Patit Paban Ghosh and Others vs Director of Fisheries, West Bengal and Others

Arun Kumar Dutta, J.—By this Writ Application under Article 226 of the Constitution of India the 24 Writ Petitioners herein (hereinafter referred to as Petitioners) have prayed the Court for issue of a Writ of Mandamus commanding the respondents to do their public duties in accordance with law and to forbear from terminating the services of the petitioners working as Labourers at Krishnagar Fish Seed Farm under the Directorate of Fisheries, West Bengal", and for a direction upon them to regularise their (Petitioners'') services with the scale of pay applicable to the regular employees, along with the other relies prayed for therein, for the reasons stated and on the grounds made out therein. The Petitioners contend that they were appointed daily labourers under the Farm Manager, Krishnagar Fish Seed Farm, Nadia, 12 of them in the year 1983 and the remaining 12 appointed in the year 1984, with the approval of the Director of Fisheries, West Bengal. They have been engaged for day to day work on temporary basis in connection with fisheries works like Guarding, Netting. Manuring, Feeding and other requisite technical works. They have been working to the satisfaction of the authorities concerned since their said appointments with artificial breaks at times. The services rendered by the Petitioners are of perennial and permanent nature. Their services were once terminated and they were again reappointed. They have been given appointments since 1983/1984 till the date of presentation of the writ application by causing artificial break of services, which is nothing but a device for exploiting the situation taking advantage of their helplessness, amounting to breach of Articles 14 and 16 of the Constitution of India. It is thus contended by the Petitioners that they should be absorbed in their respective works on regular basis since the jobs entrusted to them are of perennial and permanent nature.

The Writ Petition is opposed by the Respondents by filling Affidavit-in-Opposition contending, inter-alia, that the Petitioners were not in service at the time of filing of the Writ Application for which the same is not maintainable, and that the Government at present after observing the performance of the Fish Seed Farm in question have decided to hand over the same (Farm) on lease basis to a Co-operative Society, and that the functioning of the Farm has been completely stopped since 1-4-1989.

Upon perusal and consideration of the materials on record, such as they are, there could clearly be no mistaking that the Petitioners had been appointed as daily labourers in the Fish Seed Farm in question since 1983/1984 and their services had been utilised for a pretty long time with breaks at times. The'' Petitioners contend that they have been continuing in service since then, with artificial breaks, and that they are not being allowed to continue their services by the authorities concerned for some oblique reason. It appears that by an Order of this Court on 3-6-1991 an interim Order of injunction was passed restraining the Respondents from terminating the services of the Petitioners till the disposal of the rule, and the wages of the Petitioners had been paid from time to time under the Order of the Court. An application, however, appears to have been filed by the Respondents for vacating the interim Orders passed by the Court, which does not appear to have been disposed of as yet.

With things as they are, there could be little denying that the Petitioners have been rendering services in the Farm in question as daily labourers on casual basis since 1983/84 till the filling of the instant Writ application with breaks at times. A number of decisions of the Supreme Court as also of this Court have been referred to by the Learned Advocate for the Petitioners in support of their plea for absorption in their respective works on regular basis.

The Supreme Court in Dhirendra Chamoli and Another vs. State of U.P. 1986 Supreme Court Cases (L & S) 187 had observed that it is not at all desirable that any management and particularly the Central Government should continue to employ persons on casual basis In organisations which have been in existence for over 12 years. In Surinder Singh and Another vs. Engineer-in-Chief, C.P.W.D. and Others, 1986 Supreme Court Cases (L & S) 189 Supreme Court had regretted that many employees are kept in service on temporary daily wage basis without their services being regularised. The Court in Narender Chadha and Ors. vs. Union of India & Ors., 1986 Supreme Court Cases (L & S) 226 had held that if adhoc promotees or appointees are allowed to continue as such for long years without being reverted or challenged, they would be deemed to have been regularised. The Court in Daily Rated Casual Labour employed under P & T Department through Bhartiya Dak Tar Mazdoor Manch vs. Union of India & Ors., AIR 1987 Supreme Court 2342 had directed 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 a year. A similar direction had also been issued by the Supreme Court in U.P. income tax Department Contingent Paid Staff'' Welfare Association vs. Union of India & Ors. AIR 1988 Supreme Court 517. The Supreme Court in Jacob M. Puthuparambil & Ors. Kerala Water Authority & Ors. etc, AIR 1990 SO 2228 while interpreting Rule 9(a)(i) of Kerala State and Subordinate Service Rules, 1958, in the background of the spirit and philosophy of the Constitution of India, had observed that the employees who are serving on the establishment for long spells and have the requisite qualifications for the job should not be thrown out, but their services should be regularised, as far as possible. In Sri Rabinarayan Mohapatra vs. State of Orissa & Ors., AIR 1991 Supreme Court 1286, the court had also held that an appointment of a teacher on 89 days basis with one day break which deprives a teacher of his salary for the period of vacation and other service benefits is wholly arbitrary and suffers from the vice of discrimination. Such a teacher is entitled to regularisation of appointment. The Supreme Court in Karnataka State Private College Stop-Gap Lecturers Association vs. State of Kamataka & Ors., AIR 1992 Supreme Court 677 had similarly directed that the services of teachers who have worked for three years, including break shall not be terminated, but they shall be absorbed, as and when regular vacancies arise.

The aforesaid decisions of the Supreme Court would clearly indicate that the Supreme Court had regretted that many employees are kept in service on a temporary daily wage basis without their services being regularised and was of the view that it is not at all dsirable that any management and the Government should continue to employ persons on casual basis in organisations which have been in existence for a reasonable period, who should not be thrown out, but their services should be regularised, as far as possible; and had accordingly directed the concerned authorities to prepare a scheme on a rational basis for absorbing, as tar as possible, the casual labourers who have been continuously working for more than once year.

Following the aforesaid decisions of the Supreme Court and other decisions, a Learned single Judge of this Court in Paschimbanga Tahsil Mohurrir Kalyan Samity & Ors. vs. State, of West Bengal, 1993(2) CLJ 330 has held that the Tahsil-Mohurrirs who have rendered services in connection with the collection of Government Land revenue and cesses etc. seasonally for not less than 120 days in each year for a continuous period of not less than 5 years deserve absorption under the relevant Government Memo. No. 1700-EMP dated 3-8-1979 subject to their having requisite qualifications. Another Learned single Judge of this Court in Profulla Kumar. Ghosh & Ors. vs. The Farm Manager, Sisal Plantation (sic) & Ors. in 93 CWN 431, where a number of daily rated workers engaged at the Sisal Plantation Farm, the first hatch having been appointed in the year 1956 and the last batch in the year 1979 had sought for absorption in the regular establishment, having rendered services for a long time, which was resisted by the Respondents contending that the Petitioners, who were all seasonal workers, were not entitled to be absorbed in the regular establishment, has held that the arbitrary, unwarranted and unauthorised actions of the Respondents in keeping the grievances of the Petitioners, in abayence for decades was shocking to the conscience of the Court, revealing an extreme from of naked exploitation by the Respondents, as a result of which the Petitioners had suffered deprivation of rights under Articles 14, 16 and 39(d) of the Constitution of India.

The view taken by the Supreme Court, as indicated in the abovenoted decisions was taken by it till the later part of Eighties and early part of Nineties. The Supreme Court has latterly started taking an entirely different view of the matter.

In Delhi Development Horticulture Employees'' Union v. Delhi Administration, Delhi & Ors., AIR 1992 Supreme Court 789, decided by the Court on 4th February, 1992, the Court took note of the pernicious consequence to which the direction for regularisation of workmen on the only ground that they have put in work for 240 or more days, has been leading.

The Court has observed and held therein that 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 Exchange, 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 or more days with a view to give the benefit of regularisation knowing the judicial trend that those who have completed 240 or more days are directed to be automatically regularised. A good deal of illegal employment market has developed resulting in a new source of corruption and frustration of those who are waiting at the Employment Exchanges for years. Not all those who gain such back-door entry in the employment are in need of the particular job. Though already employed elsewhere, they join the jobs for better and secured prospects. That is why most of the cases which come to the Courts are of employment in Government Departments. Public Undertakings or Agencies. Ultimately, it is the people who bear the heavy burden of the surplus labour. The other equally 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 are required to be continued for 240 or more days have to be absorbed as regular employees although the works are time bound and there is no need of the workmen beyond the completion of the works undertaken. The public interests are thus jeopardised on both counts.

The Supreme Court in J & K Public Service Commission, etc. v. Dr. Narinder Mohan & Ors. etc. Judgments Today 1993(6) Supreme Court 593, decided on 17.12.1993, has held that the existence of statutory rules is not a condition precedent to appoint an eligible and fit person to a post. The executive power is co-extensive with legislative power of the State and under Article 162, the State can create civil posts and fill them up according to executive instructions consistent with Arts. 14 and 16 of the Constitution. It is settled law that once statutory rules have been made the appointment shall be only in accordance with the rules. The executive power could be exercised only to fill in the gaps but the instructions cannot and should not supplant the law, but would only supplement the law. The Government exercising the power under proviso to Section 125 (Article 309 of the Constitution of India) made the rules whirls do not expressly give the power to the State Government to make ad hoc appointments. No such rule has been brought to our notice. No express power was conferred and in fact cannot be conferred to relax the rules of recruitment. Having made the rules and 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 rules prescribe 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 employees 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 fairplay. The latter are the product of order and regularity. Every eligible person may not necessarily be fit to be appointed to a post of office under the State, selection according to rules by a 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, dehorse the rules. Appointments of the respondents 1 to 6 cannot be held to be in accordance with the Rules.

The Supreme Court in Dr. Arundhati Ajit Pargaonkar v. State of Maharashtra & Anr., Judgements Today 1994 (5) SCC 378, disposed of on 31.8.94 has further held that eligibility and continuous working for howsoever long period should not be permitted to over-reach the law. Requirement of rules of selection through Commission cannot be substitued by humans considerations. Law must take its course. Consequently the appellant was not entitled to claim that she should have been deemed to have been regularised as she had been working without break for nine years.

In view of the aforesaid recent trend of decisions of the Supreme Court it is not possible to allow the Petitioners prayer for directing the Respondents to absorb/regularise them, as sought for. The most that can be done for them, in the facts and circumstances of the matter, is to direct the Respondents to keep them on a Panel and if they are registered with the Employment Exchange and are qualified to be appointed for any such appointment, give them a preference in employment whenever there occurs a vacancy in the regular posts, which direction I give hereby. The writ application is accordingly disposed of with no order as to costs.