JUDGMENT Tarun Agarwala, J.
1. The land of the petitioners was acquired under the Land Acquisition Act for the Gas Authority of India Limited (GAIL) to set up a project known as " Uttar Pradesh Petrochemicals Complex". A lot of hue and cry was raised by the land owners against the acquisition proceedings and eventually, a tripartite agreement dated 29.6.1998 was executed between the land oustees, the district authorities, and the Management of Gas Authority of India Limited. The agreement contained a stipulation that one member of a family would be given an employment. This condition of employment was incorporated as per the prevailing policy of the State Government. Based on the aforesaid, the petitioners were offered an appointment as " Junior Fireman Trainee" in the project. The terms and conditions of the appointment was that the training would be for a period of two years and if the performance was found unsatisfactory, in that case, the period of training would be extended by six months. The trainees would be paid a consolidated stipend of Rs. 4300.00 plus canteen subsidy @ Rs. 400/- per month and that it was not obligatory on the part of the management to offer an appointment after the completion of the training period. The offer of appointment further stipulated that the management would retain the discretion to consider the trainees for a suitable absorption as per the terms and conditions of the absorption as laid down by the management, and if absorbed, the trainee would be placed in the minimum pay scale and that the training period would not be counted towards the service period. For facility, clause 12 of the terms and conditions of the offer of the appointment is detailed herein below:
It shall not be obligatory on the part of GAIL to offer any employment to the trainee on completion of the period of training. However, GAIL Management retains the discretion to consider the trainee for suitable absorption in the services of GAIL, subject to successful completion of training, performance on any interview/test (s) which may be conducted by the GAIL Management and on the terms and conditions of absorption as laid down. On completion of the period of training, the trainees may be absorbed at the minimum of the pay scale of the level grade in which they are to be placed.
2. The petitioners contended that the aforesaid offer of appointment was accepted and upon the completion of the training period of two years, the Management extended their training period by one year and thereafter, no letter of the extension of the training or for any other purpose, was issued and the management silently allowed the petitioners to continue as trainees in the project. It was submitted that the petitioners had been working since then continuously and that regular work was being taken from them and that they are performing the same work as done by the regular workers, and therefore, prayed that a mandamus be issued to the respondents to absorb them as regular junior firemen and pay them a regular salary.
3. Heard Sri Ashok Khare, Senior Advocate as well as Shri H.N. Singh, the learned Counsels for the petitioners and Sri Navin Sinha, the learned Senior Counsel assisted by Siddharth Singh, Advocate for the respondents.
4. The learned Counsel for the petitioners submitted that upon the completion of their training, the management had allowed them to work and that regular work was being taken by the management which was the same work as performed by the regular workers, and therefore, there was no difference in the work performed by the petitioners as trainees with the work performed by the regular workers. The learned Counsel for the petitioners further submitted that they are working in the project continuously for a continuous length of time, and therefore, they are now liable to be absorbed as regular employees of the project. The learned Counsel for the petitioners further submitted that the action of the management in keeping the petitioners as trainees and paying them only a consolidated stipend was not only arbitrary but also amounted to an unfair labour practice. It was also urged that the management had given the appointment to the petitioners in lieu of the acquisition of their lands, and that such appointments was in the nature of a compassionate appointment which cannot be treated to be temporary in nature, and therefore, on this basis, the petitioners should be absorbed and should be treated as regular employees of the respondents.
5. On the other hand, the learned Counsel for the respondents submitted that since the performance of the petitioners was not upto the mark, the training period was extended and that a Committee had been constituted to assess the performance of the petitioners which is under consideration. The respondents further submitted that the petitioners cannot claim absorption in the service of the answering respondents on the basis of their appointment letters. The respondents submitted that after the completion of their training, the petitioners had no right to remain in the service of the Company, but as a measure of good gesture and to avoid the pitiable situation of the petitioners, the respondents extended the training period, so that the petitioners could acquire the requisite training to enable them to compete with the other candidate at the time of the filling up of the vacancy. It was alleged that the land oustees are not entitled for an employment as the matter of right and having received the compensation, etc. under the Land Acquisition Act, the petitioners were, therefore, not entitled for any employment in the respondents establishment.
6. The learned Counsel for the respondents further submitted that the offer of the training given to the petitioners does not give them any right of a regular employment and that the mere fact that they were continuing in the service of the respondents as trainees did not give them any indefeasible right for an absorption in the service. The learned Counsel for the respondents further submitted that the petitioners were appointed by a back door method and therefore such appointments cannot be regularised. The tripartite agreement was executed under pressure, inasmuch as, the respondents were compelled to sign the agreement on the dotted line, which was against a public policy, and therefore, void under Section 23 of the Contract Act. In support of his submission, the learned Counsel for the respondents placed reliance upon a decision of the Court in Secretary State of Karnataka and Ors. v. Uma Devi (3) and Ors. .
7. The Supreme Court in the case of Uma Devi [3] [supra] held that public employment had to be made on the basis of a procedure established by the Rules and Regulations and that only regular appointments could be made and that an irregular appointment, without following the procedure, as per the Rules and Regulations, should not be adopted nor such irregular appointments namely, temporary, casual, daily rated persons or on contract, having continued to work year after year, should not be permitted to be regularised and such powers should not be exercised by the Courts under Article 226 of the Constitution. The Supreme Court held that the employer could engage persons on a temporary basis to meet the needs of the situation. However, the engagement, could not be used as a lever for the regularisation of their services, as it would defeat the scheme of public employment and therefore, the Courts, exercising powers under Article 226 of the Constitution, should refrain in directing absorption in a permanent employment of those who have been engaged without following the due process of selection as envisaged under the Rules and Regulations. The Supreme Court, further held, that equity would also not favour such persons who had been working for a considerable period of time nor sentiments should come in the way. The Supreme Court held that a person, who was engaged on a contractual basis, was not based on a proper selection as recognised by the rules or procedure and, such appointments could not invoke the theory of legitimate expectation for being confirmed on that post in the light of the fact that the said post could only be filled up after following a procedure prescribed under the Rules and Regulations. The Supreme Court further held that it could not be held that a promise of legitimate expectation was given by the respondents for the regularisation of their services on the mere ground, that these temporary or contract employees were allowed to continue for a period of time.
8. However, the Supreme Court in the case of Uma Devi [3] (supra) has carved out an exception. In paragraph-53 of the said judgment, the Supreme Court held that if the persons appointed on adhoc, casual or contract basis were duly qualified and were working against a sanctioned post and continued to work for several years without any intervention of an order of the court, in such an eventuality, the process of regularisation could be made, and if it was ultimately found that the employee was entitled for the relief, it would be possible for the Court to accordingly mould the relief.
9. In the light of the aforesaid, it has to be seen whether the petitioners were appointed by a back door method. In the present case, the petitioners were given appointments as trainees. They worked as trainees for two years and their period was extended for one more year. Their appointments as trainees was made under the Rules, Regulations and the policy of the respondents company. Therefore, it cannot be said that the appointment of the petitioners was made through a back door method. Further, there is no allegation that the petitioners were not qualified for the post or that they do not hold the requisite educational qualifications. The question that arises for consideration is, whether the petitioners were appointed on a sanctioned post or not. The respondents have staled that there are no vacancy available for their absorption in the regular cadre, but they have not denied the fact that their appointments as trainees was not against the existing posts. Consequently, it cannot be said that the appointment of the petitioners was against the existing strength.
10. As per Clause 12 of the terms and conditions of the offer of the appointment, it is clear that the management has a policy for absorption of trainees in the service of GAIL subject to successful completion of training, performance, etc. by the trainees. Consequently, the management has a policy for absorbing the trainees. In the present case, the petitioners were appointed as trainees and underwent the training for three years, and thereafter, they were allowed to continue as trainees. Their performance have been judged. The respondents in their counter affidavit have admitted that a committee has been constituted to assess the performance, but after filing of the counter affidavit, the respondents have not come out with any further affidavit indicating as to what recommendations was made by the committee. It is quite obvious that the respondents had stated these facts in the counter affidavit to gain time and left the matter at that.
11. The Supreme Court in State of Haryana v. Piyara Singh held that the State should act as a model employer and should not exploit its employees nor take advantage of the helplessness and miseries of such persons, who are working for a long time. In the present case, the petitioners have been allowed to continue as trainees for a long time and is therefore indicative of the fact that the respondents are adopting unfair labour practice for the simple reason that the respondents are taking regular work from the petitioners on a consolidated amount and are not treating them as regular workers. The fact that regular work is being taken from the petitioners have not been denied by the respondents. That fact that the respondents are permitting the petitioners to work in the establishment is also indicative of the fact that there is a need for regular work. Therefore, even assuming that there are no vacancy in the regular cadre, nonetheles, there is a requirement for a regular post and accordingly, the Court could direct the respondents to create a post and regularise the services of the petitioners.
12. The Supreme Court in Piyara Singh (supra) further held:
Ordinarily speaking, the creation and abolition of a post is the prerogative of the Executive. It is the Executive again that lays down the conditions of service subject, of course, to a law made by the appropriate legislature. This power to prescribe the conditions of service can be exercised either by making Rules under the proviso to Art. 309 of the Constitution or ( in the absence of such Rules ) by issuing Rules instructions in exercise of its executive power. The Court comes into the picture only to ensure observance of fundamental rights, statutory provisions, Rules and other instructions, if any, governing the conditions of service. The main concern of the court in such matters is to ensure the Rule of law and to see that the executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16. It also means that the State should not exploit its employees nor should it seek to take advantage of the helplessness and misery of either the unemployed persons or the employees, as the case may be. As is often said, the State must be a model employer. It is for this reason, it is held that equal pay must be given for equal work, which is indeed one of the directive principles of the Constitution. It is for this very reason it is held that a person should not be kept in a temporary or ad hoc status for long. Where a temporary or ad hoc appointment is continued for long the Court presumes that there is need and warrant for a regular post and accordingly directs regularisation.
13. In view of the aforesaid, it is clear that the petitioners are working continuously from the date of their initial appointments as trainees. The action of the respondents in permitting the petitioners to work for considerable length of time gave them a flicker of hope for being absorbed in the services of the respondents. Clause 12 of the terms and conditions of the offer of appointment indicates that the management has a policy for the absorption of trainees in the regular cadre.
14. In view of the aforesaid, the petitioners are entitled to claim for their absorption in the service of the respondents. Consequently, the writ petition is allowed. A mandamus is issued to the respondents to consider the case of the petitioners for their absorption in the regular cadre within three months from the date of the production of a certified copy of this order.
15. In the event, the respondents deny the absorption on the basis that there is no vacancy, in that event, the petitioners would be allowed to continue on a minimum scale of pay till such time, as the requisite posts are created in the regular cadre. In the circumstances, of the case, the parties shall bear their own cost.