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Judgment
Special Appeal No. 794 of 2006 arises against the judgment and order dated 7.7.2006 passed by the learned Single Judge whereby the cut off date fixed by the Appellants as 29.6.1991 has been struck down by issuing a writ of mandamus.
The controversy raised in the writ petition before the learned Single Judge was for quashing of the order dated 23.2.2005 whereby the Respondents representation for regularizing their services on Group-D post came to be rejected. The aforesaid direction was given in Writ Petition No. 202 (SS) of 2005 vide order dated 25.1.2005. The Respondents, who were working with the Appellants for a considerable long period i.e. 7 to 10 years on daily wage basis, proceeded to move the Appellants for regularizing their services. The Additional Director of Information issued a letter dated 21.8.2000 seeking information about daily wage employees working with the Appellants and also their satisfactory services. Respondents also pleaded that 27 posts are lying vacant, but their candidature for regularization is not being considered. They also made representation to the Chief Minister, whereupon the Secretary to Chief Minister instructed the Director to take necessary action vide letter dated 15.12.2000. When no action was taken by the Director, the Respondents preferred another representation to the Chief Secretary to Government, who also directed the Director to take necessary steps. The Director marked it to the Deputy Director (Admn.) and in pursuance thereof the Deputy Director circulated a letter dated 26.3.2003 to all the officers requiring them to make available the files pertaining to appointment of daily wage employees, their continuity of services and their credentials. When nothing materialized, the Respondents filed Writ Petition No. 202 (SS) of 2005 making a prayer therein that their services may be regularized by the Appellants. The said writ petition was disposed of vide order dated 25.1.2005 by giving direction to the Appellants to dispose of the representation of the Respondents. The representation of the Respondents was considered and rejected vide order dated 23.2.2005. The aforesaid order was challenged in Writ Petition No. 3154 (SS) of 2005. The learned Single Judge while considering the arguments of the Respondents in the aforesaid writ petition, came to the conclusion that fixing of the cut off date as 29.6.1991 was arbitrary and proceeded to struck off the same vide order dated 7.7.2006. Feeling aggrieved with the aforesaid order, the present special appeal has been filed.
Similarly, another set of Respondents have filed Writ Petition bearing No. 7580(SS) of 2007 for regularization of their services and this Court vide order dated 27.11.2007 disposed of the said writ petition with the direction to the Respondents to consider the case of the Petitioners of that writ petition (herein Respondents) in the light of the order dated 7.7.2006 passed in Writ Petition No. 3154 (SS) of 2005. Feeling aggrieved with the aforesaid order, Special Appeal No. 536 (SB) of 2008 has been filed.
Learned Standing Counsel has submitted that the cut off date is neither arbitrary nor irrational and the learned Single Judge has committed illegality in striking down the same. It has also been submitted on behalf of the Appellants that the cut off date dated 29.6.1991 was fixed in pursuance to the directions given by the apex Court in the judgment rendered in the case of State of U.P. and Ors. v. Putti Lal 2006 SCC (L&S) 1819 . In the aforesaid case, the apex Court gave a direction for framing of a scheme for regularization in regard to the persons, who have completed ten years of service and in pursuance thereof the said cut off date was fixed taking into consideration the criteria of completion of ten years of service. Once the Appellants have acted in pursuance to the direction of the apex Court, the cut off date fixed by the Appellants cannot be said to be arbitrary and irrational in any manner. He has also submitted that the law as propounded by the apex Court goes to indicate that the fixation of cut off date has to be left to the discretion of the authorities as it requires consideration of various factors. The function of fixing the cut off date is executive and the Courts should be slow to interfere in the reasonableness of the cut off date. Once the cut off date is fixed, one or the other persons is bound to be affected on account of slight variation and disqualification, but that cannot be a ground to declare the cut off date to be ultra vires as the said situation will be prevailing all along so far cut off date is fixed. Further submission is that various Respondents have not completed even ten years of service and as such their candidature for regularization could not have been considered, but under the judgment of this Court their regularization was considered and they have been regularized. It is also submitted that it is a one time exercise to be undertaken by the department in view of the law laid down in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, , and so it cannot be a continuous process of perennial nature to regularize all those, who were entered the service from back door. He has also drawn the attention of the Court towards the observations of the apex Court made in the case of State of Haryana and others Vs. Piara Singh and others etc. etc., and specially para 21 of the said judgment.
Counsel for the Appellants has relied upon the decisions of the apex Court in the cases of State of U.P. and Ors. v. Putti Lal (supra), State of Haryana and Ors. v. Piara v. Singh and Ors. (supra), CSIR and Others Vs. Ramesh Chandra Agrawal and Another, and Transport & Doc Workers Union and Ors. v. Mumbai Port Trust and Anr. AIR 2011 220.
Counsel for the Respondents has submitted that the Respondents have been discriminated as against Group-C employees and the cut off date, which has been fixed in respect of the Group-C employees, could hot have been made the basis and neither the same could not have been applied blindly in respect of the Group-D employees, who have been working since long. It is further submitted that the Respondents have been discriminated as against Group-C employees although they stand on the same footing and both category of persons are working on daily wage basis. It has been submitted that most of the Respondents have completed ten years of service and under the judgment of this Court their services have been regularized, so their appointments may not be disturbed even if the Court comes to the conclusion that the cut off date is reasonable as fixed by the Appellants. Counsel for the Respondents has also tried to take support from the judgments rendered in the cases of State of Karnataka and Others Vs. M.L. Kesari and Others, The Workmen of Bhurkunda Colliery of Central Coalfields Ltd. Vs. The Management of Bhurkunda Colliery of Central Coalfields Ltd., and State of U.P. and Ors. v. Putti Lal (supra).
We have heard learned Counsel for the parties and perused the record and given our anxious consideration to the arguments raised on behalf of either of the parties.
To appreciate the controversy, we may advert ourselves to the Putti Lal''s case (supra), wherein the apex Court was considering the regularization of various persons, who were working since long. The apex Court on 1.5.2001 after hearing the parties for a considerable length came to the conclusion that impugned direction of the High Court for providing a scheme for regularization of all the daily wage workers/ muster-roll employees under the Forest Department, who have rendered ten years of service or more, should be regularized by making appropriate scheme. A direction was issued by the apex Court to frame the scheme within three months from the date of the order. In the meantime, the State of U.P. was bifurcated into two states and the State of Uttaranchal came into existence and by a subsequent order the State of Uttaranchal was also impleaded as a party and it had been granted time to file its reply. The Appellants in pursuance to the direction of the apex Court dated 1.5.2001 framed a set of rules in exercise of power conferred under the proviso to Article 309 of the Constitution of India called "the Uttar Pradesh Regularization of Daily Wagers (Appointment on Group ''D'' Posts) Rules, 2001". The Court also took into consideration that similar rule has also been framed for regularization of Group-C daily wage employees and the apex Court came to the conclusion that both these statutory rules would govern the case of all daily wagers appointed in any department including the Forest Department, which Department was before the apex Court. The apex Court also came to the conclusion that since a statutory rule has been framed indicating the manner in which the daily wagers can be regularized, the question of framing any further scheme by the State of Uttar Pradesh does not arise. The apex Court was oblivious of the fact that ten years criteria has been adopted for framing of the rules in pursuance to the direction of this Court and so the rule was perfectly justified and valid. It is not that the issue of period of ten years was not taken into consideration by the apex Court, but in fact it was specifically pleaded before the apex Court that ten years would be primary criteria for regularization of the services of those daily wage Group-D employees, who have completed ten years of service. In this background, it has to be seen as to whether the cut off date, which has been fixed as 29.6.1991, is unreasonable or irrational in any manner.
To appreciate the aforesaid controversy, we have to advert to the proposition of law propounded by the apex Court in the case of Piara Singh (supra) in regard to testing of reasonableness of the cut off date. In para 21 of the judgment while dealing with the question of reasonableness held as under:
Ordinarily speaking, the creation and abolition of a post is the prerogative of the Executive. It is the Executive again that lays down the condition 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 Article 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 regularization. While all the situations in which the court may act to ensure fairness cannot be detailed here, it is sufficient to indicate that the guiding principles are the ones stated above.
In the aforesaid case reasonableness of the period of two years fixed by the Punjab and Haryana Government was held to be reasonable, but the aforesaid case was taken into consideration in Uma Devi''s case (supra) and it was held by the Constitution Bench that criteria of two years or five years or seven years will not govern the field, but in fact the precise criteria of ten years was laid down as one time exercise to be undertaken by the Government in all the departments and thereafter it was provided that regular selection shall be held in accordance with law as contemplated under the rules by making proper advertisement.
While appreciating the argument in regard to reasonableness of the cut off date, we have to take into consideration the law propounded by the apex Court from time to time and also to appreciate the controversy in the light of the law propounded by the apex Court.
In the case of Council of Scientific and Industrial Research (supra) the apex Court while considering the reasonableness of the cut off date, held that if the cut off date has been fixed in pursuance to the direction of the apex Court, then the same cannot be said to be unreasonable or irrational in any manner. In the aforesaid case SLP was disposed of by the apex Court and the cut off date was fixed as 2.5.1997 and appreciating the arguments of the respective parties, the apex Court held in the following manner:
Cut-off date has been fixed for those who are eligible as per the criteria laid down by the Scheme. The Service Rules were framed in terms of the bye-laws of the society. It would bear repetition to state that Appellant 1 is not a statutory authority. It is a research-oriented organization. It knows its needs. The Research Fellows and Research Associates because of their involvement in the research work are to get priority in their appointments. Particular projects whether funded by the Ministry concerned or others would depend upon the nature thereof. It, by a judicial fiat, could not have been made a continuous scheme.
Indisputably, a policy decision is not beyond the pale of judicial review. But, the court must invalidate a policy on some legal principles. It can do so, inter alia, on the premise that it is wholly irrational and not otherwise. The contention of the Respondents that only two chances are granted for consideration of the candidature of the employees for the purpose of regularization is, in our opinion, misconceived. The Scheme being a one-time measure, even one opportunity cold have been granted.
It was with a view to give benefit to the employees concerned that their services are continued so that they can avail another opportunity. Indisputably, the quantity/quality of research work done by a researcher is a very important consideration for assessing the suitability. But, that would not mean that any researcher as on 2.5.1997 may not be in a position to complete 15 years of the service but would do so on 3-7-1998 and, thus, may be deprived of the opportunity of two chances by itself. This could not have been a ground to strike down the cut-off date fixed by the Appellants. It is reiterated that a person may get, having regard to the Scheme, one chance or two chances.
So far the question of legitimate expectation on the part of the research associates was concerned, that was also taken into consideration and in paras 36, 37 and 38 of the aforesaid judgment it was held as under:
Another aspect of the matter cannot also be lost sight of. Researchers are not selected on the basis of the tenure of research work alone but also on the basis of their performance in the interview by the Selection Board. Submission to the effect that the cut-off date should have been fixed keeping in view the principles of legitimate expectation, to say the least, is misconceived. Legitimate expectation is based on the principles of natural justice. There has to be a basis for giving effect to the doctrine of legitimate expectation. It must not be based on mere anticipation. When this Court directed the Appellants to frame a scheme, the same was required to be framed having regard to the provisions of Articles 14 and 16 of the Constitution of India.
Reliance has been placed on University Grants Commission Vs. Sadhana Chaudhary and Others, (which in our opinion otherwise has no application to the facts of the present case), wherein this Court held:
... Prior to the making of the 1991 Regulations there was no statutory requirement regarding clearing the eligibility test for the purpose of appointment on the post of Lecturer. Such a requirement was introduced for the first time by the 1991 Regulations. At the time when the 1991 Regulations were made the provisions contained in the 1982 Regulations had given rise to a legitimate expectation that a person having a PhD or M Phil degree and having good academic record as prescribed under the 1982 Regulations would be eligible for appointment on the post of Lecturer without anything more. While introducing the requirement of clearing the eligibility test in the 1991 Regulations, the UGC did not intend to deprive the persons who had obtained M Phil degree or PhD degree prior to the making of the 1991 Regulations of their legitimate expectation in the matter of appointment on the post of Lecturer in universities or colleges.
The ratio of the said decision does not support the contention of the Respondents.
Strong reliance has been placed by the learned Counsel appearing on behalf of the Dr. Ami Lal Bhat Vs. State of Rajasthan and others, wherein it has been opined:
... In the first place the fixing of a cut-ff date for determining the maximum or minimum age prescribed for a post is not, per se, arbitrary. Basically, the fixing of a cut-ff date for determining the maximum or minimum age required for a post is in the discretion of the rule-making authority or the employer as the case may be. One must accept that such a cut-off date cannot be fixed with any mathematical precision and in such a manner as would avoid hardship in all conceivable cases. As soon as a cut-off date is fixed there will be some persons who fall on the right side of the cut-off date and some persons who will fall on the wrong side of the cut-off date. That cannot make the cut-off date, per se, arbitrary unless the cut-off date is so wide off the mark as to make it wholly unreasonable.
The apex Court also drew a clear distinction between legitimate expectation and anticipation and while considering the said proposition relied upon the cases rendered in Southern Petrochemical Industries Co. Ltd. Vs. Electricity Inspector and E.T.I.O. and Others, and Jitendra Kumar and Others Vs. State of Haryana and Another, of the judgment, their Lordships took into consideration the argument that according to the Respondents they have completed more than 13 years of service and it was held that period of 15 years criteria as fixed was not unreasonable. Their Lordships also held that the High Court committed a serious error insofar as it failed to take into consideration that the Respondents did not have any legal right for regularization having regard to the decision of the Constitution Bench of this Court in Uma Devi''s case (supra) and the Court should not interfere with the discretionary power of the Government in exercise of its jurisdiction of judicial review. The reasonableness of the cut off date cannot be interfered with by the Court and neither relaxation can be given beyond the conditions provided in the rules and it is in the discretion of the appointing authority only. The apex Court took into consideration the judgments rendered in the cases of Kendriya Vidyalaya Sangathan and Others Vs. Sajal Kumar Roy and Others, and Union of India (UOI) and Others Vs. R.N. Hegde and Others, in which a direction was given by the Tribunal for giving relaxation in the upper age limit by treating the minimum period of 40 days for the calendar year of 1989 and no period for the calendar year 1990 for such of the Casual Staff Artistes who were recruited prior to 1988 and were not assigned work in the calendar years 1988 and 1989 in pursuance of the note dated 26-5-1989. In this context, the apex Court held that the said direction of the Tribunal is not in consonance with the scheme as notified vide office memorandum dated 9.6.1992 and cannot be upheld and it was held that the matter of regularization of the Respondents, including the question of relaxation in age can be given only in accordance with the provisions contained in the scheme as notified vide office memorandum dated 9.6.1992. Similarly, the apex Court relied upon the decision rendered in the case of Director, Doordarshan Kendra, Trivandrum and Others Vs. S. Kuttan Pillai and Others,
In the case of Transport & Doc Workers Union (supra) the disparity in the working hours of the old recruits and the new recruits was challenged. The apex Court after reviewing the law on the point came to the conclusion that it was not prudent or pragmatic for the Court to insist on absolute equality when there are diverse situations and contingencies. In view of the inherent complexities involved in modern society, some free play must be given to the executive authorities in this connection. Considering the reasonableness of the cut off date, it was held in paras 44 and 45 as under:
As regards cut-off dates, this Court in Government of Andhra Pradesh and Ors. v. N. Subbarayudu and Ors. 2008 (14) SCC 702, has observed vide paragraphs 5 to 9:
In a catena of decisions of this Court it has been held that the cut-off date is fixed by the executive authority keeping in view the economic conditions, financial constraints and many other administrative and other attending circumstances. This Court is also of the view that fixing cut-off dates is within the domain of the executive authority and the court should not normally interfere with the fixation of cut-off date by the executive authority unless such order appears to be on the face of it blatantly discriminatory and arbitrary. (See State of Punjab and Others Vs. Amar Nath Goyal and Others,
No doubt in D.S. Nakara and Others Vs. Union of India (UOI), this Court had struck down the cut-off date in connection with the demand of pension. However, in subsequent decisions this Court has considerably watered down the rigid view taken in Nakara case as observed in para 29 of the decision of this Court in State of Punjab v. Amar Nath Goyal.
There may be various considerations in the mind of the executive authorities due to which a particular cut-off date has been fixed. These considerations can be financial, administrative or other considerations. The court must exercise judicial restraint and must ordinarily leave it to the executive authorities to fix the cut-off date. The Government must be left with some leeway and free play at the joints in this connection.
In fact several decisions of this Court have gone to the extent of saying that the choice of a cut-off date cannot be dubbed as arbitrary even if no particular reason is given for the same in the counter-affidavit filed by the Government (unless it is shown to be totally capricious or whimsical), vide State of Bihar and others Vs. Ramjee Prasad and others, Union of India and Another Vs. Sudhir Kumar Jaiswal, Ramrao and Others Vs. All India Backward Class Bank Employees Welfare Association and Others, University Grants Commission Vs. Sadhana Chaudhary and Others, etc. It follows, therefore, that even if no reason has been given in the counter-affidavit of the Government or the executive authority as to why a particular cut-off date has been chosen, the court must still not declare that date to be arbitrary and violative of Article 14 unless the said cut-off date leads to some blatantly capricious or outrageous result.
As has been held by this Court in Aravali Golf Club v. Chander Hass 2008 (1) SCC 683 and in Government of Andhra Pradesh and Others Vs. Smt. P. Laxmi Devi, the court must maintain judicial restraint in matters relating to the legislative or executive domain.
In our opinion, there is often a misunderstanding about Article 14 of the Constitution, and often lawyers and Judges tend to construe it in a doctrinaire and absolute sense, which may be totally impractical and make the working of the executive authorities extremely difficult if not impossible.
The reliance placed by the counsel for the Respondents on the decision of the apex Court in the case of Workmen of Bhurkunda Colliery of Central Coal Fields Ltd. (supra) has been considered in the case of Uma Devi (supra) and, therefore, reliance placed by the learned Single Judge independently upon the aforesaid decision could not have been made ignoring the dictum laid down in the case of Uma Devi (supra).
Counsel for the Respondents has also relied upon the case of M.L. Kesari (supra) and emphasized that the said judgment clarifies the ratio of law laid down in the Uma Devi''s case. Therefore, we do not see that there is any difference, but rather the said opinion expressed in the case of M.L. Kesari (supra) goes to indicate that the apex Court has clarified that it is a one time exercise to be undertaken against the vacant posts in respect of the persons, who are having requisite qualification for regularization. The reasonableness of the cut off date having been considered by us in the above context goes to indicate that the cut off date as fixed by the Appellants was reasonable and it was fixed in pursuance to the direction of the apex Court and so it cannot be termed as arbitrary and whimsical and neither hit by Article 14 of the Constitution of India. Hence, we uphold the reasonableness of the cut off date.
Special Appeal No. 794 of 2006 is accordingly allowed and the judgment and order dated 7.7.2006 passed by the learned Single Judge is set aside.
So far the question in regard to upholding the regularization of the Respondents of the aforesaid special appeal is concerned, we find that they have already been regularized and doing work since long and most of them have completed ten years of service when their regularization was considered and some of them who have not completed ten years of service, they will also be completing ten years of service in short duration thereafter and they have been regularized and they are also drawing their regular scale. So, we do not propose to interfere with their regularization while upholding the reasonableness of the cut off date.
As a consequence of setting aside the judgment and order dated 7.7.2006 passed in Special Appeal No. 794 of 2006, we find that the order challenged in the Special Appeal No. 536 of 2008 cannot be sustained as it was based on the judgment and order dated 7.7.2006. Consequently, the order dated 27.11.2007 is also set aside.
Special Appeal No. 536 of 2008 is also allowed subject to the observations made hereinabove.