1. Some of the petitioners, in these petitions, have Sought for regularisation of their services in Kidwai Memorial Institute of Oncology (hereinafter referred to as "the Institute") and a few others have sought for a direction to the Institute not to terminate their services till regular appointments are made in respect of the posts held by each one of them.
2. Since common question of law has been raised and facts set out are fairly similar, all these petitions are taken up together for final disposal and disposed of by this common order.
3. The petitioners, in these petitions, are working in the cadre of Staff Nurse, Second Division Assistant, Social Worker, Clerk-cum-Typist, Medical Record Technician, Literate Attender. Ward Attender, Lab Attender, X-ray Technician, Assistant Surgeon, Lecturer in Pathology and Lecturer in Radio Therapy in the Institute. The period of service of some of the petitioners commenced during August 1991 and thereafter. The appointment of all the petitioners was purely on ad hoc basis and they were appointed for a period of six months at a time. However, their services were being continued from time to time with artificial break for a day or two in the middle.
4. It is the case of the petitioners that some of the petitioners have been in continuous service with a break for a day or two once in six months from August 1991. It is their case that solely with a view to deprive their right to become permanent employees of the Institute, though their appointment was made by the Director of the Institute in exercise of the power delegated to the Director under the Recruitment Rules, they were appointed on ad hoc basis for a period of six months and thereafter with artificial break for a day or two, their services were continued. According to the petitioners, such of those petitioners who have put in more than a year of service, till the date of the termination of their service, which prompted them to file these petitions, are entitled to be regularised in service and, therefore, a direction is required to be given by this Court to the Institute to regularise them in service. It is their further case that on an earlier occasion, in the very Institute, the services of such of those employees, who were appointed on ad hoc basis, were regularised. Further, it is pointed out by them that in the Institutes, like, Jayadeva Institute of Cardiology and other Institutes fully controlled by the State, have, either on their own or at the behest of the State Government, regularised the services of employees appointed on ad hoc basis and, therefore, on this ground also, the petitioners are entitled for regularisation of their services.
5. The respondent-Institute has filed statement of objections and resisted the claim of the petitioners for regularisation. It is the stand of the Institute that the petitioners were appointed purely on ad hoc basis for a period of six months at a time and their appointments were made by the Director purely on ad hoc basis, pending regular selection to be made following the procedure prescribed under the rules. It is the further case of the Institute that the Institute is required to make the selection to various categories of posts in the Institute after duly notifying the posts available for appointment and following the reservation policy of the State Government; and since the ad hoc appointments have been made without notifying the posts to which the petitioners came to be appointed and also without following the procedure prescribed under the Recruitment Rules and the reservation policy, if the services of the petitioners are to be regularised, it will violate the mandate of Articles 14 and 16 of the Constitution of India. It is also pointed out that the petitioners having accepted the order of appointment purely on ad hoc basis, and also terms of the order of appointment issued to them, cannot now be permitted to seek for a direction to the Institute to regularise their services; and as such, they are estopped from doing so. It is the stand of the Institute that though steps were taken to fill up the vacancies in various categories of posts in the Institute by issuing Notification dated 5th May, 1994, the selection process pursuant to the said notification, came to be stayed by this Court in Writ Petition No. 15225 of 1994 on 3rd June, 1994, and the interim order of stay granted by this Court came to be modified only on 3rd February, 1995, limiting the interim order only to the post in the category of Assistant Professor; and, thereafter, still the Institute could not proceed with the process of selection as the entire question regarding reservation against each post had not been finally decided by the Institute and the State Government altered its reservation policy from time to time by its orders dated 9th February, 1995, 20th June, 1995, 6th October, 1995, 25th November, 1995 and subsequently on 28th December, 1995 and 2nd January, 1996. Therefore, according to the Institute, since the Institute had to follow the order of the Government issued from time to time with regard to the reservation policy, effective steps could not be taken to finalise the selection to fill up vacancies in various categories of the posts in the Institute; and under these circumstances, it is only on 12th January, 1996, that the Institute issued a fresh notification calling for applications from the eligible candidates for the purpose of filling up various posts notified in the said notification; and in the said notification, it was also notified that such of those persons who had submitted their applications pursuant to the notification dated 5th May, 1994, need not make fresh applications and the applications made by them would be valid even in respect of the notification dated 12th January, 1996, issued and their cases would be considered for selection. It is further pointed out by the Institute that the Institute being a hospital, which treats patients, who are suffering from deadly disease of Cancer, must have the option to pick up the best talented and suitable persons to the various categories of posts notified for selection; and if the services of the petitioners are to be regularised merely because they came to be appointed on ad hoc basis on account of exigencies of circumstances, it would go against the interest of the Institute, the public in general and also would deprive more than 32,000 applicants, who have submitted their applications for being considered for appointment to the posts in question. It is the further stand of the Institute that the petitioners undisputedly having submitted their application pursuant to the notification issued, are also estopped from seeking regularisation.
6. The period of appointment of the petitioners can be classified as the periods falling from 1991 upto 5-5-1994, from 5-5-1994 to 12-1-1996 and from 12-1-1996 onwards taking into account the appointment made prior to the notification dated 5-5-1994 issued by the Institute calling for applications for appointment to the various categories of posts in the Institute and also the appointments made during the period from the first notification dated 5-5-1994 and the second notification dated 12-1-1996 and thereafter.
7. On behalf of the petitioners, I have heard M/s. Ravivarma Kumar, M.C. Narasimhan, Pandurangaswamy, R.S. Ravi, S.V. Manvi and M/s. A.S. Bopanna and Hiriyanna on behalf of the respondent-Institute.
8. Sri Ravivarma Kumar, who addressed the leading argument on behalf of the petitioners along with the other learned Counsel for the petitioners, submitted that the petitioners, who have put in service of two years and more, are entitled to be regularised in service as the right to regularisation in service flows from the right to equality guaranteed to the petitioners under Articles 14 and 16 of the Constitution and right to fairness and reasonableness in the State action guaranteed to the petitioners under Article 14 of the Constitution. While elaborating this submission, the learned Counsel pointed out that while the State or the instrumentality of the State is required to notify the vacancies available for selection to the members of the general public, who are eligible for appointment, they cannot seek shelter for violating the mandate of Articles 14 and 16 of the Constitution, if they have proceeded to make appointment on account of exigencies of the circumstances of the case and refuse to regularise their services. According to Sri Ravivarma Kumar, after taking the work from such of those persons who have been appointed on ad hoc basis and continued in service for a period of two years and more, are to be told at the end of the second year that their appointments were purely ad hoc and that they have no permanent right to the post or right to seek regularisation of the service to the post, it would result in discrimination and total unfair action on the part of the State or its instrumentality. He further pointed out that in the instant case, the selection of the petitioners having been made by the Director in exercise of the power delegated to him, it must be held that the appointments of the petitioners made were regular appointments and as such, such of those petitioners, who have put in two years or more of service, are entitled to be regularised in service. In support of his submission that the petitioners are entitled to be regularised in service, he relied upon the decision of the Supreme Court in State of Haryana and Others v Piara Singh and Others, and drew my attention to Paragraphs 12 and 25 of the said decision. He also relied upon the decisions of the Supreme Court in Jacob M. Puthuparambil and Others v Kerala Water Authority and Others, and drew my attention to Paragraphs 10, 11 and 15 in the said decision; The Dharwad District P.W.D. Literate Daily Wages Employees Association and Others v State of Karnataka, and drew my attention to Paragraph 14 therein; Daily Rated Casual Labour employed under P & T Department through Bhartiya Dak Tar Mazdoor Manch v Union of India and Others, and Karnataka State Private College Stop-gap Lecturers' Association v State of Karnataka and Others. Sri Ravivarma Kumar further submitted that as can be seen from the undisputed facts, many of the petitioners have been in service from August 1991, with artificial break for a day or two in between and all of them, except those who are in the cadre of Assistant Surgeon and Lecturer, belong to a lower rung of the posts in the services of the Institute and if, at this stage, their services are terminated, they will be put to irreparable injury and hardship resulting in denial of their right to livelihood. He also pointed out that under similar circumstances, on an earlier occasion, the Institute has regularised the services of the employees, who were appointed on ad hoc basis, and even in other Institutes, like, Jayadeva Institute of Cardiology, Bangalore, the services of the employees, who were appointed on ad hoc basis, came to be regularised. According to Sri Ravivarma Kumar, the State or the instrumentality of the State either on their own or at the instance of the Government, has been regularising the services of the employees who have put in services of a year or more; and under these circumstances, there cannot be any justification to deprive the same benefit to the petitioners in these petitions and if it is permitted, it would result in violation of the right to equality guaranteed to the petitioners under Article 14 of the Constitution. Alternatively, and without prejudice to his contention that such of those petitioners, who have put in more than two years of service, are entitled for regularisation, if this Court is not inclined to grant such a direction, this Court should at least give a direction to the Institute and the Selection Committee constituted by the Institute, to give weightage to the petitioners for each year of service each of them has put in. Sri Ravivarma Kumar also pointed out that in the Notification dated 3-8-1991, the Government has notified that 5% of the posts are to be reserved for handicapped persons; and, therefore, the petitioner in Writ Petition No. 762 of 1997 being a handicapped person and he having been continued in service ever since August 1991 and having put in about six years of service, his services are required to be regularised. He has also pointed out that the handicapped persons belong to a different category and when the State Government has recognised their handicap and picked them up for preferential treatment, there is absolutely no justification for the Institute at least not to regularise their services when they have been in continuous service for quite a long period.
9. Sri Narsimhan, learned Counsel, reiterated the submissions made by Sri Ravivarma Kumar and relied upon some of the decisions, referred to by Sri Ravivarma Kumar. The other learned Counsel appearing for the petitioners adopted the submissions of Sri Ravivarma Kumar and Sri Narasimhan and also submitted that at any event of the matter, the services of all ad hoc employees are required to be continued by the Institute tilt the regular appointments are made.
10. Sri A.S. Bopanna and Sri Hiriyanna, learned Counsel appearing for the respondent, seriously refuting the contentions of the learned Counsel for the petitioners that the petitioners are entitled for regularisation, submitted that the petitioners, who came to be appointed purely on ad hoc basis for a period of six months, are not entitled to seek for regularisation of their services. According to the learned Counsel, the petitioners having accepted the terms of appointment and thereafter, having undisputedly applied for appointment to the posts notified pursuant to the notification issued by the Institute, are estopped from seeking regularisation of their services before this Court. They further submitted that it is on account of the interim order passed by this Court and also on account of the orders passed by the Government from time to time regarding reservation policy, the Institute could not take immediate steps to fill up the vacancies in the various categories of posts in the Institute; and under those circumstances, having regard to the exigencies of the circumstances, the Institute was compelled to make appointments on ad hoc basis and without reference to their merit and competency to hold the post to which they are appointed on ad hoc basis, and, therefore, if a direction is given by this Court to regularise their services overlooking the claim of more than 32,000 applicants, who have made applications to various categories of posts notified and temporarily held by the petitioners, it would not only seriously jeopardise and affect the interest of the Institute, which is treating the Cancer patients and also would run counter to the right guaranteed under Articles 14 and 16 of the Constitution of India, to various qualified persons, who have a right to be considered to the posts in the Institute; and therefore, it is not appropriate for this Court, in exercise of its jurisdiction under Article 226 of the Constitution, to direct the Institute to regularise the services of the petitioners or to give weightage at the time of selection, to the petitioners for the period of service each one of them has put in. The learned Counsel further submitted that insofar as the petitioners, who are handicapped, are concerned, the Institute will certainly follow the Government Notification providing for reservation to the handicapped persons and consider the cases of those petitioners, who are handicapped, in the light of the Government Circular. But, they are also not entitled to seek for regularisation as the case of those petitioners, who are handicapped, is also required to be considered along with the claim of other handicapped persons who have submitted their applications for selection pursuant to the notification issued by the Institute. The learned Counsel submitted that the decision relied upon by the petitioners in support of their claim for regularisation has absolutely no bearing on the facts of the present case and the direction given by the Supreme Court in the cases relied upon by the learned Counsels for the petitioners, must he understood as applicable only to the facts of those cases. They also relied upon the decisions of the Supreme Court in the cases of J & K Public Service Commission and Others v Dr. Narinder Mohan and Others, Hindustan Shipyard Limited and Others v Dr. P. Sambasiva Rao and Others, Dr. Kishore v State of Maharashtra and Director, Institute of Management Development, Uttar Pradesh v Smt. Pushpa Srivastava and submitted that the petitioners are not entitled to seek regularisation of their services.
11. Two questions that would emerge for consideration in these petitions in the light of the submissions made by the learned Counsel for the parties, can be set out as follows:
(i) Whether the petitioners and more particularly, such of those ad hoc employees who have put in more than two years or more of service till the date of termination of their services by the orders impugned in these petitions, are entitled for regularisation of their services?
(ii) If not, whether the petitioners are entitled for a weightage while considering their cases for selection along with others, who have submitted their applications pursuant to the notifications issued by the Institution for selection to various posts in the Institute, keeping in mind the services they have already put in, in the Institute?
12. Before I proceed to consider the questions that have arisen for my consideration, it is useful to refer to Rules 18 and 19 of the Kidwai Memorial Institute of Oncology Rules and Regulations, 1979 (hereinafter referred to as "the Rules", which provide for appointment of members of Medical, Administrative and Scientific Staff and other Officers and employees. The said rules read as follows:
"18. Appointment of members of Medical, Administrative and Scientific staff.-
(1) The appointment of the Medical Superintendent, Chief Research Officer, Chief Administrative Officer, Professors and Surgeons shall be done by the Governing Council on the recommendation of the Screening Committee or Selection Committee constituted by the Governing Council in accordance with the bye-laws framed by the Governing Council;
(2) The appointment of Assistant Professors, Lecturers, Residents, Research Assistants, Assistant Surgeons and such other staff shall be done by the Director on the recommendations of the Selection Committee constituted by the Governing Council and in accordance with the bye-laws framed by the Governing Council.
19. Appointment of other Officers and employees.--The appointment of other Administrative Officers, Ministerial, Nursing, Para-medical, Ward Attendants and such other staff shall be done by the Director on the recommendation of the Selection Committee constituted by the Director".
While Rule 18 of the rules provides for appointment of Medical, Administrative and Scientific Staff, Rule 19 of the rules provides appointment of other Officers and employees, like, Ministerial, Nursing, Para-medical, Ward Attendants etc.
13. Now, let me examine the questions that have arisen for my consideration, seriatim.
Re. Question (i):
14. At the very outset, I may point out that I am unable to accede to the submissions made by the learned Counsel for the petitioners that a direction should be issued to the Institute and its Authorities to regularise the services of the petitioners. Admittedly, the appointment of the petitioners is purely on ad hoc basis and the appointment orders issued to the petitioners clearly state that the petitioners were appointed purely on temporary/ad hoc basis and for a period of six months from the date of the appointment. No doubt, the services of the petitioners were continued with a break for a day or two for a longer period. It is the case of the Institute that even for making ad hoc appointment, no notification was issued calling for applications from the members of the public and the vacancies available were also not notified either in the Notice Board of the Institute nor applications were called for from the Employment Exchange, or any other mode was adopted to notify to the public that the vacancies in the Institute would be filled up on ad hoc basis till regular appointments are made. This position is not seriously disputed by the learned Counsel appearing for the petitioners as, on the materials on record, they could not have done so. Further, admittedly, even for the purpose of temporary/ad hoc appointments, none of the members of the public were given an opportunity for being considered. The well known mode of getting applications even from Employment Exchange or notifying the vacancies in the Institute in which the appointments are sought to be made, has also not been followed. Therefore, the facts of this case clearly demonstrate that the petitioners came to be appointed by the Director of the Institute purley on ad hoc basis having regard to the exigencies of the circumstances of the case. In the facts and circumstances of the cases, the only conclusion I could arrive at with regard to the nature of the appointment of the petitioners made, is that their appointment is in the nature of a back door entry to the Institute.
15. There is no dispute that the Institute is an instrumentality of the State and for the purpose of Articles 14 and 16 of the Constitution, it has to be treated as a State. Article 14 of the Constitution guarantees to every person equality before law or equal protection of law within the territory of India. In other words, Article 14 of the Constitution mandates the State not to deny to any person equality before law or the equal protection before law within the territory of India. The guarantee provided in Article 14 is in the nature of an injunction issued to the State by the Constitution not to make any discrimination among its people and provide equal opportunity to all its people who are similarly situated. Article 16 of the Constitution guarantees equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. The provisions contained in Article 16 also mandates the State or its instrumentality to provide equality of opportunity to all its citizens in matters relating to employment or appointment to any office under the State. Therefore, there cannot be any dispute that the appointment to the post in the Institute is an office under the State for the purpose of Article 16 of the Constitution. Consistent with the rights guaranteed under Articles 14 and 16 of the Constitution, Recruitment Rules have been framed by the Institute providing for the procedure prescribing appointment to various posts in the Institute.
16. Rules 18 and 19 of the rules, referred to above, are the rules which govern the appointments in question. As stated earlier, there is no dispute that the appointments of the petitioners are made without following the procedure prescribed under the rules and nobody else was given an opportunity of being considered even for the purpose of making ad hoc appointment. Therefore, if this Court gives a direction to the respondent-Institute to regularise the services of the petitioners, it would be virtually directing the Institute to disobey the mandate of the Constitution enshrined in Articles 14 and 16 of the Constitution, which provides for equality of opportunity to all persons of being considered for appointment under the office of the State and also to violate the rules framed by the Institute prescribing the procedure for appointment to various posts in the Institute. I am of the view that the power of this Court is required to be exercised to direct the State or its Authorities to obey the mandate of the Constitution and the laws and not to violate the same merely because there is a lapse on the part of the authorities in taking immediate steps to fill up the vacancies and in the process, number of persons were continued in service on ad hoc basis. Further, this Court also cannot close its eyes to the fact situation that on many occasions, it has become handy and advantageous to the persons who manage the State and its instrumentalities to make ad hoc appointments and continue the incumbents in service for a considerable length of time with a view to regularise their services after some time. The entire exercise and object of making ad hoc appointment and keeping them in service for some time without taking steps to make regular appointments as per the Recruitment Rules, is with a view to make appointments of the persons, who have access or liking to the persons in management of the State or its instrumentalities. In this process, a large number of other qualified candidates who have no access to the seat of power, will be deprived of their opportunity which Articles 14 and 16 of the Constitution of India and the Recruitment Rules guarantee them of being considered for appointment. I am of the view that such a practice requires to be deprecated and this Court should not assist in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India, to regularise the irregular appointments or appointments made through back door entry. In this connection, it is relevant to refer to the observations made by the Supreme Court in the case of Karnataka State College Stop-gap Lecturers, supra, which reads as under:
"Ad hoc appointments, a convenient way of entry from back-door, at times even in disregard of rules and regulations, are comparatively recent innovation to the service jurisprudence. They are individual problem to begin with, become a family problem with passage of time and end with human problem in Court of law. It is just and unfair to those who are lesser fortunate in society with little or no approach even though better qualified, more meritorious and well deserving. The infection is widespread in Government or semi-Government Departments or State financed institutions. It arises either because the Appointing Authority reports to it deliberately as a favour or to accommodate some one or for any extraneous reason ignoring the regular procedure provided for recruitment as a pretext under emergency measure to avoid loss of work etc., or the rules or circulars issued by the department itself empower the authority to do so as a stop-gap arrangement. The former is an abuse of power. It is unpardonable. Even if it is found to have been resorted to as a genuine emergency measure the Courts should be reluctant to grant indulgence. Latter gives rise to equities which have bothered Courts every now and then. Malady appears to be widespread in educational institutions as provisions for temporary or ad hoc appointments have been exploited by the managements of private aided colleges to their advantage by filling it, on one hand, with persons of own choice, at times without following the procedure, and keeping the teachers exposed to threat of termination, on the other, with all evil consequences flowing out of it. Any institution run by State fund but managed privately is bound to suffer from such inherent drawbacks. In State of Karnataka it is basically State created problem due to defective rule and absence of any provision to effectively deal with such a situation".
Therefore, I am of the view that the decisions relied upon by Sri Ravivarma Kumar in support of his submission, do not have a bearing on the facts of the present case. However, I will be dealing with each of the decisions relied upon by him a little later. But, it would be suffice at this stage to point out that the view I have taken as above, is fully supported by the decision of the Supreme Court in the case of Raveendran and Others v Union Territory of Pondichery. In the said decision, at Paragraph 3, the Supreme Court has observed thus:
"Sri K.M.K. Nair, learned Counsel for the petitioners, contended that the petitioners are postgraduates, M.Phil. and Ph.D. and they are highly qualified and have acquired experience from 1987 as lecturers. When they were appointed, number of vacancies were available. Since they have been working since 1987, they require to be regularised by suitable directions. We find no force in the contention. The admitted position is that the Commission having been entrusted with the constitutional duty to select suitable candidates by inviting applications from the open market, every candidate has a fundamental right to seek consideration and for selection through open competition. The petitioners also have that right. At one time, they staked their claims but were not selected. Therefore, the process of recruitment through the Commission, as envisaged under the Constitution, cannot be bypassed by issuing direction for regularisation of the services of the ad hoc persons who had come to the service through back-door entry. This Court in a catena of decisions has deprecated this practice of regularisation except in extraordinary cases by directing the Government to frame a scheme and regularise Classes III and IV services in accordance with the scheme. Even in subsequent decisions, that leverage is not being insisted upon. This Court in J & K Public Service's case, supra, had held that the Court cannot adopt hybrid process of direction to regularise the services by passing the process of selection envisaged under the Constitution. This Court has deprecated the Government for exercising the power under Article 320 of the Constitution taking out the posts from the purview of the Commission and to regularise services de hors the Commission. Under those circumstances, we are of the view that the Tribunal has rightly rejected the claim to grant the relief sought for".
(a) In the case of J & K Public Service, supra, this is what has been observed by the Supreme Court at Paragraph 7:
".....No express power was conferred and in fact cannot be conferred to relax the rules of recruitment. Having made the rules the executive cannot fall back upon its general power under Article 162 to regularise the ad hoc appointments under the Rules. Rule 9(3) empowers only to relax the qualification of age in particular exigencies which cannot be called in aid to relax the rules of recruitment. To tide over unforeseen exigencies, power to make ad hoc appointments may be visualised as envisaged by Explanation (b) to Rule 4 but it expressly states that by virtue of such appointment, the ad hoc appointee does not become member of the service. The rule prescribes direct recruitment/promotion by selection as the mode of recruitment which would be done only by PSC or promotion committee duly constituted and by no other body. Therefore, ad hoc employee should be replaced as expeditiously as possible by direct recruits. A little leeway to make ad hoc appointment due to emergent exigencies does not clothe the executive government with power to relax the recruitment or to regularise such appointment nor to claim such appointments to be regular or in accordance with rules. Back-door ad hoc appointments at the behest of power source or otherwise and recruitment according to rules are mutually antagonistic and strange bed partners. They cannot co-exist in the same sheath. The former is in negation of fair play. The latter are the products of order and regularity. Every eligible person not necessarily be fit to be appointed to a post or office under the State, selection according to rules by properly constituted commission and fitment for appointment assures fairness in selection and inhibits arbitrariness in appointments. In view of the Explanation (b) to Rule 4, the ad hoc appointments to any post in any of the three wings of the services under the rules are therefore de hors the rules. Appointments of the respondents 1 to 6 cannot be held to be in accordance with the rules".
(b) Similar is the view expressed by the Supreme Court in the case of Hindustan Shipyard, supra. At Paragraphs 10 and 11 of the said judgment, it has been observed thus:
"10. We are unable to endorse the direction given by the High Court regarding regularisation of the respondents-Medical Officers with effect from April 1, 1986. The process of regularisation involves regular appointment which can be done only in accordance with the prescribed procedure. Having regard to the rules which have been made by the appellant-Corporation, regular appointment on the post of Medical Officer can only be made after the duly constituted Selection Committee has found the person suitable for such appointment. Dr. P. Sambasiva Rao, though he had been working since 1976, was considered by the Selection Committee for regular appointment in the year 1981 and was not found suitable for such regular appointment. Dr. J. Sanjeeva Kumar and Dr. S. Prasada Rao were never considered by the Selection Committee for regular appointment. The fact that no regular selection has been made after their appointment on ad hoc basis does not mean that they are entitled to be regularised with effect from April 1, 1986. In view of the rules prescribed by the appellant-Corporation, regularisation of the respondent Medical Officers on the post of Medical Officer can be made only after they are considered and found suitable for such appointment by a duly constituted Selection Committee. As a result of the direction for regularisation given by the High Court, the requirement in the rules regarding selection by a Selection Committee for the purpose of regular appointment on the post of Medical Officer has been dispensed with. This, in our opinion, was impermissible.
11. The decision in Dr. A.K. Jain v Union of India, on which reliance has been placed on behalf of the respondent Medical Officers, does not lend any assistance to them. In that case it was directed that the regularisation of the Assistant Medical Officers/Assistant Divisional Medical Officers who were appointed on ad hoc basis up to October 1, 1984, shall be made in consultation with the Union Public Service Commission on the evaluation of their work and conduct on the basis of their confidential reports in respect of a period subsequent to October 1, 1982. In Dr. M.A. Haque v Union of India, this Court has deprecated the practice of by passing of the Public Service Commission which would open a back-door for illegal recruitment without limit. The direction given by the High Court that the respondent-Medical Officers should be regularised with effect from 1-4-1986, cannot, therefore, be upheld. The only direction that can be given in the matter of regularisation is that the respondent-Medical Officers should be considered by a duly constituted Selection Committee as per the rules for the purpose of regular appointment to the post of Medical Officer and the Appellant Corporation should constitute a Selection Committee for that purpose".
(c) The Supreme Court, in the case of Smt. Pushpa Srivastava, supra, at paragraph 11, has observed as follows:
"(i) The respondent was appointed on a contractual basis.
(ii) The post was to carry a consolidated pay of Rs.2,400/-per month.
(iii) The duration of appointment was six months from the date of the respondent joining charge.
(iv) It is purely on ad hoc basis. (v) It is terminable without any notice.
Because the six months' period was coming to an end on February 28, 1991, she preferred the writ petition a few days before and prayed for mandamus which was granted by the learned Judge under the impugned judgment. The question is whether the directions are valid in law. To our mind, it is clear that where the appointment is contractual and by efflux of time, the appointment comes to an end, the respondent could have no right to continue in the post. Once this conclusion is arrived at, what requires to be examined is, in view of the services of the respondent being continued from time to time on ad hoc basis for more than a year, whether she is entitled to regularisation? The answer should be in the negative".
In the said decision, at Paragraphs 12 and 13, while considering the decision of the Supreme Court in the case of Jacob, supra, strongly relied upon by Sri Ravivarma Kumar, it has been observed thus:
"The claims made by the employees in this group of cases is contested mainly on the pleas that their tenure and service conditions were regulated by Rule 9(a)(i) of the Kerala State and Subordinate Service Rules, 1958 (hereinafter called "the Rules") which were statutory in character and were, therefore, binding on the authority as well as the employees. It is contended that the employees belonging to different categories were appointed on different dates by the PHED prior to April 1, 1984, under this rule and, therefore, their services could only be regulated thereunder".
In dealing with this, at page 74, the Court observed:
".... person who does not possess the requisite qualifications is appointed under the said clause, he will be liable to be replaced by a qualified person. Clause (iii) of Rule 9 states that a person appointed under clause (i) shall, as soon as possible, be replaced by a member of the service or an approved candidate qualified to hold the post.
Clause (e) of Rule 9, however, provided for regularisation of service of any person appointed under clause (i) of sub-rule (a) if he had completed continuous service of two years on December 22, 1973, notwithstanding anything contained in the rules. This is a clear indication that in the past the Government also considered it just and fair to regularise the services of those who had been in continuous service for two years prior to the cut-off date. The spirit underlying this treatment clearly shows that the Government did not consider it just, fair or reasonable to terminate the services of those who were in employment for a period of two or more years prior to the cut-off date. This approach is quite consistent with the spirit of the rule which was intended to be invoked to serve emergent situations which could not brook delay. Such appointments were intended to be stop-gap temporary appointments to serve the stated purpose and not long-term ones. The rule was not intended to fill a large number of posts in the service but only those which could not be kept vacant till regular appointments were made in accordance with the rules. But once the appointments continued for long, the services had to be regularised if the incumbent possessed the requisite qualifications as was done by sub-rule (e). Such an approach along would be consistent with the constitutional philosophy adverted to earlier. Even otherwise the rule must be so interpreted, if the language of the rule permits, as will advance this philosophy of the Constitution. If the rule is so interpreted it seems clear to us that employees who have been working on the establishment since long, and who possess the requisite qualifications for the job as obtaining on the date of their employment, must be allowed to continue on their jobs and their services should be regularised".
Therefore, I am of the view that for the reasons given by the Supreme Court in the case of Smt. Pushpa Srivastava, supra, Sri Ravivarma Kumar cannot seek any assistance from the decision of the Supreme Court in Jacob's case, supra, in support of his plea. The decision in the case of Jacob, supra, is based on interpretation of clause (e) of Rule 9.
17. Insofar as the decision of the Supreme Court in the case of Piara Singh, supra, relied upon by Sri Ravivarma Kumar, it is necessary to point out that the question which came up for consideration in the said decision was as to whether the High Court was justified in striking down certain conditions imposed in the order of regularisation passed by the State of Punjab and also by the State of Haryana. That was a case where the States of Punjab and Haryana took a decision to regularise the services of temporary employees. That was not a case where the Supreme Court gave a direction to regularise the services at the behest of the temporary employees. However, it is appropriate to refer to Paragraphs 12 and 25 of the judgment, referred to by Sri Ravivarma Kumar. They read as under.-
"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.
(c) 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.
(d) 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.
25. Before parting with this case, we think it appropriate to say a few words concerning the issue of regularisation of ad hoe/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 ad hoc or temporary appointment to be made. In such a situation, effort should always be made to replace such an ad hod 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 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 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 process.
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 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.
The proper course would be that each State prepares a scheme, if one is not already in vogue, for regularisation of such employees consistent with its reservation policy and if a scheme is already framed, the same may be made consistent with our observations herein so as to reduce avoidable litigation in this behalf. If and when such person is regularised he should be placed immediately below the last regularly appointed employee in that category, class or service, as the case may be.
So far as the work-charged employees and casual 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 6-4-1990 referred to hereinbefore) both in relation to work-charged employees as well as a casual labourer.
We must also say that the orders issued by the Governments of Punjab and Haryana 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.
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 neihter 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".
(emphasis supplied) The observations made by the Supreme Court in Paragraphs 12(d) and 25 of the judgment, referred to above, make it clear that it is not permissible for the Courts to give directions to regularise the services of candidates whose appointments came to be made on ad hoc basis, if their appointment was made in disregard to the reservation made in favour of Backward Class citizens under Article 16(4) of the Constitution of India. The said judgment also points out that even when ad hoc or temporary employment is necessitated on account of exigencies of administration, candidates should be drawn from the Employment Exchange or if no candidate is so available from the Employment Exchange or sponsored by the Employment Exchange, some appropriate method consistent with the requirement of Article 16 should be followed. As stated earlier, in the instant case, ad hoc appointments were not made by adopting any procedure or method wherein notice is given to the public to submit their applications for appointment even on ad hoc basis.
Further, in Paragraph 25 of the said judgment, the Supreme Court also has laid emphasis that only in cases where temporary or ad hoc employees are continued for a fairly long spell, then only the authorities are required to consider their cases for regularisation and for the said purpose, a scheme is required to be formulated by the State. Therefore, I am of the view that in the facts and circumstances of the present case, the petitioners cannot derive any assistance from the decision in Piara Singh's case, supra.
18. The decision in the case of Dharwad District P.W.D. Literate Daily Wages Employees, supra, relied upon by the learned Counsel for the petitioners also is of no assistance to the petitioners as the facts of the said case disclose that about 50,000 persons were being employed on daily rated or monthly rated basis for a period of 15 to 20 years without regularising their services. In that context, the Court directed the framing of a scheme for regularisation of their services. The direction given in that case is entirely based on the facts of that case. It is also relevant to point out that the decision of the Supreme Court in the case of Daily Rated Casual Labour employed under P and T Department through Bhartiya Dak Tar Mazdoor Manch's case, supra relied upon by the learned Counsel for the petitioners, in my view, is also of no assistance to the petitioners in view of the special features and facts of that case. That was a case of casual labourers who were working for about ten years only as casual labourers and were paid wages very low and far less than the salary and allowances paid to the regular employees of the Post and Telegraph Department etc. In the background of the facts of that case, the Supreme Court gave a direction to the authorities to prepare a Scheme on a rational basis for absorbing as far as possible the casual labourers who have been continuously working for more than one year in the Department.
19. The decision of the Supreme Court in the case of Raveendra, supra, being directly on the contentions urged by the learned Counsel for the petitioners, the same being binding on me, I am unable to accept the submission of the learned Counsel for the petitioners that the decision of the Supreme Court in the case of Piara Singh, supra and other decisions relied upon by them, supports their contention that a direction could be issued by this Court to the Institute to regularise the services of the petitioners. Out of large number of petitioners, as stated earlier, 60 petitioners came to be appointed prior to 5-5-1994. They have not put in even three years of service on the date of issue of Notification dated 5-5-1994 notifying the vacancies for appointment in the Institution. As stated earlier, in the objection statement filed by the Institute, it is their case that though steps were taken to fill up the vacancies by issuing the notification dated 5-5-1994, the same could not be proceeded with, in view of the interim order granted by this Court in Writ Petition No. 15225 of 1994 on 3-6-1994, which came to be modified on 3-2-1995 and thereafter, on account of the orders issued by the Government changing the reservation policy from time to time. It is also on record that pursuant to the Notification issued on 5-5-1994 and 12-1-1996, more than 32,000 persons have submitted their applications. The Institute is a premier Institute in the State which treats the patients who are suffering from deadly disease, like, Cancer. Therefore, it is needless to state that the persons, who work in the Institute, must be persons of high efficiency, competency, integrity, devoted to service and judged from every point of view, highly suitable to the posts which they occupy. It is not in dispute that the suitability of the petitioners to the posts held by them was not considered by following the objective test, while making their appointment on ad hoc basis. They were appointed only to satisfy the immediate need. Under these circumstances, if a direction is given to the Institute to regularise the services of the petitioners solely on the basis that the petitioners have been in service for some time in the Institute, it would also go against the public interest, the interest of the Institute and large number of patients who would like to be treated by the Institute. One other aspect of the matter to be pointed out in these cases is that there is no dispute that the petitioners were being paid the salary and other emoluments fixed to the posts held by them. It is not their case that their services were taken for a nominal remuneration or that they are exploited by the Institute with an assurance that their services would be regularised or they will be permanently absorbed in the services of the Institute. Therefore, looked at from this angle also, it would not be appropriate for me, in exercise of my jurisdiction under Article 226 of the Constitution of India, to direct the Institute to regularise the services of the petitioners without reference to their suitability to hold the post. On the other hand, if the petitioners' case is considered along with other applicants, who have applied to the posts pursuant to the notifications issued by the Institute, it would not result in injustice to any one including the petitioners.
20. It is the case of the Institute that while making ad hoc appointments, the reservation policy prescribed by the State has not been kept in mind and appointments have not been made on that basis and if a direction is issued by this Court to regularise their services, it would run counter to the Order/Circulars issued by the State Government in exercise of the power conferred on it under Article 16(4) of the Constitution of India notifying the reservations to various categories of citizens. Therefore, I am of the view that even on this count also, it is not permissible for this Court to direct the Institute to regularise the services of the petitioners, which would have the effect of violating the order of reservation issued by the State from time to time in exercise of the powers conferred on it under Article 16(4) of the Constitution. In fact, the observation made by the Supreme Court at Paragraph 12 in the case of Piara Singh, supra, fully applies to the facts of the present case in view of the objection raised by the Institute that if the services of the petitioners are regularised, it would run counter to the reservation policy of the State.
21. Before parting with the consideration of this question, it is also necessary to refer to the submission of the learned Counsel for the petitioners that under similar circumstances, the services of employees, who were appointed on ad hoc basis on an earlier occasion, came to be regularised and in similar other Institutes also, the services of the similarly situated employees, who were appointed on ad hoc basis, came to be regularised by those Institutes and also by the State Government. Even assuming that what is contended on behalf of the petitioners is true, I am of the view that, that will not give any right to the petitioners to seek regularisation of their services on that ground. Whether, in a given case, the services of employees, who came to be appointed on ad hoc basis, are required to be regularised or not, is a matter for the State and the concerned authorities to consider having regard to the facts and circumstances of the case. It is well established that the creation and abolition of posts is the prerogative of the Executive and it is the Executive again that lays down the conditions of service subject, however, to law made by the appropriate Legislature. The Court comes into 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 matter 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 15 of the Constitution of India. The considerations that would weigh in the mind of this Court while a challenge is made to such regularisation, will be quite different from the one which this Court is required to consider while considering the claim of the petitioners for a positive direction to the Institute or to the State to regularise the services of the petitioners.
22. Therefore, the first question is answered against the petitioners.
Re. Question (ii):
23. Insofar as the second question is concerned, the material on record shows that many of the petitioners came to be appointed prior to the issue of the Second Notification dated 12th January, 1996 and their services were being continued by the Institute from time to time though on ad hoc basis with an artificial break for a day or two in between. In a case like this, no importance could be attached to the break of service for a day or two or even a little more in the middle and for all practical purposes, it must be treated that they have been in continuous service. Apparently, there did not seem to be any serious objection for continuance of their service in the Institute. However, the only requirement is that their case should be considered for appointment along with other applicants and their merit and suitability has to be judged along with the merit and suitability of other large number of applicants. However, the fact remains that many of the petitioners have been in the services of the Institute for the last several years. If the Institute has failed to make regular recruitment or the Institute was prevented from making recruitment for the reasons stated by it in its statement of objections, the ad hoc employees cannot be found fault with. Under these circumstances, taking into account the long period of service rendered by the petitioners, if a direction is given to the Institute to give certain weightage while considering the cases of the petitioners, on the basis of each year of service rendered by the petitioners, it would serve the ends of justice. I am of the view that it would be fair and reasonable to take such a view in the facts and circumstances of this case. Further, except for the two of the petitioners, who are holding the posts of Assistant Surgeons and other two of the petitioners, who are holding the post of Lecturers, all other petitioners are holding the post of a lower cadre. Therefore, naturally, it can be presumed that all the petitioners belong to a lower rung of the society and deserve a little sympathetic and compassionate consideration. Further, because of their past service, at the stage of selection, they can be considered as a class belonging to a different category and on that basis, they could be given some weightage within reasonable limits. Therefore, the other things being equal, in the facts and circumstances of this case, if the petitioners are given marginal advantage by way of weightage, it will not, in my view, violate the mandate of Articles 14 and 16 of the Constitution of India. The observations made by the Supreme Court in the decisions relied upon by the learned Counsel for the petitioners in support of their contention for regularisation of the services of the petitioners can be more usefully applied in support of my view that in the facts and circumstances of this case, a direction should be issued to the Institute to give weightage to the years of service rendered by the petitioners.
24. Then the question is, among the petitioners, which of the petitioners are entitled for the weightage and what should be the basis for giving weightage. Insofar as the persons who are entitled for the weightage are concerned, it appears to my mind that it is reasonable to fix the cut off date of issue of the second notification, that is 12-1-1996, calling for applications from the public as the date for giving weightage to such of those persons who have been in the services of the Institute. The weightage could be given for each year of service each of the petitioners have put in. But, what should be the percentage of weightage, I am of the view, it is a matter which should be left to the Institute to decide, who are entrusted with the responsibility of making the selection. I am sure, while fixing the weightage, the Institute will take into account the services rendered by the petitioners and the desirability of giving marginal advantage to them as against the other applicants in view of the fact that they have been in service in the Institute, and give weightage which would be fair and reasonable.
25. Therefore, insofar as Question No. (ii) is concerned, in the light of the discussion made above, I hold that such of those petitioners who were in service prior to 12-1-1996 and who have put in not less than a year of service on 12-1-1996, without taking into account the artificial break of service in the middle, are entitled for the weightage to be given at the time of their cases being considered by the Selection Committee.
26. The petitioners in Writ Petition Nos. 762 and 8635 of 1997, claim to be handicapped persons. It is their claim that their case is required to be considered differently from other petitioners as they are handicapped persons. Sri Ravivarma Kumar, learned Counsel for the petitioners, pointed out that the State Government, by means of notification Annexure-C, has reserved 5% of posts to handicapped persons and the petitioner in Writ Petition No. 762 of 1997 having been in continuous service eversince 16-8-1991 and his handicap is being dwarf in nature, at least in his case, a direction is required to be given to the Institute to regularise his services. No doubt, the petitioners in Writ Petition Nos. 762 and 8635 of 1997 deserve a sympathetic and compassionate consideration as they are handicapped persons. The State itself has made reservations at 5% of the posts for handicapped persons. Under these circumstances, though I am unable to accede to the submission of Sri Ravivarma Kumar that at least in the cases of those petitioners, a direction may be given to the Institute to regularise their services, it is needless to observe that their cases are required to be considered by the Institute and the Selection Committee sympathetically and with greater compassion, keeping in mind their handicap and the services rendered by them in the Institute all these years. For the said purpose, they could be given even higher weightage than the one that may be given to other petitioners with a view to absorb them in service.
27. Further, since it is not in dispute that the posts have already been notified and the petitioners have been in service all these years on ad hoc basis, it would be in the interest of justice to direct the Institute not to terminate the services of the petitioners, who are already in service wherever they are appointed against the existing vacancies and wherever their services are required by the Institute. Further, in such of those cases where the services of the petitioners have already been terminated and in whose favour, there is no interim order granted by this Court, the Institute is directed to consider their cases and reinstate them in service on ad hoc basis without back wages, provided there are clear vacancies and their services are required by the Institute. The continuance of the services of the petitioners and others, as stated above, will be only till the regular appointments are made pursuant to the selections notified. Further, for any reason and on account of excess appointment having been made either on account of immediate need in the work load in the Institute or on account of the interim order granted by this Court, the services of any one of the petitioners is required to be discontinued, the Institute is at liberty to discontinue the services of such of the petitioners and such other ad hoc employees on a principle "last come first go"
28. In the light of my above conclusion, I make the following:
(i) The prayer of the petitioners for regularisation of their services in the Kidwai Memorial Institute of Oncology is hereby rejected.
(ii) The Kidwai Memorial Institute of Oncology is directed to decide the weightage to be given to such of those petitioners who have put in one year of service as on 12-1-1996, taking into account each year of service put in by each of the petitioners and grant the weightage to the petitioners while considering their cases along with the cases of other applicants for selection to the various posts notified by the Institute.
(iii) Till regular appointments are made by the Institute pursuant to the Notification dated 5-4-1994 and 12-1-1996, the services of the petitioners, who are already in service, shall not be terminated except on the ground of want of vacancy and work in the Institute and for the purpose of adjusting their services on the principle "last come first go".
(iv) In case where the services of the petitioners have already been terminated, the respondent-Institute shall reinstate them into service provided they have been appointed to a clear vacancy and their services are required by it and keeping in view the principle 'last come first go'.
(v) The respondent-Institute is directed to complete the process of selection to various posts in the Institute notified in the Notification, dated 5-4-1994 and 12-1-1996 within six months from today.
(vi) Accordingly, these petitions are partly allowed in terms stated above and rule issued is made absolute.
(vii) However, there is no order as to costs.