JUDGMENT B.S. Chauhan, J.
1. This writ petition has been filed for quashing the judgment and order dated 11/1/2000 (Annex. 4), by which the application of the respondent employee has been allowed 'by the Central Administrative Tribunal, Allahabad Bench Allahabad (hereinafter called the Tribunal) directing the department to absorb and regularise the services of the said employee after 11 years of termination of his service and order dated 07/2/2001 (Annex-6) by which the review petition of the Department has been dismissed.
2. The facts and circumstances giving rise to this case are that the respondent-employee had worked as a Casual Labourer from 06/1/1984 to 1986. His services were dispensed with for want of work. His case was to be considered for re-employment as per the seniority list of casual labourers as and when the vacancy would arise in the future. The respondent employee filed an application in 1997 for appointment, absorption and regularisation in the Railway Department as Class IV employee. His application was contested by the Department submitting that the case of the said employee was considered, he appeared in the screening test but could not pass, and thus he could not be empanelled for absorption against one of the substantive vacancies. The claim of the said applicant has been allowed on the ground that the department failed to produce the copy of the guidelines prescribing the procedure for holding the screening test for absorption of casual labourers and record thereof. The review application has also been rejected. Hence this petition.
3. Shri Govind Saran, learned counsel for the petitioners has submitted that the employee was not in service from 1986-1997. He filed the application after eleven years, therefore, the question of his absorption/regularization could, not arise; it was not the case even of the applicant that he succeeded in the test conducted by the Department, nor allegations of malafide had been alleged against any person, nor there was any pleading suggesting any illegality or irregularity in the screening test, therefore, there was no occasion for the Tribunal to draw the adverse inference against the department for not producing the policy etc; the Tribunal could not issue a direction to absorb and regularise the service of the said applicant as at the most the Tribunal could direct to consider his case for regularisation, hence the petition deserves to be allowed setting aside the impugned judgment and orders.
4. Sri Sanjay Kumar, learned counsel appearing for the respondent-employee has submitted that it was an obligation on the part of the department to produce the entire record of selection before the Tribunal, and as the department failed to do so, the Tribunal has rightly drawn the adverse inference and thus no interference is called for. The petition is liable to be dismissed.
5. We have considered the rival submissions made by learned counsel for the parties and perused the record.
6. The issue of regularisation has been considered by the Hon'ble Apex Court time and again.
7. The question as to whether the services of certain employees appointed on ad hoc basis should be regularised relates to the condition of service. The power to prescribe the conditions of service can be exercised either by making Rules under the proviso to Article 309 of the Constitution of India or any analogous provision and in the absence of such Rules, under the instructions issued in exercise of its executive power. The Court comes into the picture only to ensure observance of fundamental rights and 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 haplessness 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. A perusal of the authorities would show that appointments are as a rule to be made in accordance with statutory rules, giving equal opportunity to all the aspirants to apply for the posts a i d following the prevalent policy of reservation in favour of Scheduled Castes/Scheduled Tribes and other backward classes. Whenever the employees are appointed on ad hoc basis to meet an emergent situation, every effort should be made to replace them by the employees appointed on regular basis in accordance with the relevant rules as expeditiously as possible. Where the appointment on ad hoc basis has continued for long and the State has made rules for regularisation, case for regularisation of employee-has to be considered in accordance with the said rules. Where, however, no rules are operative, it is open to the employees to show that they have been dealt with arbitrarily and their weak position has been exploited by keeping them on ad hoc for long spell of time. However, it is a question of fact whether in the given situation, they were treated arbitrarily. (Vide Dr. A.K. Jain v. Union of India, 1987 Supp SCC 497; Jacob M. Puthuparambil and Ors. v. Kerala Water Authority and Ors., ; State of Haryana and Ors. v. Piara Singh and Ors., ; J & K. Public Service Commission etc. v. Dr. Narinder Mohan and Ors. ; Er. Ramakrishnan and Ors. v. State of Kerala and Ors., ; and Ashwani Kumar and Ors v. State of Bihar and Ors., . In Khagesh Kumar v. Inspector General of Registration, U.P. and Ors., , the Hon'ble Supreme. Court did not issue direction for regularisation of employees who had been appointed on ad hoc basis or on daily wages after the cut off date, i.e., 1,10.1986 as was required by the provisions of U.P. regularisation of Ad hoc Appointment (On posts Outside the Purview of the Public Service Commission) Rules, 1979. The same view has been taken by the Supreme Court in Inspector General of Registration, U.P. and Anr. v. Avdesh Kumar and Ors., . Moreover, in the above referred cases it has been laid down that for the purpose of regularisation, various pre-requisite conditions are to be fulfilled, i.e., the temporary/as hoc appointment of the employee should be in consonance with the statutory rules and it should not be a back-door entry. The service record of the employee should be satisfactory; the employee should be eligible and/or qualified for the post at the time of his Initial appointment. There must -be a sanctioned post against which the employee seeks regularisation and on the said sanctioned post, there must be a vacancy. Moreover, regularisation Is to be made according to seniority of the temporary/ad hoc employees. The regularisation should not be in contravention of the State Policy regarding reservation in favour of Scheduled Castes/Scheduled tribes and other backward classes and other categories for which State has enacted any Statute or framed rules or issued any Government Order etc.
8. Similar view has been reiterated by the Hon'ble Supreme Court in Union of India v. Bishamber Dutt, ; and State of Uttar Pradesh v. U.P. Madhyamik Shiksha Parishad Shramik Sangh, . In the case of State of Himachal Pradesh v. Ashwani Kumar, , the Apex Court held that if an employment is under a particular Scheme or the employee is being paid out of the funds of a Scheme, in case the Scheme comes to closure or the funds are not available, the Court has no right to issue direction to regularise the service of such an employee or to continue him on some other project, for the reason that "no vested right is created in a temporary employment."
9. In Prabhu Dayal Jat v. Alwar Sahkari Bhumi Vikas Bank, 1991 Lab.& IC 944, the Court rejected the case of an employee, for regularisation as his services stood terminated on the ground that he had been appointed without any authorisation of law.
10. The question of regularisation does not arise by merely working for 240 days or any particular number of days, unless it is so long that his continuation on ad hoc basis becomes arbitrary as no such ad hoc employee can derive any benefit for working for particular number of days or even for years under the interim order of the Court. More so, his appointment should be directly in accordance with law. (Vide M.D. U.P. Land Development Corporation v. Amar Singh, ; A. Umarani v. Registrar Corp. Societies, ; Pankaj Gupta v. State of J & K, and Dhampur Sugar Mills Ltd. Bhola Singh, .
11. In Vindon T. v. University of Calicut and Mahendra L. Jain and Ors v. Indore Development Authority and Ors., , it has categorically been held by the Hon'ble Apex Court that the appointees appointed irregularly can be regularised but illegally appointed employees cannot be regularised. As illegal appointments are void ab initio being opposed to public policy and violative of Articles 14 and 16 of the Constitution, and all such authorities and instrumentalities which are State within the meaning of Article 12 of the Constitution, must give strict observance to the mandate of the Constitution. Regularisation can never be claimed as a mater of right. A daily wager in absence of statutory provisions in this behalf cannot claim entitlement for regularisation.
12. In State of West Bengal and Ors. v. Alpana Roy and Ors., (2005) AIR SCW 4920, the Hon'ble Supreme Court held that if someone's name is included in the list of unapproved employees for a long time, mere empanelment would not give any right of regularisation in service if the appointment at the initial stage had been made de hors the recruitment rules.
13. It is also settled legal proposition that a retrenched employee cannot claim the relief of regularisation unless his termination from service is found to be illegal. Thus, only an employee who is continuing in service for a long time is eligible for seeking such a relief. (Vide H.P. Housing Board v. Om Pal and Ors., and Ramchander and Ors v. Additional District Magistrate and Ors., .
14. Thus, it is evident from the above settled legal proposition that a person who 1 had been appointed on daily wages and worked for a period of 1 or 2 years, cannot claim regularisation in absence of any statutory provisions. He must possess the eligibility for the post on the date of initial appointment and the appointment should be made in consonance with the statutory provisions. The regularisation is not permissible ignoring the policy framed by the State providing for reservation in favour of certain classes. A retrenched employee cannot claim regularisation without asking for quashing his termination order. More so, regularisation may be either under a scheme framed by the employer or under the statutory provision framed by the State for this purpose.
15. In Life Insurance Corporation of India v. Asha Ramchhandra Ambekar (Mrs.) and Anr., , the Hon'ble Apex Court held that the writ jurisdiction cannot be exercised issuing directions straight away as the Courts are required to issue directions for mere consideration of the claim of the employee as straightway direction to appoint a particular person would only put the authority concerned in a piquant situation. The disobedience of the said direction may entail contempt notwithstanding the fact that the appointments etc. may not be warranted as per the Rules.
16. In Hindustan Shipyard Ltd. and Anr., v. Dr. P. Sambasiva Rao and Ors., , the Hon'ble Apex Court held that in a case where the relief of regularization is sought by employees working for a long time on ad hoc basis, it is not desirable for the Court to issue direction for regularization straight away. The proper relief in such cases for issuing direction to the authority concerned to constitute a Selection Committee to consider the matter of regularization of the ad hoc employees as per the Rules for regular appointment for the reason that the regularization is not automatic, it depends on availability of number vacancies, suitability and eligibility of the ad hoc appointee and particularly as to whether the ad hoc appointee had an eligibility for appointment on the date of initial as ad hoc and while considering the case of regularization, the Rules have to be strictly adhered to as dispensing with the Rules is totally impermissible in law. In certain cases, even the consultation with the Public Service Commission may be "required, therefore, such a direction cannot be issued in Government of Orissa and Anr., v. Hanichal Roy and Anr., , the Hon'ble Supreme Court considered the case wherein the High Court had granted the relaxation of service conditions. The Apex Court held that the Court cannot take upon itself the task of the Statutory Authority and only order which Court could have passea was directing the Government to consider relaxation itself forming an opinion in view of the statutory provisions as to whether the relaxation was required in the farts and circumstances of the case. Issuing such a direction by the Court is illegal and impermissible.
17. Similar view has been reiterated by the Hon'ble Supreme Court in A. Umarani (supra).
18. In G. Veerappa Pillai v. Raman and Raman Ltd., , the Constitution Bench of the Hon'ble Supreme Court while considering the case for grant of permits under the provisions of Motor Vehicles Act, 1939, held that High Court ought to have quashed the proceedings of the Transport Authority, but issuing the direction for grant of permits "was clearly in excess of its powers and jurisdiction."
19. In view of the above, it is not permissible for the Court to take the task of the employer upon itself and issue a direction straight away to absorb/regularise or appoint any litigant. The Court/Tribunal can issue a direction to consider his case in accordance with law. The Court has a power only to issue direction to the authorities concerned to consider the case in accordance with law as absorption may depend upon the availability of the vacancy, satisfactory service rendered by him earlier, or a candidate may be found unsuitable on the ground that he had been given some punishment in the domestic inquiry in past or he did not possess the requisite qualification/eligibility at the time of initial appointment etc. etc. More so, the Appointing Authority has to give effect to the Reservation Policy of the State.
20. The present case is required to be considered in the light of the aforesaid settled legal propositions. Petitioner worked from 1984 to 1986 for a period of 2 years and was retrenched. He never challenged the termination of his service. At the most, petitioner could claim the relief available to him under Section 25G and 25H of the Industrial Disputes Act, 1947 or his case could be considered for re-employment in accordance with the seniority list prepared under Rule 77 of the Industrial Disputes Rules whenever the vacancy occurred. Petitioner did not challenge the termination order. As per the scheme framed by the Department his case was considered. Petitioner appeared in the test, but could not pass the same.
21. The Tribunal allowed the claim of the employee drawing adverse inference against the Department for not producing the' policy under which the test was conducted and record of selection. We find no force in the submissions made by Shri Govind Saran, learned counsel for the petitioners that there was no occasion for the learned Tribunal to draw the adverse inference as the said record was not relevant to determine the controversy.
22. In Mst Ramrati Kuer v. Dwarika Prasad Singh, , the Hon'ble Supreme Court held that in case of withholding the material evidence, adverse can be drawn by the Court against a party who possesses the evidence, but does not produced the same in spite of the order of the Court. A similar view has been reiterated in Indira Kaur v. Sheo Lal Kapoor, and Mohinder Kaur v. Kusam Anand, AIR 2000 SC 1745.
23. In the instant case the Tribunal has recorded a finding of fact as under:
"Learned counsel for the respondents was directed to produce a copy of the guidelines prescribing the procedure and the requirement for holding screening test for absorption of casual labourers. The record has not been produced. It is presumed that the same is not available in the office of the respondents".
(Emphasis added)
24. In view of the above, as the learned Tribunal has specifically asked the present petitioner to produce the relevant record and for the reasons best known to it the petitioner did not produce it before the Tribunal, the Tribunal has rightly drawn the adverse inference against the Department.
25. In view of the above, petition succeeds partly and it stands disposed of with the modifications of the judgment and order dated 11/1/2000 to the extent that the Department shall reconsider the case of respondent-employee for absorption/ regularisation. This exercise may be completed within a period of three months from today.