BALWINDER SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS petition has been filed for quashing the order dated 10. 5. 1996 passed by the Director General of Police, Punjab (respondent No. 2) rejecting the claim of the petitioners to be regularised in service.

(2.) THE averments made in the writ petition show that after they had served as volunteers with Punjab Home Guards, the petitioners were appointed as Corporal Instructors/despatch Riders for a fixed period of 89 days. According to the petitioners, they served in that capacity between the years 1990 and 1995. They filed C. W. P. No. 14092 of 1995 and C. W. P. No. 14478 and 1995 for directing the respondents to regularise their services. These petitions were disposed of on 9. 10. 1995 with a direction to the respondents to decide their representation. In compliance of the High Court's order, the respondent No. 2 passed the impugned order and rejected their plea for regularisation of service.

(3.) HE have considered the respective contention urged by Shri Pathela and Shri Khosla and are in agreement with the learned Deputy Advocate General that the petitioners are not entitled to be regularised in service. The instructions issued by the government vide circular dated 17. 3. 1992, on which reliance has been placed by Shri Pathela, cannot be invoked by the petitioners for issuance of a mandamus to the respondents to regularise their services because in terms of para 1 (ii) of that circular regularisation of adhoc/temporarily appointed employees to class-II and class-IV services or posts could be made only if they had been appointed through employment exchange or by an open advertisement and it is an admitted fact that the petitioners were not appointed cither through the agency of the employment exchange or by an open advertisement. Likewise, the instructions issued by the government on 18. 1. 1995 are not available to the petitioners for seeking regularisation of their services in view of the decisions of this Court in C. W. P. No. 9962 of 1995 Jagjinder Pal Singh and Ors. v. The State of Punjab and Ors. , decided on 31. 5. 1996 and C. W. P. No. 18541 of 1996 Sukhbir Kaur v. State of Punjab and Ors. , decided on 22. 5. 1997. The facts of Sukhbir Kaur's case are quite similar to the facts of the present case. She was appointed as Clerk on 30. 10. 1989 for a period of 89 days and was allowed to continue in that capacity till 1994/1995. She prayed for regularisation of service on the basis of the instructions issued by the government vide circular dated 19. 1. 1995. The court rejected the plea of Sukhbir Kaur on the ground that she had not been appointed through the employment exchange or by an open advertisement. The following portions of the order dated 22. 5. 1997, which are relevant to the subject matter of this case, are extracted below :" A look at the order of appointment together with the note recorded by the respondent No. 2 on the application submitted by the petitioner shows that she had been appointed on purely and hoc and temporary basis for fixed term of 89 days. The record produced before the Court does not show that before appointing the petitioner the post of Clerk had been advertised or publicised through newspapers or by any other mode of publicity. It is also not borne out from the record that the respondent No. 2 had sent requisition to the employment exchange as per the requirement of Sections 3 and 4 of the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959 even though the post against which the petitioner had been appointed was having a tenure of more than three months. To us, it is clear that the respondent No. 2 appointed the petitioner for 89 days with an ulterior motive of avoiding compliance of the provisions contained in the Act of 1959. This action of the respondents appears to be a part of the design and attempt to defeat the provisions of the equality clause enshrined in the Constitution and the Act of 1959. We can take judicial notice of the unsavory practice adopted by most of the appointing authorities in State of Punjab to make appointment for 89 days against the permanent as well as long term vacancies. By adopting this practice, the following two objectives are achieved by the concerned authorities : (i) They are not required to comply with the requirement of the statutory provisions contained in Sections 3 and 4 of the Act of 1959; and (ii) They succeeded in appointing their own kiths and kins as well as the kith and kins of those who are in power, political and apolitical. However, on the basis of such appointment, the petitioner cannot claim to have acquired any right whatsoever to be continued in service. Her appointment can appropriately be termed as a back-door entry to the public service which she successfully secured with the active connivance of the respondent No. 2. In other words, the appointment of the petitioners can be termed as a fraud on the Constitution and the Act of 1959. . . . . . . . . . . The issued whether a temporary/adhoc work charge daily wage employee is entitled to be regularised in service has consumed substantial time of the government. The Courts have also been flooded with writ petitions filed by such employees for directing the public employer to regularise their services on one or the other ground. By now, it has become well known that most of the public employers have resorted to the methodology of making appointment on ad hoc and temporary basis or on daily wages in violation of the statutory rules regulating recruitment. Even in cases where statutory rules have not been framed and only the executive instructions have been issued for making appointment to the public services, the competent authorities have flouted such instructions with impunity resulting in the growth of illegal employment market. In fact, the employment to public services has become an industry in which all and sundry have secured monetary benefits. Deprecating the practice of back-door appointment to the public service, the Supreme Court made the following scathing remarks in Delhi Development Horticulture Employees' Union v. Delhi Administration, Delhi and Ors. , A. I. R. 1992 S. C. 789 : "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 considerations including money. The employment is given first for temporary periods with technical-breaks to circumvent the relevant rules, and is continued for 240 days or more days with a view to give the benefits of regularisation knowing the judicial trend that those who have completed 240 days 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 surplus labour. The other equally injurious 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 arc absorbed as regular employees although the works are time bound and there is no need of the workmen beyond the completion of works undertaken. The public interests are thus jeopardised on both counts. " In Dr. M. A. Haque and Ors. v. Union of India and Ors. , J. T. 1993 (2) S. C. 265, the Supreme Court once again lamented on this situation and observed : "if a disregard of the rules and the by-passing of the Public Service Commissions are permitted, it will open a back-door for illegal recruitment without limit. In fact, this Court has, of late, been witnessing a constant violation of the recruitment rules and a scant respect for the constitutional provisions requiring recruitment to the service through the Public Service Commission. It appears that since this Court has in some cases permitted regularisation of the irregularly recruited employees, some Governments and authorities have been increasingly resorting to irregular recruitments. The result has been that the recruitment rules and the Public Service Commissions have been kept in cold storage and candidates dictated by various considerations are being recruited as a matter of course. " In C. W. P. No. 9200 of 1993 Gurmail Singh and Ors. v. The State of Punjab and Ors. , decided on 21. 7. 1994, a Division Bench of this Court look cognizance of the practice of by-passing the rules and Articles 14 and 16 of the Constitution in making appointment to public services and observed us under :