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

       Vs.

RESPONDENT: PIARA SINGH AND ORS. ETC. ETC.

DATE OF JUDGMENT12/08/1992

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

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

ACT:      Civil Services :      Constitution of India, 1950:      Articles    14,   16,   32,   136,   226    and    309- Regularisation/absorption  of adhoc and temporary  employees of  State  Governments  and  work-charged  employees,  daily wage  workers  and casual labour-Directions of  High  Court- Justification  of-Orders  of  State  Government  prescribing eligibility  criteria for regularisation-Whether  arbitrary, unreasonable   and discriminatory-Interference by  Court  in service matters-when warranted-Guidelines for regularisation issued.

HEADNOTE:      Over   the  last  several  years  a  large  number   of appointments  were made to Class III and IV services in  the two appellant State on ad hoc basis, i.e., without reference to  Public  Service Commission or the  Subordinate  Services Selection Board and without adhering to employment  exchange requirement.   As  a  result,  a  large  number  of  ad  hoc employees  were continuing for several years  without  being regularised and were agitating for their regularisation.  To meet  the situation, both the appellant  Governments  issued orders  from  time  to  time  for  regularisation  of   such employees subject to certain conditions.      In  pursuance of these orders a number of persons,  who satisfied the conditions prescribed in each of those order s were regularised, but many could not be, for the reason that they  did  not satisfy one or the other  of  the  conditions prescribed in the said orders.  They were, however,  allowed to continue in service.  This category of people  approached the  High  Court  praying for issuance  of  writ,  order  or direction   for  regularisation  of  their  service.    They contended  that  the  conditions in  the  said  orders  were arbitrary, discriminatory and unrelated to the object.      The work-charged employees, daily-wagers, casual labour and those                                                        827 employed  in temporary/time-bound projects  also  approached the  High Court for regularisation of their services.   Some

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of  the  petitioners also pleaded for equal  pay  for  equal work.      Accepting the pleas of the petitioners, the High  Court gave   certain  directions  to  the   appellant-States   for regularisation of these employees.      Aggrieved by the High Court’s orders, the two appellant States filed  appeals  before  this  Court.   Some  of   the employees  also  filed  Writ  Petitions  before  this  Court directly,  contending  that they too were  governed  by  the directions  given by the High Court and that they should  be given the benefit of the same.      On   behalf   of  the  appellants  the   validity   and correctness  of the directions given by the High Court  were questioned  on the grounds that the High Court had  exceeded its jurisdiction in virtually amending the Government orders and  was  not justified in holding that the  fixation  of  a particular  date  in the respective  Government  orders  was arbitrary and/or that it was unrelated to the object  sought to  be achieved; that the High Court also erred  in  holding that  the  requirement  of  having  been  sponsored  by  the Employment Exchange was invalid; that the High Court was not justified  in directing that all persons who had put in  one year’s  service should be regularised  unconditionally;  and that   such  a  direction  would  given  rise   to   several difficulties and complications for the administration,  that there  could  be a direction for regularisation,  without  a post  or a vacancy and the Government could not be  directed to  create  posts  without number, and  it  was  beyond  the capacity  of any Government to comply with such  directions; that   the   direction   with   respect   to    work-charged establishment,  casual  labour  and  daily  wagers   equally unsustainable  in  law; that the  rule  prescribing  minimum qualifying  service  of one year in one State could  not  be thrust upon the other State; that because of the  directions in question, while regularly selected persons would be  kept out  of  jobs, unqualified ineligible persons who  had  come through  back door and whose records of service  might  also not  be satisfactory would be regularised at one go and  the rule  of reservation would also be violated and that it  was the  prerogative  of  the Executive to  create  and  abolish posts,  and  that the Government could not be  compelled  to create posts where there was no need for such posts or where the need is no longer there.                                                        828      It  was contended on behalf of the respondents and  the writ  petitioners that the directions had been given with  a view to curb the arbitrariness of the authorities and with a view  to  give a satisfactory solution to  a  human  problem created by the policies of the Governments themselves,  that the work-charged employees should be treated on par with ad- hoc  employees  and ought to be regularised on  the  1st  of April of each year, and all those persons who where  working in the permanent posts ought to be regularised.      Disposing of the cases, this Court,      HELD  :  1.1.  Ordinarily speaking,  the  creation  and abolition of a post is the prerogative of the Executive.  It is  the  Executive again that lays down  the  conditions  of service subject, of course, to a law made by the appropriate legislature.   This  power to prescribe the  conditions   of service  can be exercised either by making Rules  under  the proviso  to  Article  309 of the  Constitution  or  (in  the absence  of  such Rules) by  issuing  Rules/Instructions  in exercise  of its executive power.  The court comes into  the picture  only  to ensure observance of  fundamental  rights, statutory provisions, Rules and other instructions, if  any,

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governing  the conditions of service.  The main  concern  of the  court in such matters is to ensure the Rule of law  and to see that the executive acts fairly and gives a fair  deal to  its  employees  consistent  with  the  requirements   of Articles 14 and 16.  It also means that the State should not exploit  its employees nor should it seek to take  advantage of  the  helplessness and misery of  either  the  unemployed persons or the employees, as the case may be.  [847 F-H]      1.2. The State must be a model employer. It is for this reason  it  is held that equal pay must be given  for  equal work, which is indeed one of the directive principles of the Constitution  and  that  a person should not be  kept  in  a temporary or ad hoc status for long.  [848A]      1.3.  Where  a  temporary  or  ad  hoc  appointment  is continued  for long, the court presumes that there  is  need and  warrant  for  a regular post  and  accordingly  directs regularisation.  While all the situations in which the court may  act  to  ensure  fairness cannot  be  detailed,  it  is sufficient  to indicate that the guiding principles are  the ones indicated above.  [848B]      Dharwad Distt. P.W.D. Literature Daily Wage  Employees’ Association v. State of Karnataka and Ors., [1990] 2  S.C.C. 396 and Jacob v. Kerala                                                        829 Water Authority, [1990] Suppl. 1 S.C.R. 562, referred to.      2.1. The court must, while giving directions, act  with due care and caution.  It must first ascertain the  relevant facts,  and must be cognizant of the several situations  and eventualities that may arise on account of such  directions. A practical and pragmatic view has to be taken, inasmuch  as every  such  direction  not  only  tells  upon  the   public exchequer  but also has the effect of increasing  the  cadre strength  of  a  particular  service,   class  or  category. [852A,B]      2.2.  In the instant case apart from the fact that  the High  Court  was  not  right in  holding  that  the  several conditions   imposed  by  the  two  Governments   in   their respective orders relating to regularisation were arbitrary, not  valid  and  justified,  it  acted  rather  hastily   in directing  wholesome regularisation of all such persons  who have   put   in   one  year’s   service,    and   that   too unconditionally.    Several  problems  will  arise  if  such directions  become the norm.  Therefore, there is  need  for fulled  consideration  and due circumspection  while  giving such directions.  [852C]      3.1.  The Government orders in question were issued  by the  Government from time to time.  These orders are not  in the nature of a statute which is applicable to all  existing and  future  situations.  They were issued to meet  a  given situation facing the Government at a given point of time. In the  circumstances,  therefore, there was nothing  wrong  in prescribing a particular date by which the specified  period of  service (whether it is one year or two years)  ought  to have been put in.  [853G]      3.2. The first order dated 1st January, 1980 issued  by one  of  the States says, a person must have  completed  two years  of service as on 31st December, 1979, i.e.,  the  day previous  to the issuance of the order.  It cannot  be  said that  fixing of such a date is arbitrary  and  unreasonable. Similarly,  the  order dated 3rd January,  1983  fixes  15th September,    1982    as   the    relevant    date.     This notification/order  does two things.  Firstly,  it  excludes Class  III posts of clerks from the purview of the  S.S.S.B. in  case of those who have completed a minimum of two  years of  service  as on 15th September, 1982,  and  secondly,  it

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provides   for  their  regularisation  subject  to   certain conditions.   No particular attack was made as to this  date in  the  High Court.  Consequently, the  Government  had  no opportunity of explaining as to why this particular date was fixed.  Without giving such an opportunity it cannot be held that the fixation of the said date is arbitrary.                                                        830 What  is more relevant is that the High Court has  not  held that  this  particular date is arbitrary. According  to  it, fixation  of any date whatsoever was arbitrary, because,  in its  opinion, the order must say that any and  every  person who  completes  the  prescribed period of  service  must  be regularised  on  completion of such period of  service.  The next  order  dated 24th March, 1987 prescribes the  date  as 31.12.1986.  i.e.,  the  end of the previous  year.  In  the circumstances,  there is no basis for holding that  fixation of  the  date can be held to be arbitrary in the  facts  and circumstances of the case. [854A-D]     Dr.  Sushma  Sharma v. State of Rajasthan,  [1985]  S.C. 1367  and  Inder Pal Yadav & Ors. etc. v. Union of  India  & Ors. etc., [1985] 3 S.C.R. 837, referred to.     3.3.  The Government orders say that all those  who  had been sponsored by  Employment Exchange or had been appointed after  issuing a public advertisement alone be  regularised. There  is no unreasonableness or invalidity in the same.  It is  a reasonable and wholesome provision and  a  requirement designed  to  curb  and  discourage  back  door  entry   and irregular   appointments   and  ought  not  to   have   been invalidated.  Moreover, these are not cases where  the  writ petitioners  were  appointed  only after  obtaining  a  non- availability  certificate  from  the  Employment   Exchange. [855E-F]     Union of India v. Hargopal, 1987 S.C. 1227, referred to.     3.4.  The further requirement prescribed in the  orders, viz., that the employees must have possessed the  prescribed qualifications  for the post at the time of his  appointment on ad hoc basis  is equally a valid condition.  [855G-H]     3.5.  The High Court was not justified in  holding  that inasmuch  as the two States were sister States  and  because prior  to 1966 one State was a part of the other State,  the rule   relating   to  length  of   service   requisite   for regularisation  should be uniform in both the  States.  They are  two  different  States having  their  own  Governments; merely because one Government chooses to say that one year’s temporary  ad  hoc service is enough for  regularisation  it cannot be said that the other State must also prescribe  the very  same  period or that it cannot prescribe a  longer  or shorter  period. The fact that there is a single High  Court for both the States and                                                        831 the  Union Territory of Chandigarh is no ground  for  saying that the orders issued by them should be uniform. [856A-C]     3.6.  It  is  not  necessary  to  alter  or  modify  the directions of the High Court, in so far as one of the States was concerned, that Class III and IV posts which were within the  purview  of the S.S.S.B. should equally be  within  the purview of regularisation orders issued by it. If any of the petitioners  have  been  excluded  from  consideration  (for regularisation) on the basis that most of the Class III  and IV  posts were kept out of the purview of the S.S.S.B.  they may be considered and appropriate orders passed. [856D-E]     3.7. The High Court was also not justified in giving the direction that all those ad hoc/temporary employees who  had continued for more than one year should be regularised.  The direction has been given without reference to the  existence

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of   a  vacancy.  It,  in  effect,  means  that   every   ad hoc/temporary  employee who has been continued for one  year should  be  regularised  even  though  (a)  no  vacancy   is available for him - which means creation of a vacancy (b) he was  not  sponsored by the Employment Exchange  nor  was  he appointed  in  pursuance  of  a  notification  calling   for applications  which means he had entered by a back-door  (c) he  was  not eligible and/or qualified for the post  at  the time of his appointment and (d) his record of service  since his  appointment  is not satisfactory.  Moreover,  from  the mere  continuation  of an ad hoc employee for one  year,  it cannot  be presumed that there is need for a  regular  post. Such   a  presumption  may  be  justified  only  when   such continuance extends to several years. Further, there can  be no   ‘rule  of  thumb’  in  such  matters.  Conditions   and circumstances  of  one unit may not be the same  as  of  the other.  Just because in one case, a direction was  given  to regularise  employees who have put in one year’s service  as far   as   possible   and   subject   to   fulfilling    the qualifications,  it  cannot be held that in each  and  every case  such  a  direction must  follow  irrespective  of  and without taking into account the other relevant circumstances and considerations. The relief must be moulded in each  case having regard to all the relevant facts and circumstances of that  case.  It cannot be a mechanical act but  a  judicious one.  Judged  from this stand point,  the  directions  under challenge   must  be  held  to  be  totally  untenable   and unsustainable. [856F-H; 857A-C] 3.8. So far as the members of the work-charged establishment are                                                        832 concerned,  though  the work-charged  employees  are  denied certain  benefits,  they  are  industrial  workers  and  are entitled to the benefits of the provisions contained in  the Industrial Disputes Act. Their rights flow from that special enactment under which even contracts of employment are  open to adjustment and modification. The work-charged  employees, therefore, are in a better position than temporary  servants like  the other petitioners who are liable to be thrown  out of  employment  without any kind of  compensatory  benefits. [857D, 858A-B]     Jaswant  Singh v. Union of India, [1980] 1  S.C.R.  426, referred to.     3.9.  In view of the orders issued on 24th  March,  1987 and  6th  April, 1990 by one of the  States,  the  direction given  by  the  High Court becomes  unnecessary.  Though  no orders have been issued in this regard by the other  States, a  scheme of regularisation of these employees is stated  to have  been  prepared  by  that State  in  pursuance  of  the judgment  under challenge. The said scheme is, however,  not made  conditional upon the result of these  appeals  against the  judgment.  The scheme is a reasonably fair one.  It  is hoped  and trusted that irrespective of the result of  these appeals,  the  said scheme would be given effect to  by  the other State concerned.[858C-D]     3.10.  The  High  Court  has  directed  that  all  those employees  who  fell  within  the  definition  of  ‘workmen’ contained  in  the  Industrial Disputes Act  would  also  be entitled  to  regularisation on par  with  the  work-charged employees and that they should be regularised on  completing five  years  of  service  in one State  and  four  years  of service  in  the  other State. This direction  is  given  in favour  of  those casual labour and daily  wagers  who  fall within  the definition of workmen. Insofar  as  work-charged employees,  daily-wage workers and casual labourers who  did

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not  fall within the definition of work-men  are  concerned, the   High  Court  has  directed  their  regularisation   on completion  of  one  year’s service. This  direction  is  as untenable as in the case of ad hoc/temporary employees.  The direction   regarding   persons  belonging  to   the   above categories  and who fall within the definition  of  workmen, the  terms in which the direction has been given  cannot  be sustained. While it is true that persons belonging to  these categories continuing over a number of years have a right to claim  regularisation  and  the  authorities  are  under  an obligation  to consider their case for regularisation  in  a fair manner, keeping in view the prin-                                                        833 ciples enunciated by this Court, the blanket direction given cannot  be sustained. However, in view of the orders of  one of  the  State  Governments contained in  the  letter  dated 6.4.1990 which provided for regularisation of these  persons on completion of ten years, no further directions are called for  at this stage. The other State Government,  of  course, has  not issued any such orders governing these  categories. Accordingly,  the State Government concerned  should  verify the  vacancy position in the categories of daily-wagers  and casual labour and frame a scheme of absorption in a fair and just  manner providing for regularisation of these  persons, having regard to their length of service and other  relevant conditions.  As many persons as possible shall be  absorbed. The scheme should be framed within six months. [858F-H;  859 A-C]     4.  Further orders had been issued by one of  the  State Governments,  after  the filing of the  writ  petitions  and during  the pendency of the Special Leave Petitions in  this Court  for regularisation of ad hoc/work-charged  employees. The other State Government has agreed by an affidavit before this  Court,  to adopt the same mutatis mutandis so  far  as Class III employees are concerned. It is hoped that many  of the  employees  would  get  regularised  under  the   orders aforementioned issued by both the Governments. [859D,  865F, 867E]     5.1.   The  instant  case  is  not  a  case  where   the Governments have failed to take any steps for regularisation of their ad hoc employees working over the years. Every  few years   they   have  been  issuing  orders   providing   for regularisation. In such a case, there is no occasion for the court   to  issue  any  directions  for  regularising   such employees  more  particularly when none  of  the  conditions prescribed  in  the  said orders can be said  to  be  either unreasonable, arbitrary or discriminatory. The court  cannot obviously help those who cannot get regularised under  these orders   for  their  failure  to  satisfy   the   conditions prescribed   therein.   Issuing   general   declaration   of indulgence is no part of jurisdiction of this Court. In case of  such  persons it is for the  respective  Governments  to consider the feasibility of giving them appropriate  relief, particularly in case where persons have been continuing over a  long number of years, and were eligible and qualified  on the  date  of  their ad hoc appointment  and  further  whose record of service is satisfactory. [867 F-H]     5.2. The normal rule, is regular recruitment through the prescribed                                                        834 agency  but exigencies of administration may sometimes  call for an ad hoc or temporary appointment to be made. In such a situation,  effort  should always be to replace such  an  ad hoc/temporary  employee by a regularly selected employee  as early  as  possible.  Such a  temporary  employee  may  also

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compete    along    with    others    for    such    regular selection/appointment. If he gets selected, well  and  good, but  if  he  does not, he must give  way  to  the  regularly selected   candidate.  The  appointment  of  the   regularly selected   candidate.  The  appointment  of  the   regularly selected  candidate cannot be withheld or kept  in  abeyance for the sake of such an ad hoc/temporary employee. Secondly, an  ad hoc or temporary employee should not be  replaced  by another  ad hoc or temporary employee; he must  be  replaced only by a regularly selected employee. This is necessary  to avoid  arbitrary  action  on  the  part  of  the  appointing authority.  Thirdly,  even  where an  ad  hoc  or  temporary employment  is necessitated on account of the exigencies  of administration,  he  should  ordinarily be  drawn  from  the employment  exchange unless it cannot brook delay  in  which case  the pressing cause must be stated on the file.  If  no candidate is available or is not sponsored by the employment exchange,  some  appropriate  method  consistent  with   the requirements  of  Article 16 should be  followed.  In  other words,  there must be a notice published in the  appropriate manner  calling for applications and all those who apply  in response thereto should be considered fairly. An unqualified person ought to be appointed only when qualified persons are not  available  through  the above processes.  If  for   any reason  an ad hoc or temporary employee is continued  for  a fairly  long spell, the authorities must consider  his  case for  regularisation  provide he is  eligible  and  qualified according  to rules and his service record  is  satisfactory and his appointment does not run counter to the  reservation policy of the State. [868D-H; 869A-C]     5.3. The proper course would be that each State prepares a scheme, if one is not already in vogue, for regularisation of such employees consistent with its reservation policy and if  a  scheme  is  already framed,  the  same  may  be  made consistent with  the  observations herein so  as  to  reduce avoidable litigation in this behalf. If and when such person is  regularised  he should be placed immediately  below  the last regularly appointed employee in that category, class or service, as the case may be. [869D]     5.4.  So  far as the work-charged employees  and  casual labour are concerned, the effort must be to regularise  them as far as possible and as                                                        835 early   as   possible  subject  to  their   fulfilling   the qualification,  if any, prescribed for the post and  subject also  to  availability  of work. If  a  casual  labourer  is continued for a fairly long spell - say two or three years - a  presumption may arise that there is regular need for  his services. In such a situation it becomes obligatory for  the concerned  authority  to  examine  the  feasibility  of  his regularisation.  While  doing so, the authorities  ought  to adopt  a positive approach coupled with an empathy  for  the person.  Security of tenure is necessary for an employee  to give  his  best  to  the job. In  this  behalf,  this  Court commends  the  orders  of  one  of  the  State  Governments, contained  in its letter dated 6.4.1990 both in relation  to work-charged employees as well as casual labour. [869 E-G]     5.5. The orders issued by both the Governments providing for  regularisation of ad hoc/temporary employees  who  have put in two years/one year of service are quite generous  and leave  no  room  for any legitimate grievance  by  any  one. [869H]     5.6. These observations are not exhaustive nor can  they be understood as immutable. Each Government or authority has to devise its own criteria or principles for  regularisation

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having  regard to all the relevant circumstances, but  while doing  so,  it  should bear in mind  the  observations  made herein. [870 A-B]     6.1.  So  far as the employees and workmen  employed  by Statutory/Public  Corporations are concerned, they have  not issued  any  orders akin to those issued by  the  two  State Governments. Even so, it is but appropriate that they  adopt as far as possible, keeping the exigencies and  requirements of their administration in view, the criteria and principles underlying  the  orders issued by their  Government  in  the matter  of regularisation and pass appropriate  orders.  The orders   contained   in  the  letter  dated   6.4.1990,   as supplemented  by  the  orders  in  the  Notification   dated 28.2.1991 issued by one of the States should be followed  by the  Statutory/Public  Corporations located in  that  State, whereas  the  Statutory/Public Corporations located  in  the other State should follow the criteria and principles stated in  the  affidavit  of the Government of  that  State  filed before this Court. [870 C-D]     6.2. These directions would not, however, apply to these Statutory/Public  Corporations,  functioning  within   these States as are under the control of the Government of  India. These Corporations would evolve an                                                        836 appropriate  policy of regularisation in the light  of  this judgment,  if  they have not already evolved  one,  or  make their existing policy consistent with the judgment to  avoid litigation. [870E]     7. As regards, equal pay for equal work, the judgment is singularly devoid of discussion. The direction given by  the High  Court is totally vague. It does not make it clear  who will  get what pay and on what basis. Hence, this  direction is set aside.     Delhi Development Horticulture Employees’ Union v. Delhi Administration, (1992) 1 J.T. 394, referred to.

JUDGMENT:     CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2979  of 1992 etc.etc.     From  the  Judgment  and order dated  26.9.1988  of  the Punjab and Haryana High Court in C.W.P. No. 72 of 1988.     H.L. Sibal, D.S. Tewatia, D.S. Mehra, M.S. Gujral,  M.K. Ramamurthy,  Hardev  Singh, K.T.S. Tulsi, S.K.  Bagga,  S.P. Goyal,  J.K. Sibal, H.S. Mattewal, Adv. Genl.  Punjab,  Mrs. Jai Shree Ananda, D.A.G., Punjab, Rajesh, S.K. Mehta,  Dhruv Mehta, Aman Vachher, H.S. Munjral, G.K. Bansal, H.S.  Sohal, P.P. Singh. Ms. Mridula Ray, Kartar Singh, H.M. Singh,  S.C. Paul,  R.K.  Agnihotri,  G.K. Chatrath,  P.L.  Syngal,  N.A. Siddiqui,  R.K.  Kapoor,  Syed Ali Ahmed,  K.C.  Bajaj,  Ms. Rupinder  Sodhi  Daulat,  M.R.  Bidsar,  K.K.  Gupta,   Syed Tanweer   Ahmed,  Mohan  Pandey,  Jitender  Sharma,   Naresh Kaushik,   Mrs.  Lalitha  Kaushik,  Shankar   Divate,   S.S. Khanduja,  Yash Pal Dhingra, Baldev Krishan  Satija,  Kirpal Singh,  R.D.  Upadhyay, S.N. Bhardwaj, J.D.  Jain,  S.  Bala Krishnan,   Ms.  Madhu  Mool  Chandani,  R.S.  Sodhi,   Prem Malhotra,  Mrs.  J.S.  Wad, S.D.  Sharma,  B.S.  Gupta,  Ms. Geetanjali  Mohan, A.K. Mahajan, S.K. Gambhir,  T.N.  Singh, B.M.  Sharma,  N.K. Aggarwal, S.M. Ashri,  A.K.  Goel,  N.N. Sharma,  M.K. Dua, E.C. Agarwala, Ms. Kamini  Jaiswal,  C.V. Subba  Rao, K.R. Nagaraja, Manoj Swarup,  P.K.  Chakraborty, P.N.  Puri, Ashok Grover, P. Gaur, Mrs. Chandan  Ramamurthi, M.A.   Krishnamoorthy,  B.S.  Malik,  Pankaj   Kalra,   A.M. Khanwilkar, Dr. Meera Aggarwal, R.C. Misra, Gian Singh, S.C.

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Patel,  M/s Mitter & Mitter & Co., M/s Agarwal Mishra &  Co. Mahabir Singh, R.C. Kaushik, K.K. Mohan, Mrs. Naresh Bakshi, R.S.  Suri,  Sudershan Goel, R.K. Chopra,  Ravinder  Chopra, Mrs. Sureshtha Bagga, Sanjay Bansal, Ms. Kanwaljit  Kochhar, Ms. Indu Malhotra, R.C. Gubrele, Ms. Renu George,                                                        837 R.P.  Sharma, D.K. Garg, Vishnu Mathur, Ms.  Madhu  Tewatia, Ms.  Kamakshi S. Mehlwal, Indeevar Goodwill,  Ranbir  Singh, Ms. Savita Prabhakar, Ujjal Singh, Ms. Kusum Choudhary, J.L. Puri, T.S. Arora for the appearing parties. Ramesh Chand and Kuldeep Singh appeared in person.     The Judgment of the Court was delivered by     B.P.  JEEVAN  REDDY,J. 1. This batch  of  Special  Leave Petitions  are directed against the judgment of  a  Division Bench  of Punjab and Haryana High Court in a batch  of  writ petitions, the first among them being Writ Petition (C)  No. 72  of 1988 (Piara Singh and Anr. v. State of  Haryana  and Ors.).  A  large number of writ petitions arising  both  the States  of  Punjab  and Haryana were heard  together  and  a common  judgment delivered giving certain directions in  the matter  of regularisation of the adhoc/temporary  employees, members of work charged establishments, daily-wagers, casual labour  and those engaged temporarily in temporary  schemes. We  have heard all  the counsel appearing in this  batch  at quite some length.     Leave granted in all the Special Leave Petitions.     2.  Over  the  last  several years  a  large  number  of appointments  were made to Class III and IV services in  the States  of Punjab and Haryana on ad hoc basis i.e.,  without reference  to Public Service Commission or  the  Subordinate Services Selection Board and without adhering to  employment exchange  requirements. They were initially appointed for  a period  of  six months or so but were  continued  for  years together  under orders passed from time to time. (In so  far as the State of Haryana is concerned, most of the class  III posts  in  the  Education Department were kept  out  of  the purview of the S.S.S.B. during the period 1970 to 1987.  For a  period of 10 years, it is stated, there was no  Board  in existence  in the State. Only in March 1987, almost all  the posts  in  Education Department and other  Departments  were brought within the purview of the S.S.S.B.). As a result  of the  above policy, a large number of ad hoc  employees  came into existence in both the States, who were continuing  over several  years without being regularised and were  agitating for  their regularisation. To meet the situation,  both  the Governments   issued   orders   from  time   to   time   for regularisation   of  such  employees  subject   to   certain conditions.  The orders issued by the Government  of  Punjab are the following:                                                        838 S.No.     Date of issue               Substance of the Order  1             2                                 3  1.          3.3.1969            Regularisation  of  ad  hoc                                  employees  completing   one                                  year service on 28.2.1969.  2.           29.1.1973           Regularisation of  ad  hoc                                   employees  completing  one                                   year service on 1.1.1973.  3.           3.5.1977             Regularisation of ad  hoc                                    employees completing one                                    year service on 1.4.1977.  4.           20.10.1980           Regularisation of ad  hoc                                    employees completing  one                                    year      service      on                                    1.10.1980.

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5.           20.10.1982           Regularisation of ad  hoc                                    employees completing  one                                    year      service      on                                    26.10.1982.  6.           29.3.1985            Regularisation of ad  hoc                                    employees completing  two                                    years     service      on                                    1.4.1985.  7.            8.8.1985            Modifying the order issued                                    on     29.3.1985      and                                    directing that all  Class                                    III ad hoc employees having                                    one   year   service   on                                    1.4.1985      may      be                                    regularised.  8.             1.9.1986            Regularisation of  Class                                     III  ad  hoc   employees                                     appointed after 1.4.1984.     The  orders are issued by the Government of Haryana  are the following: S.No.     Date of issue           Substance of Order  1             2                            3  1           1.1.1980           Regularisation of all  Class                                 III   ad hoc  employees  who                                 have  completed  two   years                                 service on 31.3.1979.  2.           3.1.1983            Regularisation of  ad  hoc                                   Clerks  in Class  III  who                                   have  completed two  years                                   service on 15.9.1982.  3.            19.1.1984           Regularisation  of  Class                                    III ad hoc employees  who                                    have completed two  years                                    of service on  15.9.1982.                                    (The  employees who  were                                    left  out in  the  orders                                    dt. 3.1.1983 were brought                                    within  the  purview   of                                    this order.)                                                        839  4.           15.2.1987              Regularisation  of  all                                      Class   III   ad    hoc                                      employees  other   than                                      teachers working against                                      posts  which have  been                                      taken   out   of    the                                      purview of the S.S.S.B.                                      and who have  completed                                      two   years service  on                                      1.11.1986.     In pursuance of the above orders a number of persons who satisfied the conditions prescribed in each of those  orders were regularised but many could not be. Their services could not be regularised for the reason that they did not  satisfy one  or the other of the conditions prescribed in  the  said orders. They were, however, allowed to continue in  service. It is this category of people who approached the High  Court of Punjab and Haryana praying for issuance of Writ, Order of Direction for regularisation of their service.     3. At this stage, it would be appropriate to notice  the conditions prescribed by the aforesaid orders which were not satisfied  by the writ petitioners and on account  of  which they  were not regularised. The order of the  Government  of Haryana  dated  1st January, 1980 prescribed  the  following conditions for regularisation:

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   (1)  He must have put in a minimum service to two  years on 31.12.1979.     (2)  He must have been recruited through the  Employment Exchange.     (3)  The service and conduct of such employee should  be of an overall good category.     (4) He must have possessed the prescribed qualifications for the post at the time of his appointment on ad hoc basis.     In   the  Order  dated  3rd  January  1983,  a   further condition,  besides  the aforesaid conditions,  was  imposed viz.,  that  the employee must belong to  the  category  for which the post stands reserved.     Similarly in the Order dated 29th March, 1985 issued  in the case of Government of Punjab (issued by the President of India) the conditions prescribed were the following:     (1)  He  must  have completed a  minimum  of  two  years service on 1st                                                        840 April, 1985.     (2)   He   must  have  fulfilled  the   conditions   for eligibility (academic qualifications, experience and age) at the time of his first adhoc/temporary appointment.     (3)  He must have been recruited through the  Employment Exchange or by open advertisement.     (4) His record of service has been satisfactory.     (5)   He  is  found  medically  fit  for  entering   the Government  service; his character and antecedent have  been duly verified and found suitable for Government service.     (6)   A   regular   post/vacancy   is   available    for regularisation.     (7)  He  has been found fit for  regularisation  by  the Departmental Selection Committee.     (8)  Among  the persons regularised,  interse  seniority would be observed. All these persons would be placed  junior to those working on regular basis.     These are the conditions common to all the orders issued from  time to time by the Government of Punjab and  Haryana. Only  those  ad  hoc/temporary employees who  could  not  be regularised  for want of satisfying one or the other of  the conditions  prescribed  in the respective  orders  that  had approached  the  High Court by way of Writ  Petitions.  They contended that the conditions prescribed in the said  orders were arbitrary, discriminatory and unrelated to the  object. It is this contention which was examined at some length  and accepted by the high court.     4. Besides the ad hoc/temporary employees, certain other categories  of persons also approached the High Court  whose cases too have been dealt with in the judgment under appeal. They are work-charged employees daily-wagers, casual  labour and  those employed in temporary/time-bound  projects.  They too wanted to be regularised. A plea of equal pay for  equal work  was also advanced by certain petitioners. These  pleas too were considered and upheld.                                                        841     5.  The  reasons  for  which the  High  Court  held  the conditions  prescribed  in  the  orders  of   regularisation aforementioned, as bad are to the following effect:     (a)  VALIDITY OF FIXING A PARTICULAR DATE BY  WHICH  THE SPECIFIED PERIOD OF SERVICE SHOULD HAVE BEEN COMPLETED.     The High Court held, "there is no magic in fixing a date by  which an employee was to complete the prescribed  tenure of service for regularisation.......fixing of a date has  no reasonable basis or intelligible differentia for the  object to achieve......following that view (the view taken by  this Court in Inder Pal Yadav, [1985] 3 S.C.R. 837) we hold  that

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the  dates fixed for the policies of regularisation  of  the two  Governments are discriminatory.......we hold  that  the various   dates   fixed   from  time  to   time   in   their regularisation policies are hit by Articles 14 and 16 of the Constitution of India."     (b) VALIDITY OF THE REQUIREMENT THAT THE EMPLOYEE SHOULD HAVE BEEN SPONSORED BY EMPLOYMENT EXCHANGE.      The  High Court held that this Court has, in the  Union of  India v. Hargopal (1987 S.C. 1227), held that "if  at  a given   moment   suitable  candidates   amongst   candidates sponsored by the Employment Exchanges   are not available or no  candidate has been sponsored by the Employment  Exchange and  recruitment  is made on ad hoc basis from  the  sources other  than  employment  exchange,  it  cannot  be  said  in regularisation  policy  that such candidates  would  not  be entitled  to  be regularised. The basic policy  decision  is that  ad hoc employees who have worked for quite  some  time and have gained experience should be regularised and in case they  are shunted out, hardship would be caused in  numerous ways.......we  find  no  justification  in  the  policy   of regularisation  that  the candidates sponsored  through  the Employment   Exchanges   alone   would   be   entitled    to regularisation." No finding was, however, recorded that  the petitioners or any of them were appointed without  reference to  the  Employment  Exchange  only  after  the   Employment Exchange intimated the concerned authority that no  suitable candidate is available with it.     (c) VALIDITY OF THE REQUIREMENT THAT THE CON-                                                        842 CERNED POSTS SHOULD NOT BE WITHIN THE PURVIEW OF S.S.S.B.     The  High Court held that inasmuch as most of the  Class III  and Class IV posts were kept out of the purview of  the S.S.S.B.  in the State of Haryana during the period 1970  to March, 1987 and also because for a period of ten years there was  no S.S.S.B. in existence in this State,  imposition  of this condition by the Government of Haryana is  unreasonable and arbitrary.     6.  Having expressed the opinions  above-mentioned,  the High  Court referred to certain decisions of this Court  and of its own, and expressed the view that continuing employees on  adhoc basis for more than one year without  regularising them is arbitrary and unreasonable. This principle was  also held applicable to other categories of employees like  daily wagers,  casual labour and others, who were -  "workmen"  as defined  in the Industrial Disputes Act. The  court  further opined   that   inasmuch  as  the  State  of   Haryana   was prescribing  one year’s service for regularisation  (in  its orders)  the  Punjab Government cannot prescribe  two  years qualifying  service. Thus, one year service was declared  as the  norm  for  all such employees  to  become  entitled  to regularisation.     7.  The directions ultimately granted by the High  Court while  allowing  the  batch of writ  petitions  are  to  the following effect:          (1) The State Government should avoid making any ad          hoc  appointments. If they do so, it shall  be  for          initial  period of six months and not  be  extended          beyond other six months. If their term is  extended          beyond  one  year, to such employees  the  benefits          arising from our following conclusions will  apply,          according to the group in which they fall.          (2)  The  Punjab State employees covered  by  Group          No. 1 would be considered as regular members of the          service  on completion of more than one year  after          ignoring   national  and  permissible   breaks   in

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        service, as noticed by the Supreme Court in various          judgments  and  also by our Full Banch  in  Jagdish          Lal’s   case   (supra).  However,   the   concerned          departments    would   pass   orders   for    their          regularisation  and they would be entitled  to  all          benefits of service from the date of their  initial          appointments.                                                        843          As regards Haryana employees covered by Group No. 1          on completion of two years of service they would be          considered  as  regular members  of  service  after          ignoring  their national and permissible breaks  as          noticed  by the Supreme Court in various  judgments          and  also by our Full Bench in Jagdish  Lal’s  case          (supra),  and the concerned departments would  pass          orders for their regularisation. In case of  those,          who  have completed more than one year of  service,          their services shall not be terminated till the new          policy  for regularisation in accordance  with  our          judgment, is framed, in which a direction has  been          issued to re-frame the policy for regularisation on          completion  of more than one year of  service,  and          without  the condition which may hamper the  policy          of regularisation, irrespective of the fact whether          or   not   their  names  were  sponsored   by   the          Employment Exchange or that their posts are  within          or outside the purview of the S.S.S.B. In case such          petitioners complete two years, then on  completion          of  two years, they will be considered  as  regular          members of service and appropriate orders for their          regularisation  will  be passed  by  the  concerned          departments,  and such employees would be  entitled          to  all  service benefits from the  date  of  their          initial appointments.          (3)  The  services  of  work  charged,  daily  wage          workers and casual labourers (other than those  who          fall  within  the definition of workmen  under  the          1947  act  covered  by Group III)  Serving  in  the          different  departments of Government of Punjab  and          Haryana, as also their corporations who have put in          more  than one year of service, would  continue  to          serve  and  their services will  not  be  dispensed          with. The concerned departments shall frame  scheme          for  their  absorption,  as  regular  employees  on          completion  of more than one year of  service,  and          their  services  shall be regularised  under  those          schemes.  On regularisation they would be  entitled          to  all service benefits from the date  of  initial          appointments.          As   regards  work  charged  employees,  who   have          completed  five  years of service,  they  shall  be          considered to be regular employees under the scheme          of regularisation framed by the State of Punjab and          order for their regularisation shall be                                                        844          passed.  As regards work charged employees  of  the          State  of Haryana, on completion of four  years  of          service  they  shall be considered  to  be  regular          under the regularisation scheme framed by the State          and  appropriate  orders for  their  regularisation          shall be passed. However, they would be entitled to          all  service  benefits  from the  date  of  initial          appointments.          (4)  The persons falling in group (III)  are  those          who  come within the definition of ‘workmen’  under

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        the  1947  Act. On completion of  240  days,  which          shall  be counted keeping in view the  decision  of          the  Supreme  Court  in  The  Workmen  of  American          Express  International  Bank  Corporation  v.   The          Management  of American Express, A.I.R.  1986  S.C.          458, they would be entitled to benefits of all  the          provisions  of  Chapter V-a of the  1947  Act,  and          their services should not be dispensed with without          following  the procedure laid in that Chapter.  For          the  purposes  of  regularisation,  what  has  been          stated for the employees falling in Group II, would          also be applicable to the employees falling in this          group. On regularisation they would be entitled  to          the benefits of provisions of the 1947 Act as  also          the  Service Rules, from the date of their  initial          appointments,  as  applicable  to  the  departments          concerned from time to time.          (5)  The  ad hoc temporary employees  in  temporary          organisations  like the Adult Education Scheme  and          Integrated   Child Development Scheme,  covered  by          Group  IV, who have continued in service  for  more          than  one  year  with  national  breaks  would   be          entitled to the benefits of service and benefit  of          the  directions  issued  by the  Supreme  Court  in          Bhagwan Dass’s case supra, and the service of  none          of  them would be terminated except on  abandonment          of the scheme.          (6)  In  case  services of an  employee,  who  come          within  the ambit of Groups I to III, have  already          been terminated on the completion of his more  than          one year of service, he shall have to be taken back          in  service in case of a request being made by  him          to  the  concerned department  of  the   government          before the expiry of three years and two months  of          such termination.          Some  of the petitioners, who had put in more  than          one year of                                                        845          service are out. They would be reinstated forthwith          with continuity of service and all benefits.          (7)  In  case  some posts  are  abolished  or  some          persons are found surplus, junior most would be out          on the rule of Last come first go? But if later  on          vacancies  arise  or posts are created,  they  will          have  to  be  called back first  in  the  order  of          seniority,  that is, on the rule of last  go  first          come  and  if  still  some  vacancies  remain,  new          incumbents through S.S.S.B. may be accommodated.          (8) The learned counsel for the State was asked  to          point out if the claim made by the petitioners  for          equal  pay  for equal work as being paid  to  their          counterparts, in view of the decision taken by  the          Supreme Court in various cases, was not  justified.          He  was not able to point out if the claim so  made          was  not correct. Accordingly, they would  be  paid          wages   as  claimed  from  the  date   of   initial          appointments in service. The arrears should be paid          within six months from today.          It  is  again made clear that  till  regularisation          policies   are  framed  as  directed  by   us   and          regularisation  orders are  passed,  the  employees          shall  continue  and their services  shall  not  be          terminated."     8. The States of Punjab and Haryana are questioning  the validity  and correctness of the above directions  in  these

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appeals.  Some employees have also directly approached  this court by way of writ petitions contending that they too  are governed  by  the  directions given by the  High  Court  and should be given the benefit of the same. The respondents  in these  appeals and such writ petitioners are supporting  the judgment and directions aforesaid.     Mr. Sibal, learned counsel for the appellants questioned the validity and correctness of the directions given by  the High Court on the following grounds:     (1) That the High Court has exceeded its jurisdiction in virtually  amending the Government orders on the subject  of regularisation.  The  learned Judges were not  justified  in holding  that  the  fixation of a  particular  date  in  the respective G.Os. was arbitrary and/or that it was un-related to                                                        846 the  object. The learned Judges have also erred  in  holding that   the  requirement  of  have  been  sponsored  by   the employment Exchange was invalid.     (2)  The  learned Judges were not justified  in  law  in directing  that  all  persons who have  put  in  one  year’s service should be regularised unconditionally. No court  has gone  so  far  nor is there any warrant for  giving  such  a direction.   Such   a  direction  gives  rise   to   several difficulties  and complications for the administration which were  evidently not taken into consideration by the  learned Judges while giving the said directions.     (3) For regularisation, the first pre-condition is  that there  must  be a vacancy, whether permanent  or  temporary. Such a vacancy must either be existing or may be created but it   must  be  there.  There  cannot  be  a  direction   for regularisation   without  a  post  or  a  vacancy  and   the Government  cannot  be  directed  to  create  posts  without number. It is beyond the capacity of any Government in India to comply with such directions.     (4)   The   direction  with   respect   to   work-charge establishment  is  equally unsustainable in law. So  is  the direction with respect to casual labour and daily wagers.     (5) The learned Judges erred in directing the Government of  Punjab to reduce the minimum qualifying service  to  one year   just   because  the  Haryana  Government   has   been prescribing  only  one  year’s  qualifying  service  in  its orders.  Both  are independent States and the  rule  in  one State cannot be thrust upon the other.     (6)  Because  of  the  impugned  directions,   regularly selected  persons are being kept out of jobs. The effect  of the  impugned  directions  is  that  unqualified  ineligible persons who have come through back door and whose records of service   may  also  not  be  satisfactory  are  all   being regularised at one go. The rule of reservation is also being violated by the said directions.     (7)  It  is prerogative of the Executive to  create  and abolish posts. The Government cannot be compelled to  create posts  where  there is no need for such posts or  where  the need is no longer there.     (8)  The above contentions are supported and  reiterated by the counsel appearing for the State of Punjab.                                                        847     9. On the other hand, it is contended by the counsel for the  respondents  and the counsel for the  writ  petitioners that the directions given are perfectly warranted in all the circumstances of the case and have been given following  the decisions  of  this  court. It is submitted  that  the  said directions  have  been  given  with  a  view  to  curb   the arbitrariness  of the authorities and with a view to give  a

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satisfactory  solution  to a human problem  created  by  the policies  of the Governments themselves. It is submitted  by Shri  R.K.  Garg that the work-charged employees  should  be treated  on  par  with  ad hoc employees  and  ought  to  be regularised  on  the 1st of April of each  year.  All  those persons  who are working in the permanent posts ought to  be regularised,   says   the  counsel.   Shri   M.K.Ramamurthy, appearing for the work charged employees contended that  the general concept as to work charge employees, viz., that  the employment  is confined to a particular work or  project  is not correct. He submitted that this is a legacy left  behind by the British. He submitted that the work charge  employees are  employees of the work charge establishment and so  long as  once  or  the  other  work  is  there,  they  should  be continued.  Inasmuch as the Government, particularly at  the present stage of development, is never without a project  or work,  these  employees must also  be  regularised.  Indeed, according  to  the  counsel  the  concept  of  work   charge establishment  is  a  mere  matter  of  accountancy.  It  is distinct  from  project employment. It is  really  temporary employment which in the nature of things must be treated  as regular. Other counsel appearing for the respondents in  the appeals  and  for  the  writ  petitioners  supported   these contentions.     10. Ordinarily speaking, the creation and abolition of a post  is  the  prerogative  of  the  Executive.  It  is  the Executive  again  that lays down the conditions  of  service subject,   of  course,  to  a  law  made   the   appropriate legislature. This power to prescribe the conditions  service can be exercised either by making Rules under the proviso to Article  309 of the Constitution or (in the absence of  such Rules)  by  issuing Rules/instructions in  exercise  of  its executive  power. The court comes into the picture  only  to ensure   observance   of   fundamental   rights,   statutory provisions, Rules and other instructions, if any,  governing the conditions of service. The main concern of the court  in such  matters is to ensure the Rule of law and to  see  that the  executive  acts  fairly and gives a fair  deal  to  its employees  consistent with the requirements of  Articles  14 and 16. It also means that the State should not exploit  its employees  nor  should  it seek to  take  advantage  of  the helplessness and misery of either the unemployed persons                                                        848 or the employees, as the case may be. As is often said,  the State must be a model employer. It is for this reason, it is held  that equal pay must be given for equal work, which  is indeed one of the directive principles of the  Constitution. It  is for this very reason it is held that a person  should not be kept in a temporary or ad hoc status for long.  Where a temporary or ad hoc appointment is continued for long  the court presumes that there is need and warrant for a  regular post  and accordingly directs regularisation. While all  the situations  in  which the court may act to  ensure  fairness cannot  be detailed here, it is sufficient to indicate  that the  guiding  principles  are the  ones  stated  above.  The principle  relevant in this behalf are stated by this  Court in  several  decisions, of which it would be  sufficient  to mention  two  decisions  having a  bearing  upon  the  issue involved  here.  They are Dharwad Distt.  P.W.D.  Literature Daily Wage Employees  Association v. State of Karnataka  and Ors. [1990] 2 S.C.C. 396 and Jacob v Kerala Water  Authority alleged  that  about 50,000 persons were being  employed  on daily-rated or on monthly-rated basis over a period of 15 to 20  years, without regularising them. It was contended  that the  very  fact  that they are continued over  such  a  long

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period  is  itself proof of the fact that there  is  regular need  for  such  employment. In that  view  of  the  matter, following directions were given,after reviewing the  earlier decisions of this court elaborately.          "From amongst the casual and daily rated  employees          who have completed ten years of service by December          31,  1989, 18,600 shall immediately be  regularised          with  effect from January 1, 1990 on the  basis  of          seniority-cum-suitability.          There   shall  be  no  examination   but   physical          infirmity shall mainly be the test of suitability.          The  remaining monthly rated employees  covered  by          the  paragraph  1 who have completed ten  years  of          service   as   on  December  31,  1989   shall   be          regularised  before  December31,1990, in  a  phased          manner  on the basis of  seniority-cum-suitability,          suitability  being  understood in the same  way  as          above.          The balance of casual or daily rated employees  who          become  entitled  to  absorption on  the  basis  of          completing   ten   years  of   service   shall   be          absorbed/regularised in a phased manner on the  same          principle as above on or before December 31,1997.                                                        849          At  the  point of regularisation, credit  shall  be          given  for every unit of five years of  service  in          excess of ten years and one additional increment in          the  time scale of pay shall be allowed by  way  of          weightage.          There  was  a direction that the  claims  on  other          heads  would  be considered at the  time  of  final          disposal. We have come to the conclusion that apart          from these reliefs no other would be admissible."      Having  given the said direction, the Bench  (Ranganath Misra, M.M.Punchhi and S.C.Agarwal,  JJ.) made the following observations:          "We are alive to the position that the scheme which          we  have finalised is not the ideal one but  as  we          have  already stated, it is the obligation  of  the          court  to  individualise justice to  suit  a  given          situation in a set of facts that are placed  before          it. Under the scheme of the constitution the  purse          remains   in  the  hands  of  the  executive.   The          legislature of the State controls the  Consolidated          Fund  out of which the expenditure to be  incurred,          in  giving  effect to the scheme, will have  to  be          met.  The flow into the Consolidated Fund   depends          upon  the policy of taxation depending  perhaps  on          the  capacity  of  the  payer.  Therefore,   unduly          burdening   the   State   for   implementing    the          constitutional  obligation forthwith  would  create          problems which the State may not be able to  stand.          We  have,  Therefore,  made  our  directions   with          judicious  restraint with the hope and  trust  that          both  parties would appreciate and  understand  the          situation.  The instrumentality of the  State  must          realise  that it is charged with a big  trust.  The          money  that  flows into the Consolidated  Fund  and          constitutes  the resources of the State comes  from          the  people  and the welfare  expenditure  that  is          mated  out  goes  from the same Fund  back  to  the          people. May be that in every situation the same tax          payer  is not beneficiary. That is an  incident  of          taxation  and  a necessary  concomitant  of  living          within a welfare society."

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    11. The second case (Jacob) arose from Kerala. Upon the establishment  of Kerala Water Authority under Kerala  Water Supply  and Sewerage Act, 1986, all the functions of  Public Health  Engineering Department were also transferred to  the Authority. All the employees of the said                                                        850      department were transferred to the Authority. After its constitution, the Authority too recruited some persons. With effect from 30.7.1988, the Authority came within the purview of  the  Public  Service Commission. The  employees  of  the Authority  thus fell into four categories namely, (i)  those who  were in the employment of PHED before the  constitution of the Authority and were transferred to the Authority, (ii) those  whom the Authority employed between 1st  April,  1984 and 4th August, 1986, (iii) those who were appointed between 4th August 1986 and 30th July 1988, and (iv) those who  were appointed after 30th July, 1988. Rule 9 of the Kerala  State and  Subordinate Services Rules empowered the Government  to appoint persons, in the case of an emergency, otherwise than in  accordance  with the Rules. Such appointment was  to  be valid only for  a limited time and such appointee was  bound to  be  replaced by a regular appointee. At the  same  time, clause  (e) of the Rule provided that persons  so  appointed may  be  regularised  provided  they  completed  two   years continuous service on 22.12.1973. Construing the said clause in  the light of the constitutional philosophy,  this  court held:          "Therefore,   if   we  interpret  Rule   9(a)   (i)          consistently  with the spirit and philsophy of  the          Constitution, which it is permissible to do without          doing  violence to the said rule, it  follows  that          employees who are serving on the establishment  for          long  spells and have the requisite  qualifications          for  the  job, should not be thrown out  but  their          services should be regularised as far as  possible.          Since  workers belonging to this batch have  worked          on their posts for reasonably long spells they  are          entitled to regularisation in service."      In the light of the said principle and in the light  of the principles emerging from the decisions of this  court  - which  were elaborately discussed-the  following  directions were given:          "(1)  The  Authority  will  with  immediate  effect          regularise the services of all ex-PHED employees as          per its Resolution of 30th  January,  1987  without          waiting for State Government approval.          (2)  The  services  of  workers  employed  by   the          Authority  between 1st April, 1984 and 4th  August,          1986  will be regularised with immediate effect  if          they  possess the requisite qualifications for  the          post  prescribed on the date of appointment of  the          con-                                                        851          cerned worker.          (3)  The  services of workers appointed  after  4th          August,   1984   and   possessing   the   requisite          qualifications  should be regulated  in  accordance          with  Act  19  of 1970 provided they  have  put  in          continuous  service  of  not less  than  one  year,          artificial  breaks,  if  any, to  be  ignored.  The          Kerala   Public   Service  Commission   will   take          immediate  steps to regularise their services as  a          separate  block.  In  doing so  the  Kerala  Public          Service Commission will take the age bar as waived.          (4)  The  Kerala  Public  Service  Commission  will

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        consider  the  question of  regularisation  of  the          services  of  workers  who  possess  the  requisite          qualifications but have put in less than one year’s          service, separately. In doing so the Kerala  Public          Service commission will take the age bar as waived.          If  they are found fit they will be placed  on  the          list  along with the newly recruited candidates  in          the  order of their respective merits.  The  Kerala          Public Service commission will be free to rearrange          the list accordingly. Thereafter fresh appointments          will  issue depending on the total number of  posts          available.  If  the  posts  are  inadequate,  those          presently  in  employment will make  room  for  the          selected candidates but their names will remain  on          the  list and they will be entitled to  appointment          as  and when their turn arrives in regular  course.          The   list  will  enure  for  such  period  as   is          permissible under the extant rules.          (5)  The Authority will be at liberty to deal  with          the services of the workers who do not possess  the          requisite   qualifications  as  it   may   consider          appropriate in accordance with law.          (6)   Those  workers  whose  services   have   been          terminated  in violation of this Court’s  order  in          respect of which Contempt Petition No. 156 of  1990          is  taken out shall be entitled to the  benefit  of          this  order as if they continue in service and  the          case of each worker will be governed by the  clause          applicable  to  him depending on  the  category  to          which  he belongs and if he is found  eligible  for          regularisation  he will be restored to service  and          assigned his proper place."                                                        852      12. As would be evident from the observations made  and directions  given  in the above two cases, the  court  must, while giving such directions, act with due care and caution. It  must  first ascertain the relevant facts,  and  must  be cognizant  of the several situations and eventualities  that may  arise  on account of such directions. A  practical  and pragmatic  view  has  to be taken, inasmuch  as  every  such direction not only tells upon the public exchequer but  also has  the  effect  of  increasing the  cadre  strength  of  a particular  service,  class  or  category.  Now,  take   the directions  given in the judgment under appeal.  Apart  from the fact the High Court was not right-as we shall  presently demonstrate  in holding that the several conditions  imposed by the two Governments in their respective order relating to regularisation are arbitrary not  valid and justified -  the high  Court  acted  rather hastily  in  directing  wholesome regularisation  of  all  such persons who have  put  in  one year’s service, and that too unconditionally. We may venture to  point out the several problems that will arise  if  such directions become the norm:      (a) Take a case where certain vacancies are existing or expected and steps are taken for regular recruitment  either through Public Service Commission or other such body, as the case  may  be. A large number of persons  apply.  Inevitably there is bound to be some delay in finalising the selections and  making  the  appointments. Very often  the  process  of selection  is  stayed or has to be re-done for  one  or  the other reason. Meanwhile the exigencies of administration may require  appointment of temporary hands. It may happen  that these  temporary hands are continued for more than one  year because  the regular selection has not yet  been  finalised. Now according to the impugned direction the temporary  hands

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completing one year’s service will have to be regularised in those posts which means frustating the - regular  selection. There  would be no post left for regularly selected  persons even  if they are selected. Such cases have indeed  come  to this court from these very two States.      (b)  In some situations, the permanent incumbent  of  a post  may be absent for more than a year. Examples  of  this are  not  wanting.  He may go on deputation, he  may  go  on Faculty  Improvement  Programme  (F.I.P.),  or  he  may   be suspended  pending enquiry into charges against him  and  so on. There may be any number of such situations. If a  person is appointed temporarily in his place and after one year  he is  made  permanent where will the  permanent  incumbent  be placed on his return? Two persons cannot                                                        853 hold the same post on a  regular or permanent basis.      (c)  It  may also happen that for a particular  post  a qualified person is not available at a given point of  time. Pending another attempt at selection later on an unqualified person  is appointed temporarily. He may continue  for  more than one year. If he is to be regularised, it would not only mean  foreclosing  of  appointment of  a  regular  qualified person,  it  would also mean appointment of  an  unqualified person.      (d)   Such   directions  have  also   the   effect   of disregarding and violating the rule relating to  reservation in  favour of backward class of citizens made under  Article 16(4). What cannot be done directly cannot be allowed to  be done in such indirect manner.      (e) Many appointments may have been made irregularly  - as  in  this case - in the sense that  the  candidates  were neither  sponsored by the Employment Exchange nor were  they appointed  after issuing a proper advertisement calling  for applications.  In  short,  it may be a back  door  entry.  A direction to regularise such appointments would only  result in encouragement to such unhealthy practices.      These  are but a few problems that may arise,  if  such directions become the norm. There may be many such and other problems  that may arise. All this only emphasises the  need for  a  fuller consideration and  due  circumspection  while giving such directions.      13  . Now we shall proceed to examine whether the  High Court  was  right  in holding that  the  several  conditions prescribed in the orders issued by the two Governments  from time to time are bad. In particular, whether the High  Court was  right in holding that prescribing a particular date  by which the prescribed period of service should have been  put in  and the further condition that the candidate  must  have been  sponsored  by Employment Exchange, are  arbitrary  and unreasonable. These G.Os. were issued by the Government from time  to  time.  These orders are not in  the  nature  of  a statute  which  is  applicable to all  existing  and  future situations.  They  were  issued to meet  a  given  situation facing  the  Government  at a given point of  time.  In  the circumstances   therefore,  there  was  nothing   wrong   in prescribing a particular date by which  the specified period of  service (whether it is one year or two years)  ought  to have been put in. Take for example, the orders issued by the Haryana Government. The first order is                                                        854 dated  1st  January,  1980.  It says,  a  person  must  have completed  two years of service as on 31st  December,  1979, i.e.,  the  day previous to the issuance of the  order.  How could it be said that fixing of such a date is arbitrary and unreasonable?  Similarly the order dated 3rd  January,  1983

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fixes  15th  September,  1982 as  the  relevant  date.  This notification/order  does  two things. Firstly,  it  excludes class  III posts of clerks from the purview of the  S.S.S.B. in  case of those who have completed a minimum of two  years of  service  as on 15th September, 1982,  and  secondly,  it provides   for  their  regularisation  subject  to   certain conditions. No particular attack was made as to this date in the  High Court. Consequently the Government of Haryana  had no opportunity of explaining as to why this particular  date was fixed. Without giving such an opportunity,  it cannot be held  that the fixation of the said date is arbitrary.  What is  more relevant is that the High Court has not  held  that this particular date is arbitrary. According to it, fixation of any date whatsoever is arbitrary, because in its  opinion the  order must say that any and every person who  completes the  prescribed  period of service must  be  regularised  on completion  of such period of service. The next order  dated 24th March, 1987 prescribes the date as 31.12.1986 i.e., the end  of the previous year. In the circumstances, we  see  no basis  for holding that fixation of the date can be held  to be arbitrary in the facts and circumstances of the case.  In this  connection, reference may be made to the  decision  of this  court  in  Dr. Sushma Sharma v.  State  of  Rajasthan, (1985)  S.C. 367. The  Governor of Rajasthan had  issued  an ordinance  stating  that  "all temporary  lectures  as  were appointed as such on or before the 25th day of June 1975 and are continuing as such at the commencement of the  Rajasthan Universities  Teachers (Absorption of  Temporary  Lecturers) Ordinance,   1978  (Ordinance  No.  5  of  1978)  shall   be considered by the University concerned for their  absorption and  substantive  appointment on the recommendation  of  the Screening  Committee constituted under section 4 subject  to their  fulfilling  the conditions of  eligibility  including minimum   qualifications   prescribed  by   the   University concerned  under  the  relevant law  as  applicable  on  the respective dates of their temporary appointments and subject also the availability of substantive vacancies of  lecturers in the department concerned."      The  validity of the said ordinance was  questioned  on the ground that the fixation of the date, 25th day of  June, 1975,  was arbitrary and has been chosen only because   that was the date on which internal emergency was proclaimed.  It was also submitted that the further requirement that the                                                        855 lecturer appointed should be continuing as such on the  date of  commencement of the ordinance (12.6.1978) is an  equally arbitrary and unreasonable condition. Both these contentions were  rejected  by  this  court.  The  court  negatived  the contention  that the prescription of the said date  and  the further  requirement  of  being in service on  the  date  of ordinance have the effect of excluding persons who have  put in long years of service but were not continuing on the date of  ordinance,  making the said  conditions  discriminatory. Such  possibilities,  it  was  held,  were  not  enough   to castigate the said condition as aribitrary. It was  observed that  there was no evidence to show any attempt on the  part of  the  Government to separate  or  penalise  pre-emergency appointees  or  for  that matter  any  particular  class  of oppointees.  In this context, we must remember that what  is in  issue  is not the wisdom of the executive in  issuing  a particular  order  or orders but the validity  thereof.  The court  may think it more desirable that the order should  be in  particular  terms as indicated by it, but  that  is  not enough.      14.  The next question is whether the orders issued  by

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the two Government were arbitrary and unreasonable in so far as  they prescribed that only those employees who  had  been sponsored   by   Employment   Exchange   should   alone   be regularised.  In  our  opinion, this was  a  reasonable  and wholesome  requirement designed to curb and discourage  back door entry and irregular appointments. The Government orders say  that  all those who have been sponsored  by  Employment Exchange  or  have  been appointed after  issuing  a  public advertisement  alone  should  be  regularised.  We  see   no unreasonableness or invalidity in the same. As stated above, it  is  a  wholesome provision and ought not  to  have  been invalidated.  Moreover, as pointed out hereinbefore,  it  is not  found by the High Court that the writ petitioners  were appointed   only   after   obtaining   a    non-availability certificate  from  the  Employment  Exchange.  The  decision relied upon by the High Court does not say that even without such a certificate from Employment Exchange, an  appointment can  be made or that such appointment should  be  consistent with the mandate of Articles 14  and 16.      We   must  also  say  that  the   further   requirement prescribed in the orders viz., that the employees must  have possessed the prescribed qualifications for the post at  the time of his appointment on ad hoc basis is equally a  valid condition.  Indeed, no exception is taken to it by the  High Court.                                                        856      15.  We  may now consider whether the  High  Court  was justified in holding that inasmuch as Haryana and Punjab are sister  States and because prior to 1966 Haryana was a  part of Punjab, the rule relating to length of service  requisite for regularisation should be uniform in both the states.  We see  absolutely no basis for the said holding. They are  two different  States  having  their  own  Governments,   merely because  one  Government  chooses to  say  that  one  year’s temporary or ad hoc service is enough for regularisation  it cannot be said that the other state must also prescribe  the very  same  period or that it cannot prescribe a  longer  or shorter  period. The fact that there is a single High  Court for both the States and the Union Territory of Chandigarh is no  ground for saying that the orders issued by them  should be uniform.      16. The learned Judges have further directed that in so far  as the State of Haryana is concerned class III  and  IV posts  which were within the purview of the  S.S.S.B.  shall equally  be  within  the purview  of  regularisation  orders issued by it. The learned Judges have pointed out that for a period  of 10 years there was no such Board functioning  and further  that from the year 1970 to 1987 "most of the  class III  and IV posts with which we are concerned were kept  out of the purview of the S.S.S.B. "The correctness of the  said factual  statement  is  not  questioned  before  us.  It  is therefore,  not necessary to alter or modify  the  direction made by the High Court on this aspect. In fact, no arguments were addressed to us with respect to the said direction made by  the  High  Court. If any of the  petitioners  have  been excluded  from  consideration (for  regularisation)  on  the basis  of  the above condition, they may be  considered  and appropriate orders passed.      17.  Now  coming  to  the  direction  that  all   those adhoc/temporary  employees who have continued for more  than an  year  should  be regularised, we find  it  difficult  to sustain  it. The direction has been given without  reference to the existence of a vacancy. The direction in effect means that  every adhoc/temporary employee who has been  continued for  one  year  should be regularised  even  though  (a)  no

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vacancy  is  available for him- which means  creation  of  a vacancy (b) he was not sponsored by the Employment  Exchange nor was he appointed in pursuance of a notification  calling for applications - which means he had entered by a back-door (c) he was not eligible and/or qualified for the post at the time of his appointment (d) his record of service since  his appointment  is not satisfactory. These are in  addition  to some of the problems indicated by us in pare 12,                                                        857 which  would arise from giving of such blanket orders.  None of the decisions  relied upon by the High Court justify such whole-sale , Unconditional orders.  Moreover, from the  mere continuation of an adhoc employee for one year, it cannot be presumed  that  there is need for a regular  post.   Such  a presumption  may  be justified only  when  such  continuance extends to several years.  Further, there can be no ’rule of thumb’ in such matters.  Conditions and circumstances of one unity may not be the same as of the other.  Just because  in one case, a direction was given to regularise employees  who have  put  in  one year’s service as  far  as  possible  and subject to fulfilling the qualifications, it cannot be  held that  in  each and every case such a direction  must  follow irrespective  of and without taking into account  the  other relevant  circumstances and considerations. The relief  must be  moulded in each case having regard to all  the  relevant facts  and  circumstances  of that case.   It  cannot  be  a mechanical act but a judicious one.  Judged from this  stand point,  the impugned directions must be held to  be  totally untenable and unsustainable.      18.   So  far  as  the  members  of  the   work-charged establishment are concerned, the nature of their  employment is already pronounced upon by this court in Jaswant Singh v. Union of india, [1980] 1 S.C.R.426      It is stated therein:           "A  work-charged  establishment broadly  means  an          establishment of which the expensed, including  the          wages  and allowances of the staff, are  chargeable          to  "works".  The pay and allowances  of  employees          who  are borne on a work-charged establishment  are          generally  shown  as  a separate  sub-head  of  the          estimated cost of the work.                The  entire strength of labour  employed  for          the  purpose of the Beas Project was  work-charged.          The   work-charged  employees  are  engaged  on   a          temporary basis and their appointments are made for          the  executive of a specific work.  From  the  very          nature   of   their  employment,   their   services          automatically  come  to  an  end  on  end  on   the          completion  of  the works for the sole  purpose  of          which  they  are  employed.  They do  not  get  any          relief  under  the Payment of Gratuity Act  nor  do          they  receive  any  retrenchment  benefits  or  any          benefits   under  the  Employees  State   Insurance          Schemes.                                                        858               But  though  the  work-charged  employees  are          denied these benefits, they are industrial  workers          and are entitled to the benefits of the  provisions          contained  in the Industrial  Disputes Act.   Their          rights flow from that special enactment under which          even contracts of employment are open to adjustment          and  modification.   The  work-charged   employees,          therefore, are in a better position than  temporary          servants  like the other petitioners who are liable          to be thrown out of employment without any kind  of

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        compensatory benefits."      Be  that as it may, so far as the State of  Haryana  is concerned,  this contention has become of academic  interest in  view  of the orders issued on 24th March, 1987  and  6th April 1990, which we shall presently notice. In view of  the said  orders, the direction given by the High Court  becomed unneccesary.  Though the State of Punjab has not issued  any such orders, it appears from the the affidavit filed on  its behalf(sworn  to by Sri P.C.Sangar, Deputy Secretary to  the Government, Department of Personnel dated 19.3.1991) that  a scheme  of  regularisation  of  these  employees  has   been prepared  in pursuance of the impugned judgement.  The  said scheme is, however, not made conditional upon the result  of these  appeals  against the judgment.  On a perusal  of  the scheme,  we find it to be a reasonably fair scheme. We  hope and trust that  irrespective of the result of these appeals, the  said  scheme shall be given effect to by the  State  of Punjab.      19.  The  High Court has also directed that  all  those employees  who  fall  within  the  definition  of  "workmen" contained  in  the  Industrial Disputes  Act  will  also  be entitled  to  regularisation on par  with  the  work-charged employees in whose case it is directed that they  should  be regularised  on completing five years of service  in  Punjab and  four  years of service in Haryana.  This  direction  is given in favour of those casual labour and daily wagers  who fall  within the definition of workmen.  In so far as  work- charged  employees, daily wage workers and casual  labourers who  do  not  fall  within the  definition  of  workmen  are concerned, the High Court had directed their  regularisation on completion of one year’s service.  We find this direction as untenable as the direction in the case of adhoc/temporary employees.  In so far as the persons belonging to the  above categories and who fall within the definition of Workmen are concerned,  the terms in which the direction has been  given by the High Court cannot be  sustained.  While we agree that persons belonging to these categories continuing over                                                        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  scheme  of absorption   in  a  fair  and  just  manner  providing   for regularisation  of  these persons, having  regard  to  their length  of service and other relevant conditions.   As  many persons as possible shall be absorbed. The  scheme shall  be framed within six months from today.      20.  So  far  as temporary or  time-bound  schemes  are concerned,  the  matter  is  exhaustively  dealt  with   and pronounced   upon   in   Delhi    Development   Horticulture Employees Union v. Delhi Administration, (1992) 1 J.T.  394. We need not add to it. In any event, the direction given  by the  High Court with respect to this category has  not  been

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assailed before us.      21.  We may also point out that after the filing of the writ petitions and during the pendency of the Special  Leave Petitions  in  this  court, the Government  of  Haryana  has issued certain further orders to which reference may now  be made.      (i)  On  24th  March 1987 the Chief  Secretary  to  the Government of Haryana wrote to all the Heads of  Departments and  others stating the following : "the matter relating  to the  regularisations  of  the  work  charged  employees  was engaging  attention  of the Government for some  time  past. After   careful consideration it has now been  decided  that the services of all the work charge employees working in the Haryana  State  who  have  completed  four  years  or   more continuous  service  on 31.12.1986 should  be  regularised". All   the  authorities  were  directed  to  take   immediate appropriate  action in that behalf.  (We have no  reason  to believe that the said orders will not be given effect to  in full).      (ii)  On 5th February, 1990 the Chief Secretary to  the Government of                                                        860 Haryana  wrote  to all the Heads of Departments  and  others apprising  them of the new policy and procedure  evolved  by the  Government in the matter of making adhoc  appointments. The  letter says that no adhoc appointment shall be made  in future  on  any posts unless a proper requisition  has  been sent   to  Haryana  Public  Service   Commission/Subordinate Services Selection Board.  It says further that if any adhoc appointment  is required to be made it shall be   made  only through Employment Exchange or by advertising  such post  in a daily newspaper after obtaining a N.A.C. certificate  from the  Employment  Exchange.  Such  appointment even  if  made shall  not last beyond nine months and will be subject to  a regular appointment being made by H.P.S.C./S.S.S.B.      (iii) In pursuance of the interim orders passed by this court in this batch (recording the undertaking given by  the counsel  for  the  State of Haryana to frame  a  scheme  for absorption)  the Government of Haryana did frame of  such  a scheme  contained  in  the Chief  Secretary’s  letter  dated 6.4.1990  addressed  to all the Heads  of  Department.    It covers the ad hoc employees, work charged employees,  casual workers/daily  rated  employees, workmen,  ad  hoc/temporary employees   in  temporary  organisation  as  also   seasonal workers.   It  is but appropriate that we set out  the  said letter in full:           No.6/4/90-2GSI      From           The Chief Secretary to Govt., Haryana      To                    1. All Head of Departments,  Commissioner          Ambala, Hisar, Rohtak and Gurgaon Divisions and all          the Deputy Commissions in the State.          2.  The Registrar, Punjab and Haryana  High  Court,          Chandigarh.           Dated Chandigarh, the           Subject:   Policy  regarding   regularisation   of          adhoc/work- charged   employees  and   causal/daily          wagers etc.          c          ........................           Sir,                                                     861               I  am directed to refer to the  subject  noted          above and to state that the matter regarding laying          down  the policy with regard to  regularisation  of

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        the  services of Class-III ad hoc employees,  work-          charged/daily   wagers   etc.   has   been    under          consideration  of Govt. for some time past.   After          careful consideration, it has been decided that the          Regularisation  of these employees shall be on  the          following terms and conditions:-          Category-I, Adhoc employees          (i)  Only such adhoc class-III employees, who  have          completed  two       years  service  on  30.9.1988,          shall   be  regularized  to  the        extent   of          available regular posts/vacancies on that date.          (ii) The work and conduct of such employees  should          have  been  over       all  good  category  and  no          disciplinary  proceedings are      pending  against          them.          (iii)The    employees   posses    the    prescribed          qualifications  for  the      post at the  time  of          their appointment on adhoc basis.          (iv)   The  regularisation  will  be  against   the          posts/vacancies of the relevant categories only and          in   case,  the  employees  belonging  to   general          category  have  been  appointed  against   reserved          category posts/vacancies the services of such adhoc          appointees  shall  not  be  regularises  and  their          services  shall be terminated in case,  no  general          category vacancy/post(s) is available on 30.9.88.          (v)  The  recommendees of the SSS  board  shall  be          absorbed  against the remaining vacancies, if  any.          The names of such remaining recommendees as  cannot          be  absorbed  shall be  returned to  the  Board  to          enable  it  to  recommend  their  names  to   other          departments  for  appointments  against  the  clear          vacancies.          (vi) After regularisation of adhoc employees  under          the  policy, if some posts/vacancies  still  remain          unfilled,  these  shall  be  filled  in  from   the          recommendees  of  the SSS Board, if any.   If  some          shortfall  remains even after than,  the  procedure          laid  down in the insts. issued  vide  No.50/35/88-          5GSI, dated                                                        862          5.2.90  shall   be  followed,  for  making  up  the          shortfall, it felt necessary.          (vii) The employees, who are not covered under  the          above policy, their services shall be terminated.          (viii)   The  seniority  of  the  adhoc   class-III          employees   so  regularised   viz-a-viz   class-III          employees  appointed  on  regular  basis  shall  be          determined  w.e.f.30.9.88.  The inter-se  seniority          of   such  adhoc  Class-III  employees   shall   be          determined  in accordance with the date of  joining          the  post on adhoc basis.  If the date  of  joining          the post(s), on adhoc basis by such adhoc employees          was  the same, then the elder employee  shall  rank          senior to an employee younger in age.  If the  date          of  joining  the  direct recruit and  the  date  of          Regularisation  is  the same,  the  direct  recruit          shall be senior.      Category-II. Work-Charged employees              The work-charged employees who have completed 4          or  more years of continuous service as on  30.9.88          shall  be  regularised.   On  Regularisation  these          employees shall be liable for transfer anywhere  in          the State of Haryana on any project/work.          Category-III. Casual Workers/Daily rated employees

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        With  regard  to  these  employees,  the  following          policy will be followed:          (i)  Casual/daily rated employees appointed  on  or          before           30.9.1983  shall  be  treated  as  monthly   rated          established  employees  on a fixed pay of  Rs.  750          (minimum  of  Class-IV pay scale) or the  rates  as          fixed  by  the  Deputy  Commission  concerned  p.m.          without any allowance w.e.f. 1.10.88. They shall be          entitled  to  an annual increment of  Rs.  12  till          their services are regularized. On  Regularisation,          they  shall  be  put  in  the  time  scale  of  pay          applicable to the lowest Group ’D’ in the Govt. and          they would be entitled to all other allowances  and          benefits available to regular Govt. servants of the          corresponding grade.                                                        863          (ii) The casual of daily rated employees, who  have          completed  10 years or more of service  on  30.9.88          shall be regularized w.e.f. 1.10.88 on the basis of          seniority-cum-suitability.          (iii) In respect of all such daily rated  employees          who  have  not  yet completed 5  years  service,  a          special review should be carried out regarding  the          requirement of their continuance or retrenchment as          the case may be.          (iv)  In the case of those, who are required to  be          continued in service, the same terms and conditions          will be applicable as in sub-paras (i) & (ii) above          on  completion  of  5 years and  10  years  service          respectively.          (v)  In  the case of those whose  services  are  no          longer  required,  they may be  relieved  of  their          duties at the earliest possible.          Category-IV. Workmen.               The  employee, who come within the  definition          of  ’Workmen’  under the Industrial  Disputes  Act,          shall be entitled to the benefits under the Act and          their services should be dispensed with only  after          following  the procedure laid down in the  Act  and          after granting the requisite retrenchment benefits.          Category-V. Adhoc/temporary employees in  temporary          organization.                The  services  of the  employees  working  in          temporary  organization  can be terminated  at  the          abandonment of  the  scheme and they  will  not  be          eligible for Regularisation.          Category-VI. Seasonal workers.                The services of seasonal workers appointed as          daily  wager or on work-charged basis shall not  be          regularized   and  they  will  be   retrenched   on          completion/abandonment of the work.          2. The above policy may be brought to the notice of          all concerned for strict compliance.                                                  Yours                                                faithfully,                                                        864                                                   Sd/-                          Under       Secretary       General          Administration                     for   Chief  Secretary  to   Government,          Haryana.      (iv) On 28th February, 1991, yet another order has been issued  by  the  Governor of Haryana under  the  proviso  to Article 309 of the Constitution providing for regularisation

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of class III employees who have put in service  of two years on  31st December, 1990 subject to usual  conditions.   This order reads as follows:                               "Notification                          The 28th February, 1991          No.  G.S.R. 11/Const./Art.309/91.- In  exercise  of          the powers conferred by the proviso to article  309          of the Constitution of India read with the  proviso          to   clause  6  of  Haryana   Government,   General          Administration   Department   (General   Services),          notification  No.523-3 GSI-70/2068, dated the  28th          January,   1970  the  Governor  of  Haryana  hereby          specifies  such Class III posts as have  been  held          for  a  minimum  period of two years  on  the  31st          December,  1990, by Class III employees on  ad  hoc          basis  to  be  taken  out of  the  perview  of  the          Subordinate  Services Selection Board, Haryana  and          their services shall be regularised if they fulfill          the following conditions, namely:-          (i)  that  the employees have completed  two  years          services  on  31st  December,  1990,  and  were  in          service on 31st December, 1990.          (ii)  that  the  employees  shall  be   regularised          against the posts/vacancies of relevant categories.          The   employees   of  general   category   may   be          regularised in excess of their quota with the clear          stipulation  that in future recruitments  only  the          candidates   from   reserve  categories   will   be          appointed  until  the  back  log  arising  out   of          utilisation   of  reserve  category  vacancies   by          general category ad hoc employees is cleared:          (iii) that the employees should have been recruited          through   the  Employment  Exchange   or   directly          appointed by the appointing                                                        865          authority   after  obtaining  the   non-availabilty          certificate from the Employment Exchange;          (iv)  that the work and conduct of  such  employees          shall   be  of  over  all  good  category  and   no          disciplinary proceedings are pending against  them,          and          (v)  that  the employees possessed  the  prescribed          qualifications  for the post at the time  of  their          appointment on ad hoc basis.          2. The seniority of the ad hoc Class III  employees          so regularised, viz-a-viz, the Class III  employees          appointed  on  regular basis should  be  determined          with  effect from 31st December, 1990.  The  inter-          se-seniority  of  such ad hoc Class  III  employees          shall be determined in accordance with the date  of          their  joining  the post on ad hoc basis.   If  the          date  of  joining the post (s) on ad hoc  basis  by          such  ad  hoc employees was the same,  the  an  old          employees shall rank senior to an employee  younger          in  age.  If the date of appointment of the  direct          recruit  and the date of regularisation of  ad  hoc          employees is the same, the direct recruit shall  be          senior.                                          KULWANT SINGH                                chief Secretary to Government                                                    Haryana " 22.  So  far  as  the Punjab  Government  is  concerned,  an affidavit sworn to by Sri G.K.Bansal, Under Secretary to the Government,  Department of Personnel, Government  of  Punjab has  been  filed  before us stating  that  the  instructions

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issued  by the Haryana Government for regularisation of  the services  of class III ad hoc employees contained  in  their notification dated 28.2.1991 shall be adopted by the  Punjab Government  mutatis mutandis.  The relevant portion  of  the affidavit may be extracted herein below:          "The policy instructions for the regularisation  of          services  of  Class-III adhoc employees  issued  by          Haryana  Government vide their  notification  dated          28/2/91 mutatis mutandis will be adopted as under:-                                                        866          (i) That the adhoc/temporarily appointed  employees          should  have  completed  a  minimum  of  two  years          service on 31/12/90 and was in service on 31/12/90.          While calculating the period of service, any  break          of  notional nature not exceeding 30  days  falling          between adhoc/temporarily appointments in the  same          category of post (s) and in the same Department  is          to    be   ignored.    However,   the   break    in          adhoc/temporary  service would be ignored in  cases          where:          (a) The employee concerned left service of his  own          volition  either to join some other  Department  or          for some other reasons, or          (b)  the adhoc/temporary appointment was against  a          post/vacancy  for which no regular recruitment  was          intended/required    to   be   made   e.g.    leave          arrangements   for  filling  of  other   short-term          vacancies.          (ii)   that   they  fulfill   the   conditions   of          eligibility  as  prescribed (i.e.  they  have  been          recruited  through  the Employment Exchange  or  by          open   advertisement)   academic    qualifications,          experience and the condition of age at the time  of          their    first/adhoc/temporary    appointment    in          accordance with the Departmental service rules  and          instructions issued by the government.          (iii) that their record of service is satisfactory.          (iv)  that they have been found medically  fit  for          entry  into  Government  service  and  that   their          character  and  antecedents  have  also  been  duly          verified and found suitable for Government service;          (v)  that a regular post/vacancy is  available  for          regularisation;          (vi)   that   they   have  been   found   fit   for          regularisation   by  the   Departmental   Selection          Committees  constituted  in  accordance  with   the          instructions   contained  in  Government   circular          letter No.12/30/86/IGE/5139 dated 15/4/86;          (vii)   The  seniority  of  the   adhoc/temporarily          appointed class-III employees so regularized vis-a-          vis class-III employees appointed                                                        867          on   regular  basis  shall  be  determined   w.e.f.          31.12.90.   The   inter-se   seniority   of    such          adhoc/temporarily  appointed  class-III   employees          shall be determined in accordance with the date  of          their joining the post on adhoc/temporary basis. If          the date of joining the post(s) on  adhoc/temporary          basis by such adhoc/temporarily appointed employees          was  the  same then an older  employee  shall  rank          senior to an employee younger in age.  If the  date          of  joining of the direct recruit and the  date  of          regularisation   of   adhoc-temporarily   appointed          employee  is the same, the direct recruit shall  be          senior;

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        The  cases  of  such  adhoc/temporarily   appointed          employees  who have already completed  three  years          service on 31st December, 90 and have  satisfactory          record  of  service  but who  do  not  fulfill  the          prescribed     conditions    with     regard     to          qualifications,  age  or  mode  of  their   initial          recruitment    will   also   be   considered    for          regularisation in relaxation of these conditions if          the Departmental Service Rules applicable to  these          employees   provide   for   relaxation   of   these          conditions of recruitment."      We  are  sure  that many of  the  employees  would  get regularised  under the orders aforementioned issued by  both the Governments.      23.  This is not a case, we must reiterate,  where  the Governments have failed to take any steps for regularisation of their adhoc employees working over the years.  Every  few years   they   have  been  issuing  orders   providing   for regularisation. In such a case, there is no occasion for the court   to  issue  any  directions  for  regularising   such employees  more  particularly when none  of  the  conditions prescribed  in  the  said orders can be said  to  be  either unreasonable, arbitrary or discriminatory. The court  cannot obviously help those who cannot get regularised under  these orders   for  their  failure  to  satisfy   the   conditions prescribed   therein.    Issuing  general   declaration   of indulgence is no part of our jurisdiction.  In case of  such persons  we can only observe that it is for  the  respective Governments  to  consider  the feasibility  of  giving  them appropriate relief, particularly in cases where persons have been  continuing  over  a long number  of  years,  and  were eligible   and  qualified  on  the  date  of   their   adhoc appointment   and  further  whose  record  of   service   is satisfactory.                                                        868      24.  With  respect to direction No. 8  (equal  pay  for equal  work) we find the judgment singularly devoid  of  any discussion.  The direction given is totally vague.  It  does not  make it clear who will get what pay and on what  basis. The said direction is liable to be set aside on this account and is, accordingly, set aside.      In the matters posted before and heard by us, there are several  S.L.Ps. preferred against orders of the High  Court allowing  writ  petitions following the  judgment  in  Piara Singh.  Leave is granted in all such matters as well and the appeals allowed in the same terms as the appeals against the judgement in Piara Singh.      25.  Before  parting  with  this  case,  we  think   it appropriate  to  say  a few words concerning  the  issue  of regularisation  of adhoc/temporary employees  in  government service.      The  normal  rule, of course,  is  regular  recruitment through   the   prescribed   agency   but   exigencies    of administration may sometimes call  for an adhoc or temporary appointment to be made.  In such a situation, effort  should always  be to replace such an adhoc/temporary employee by  a regularly  selected employee as early as possible.   Such  a temporary  employee may also compete along with  others  for such  regular selection/appointment.  If he  gets  selected, well  and good, but if he does not, he must give way to  the regularly  selected  candidate.   The  appointment  of   the regularly  selected candidate cannot be withheld or kept  in abeyance for the sake of such an adhoc/temporary employee.      Secondly, an adhoc or temporary employee should not  be replaced by another adhoc or temporary employee; he must  be

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replaced  only  by a regularly selected employee.   This  is necessary  to  avoid  arbitrary action on the  part  of  the appointing authority.      Thirdly, even where an adhoc or temporary employment is necessitated on account of the exigencies of administration, he  should ordinarily be drawn from the employment  exchange unless  it  cannot brook delay in which  case  the  pressing cause  must  be  stated  on the file.  If  no  candidate  is available  or is not sponsored by the  employment  exchange, some appropriate method consistent with the requirements  of Article  16 should be followed.  In other words, there  must be a notice published in the appropriate                                                        869 manner  calling for applications and all those who apply  in response thereto  should be considered fairly.      An  unqualified person ought to be appointed only  when qualified  persons  are  not  available  through  the  above processes.      If  for any reason, an adhoc or temporary  employee  is continued  for  a fairly long spell,  the  authorities  must consider his case for regularisation provided he is eligible and  qualified according to rules and his service record  is satisfactory and his appointment does not run counter to the reservation policy of the State.      The proper course would be that each States prepares  a scheme,  if one is not already in vogue, for  regularisation of such employees consistent with its reservation policy and if  a  scheme  is  already framed,  the  same  way  be  made consistent  with  our observations herein so  as  to  reduce avoidable  litigation  in  this behalf.  If  and  when  such person  is regularised he should be placed immediately below the  last  regularly appointed employee  in  that  category, class or service, as the case may be.      So far as the work-charged employees and casual  labour are concerned, the effort must be to regularise them as  far as  possible  and  as early as  possible  subject  to  their fulfilling  the qualifications, if any, prescribed  for  the post  and subject also to availability of work. If a  casual labourer  is continued for a fairly long spell - say two  or three years - a presumption may arise that there is  regular need  for  his  services. In such a  situation,  it  becomes obligatory  for  the  concerned  authority  to  examine  the feasibility  of  his regularisation.  While  doing  so,  the authorities ought to adopt a positive approach coupled  with an empathy for the person.  As has been repeatedly  stressed by  this  court,  security of tenure  is  necessary  for  an employee to give his best to the job.  In this behalf, we do commend  the orders of the Government of Haryana  (contained in its letter dated 6.4.90 referred to hereinbefore) both in relation to work-charged employees as well as casual labour.      We  must  also  say  that  the  orders  issued  by  the Governments   of   Punjab   and   Haryana   providing    for regularisation of adhoc/temporary employees who have put  in two years/one  year of service are quite generous and  leave no room for any legitimate grievance by any one.                                                        870      These  are but a few observations which we  thought  it necessary  to make, impelled by the facts of this case,  and the  spate  of litigation by such employees.  They  are  not exhaustive  nor can they be understood as  immutable.   Each Government  or authority has to devise its own  criteria  or principles  for  regularisation  having regard  to  all  the relevant  circumstances, but while doing so, it should  bear in mind the observations made herein.      26.  So  far as the employees and workmen  employed  by

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Statutory/Public Corporations are concerned, it may be noted that they have not issued any orders akin to those issued by the  Punjab  and  Haryana Government. Even  so,  it  is  but appropriate that they adopt as far as possible, keeping  the exigencies and requirements of their administration in view, the criteria and principles underlying the orders issued  by their  Government in the matter of regularisation  and  pass appropriate   orders.    In  short,   the   Statutory/Public Corporations in Haryana will follow the orders contained  in the letter dated 6.4.1990 referred to above, as supplemented by the orders in the Notification dated 28.2.1991, where  as the Statutory/Public Corporations in Punjab shall follow the criteria  and  principles  stated in the  affidavit  of  Sri G.K.Bansal,  Under  Secretary to the Government  of  Punjab, Department of Personnel referred to in para 22 above.  These directions    shall   not,   however,   apply    to    these Statutory/Public   Corporations  functioning  within   these States as are under the control of the Government of  India. These  Corporations  will do well to evolve  an  appropriate policy of regularisation, in the light of this judgment,  if they  have not already evolved one, or make  their  existing policy consistent with this judgment to avoid litigation.      27. For the above reasons,  all the appeals are allowed and  the orders under appeal are set aside.  The  directions given by the High Court in the judgment in W.P.(C)  No.72/88 namely  direction Nos. 1,2,3,4,6 and 8 are set  aside.   The only  direction given herewith is the one contained in  para 19.      The  writ petitions seeking the benefits given  in  the judgment under appeal are dismissed.      No costs. H  N.P.V.                                    Appeals disposed of.                                                        871