JUDGMENT
Vikramajit Sen, J.
1. In these writ petitions it has been prayed that the Petitioners should be regularized under the Pre-paid Taxi/TSR Scheme of the Delhi Traffic Police with all consequential service benefits with effect from the date of their initial appointment; that the Respondents be directed to implement the doctrine of equal work, and doing so should pay the Petitioners salaries corresponding to employees working on equivalent posts in the Department of the Delhi Traffic Police; and that the Respondents be directed to give effect to the Report prepared and submitted by the Ministry of Personnel, Public Grievances and Pensions in March, 1996. Having perused the said Impact Study Report I find nothing therein which would give succor to the Petitioners so far as the temporary and transient nature of their employment is concerned. The gravamen of the said Report is that the functioning of the Pre-paid Taxi/TSR Scheme has been found to be advantageous and salutary so far as the interests of the commuters in Delhi are concerned.
2. It is not in dispute that a formalized or `regular’ process of recruitment of the Petitioners and other persons similarly placed to them has not been followed by the Respondents. Since the Scheme was in its nascent and fledgling state, and its viability as well as utility was yet to be tested, persons were recruited in an unorganized manner. Keeping the situation in view castigation of this method of employment would be inopportune. Learned counsel for the Respondents has drawn my attention to the fact that the Delhi Police has framed Rules and Regulations in the form of Standing Order No. 122, against which there has been no assault. The question is whether the Petitioners have acquired a right to be regularized in the posts in which they are presently employed. The petition proceeds on the premise that the Scheme has not been formulated and, therefore, it is totally nebulous as to which post the Petitioners must be regularized into. There is a clear distinction between regular employment and protection of temporary/ad-hoc/daily-waged engagement. Rejection of the first relief does not necessarily imply rejection of the other; although the reverse is not true. Learned counsel for the Petitioners has relied on the observations of a two Judge Bench of the Apex Court in Daily Rated Casual Labour Emloyed Under P&T Department through Bhartiya Dak Tar Mazdoor Manch v. Union of India and Ors., (1988) 1 SCC 122 = AIR 1987 SC 2342. Their Lordships had observed that unless a workman feels a sense of belonging to an organisation he would not put his best efforts towards production; security of work must be assured to employees; managements must abjure employment of casual labour for unreasonably long periods of time and, therefore, a practice to the contrary would not be a wise policy. Directions were issued to prepare a scheme on a reasonable basis for absorbing as far as possible the casual labourers who had been continuously working for more than one year. Mr. Vikas Singh, learned counsel for the Petitioners also attempted to draw support for the Petitioners from the decisions of the three Judge Bench in Dr. V.P. Chaturvedi and Ors. v. Union of India and Ors., (1991) 4 SCC 171 but the facts of that case are entirely dissimilar. My attention has also been drawn to the order of the Apex Court in Rajesh Kumar Soni and Ors. v. Ministry of Environment & Forest and Wild Life and Ors., (1992) 4 SCC 116 where, once again, facts are altogether different since the engagement of the Petitioners was not to an organisation which was in as fluid a form as the Respondents in the present case were at the stage of the Petitioner’s initial appointment. This critique also applies to the decision in Andhra University through its Registrar v. M. Sivaram and Ors., 1994 Supp. 3 SCC 750.
3. The preferred view of the Hon’ble Supreme Court is that contract or ad-hoc employees do not per se have a right to claim regularisation In Rudra Kumar Sain and Ors. v. Union of India and Ors., JT 2000 (9) SC 299, the Court had referred back to its decision on the same subject in O.P. Singla and Anr. etc. v. Union of India and Ors., 1985 (1) SCR 351, where it had occasion to observe that the appointments to the Delhi Higher Judicial Service were neither ad-hoc, nor fortuitous, nor in the nature of a stop gap arrangement.” In instances where the service contracts have been renewed on occasions and are against regular vacancies, it is certainly arguable that the protection which the Apex Court had granted should apply across the board and give them succour. Where an employer adopts the device of contractual/ temporary/ ad-hoc employment in order to perpetuate arbitrary appointments so as to retain the power to employ persons at its whim and fancy all ad-hoc employees would stand on similar footing. It is this vice that the Hon’ble Supreme Court had sought to eradicate in State of Haryana v. Piara Singh, AIR 1992 SC 2130. Indubitably, compelling persons to work on successively renewed contracts or on temporary status is a practice which has to be deprecated especially where regular vacancies are in existence. In Hindustan Shipyard Limited and Ors. v. Dr. P. Sambasiva Rao and Ors., (1996) 7 SCC 499, the Apex Court enunciated that the process of regularization involves regular appointment which can be done only in accordance with the prescribed procedure. The directions of the High Court for regularization of medical officers engaged de hors the regular procedure was set aside. In Gujarat Agricultural University v. Rathod Labhu Bechar, (2001) 3 SCC 574 : 2001 1 A.D. (S.C.) 327, the Hon’ble Supreme did not automatically absorb the ad hoc employees, but instead observed thus –
“…. In fact, taking work, from daily wage worker or ad hoc appointee is always viewed to be only for a short period or as a stop gap arrangement, but we find new culture is growing to continue with it for a long time, either for financial gain or for controlling its workers more effectively with sword of damocles hanging over their heads or to continue with favored ones in the cases of ad hoc employee withstalling competent and legitimate claimants. Thus we have no hesitation to denounce this practice. If the work is of such a nature, which has to be taken continuously and in any case when this pattern become apparent, when they continue to work for year after year, only option to the employer is to regularise them. Financial viability no doubt is one of the considerations but then such enterprise or institution should not spread its arms longer than its means. The consequent corollary is, where work is taken not for a short period or limited for a season or where work is not of part time nature and if pattern shows work is to be taken continuously year after year, there is no justification to keep such persons hanging as daily rate workers. In such situation a legal obligation is cast on an employer if there be vacant post to fill it up with such workers in accordance with rules if any and where necessary by relaxing the qualifications, where long experience could be equitable with such qualifications. If no post exists then duty is cast to assess the quantum of such work and create such equivalent post for their absorption.”
4. In Dr. Chanchal Goyal case (supra) a plethora of precedents was considered, the interpretation whereof by the Apex Court is binding on me. The following observations are extremely relevant:
“6. There is no scope of regularization unless the appointment was on regular basis. Considerable emphasis has been laid down by the appellant to the position that even for temporary appointment there was a selection. That is really of no consequence. Another plea of the appellant needs to be noted. With reference to the extension granted it was contended that a presumption of the Service Commission’s concurrence can be drawn, when extensions were granted from time to time. This plea is without any substance. As noted above, there is no scope for drawing a presumption about such concurrence in terms of sub-rule (2) of Rule 27. After one year, currency of appointment is lost. The extension orders operated only during the period of effectiveness.
7. The decisions relied upon by the learned counsel for the appellant were rendered in different factual background. A decision is an authority for what it decides and not for what could be inferred from the conclusion.
8. Unless the initial recruitment is regularized through a prescribed agency, there is no scope for a demand for regularization. It is true that an ad hoc appointee cannot be replaced by another ad hoc appointee; only a legally selected candidate can replace the ad hoc or temporary appointee. In this case it was clearly stipulated in the initial order of appointment that the appellant was required to make room once a candidate selected by the Service Commission is available.
9. In fact, a candidate selected by the Service Commission was to replace the appellant, even if it is accepted as contended by the learned counsel for the appellant that the selected candidate did not join. That is really of no assistance to the appellant. The fact remains that a person has been selected and the Service Commission has drawn up a list of selected candidates. If the person, who was to replace the appellant, did not join for some reason, obviously another selected person can be posted. Non-joining of the selected candidate does not confer any right on the appellant. As the initial order dated 27.11.1974 shows, what is required is the availability of a candidate selected by the Service Commission, and not the joining of the selected candidate.
10. In J&K Public Service Commission v. Dr. Narinder Mohan it was, inter alia, observed that it cannot be laid down as a general rule that in every category of ad hoc appointment if the ad hoc appointee continued for longer period, rules of recruitment should be relaxed and the appointment by regularization be made. In the said case in para 11 the position was summed up as under: (SCC pp.640-41, para 11)
“11. This Court in A.K. Jain (Dr) v. Union of India gave directions under Article 142 to regularize the services of the ad hoc doctors appointed on or before 1-10-1984. It is a direction under Article 142 on the peculiar facts and circumstances therein. Therefore, the High Court is not right in placing reliance on the judgment as a ratio to give the direction to the PSC to consider the cases of the respondents. Article 142 — power is confided only to this Court. The ratio in P.P.C. Rawani (Dr) v. Union of India is also not an authority under Article 141. Therein the orders issued by this Court under Article 32 of the Constitution to regularize the ad hoc appointments had become final. When contempt petition was filed for non-implementation, the Union had come forward with an application expressing its difficulty to give effect to the orders of this Court. In that behalf, while appreciating the difficulties expressed by the Union in implementation, this Court gave further direction to implement the order issued under Article 32 of the constitution. Therefore, it is more in the nature of an execution and not a ratio under Article 141. In Union of India v. Dr. Gyan Prakash Singh this court by a Bench of three Judges considered the effect of the order in A.K. Jain case and held that the doctors appointed on ad hoc basis and taken charge after 1.10.1984 have no automatic right for confirmation and they have to take their chance by appearing before the PSC for recruitment. In H.C. Puttaswamy v. Hon’ble Chief Justice of Karnataka High Court this Court while holding that the appointment to the posts of clerk etc. in the subordinate courts in karnataka State without consultation of the PSC are not valid appointments, exercising the power under Article 142, directed that their appointments as a regular, on humanitarian grounds, since they have put in ore than 10 years’ service. It is to be noted that the recruitment was only for clerical grade (Class III post) and it is not a ratio under Article 141. In State of Haryana v. Piara Singh this Court noted that the normal rule is recruitment through the prescribed agency but due to administrative exigencies, an ad hoc or temporary appointment may be made. In such a situation, this Court held that efforts should always be made to replace such ad hoc or temporary employees by regularly selected employees, as early as possible. The temporary employees also would get liberty to compete along with others for regular selection but if he is not selected, he must give way to the regularly selected candidates. Appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc or temporary employee. Ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee. He must be replaced only by regularly selected employee. The ad hoc appointment should not be a device to circumvent the rule of reservation. If a temporary or ad hoc employee continued for a fairly long spell, the authorities must consider his case for regularization provided he is eligible and qualified according to the rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State. It is to be remembered that in that case, the appointments are only to Class III or Class IV posts and the selection made was by subordinate selection committee. Therefore, this Court did not appear to have intended to lay down as a general rule that in every category of ad hoc appointment, if the ad hoc appointee continued for long period, the rules of recruitment should be relaxed and the appointment by regularization be made. Thus considered, we have no hesitation to hold that the direction of the Division Bench is clearly illegal and the learned Single Judge is right in directing the State Government to notify the vacancies to the PSC and the PSC should advertise and make recruitment of the candidates in accordance with the rules.”
5. In Jaidev v. Indira Gandhi National Open University and Anr., 102 (2003) DLT 234 (DB), the Division Bench arrived at the conclusion, after discussing Piara Singh’s case (supra) that no direction can be given to bye-pass the regular selection process even in the face of the existence of regular vacancies. However, the benefit of the period spent by the Petitioners on duty should be extended to them.
6. In this analysis of the law the prayer of the Petitioners for regularisation cannot be granted. The employment of the Petitioners has not been formulated or cadrised. No purpose would be served in regularising the services of the Petitioners till this event takes place. The Petitioners have not come into the stream of employment through the examination/interview or any other clear formulated and established method of recruitment. From the inception their employment has been arbitrary in nature. This, however, does not mean that the Court is powerless to grant succour to persons such as the Petitioners, who have already spent several years working against the Scheme which has now earned its spurs and commends permanence to itself. The Impact Study Report itself recommends formalization of these services; it is already overdue by several years.
7. Learned counsel for the Respondents has repeatedly argued that the Scheme was voluntary in nature but the logic or basis for this statement has totally escaped me. The Delhi Traffic Police was concerned with the malaise of over-charging of passengers or refusing to take them to their destinations if this was considered unsuitable or unprofitable by the Drivers. I find no reason that would compel the Petitioners or their fellow workers to “volunteer” to participate in this remedial project devised by the Delhi Traffic Police. They are not social workers; in fact they are from the unfortunate section of our society viz. the unemployed. The only voluntary aspect of the Scheme is that commuters/passengers have a choice either to avail of these services or to select their own mode of transport. It is indeed a matter of regret that so many so-called philanthropist ventures engaged in what is commonly and laudatorily termed as social work exploit persons who are employed by paying them a pittance as remuneration. There can be no social work which permits the exploitation of their employees. No meaningful purpose served in setting up educational institutions where the teachers and employees are not paid a respectable and living wage. Charity must begin at home. Why should a commuter’s convenience be cared for by employees who are not paid a living wage?! This ought not to have been brought to such a pass that payment of minimum wages required directions by this Court. It had been contended on behalf of Respondents that funds required for the Scheme were generated by charging a small fee from the commuters concerned but that did not gather sufficient funds. This is strongly denied by the Petitioners who submit that as on date a surplus of over Rupees one crore has been earned from the collections made under the Scheme. In State of Maharashtra v. Manubhai Pragaji Vashi and Ors., (1995) 5 SCC 730, the Hon’ble Supreme Court had ordered the State to provide sufficient funds to private law colleges. The ratio would apply, a fortiori, to the said Scheme which has now been functional for over a decade. It is nobody’s case that it deserves to be brought to an end. It must continue and if it is so an argument based on paucity of funds would be as absurd as refusal to provide police protection on the grounds that State funds are not available. All that can be said is that there must be a rethink on the prioritization of funds spent by the Government. The cynic would say that defense Departments in Government across the globe receive an overwhelming share of the Budget allocations because this form of spending has inherent attractions and benefits to those persons concerned with purchase of armaments.
8. Quite recently I had to pronounce on the question whether Teachers who had served the NDMC for several years on contractual basis had a right to be regularized in employment by bye-passing the NDMC policy of engaging regular employees only through the auspices of the Delhi Subordinate Services Selection Board. On an analysis of the law I had reluctantly rejected their prayer. The NDMC was however held to their assurance that the Petitioners in those batch of writ petitions would not be removed from service till regular appointments were made, relaxation and a system of preference would be devised to ensure that injustice would not occur, and their services would not be substituted by any other contractual/temporary or ad hoc employees. After hearing the learned counsel for the parties I remain steadfast in this understanding of the law and the approach predicated thereon. The Respondents are, therefore, restrained from terminating the services of the Petitioners except where it is for disciplinary reasons. In such cases they must adhere to the well established legal norms which are a pre-condition for putting a cessation to the services. Secondly, to dispel any doubts which may persist to the effect that the Respondents are not formalizing/systematized and cadrising the services in order to perpetuate arbitrariness and adhocism thereby enabling the officers of the Respondents to grant employment to their chosen few, all fresh employment shall be frozen until the services of pre-paid Taxi/TSR workers are formalized into a permanent structure. The Respondents are directed to file with the Registrar General of this Court, within fourteen days from today, a list of all existing employees with their dates of entry under this Scheme. Thirdly, as and when a regularized system of recruitment is formulated the Petitioners shall be exempted from the rigours of the maximum age limit. The Respondents shall also devise a system for extending a preference to persons similarly placed to Petitioners who are already working under the Scheme, relating to the length of service. Fourthly, by way of an alternate expression of the first protection, the services of the Petitioners shall not be substituted by any other temporary/ad-hoc/contractual etc. employees. However, where services of the any employee have already been terminated, these presents shall not be construed as directing their reinstatement or reemployment.
9. The Petitioners have also prayed for receiving equal pay for equal work. When this petition was filed the Petitioners, and their fellow workers were receiving absurdly low wages, which exploitation is only possible in a situation where there is rampant and large scale unemployment. This Court had ordained some relief to the Petitioners by ordering that they should be paid at least the minimum wages prescribed from time to time. It is to be appreciated that there is no dispute that the Respondents are now paying these wages to all concerned.
10. The unsurmountable obstacle in the path of the Petitioners is that, because of the novelty of the Scheme itself, they are unable to identify any corresponding post against which their claim for equal pay can be predicated. None has been disclosed to the Court in the course of the arguments. The genesis of this claim can be traced back to the decision of the Apex Court in Randhir Singh v. Union of India and Ors., AIR 1982 SC 879, and to the following paragraph in particular.
‘Equal pay for equal work’ is not a mere demagogic slogan. It is a constitutional goal capable of attainment through constitutional remedies, by the enforcement of constitutional rights. So the petitioner claims; so the petitioner asserts. Article 39(d) of the Constitution proclaims, as a Directive Principle, the Constitutional goal of ‘equal pay for equal work for both men and women’. Articles 14 and 19 guarantee respectively the fundamental rights to equality before the law and equality of opportunity in the matter of public employment and Art. 32 provides the remedy for the enforcement of the fundamental rights. So the petitioner has invoked the jurisdiction of this Court under Art. 32 and has asked us to direct the respondents to give him his due, the same as they have given others like him. True, he is the merest microbe in the mightily organism of the State, a little clog in a giant wheel. But, the glory of our Constitution is that it enables him to directly approach the highest Court in the land for redress. It is a matter of no little pride and satisfaction to us that he has done so. Hitherto the equality clauses of the Constitution, as other articles of the Constitution guaranteeing fundamental and other rights, were most often invoked by the privileged classes for their protection and advancement and for a ‘fair and satisfactory’ distribution of the buttered loaves amongst themselves. Now, thanks to the rising social and political consciousness and the expectations roused as a consequence, and the forward looking posture of this Court the underprivileged also are clamoring for their rights and are seeking the intervention of the Court with touching faith and confidence in the Court. The Judges of the Court have a duty to redeem their constitutional oath and do justice no less to the pavement dweller than to the guest of the five star hotel.
The Constitution Bench of the Apex Court in D.S.Nakara and Ors. v. Union of India, (1983) 1 SCC 305, while affirming this passage has observed that Article 38(1) enjoins the State to strive to promote welfare of the people, by eliminating inequalities in income; that Article 39(d) enjoins a duty to see that there is equal pay for equal work for both men and women. In Surinder Singh and Anr. v. Engineer-in-Chief, CPWD and Ors., (1986) 1 SCC 639, these views have been reiterated, but in circumstance where concededly the same nature of work was being performed.
11. In Jaswant Singh and Ors. v. Union of India and Ors., 1980 SCC (L&S) 36, it was held that no Government servant can claim entitlement to a declaration that he is in quasi-permanent service, because that does not depend upon the mere fact of his being in service for a particular number of years. Certainly his terminal benefits could be protected. It was further observed that work-charged employees are engaged on a temporary basis and are eligible to claim protection under the Industrial Disputes Act. The decision in State of Maharashtra v. Purshottam and Ors., (1996) 9 SCC 266, refers to and follows the approach in Jaswant Singh’s case (supra). The Hon’ble Court observed as follows:
“6. At the outset, it may be stated that a work-charged establishment means an establishment of which the expenses, 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 work-charged establishment employees are engaged on a temporary basis and their appointments are made for the execution of a specified work. From the very nature of their employment, their services automatically come to an end on the completion of the works for the sole purpose of which they are employed. The character and nature of their tenure has been fully discussed by this Court in the case of Jaswant Singh v. Union of India. In the service jurisprudence the expression `cadre’ means the unit of strength of a service or a part of it as determined by the employer. And it is too well settled that services rendered by an employee in one cadre cannot be taken into account for determining the seniority in another cadre unless by any rules of seniority this privilege is conferred. This being the position, ordinarily the services rendered by an employee in a work-charged establishment is not to be taken into account for his seniority in the regular establishment particularly when the tenure in the work-charged establishment is of a precarious nature and it automatically ceases after that project is over. The normal rule of seniority is the date of entry into the cadre or the position obtained in the examination when appointment is made by any competitive examination. Therefore, in the present case ordinarily seniority would have been determined on the basis of the date of absorption of the employee in the regular establishment, but the State Government itself has passed the resolution deciding a deemed date of absorption of the employees who were initially recruited in the charged establishment and later on absorbed in the regular establishment. ….”
12. In State of Haryana and Ors. v. Jasmer Singh and Ors., (1996) 11 SCC 77 = AIR 1997 SC 1788, it has been opined that daily-wagers should not be equated with regular workman and can at best claim payment of minimum wages only. A different Bench of the Hon’ble Supreme Court has made an essentially identical enunciation of the law in State of Haryana v. Surinder Kumar, AIR 1997 SC 2129. In State of Rajasthan v. Kunji Raman (1997) 2 SCC 517 the Hon’ble Supreme Court recognised that work-charged employees and employees on regular establishment of the PWD comprised two separate and distinct classes and therefore the former’s claim for granting them project allowance as also their claim that they should be given all the benefits which were made available to regular employees, were misconceived.
13. Delhi Development Horticulture Employees’ Union v. Delhi Administration, Delhi and Ors., AIR 1992 SC 789: (1992) 4 SCC 99 is an apposite verdict as it was in regard to ad hoc or work-charged employees. That Scheme was of a transient nature since it intended to temporarily ameliorate the plight of the rural unemployed. The similarity is that the Prepaid Taxi/TSR Scheme was experimental when it had been commenced. The following extract is extremely instructive —
“15. Apart from the fact that the petitioners cannot be directed to be regularised for the reasons given above, we may take note of the pernicious consequences to which the direction for regularisation of workmen on the only ground that they have put in work for 240 or more days, has been leading. Although there is Employment Exchange Act which requires recruitment on the basis of registration in the Employment Exchange it has become a common practice to ignore the Employment Exchange and the persons registered in the Employment Exchanges, and to employ and get employed directly those who are either not registered with the Employment Exchange or who though registered are lower in the long waiting list in the Employment Register. The Courts can take judicial notice of the fact that such employment is sought and given directly for various illegal consideration including money. The employment is given first for temporary periods with technical breaks to circumvent the relevant rules, and is continued for 240 or more days with a view to give the benefit of regularisation knowing the judicial trend that those who have completed 240 or more days are directed to be automatically regularised. A good deal of illegal employment market has developed resulting in a new source of corruption and frustration of those who are waiting at the Employment Exchanges for years. Not all those who gain such back-door entry in the employment are in need of the particular jobs. Though already employed elsewhere, they join the jobs for better and secured prospects. That is why most of the cases which come to the courts are of employment in Government Departments, Public Undertakings or Agencies. Ultimately it is the people who bear the heavy burden of the surplus labour. The other equally injuries effect of indiscriminate regularisation has been that many of the agencies have stopped undertaking casual or temporary works though they are urgent and essential for fear that if those who are employed on such works are required to be continued for 240 or more days have to be absorbed as regular employees although the works are time-bound and there is no need of the workmen beyond the completion of the works undertaken. The public interests are thus jeopardised on both counts.
16. In the circumstances, it is not possible to accede to the request of the petitioners that the respondents be directed to regularise them. The most that can be done for them is to direct the respondent-Delhi Administration to keep them on a panel and if they are registered with the Employment Exchange and are qualified to be appointed on the relevant posts, give them a preference in employment whenever there occurs a vacancy in the regular posts, which direction we give hereby.”
It is essential to differentiate between an ad-hoc or casual or temporary appointment to posts already permanently in existence and an engagement to a post which is itself temporary in nature, akin to a work-charged appointment. The case in hand like the Delhi Development Horticulture case (supra) fall in the second category, whereas R.K.Panda and Ors. v. Steel Authority of India and Ors., (1994) 5 Supreme Court Cases 304, V.M.Chandra v. Union of India and Ors., (1999) 4 Supreme Court Cases 62 and Union of India and Ors. v. Vinod Shanker Tripathi and Ors., (1998) 8 Supreme Court Cases 583, fall in the earlier one.
14. Similar observations were also recorded by another Bench of the Apex Court in State of Haryana and Ors., etc. etc. v. Piara Singh and Ors., etc. etc., AIR 1992 SC 2130, which are reproduced for ease of reference:
“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 orders relating to regularisation are arbitrary not valid and justified — the High Court acted rather hastily in directing wholesome regularisation of all such persons who have put in one year’s service, and that too unconditionally. We may venture to point out the several problems that will arise if such directions become the norm:
(a) Take a case where certain vacancies are existing or expected and steps are taken for regular recruitment either through Public Service Commission or other such body, as the case may be. A large number of persons apply. Inevitably there is bound to be some delay in finalising the selections and making the appointments. Very often the process of selection is stayed or has to be re-done for one or the other reason. Meanwhile the exigencies of administration may require appointment of temporary hands. It may happen that these temporary hands are continued for more than one year because the regular selection has not yet been finalised. Now according to the impugned direction the temporary hands completing one year’s service will have to be regularised in those posts which means frustrating the regular selection. There would be no post left for regularly selected persons even if they are selected. Such cases have indeed come to this court from these very two States.
(b) In some situations, the permanent incumbent of a post may be absent for more than a year. Examples of this are not wanting. He may go on deputation, he may go on Faculty Improvement Programme (F.I.P.), or he may be suspended pending enquiry into charges against him and so on. There may be any number of such situations. If a person is appointed temporarily in his place and after one year he is made permanent where will the permanent incumbent be placed on his return? Two persons cannot hold the same post on a regular or permanent basis.
(c) It may also happen that for a particular post a qualified person is not available at a given point of time. Pending another attempt at selection later on an unqualified person is appointed temporarily. He may continue for more than one year. If he is to be regularised, it would not only mean foreclosing of appointment of a regular qualified person, it would also mean appointment of an unqualified person.
(d) Such directions have also the effect of disregarding and violating the rule relating to reservation in favor 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.
17. Now coming to the direction that all those ad-hoc/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 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 (d) his record of service since his appointment is not satisfactory. These are in addition to some of the problems indicated by us in para 12, which would arise from giving of such blanket orders. None of the decisions relied upon by the High Court justify such wholesale, unconditional orders. 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 fulfillling 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 standpoint, the impugned direction must be held to be totally untenable and unsustainable.”
15. In State of Orissa and Ors. v. Balaram Sahu and Ors., (2003) 1 SCC 250, the Apex Court had chartered a slightly different course in that it had stated that in connection with the claim of equal pay for equal work it is for the claimants of parity to substantiate a clear-cut basis of equivalence and a resultant hostile discrimination. The Court also pithily observed that equal pay for unequal work also negates the right under Article 14 i.e. that regular employees may in some circumstances be performing longer and more onerous duties with greater responsibilities, when compared with daily wagers and should not be similarly treated. Jasmer Singh’s case (supra) was repeatedly referred to. These views have also been voiced in Ashwani Kumar v. State of Bihar, (1997) 2 SCC 1 and Dr. Chanchal Goyal v. State of Rajasthan, (2003) 3 SCC 485. It would also be of advantage to note similar pronouncements made in Associated Banks Officers Association v. State Bank of India, JT 1997 (8) SC 422 and Chief Superintendent, Government Livestock Farm Hissar v. Ramesh Kumar, (1997) 11 SCC 363.
16. The decision in the Daily Rated Casual Labour case (supra) has, therefore, not been followed by a subsequent decision of the Hon’ble Supreme Court. There is also a perceptible shift from the ethos articulated by the Constitution Bench of the Apex Court in the Nakara case (supra). It is, therefore, not possible to grant the prayer of the Petitioners so far as equal pay for equal work is concerned. Moreover the Petitioners have failed to locate a post of equivalence to their’s so far as job content is concerned. Suffice it to state that it can only be hoped that with the embargo placed on fresh employment in respect of the posts and duties performed by the Petitioners, the Respondents would be motivated into expeditiously taking steps for its permanence and cadrisation; it is expected that this exercise should be completed within six months from today.
17. The writ petitions are disposed of in these terms.