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1997 Supreme(All) 1243
IN THE HIGH COURT OF ALLAHABAD
S. P. Srivastava, J.
ANIL KUMAR KAUSHIK - Appellant
Versus
NEW OKHLA INDUSTRIAL DEVELOPMENT AUTHORITY - Respondents
Civil Misc. Writ Petition 8153 Of 1995
Decided On : 10/21/1997
Akhleshwar Singh, U.S.Awasthi, W.H.Khan
Ad hoc employees, engaged for a short duration or fleeting purposes, are entitled to regularisation after a certain period of continuous service, especially when the requirement for the post continues to subsist. The employer cannot misuse power by creating artificial breaks in service to avoid regularisation.
Headnote:
REGULARISATION OF SERVICES - ADHOC APPOINTMENT - ABSORPTION AGAINST VACANT POST - INTERPRETATION OF SERVICE REGULATIONS - APPLICATION OF LEGAL PRINCIPLES - COURT'S DIRECTION FOR REGULARISATION.
Fact of the Case:
The petitioner, appointed as a Hindi Typist on a contractual basis, worked intermittently for over six years. Despite representations for regularisation, the respondent authority failed to take action. The petitioner challenged the inaction, seeking regularisation of his services and absorption against the vacant post of Junior Assistant/Typist.
Finding of the Court:
The court found that the respondent authority had not notified any statutory service regulations governing the recruitment and service conditions for the post of Junior Assistant/Typist. The petitioner's engagement was on an ad hoc basis, with artificial breaks in service. The court observed that the petitioner had been treated differently from other ad hoc appointees who were regularised, despite being junior to him.
Issues: 1. Whether the petitioner's engagement as a Hindi Typist on a contractual basis, with intermittent breaks, constituted continuous service. 2. Whether the respondent authority's failure to regularise the petitioner's services was arbitrary and discriminatory.
Ratio Decidendi: 1. The court held that the petitioner's engagement, though on a contractual basis, was continuous due to the artificial breaks in service. The court relied on the Apex Court's decision in J and K Public Service Commission v. Dr. Narindra Mohan, emphasizing that ad hoc employees should be replaced by regularly selected employees as soon as possible. 2. The court found the respondent authority's action in treating the petitioner differently from other ad hoc appointees, who were regularised, to be arbitrary and discriminatory. The court noted the absence of statutory rules governing ad hoc appointments and the lack of a procedure for recruitment to the post.
Final Decision: The court directed the respondent authority to consider the petitioner's claim for regularisation against the post of Hindi Typist/Stenographer, taking into account his past record of service and relaxing the age limit. In case the post was filled, a supernumerary post was to be made available until a regular post became vacant. The respondent authority was given three months to issue appropriate orders.
( 1 ) FEELING aggrieved by the inaction of the respondent authority in the matter relating to the determination of" the claim of the petitioner regarding the regularisation of his services and his absorption against the vacant post of Junior Assistant/typist, he has approached this Court seeking redress praying for a direction requiring the respondent appointing authority to regularise his services.
( 2 ) THE parties have exchanged their affidavits. The learned Counsel for the parties have jointly requested that this writ petition be disposed of finally at this stage.
( 3 ) CONSIDERING the facts and circumstances brought on record I find that the present case is fit one for being disposed of finally at this stage under the second proviso to Rule 2 (i) of Chapter 22 of the Rules of the Court.
( 4 ) I have heard Shri W. H. Khan learned Counsel for the petitioner and Shri U. S. Awasthi learned counsel representing the respondents and have carefully perused the record.
( 5 ) ON 23. 5. 97 learned Counsel representing the respondent had stated that the service regulations providing the service conditions regulating the recruitment procedure for filing up of the post of junior Assistant/typist had not been notified as yet. In view of the aforesaid statement it is apparent that no statutory service Rules exist regulating the procedure for the recruitment for filling up of the post of Junior Assistant/typist or regulating the service conditions of such employees.
( 6 ) THE petitioner asserts that he had been appointed as Hindi Typist and was continues as such intermittently with artificial breaks for over six years. Along with the writ petition he has filed the true copies of the various appointment letters issued from time to time by the respondent authority indicating that the petitioner had initially been engaged as Hindi Typist in purely temporary capacity on a contract basis making it clear that his service was liable to termination without any notice and he was entitled as wages a consolidated amount of Rs. 600/- per month. This appointment, to begin with was for a fixed period of six months. Fresh appointments with same terms and conditions for a period of six months were repeatedly given to him with breaks ranging between one day to the maximum of 20 days. From the year 1990, however, instead of consolidated salary of Rs. 600/- per month, appointment orders provided payment of salary at the rate of Rs. 24/- per day and a period of engagement of 89 days instead of six months. In the year 1991 the rate of payment was enhanced from Rs. 24/- to Rs. 30 per day. Thereafter, in the year 1994 it was enhanced from Rs. 30/- to Rs. 38/- per day.
( 7 ) THE petitioner submitted a representation on 25. 11. 1994 addressed to the Chairman of the respondent No. 1 claiming that he knows Hindi Shorthand also and several Hindi Typists who had been engaged in the orgnisation subsequent to the engagement of the petitioner had been regularised but his claim for regularisation was not being considered. It was also indicated that he had become over age awaiting the regularisation of his service and it was prayed that his services may be regularised as Junior Assistant/typist. When the aforesaid representation went without any response he again submitted another representation on 1. 3. 1995 seeking regularisation. When no action was taken he filed the present writ petition on 28. 3. 95.
( 8 ) THE petitioner has asserted in paragraph No. 12 of the writ petition that the services of Ram prakash and Gopal Chilwal who had been engaged subsequent to the engagement of the petitioner had been regularised. It has also been asserted that the respondent authority had made fresh appointments of various Assistant/typists on adhoc/daily wages basis after removing the petitioner. This, it is claimed, was done in an arbitrary manner as substituting one adhoc by another could not be justified specially when there had never been any complaint agains
