have security of tenure, without having to constantly  worry about their future. If the task under the scheme is  

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perennial,  there  is  no  point  in  executing  it  as  a  ‘temporary’ Scheme, though to start with it might have been  thought that the task was a short term task. Another aspect  to be noticed is that duties discharged by the Border staff  belonging to Assam Police Border Organization under the PIF  Scheme is said to be somewhat similar or parallel to the  duties discharged by regular forces like Border Security  Force and Assam Special Peace keeping Force. Further, part  of the very same Border Organization under PIF Scheme is  manned  by  regular  police  personnel.  Therefore,  if  those  working as  ad hoc or temporary staff for decades on, are  converted  to  regular  permanent  staff,  that  would  boost  their morale and efficiency. We are conscious of the fact  that the issue is a matter of policy having financial and  other  implications.  But  where  an  issue  involving  public  interest has not engaged the attention of those concerned  with policy, or where the failure to take prompt decision  on a pending issue is likely to be detrimental to public  interest, courts will be failing in their duty if they do  not  draw  attention  of  the  concerned  authorities  to  the  issue involved in appropriate cases. While courts cannot be  and should not be makers of policy, they can certainly be  catalysts, when there is a need for a policy or a change in  policy.

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9.2) Another  issue  requiring  consideration  by  the  respondents  is  the  question  of  pay.  The  order  of  appointment in the case of first appellant shows that he  was appointed in a time scale of pay. First appellant and  similarly placed will therefore be entitled to increments  in terms of the pay scale. Second appellant was appointed  on a fixed pay. But even in the case of second appellant  and others appointed on fixed pay, it is alleged that the  State Government had treated their appointments as being in  a time scale of pay and claiming reimbursement from the  Central Government on that basis. If the State Government  has  treated  the  appointments  on  fixed  salary  as  appointments  on  a  time  scale,  and  claimed  reimbursement  from  the  Government  of  India  on  that  basis,  the  State  Government should, in all fairness, pass on the benefit of  such  time-scale  of  pay  to  the  employees  concerned.  When  persons are engaged under the same Scheme, discriminatory  treatment, that is extending benefit of increments to some  and denying the said benefit to others, should be avoided.  

9.3) We hope that the respondents will endeavor to address  the aforesaid two grievances of the border staff promptly  and in an appropriate manner.       

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 10. The appeal is allowed in part accordingly as follows:  

(i) The  circular  dated  17.3.1995  is  quashed.  The  appellants  shall  not  be  subjected  to  annual  terminations  and  re-appointments  (subject  to  observations in para 8 above).   

(ii) The benefit of this order will be available to other  similarly situated ad hoc border staff, even if they  have not approached the court for relief. In view of  the  above,  the  interlocutory  applications  for  impleading  are  disposed  of  as  having  become  infructuous.  

(iii) This order will not however come in the way of  ad  hoc employees  working  as  Border  staff,  being  subjected to any periodical medical examination or  service  review  to  assess  their  fitness  and  suitability for continuation.  

________________J. (R V Raveendran)

New Delhi; _________________J. April 22, 2009. (B Sudershan Reddy)  

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