R. A. Sharma, J. - (1.) THE appellant claiming to be a Court Assistant in the office of the Divisional Forest Officer, Fatehpur, having been appointed on daily wages basis, had filed a writ petition before this Court against the order of termination of his services and appointment of respondent no. 5 in his place. THE writ petition having been dismissed the appellant has filed this appeal claiming the same reliefs which he claimed in this writ petition.
(2.) THE learned counsel for the appellant has made two submissions viz, (i) it was not open to the respondents to terminate the service of the appellant and in fact they were duty bound to regularise his services, and (ii) the appointment of the respondent no. 5 against the post held by the appellant, was without jurisdiction. It is not possible to agree with the learned counsel. The appellant was appointed as casual employee in November, 1985 to do the work of Pairokar in the courts on behalf of the office of Divisional Forest Officer, Fatehpur. Although the appellant claims to have worked regularly from November. 1985 till may, 1990, but the respondents have disputed the above claim and have staged in their counter-affidavit that the appellant was never paid his wages on monthly basis and payments used to be made to him for those days during which he has worked as Pairokar on their behalf in the courts. It has further been stated that his engagement used to depend on the work in counts and during the period when there was no work in courts he was neither employed nor paid salary for those periods. From perusal of the pleading of the parties it is apparent that the appellant's services were not terminated and what in fact was done was that with effect from 1-6-1990 the department has permitted one of its employees respondent no. 5 to look after the courts' works also. From the letter dated June 30, 1990 issued from the office of the Regional Director it appears that the appellant's work and conduct during the period he had worked, was not good and satisfactory, on account of which he was not retained in the department after May, 1990.
(3.) QUESTION as to whether the service of an employee, who is working on dally wages basis or as casual worker should be regularised or not, has come time up before the Courts from time to time It is not necessary to refer all those cases decided by the courts and it is sufficient to mention that the services of such an employee cannot be regularised unless the post and funds are available, he is qualified, his work and conduct in the past is satisfactory and there is need, according to the requirement of the work, for retaining him in service. In State of Haryana v. Plara Singh, JT 1992 (5) SC 179, while considering the question of regularisation the Supreme Court has laid down as under i "Now coming to the direction that all those adhoc/temporary employees who have continued for more than an, year should be regularised, we find it difficult to sustain it. The direction has been given without reference to the existence of a vacancy. The direction In effect means that every adhoc/ temporary employee who has been continued for one year should be regularised even though (a) no vacancy is available for him which means creation of a vacancy (b) he was not sponsored by the Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had entered by a back-door (c) he was not eligible and/or qualified for ' the post at the time of his appointment (d) his record of service since his appointment is not satisfactory. These are in-addition to some of the problems indicated by us in para 12, which would arise from giving of such blanket orders. None of the directions relied upon by the High Court justify such whole sale unconditional orders. Moreover, from the mere continuation of an adhoc employee for one year, ft cannot be presumed that there is need for a regular post. Such a presumption may be justified only when such continuance extends to several years. Further there can be no 'rule of thumb' In such matters, conditions and circumstances of one unit may not be the same as of other. Just because in one case, a direction was given to regularise employees who have out in one year's service as far as possible and subject Ho fulfilling the qualifications it cannot be held that in each and every case such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations. The relief must be moulded in each case having regard to all the relevant facts and circumstances of the case. It cannot be a mechanical act but a judicious one. Judged from this stand point, the impugned directions must be held to be totally untenable and unsustainable." In the same judgment, relevant extract of which is reproduced below, problems which are created by orders directing for regularisation of employes appointed on adhoc/daily wages basis,, were high lighted ; "We may venture to point out the several problems that will arise if such directions become the norm ; (a) Take a case where certain vacancies are existing or expected and steps are taken for regular recruitment either through Public Service Commission or other such body as the case may be. A large number of persons apply. Inevitably there is bound to be some delay in finalising the selections and making the appointments. Very often the process of selection is stayed or has to be re-done for one or the other reasons. Mean while the exigencies of administration may require appointment of temporary hands. It may happen that these temporary hands are continued for more than one year because the regular selection has not yet been finalised. Now according to the impugned direction the temporary hands completing one year's service will have to be regularised in those posts which means frustrating the regular selection. There would be no post left for regularly selected persons even if they are selected Such cases have indeed come to this Court from these very two States. (b) In some situations, the permanent incumbent of a post may be absent for more than a year Examples of this are not wanting. He may go on deputation, he may go on Faculty Improvement Programme (F.I.P) or he may be suspended pending enquiry into charges against him and so on. there may be any number of such situations. If a person is appointed temporarily in bis place and after one year he is made permanent where will the permanent incumbent be placed on his return ? Two persons cannot hold the same post on a regular or permanent basis. (c) It may also happen that for a particular post a qualified person is not available at a given point of time. Pending another attempt at selection later on an unqualified person is appointed temporarily He may continue for more than one year. If he is to be regularised, it would not only mean foreclosing of appointment of a regular 'qualified person, it would also mean appointment of an unqualified person. (d) Such directions have also the effect of disregarding and violating the rule relating to reservation in favour of backward class of citizens made under Article 16 (4). What cannot be done directly cannot be allowed to be done in such indirect manner. (e) Many appointments may have been made irregulariy-as in this case-in the sense that the candidates were neither sponsored by the Employment Exchange nor were they appointed after issuing a proper advertisement calling for applications. In short, it may be a back door entry. A direction to regularise such appointments would only result in encouragement to such unhealthy practices. These are but a few problems that may arise, If such directions become the norm. There may be many such and other problems that may arise. All this only emphasises the need for a fuller consideration and due circumspection while giving such directions". In the past appointments on adhoc/daily/wages basis used to be made rarely, but now such appointments are being made through out this State regularly in order to avoid the competitive examination and as a device for back-door entry. In this connection reference may be made to the decision of Supreme Court in Delhi; Development Horticulture Employee's Union v. Delhi Administration, JT 1992 (1) 394, relevant extract from which is quoted below wherein development of illegal employment market and Its adverse effect on the society, have been high-lighted : "Apart from the fact that the petitioners cannot be directed to be regularised for the reasons given above, we may take note of the pernicious consequences 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. 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 person 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 a back-door entry in the employment are in need of the particular jobs. Though already employed elsewhere they join the jobs for better and secured prospects. That is why most of the which come to the courts are of employment in Government Departments, Public Undertakings or Agencies, Ultimately if 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" .;