Md. Abdul Kadir & Anr vs Director General Of Police, Assam & Ors

Md. Abdul Kadir & Anr. ... Appellants

Versus

Director General of Police, Assam & Ors. ... Respondents

O R D E R

R. V. Raveendran, J.

The Government of India formulated the Prevention of

Infiltration of Foreigners Scheme (PIF Scheme for short)

for Assam, for strengthening the Assam Governmental

machinery for detection and deportation of foreigners in

the year 1960. The scheme has been extended from time to

time and is in force even now. By communication dated

3.6.1987, the Government of India informed the Govt. of

Assam about the sanction of the following additional posts

by the President under the PIF Scheme: Inspectors-5, Sub-

Inspectors-323, Head Constables-306 and Constables-646. 2

Under the said PIF Additional Scheme, the Government of

India agreed to reimburse the cost of pay and allowances of

persons employed in the additional posts provided all the

additional posts were filled by only ex-servicemen. It also

agreed to reimburse all other expenditure incurred by the

State for the said Additional Scheme. The PIF Additional

Scheme provided that the sanction will be valid for the

period of two years from the date of its issue (3.6.1987),

to be reviewed thereafter along with the main PIF

Scheme.

2. A selection board was constituted for selection of ex-

servicemen to the various posts which were sanctioned under

the Additional Scheme dated 3.6.1987. The first appellant,

an ex-serviceman, was selected and appointed as a sub-

Inspector on 1.9.1988 after undergoing the selection

process in the time scale of pay of Rs.620-25-745-EB-30-

895-EB-35-1315 plus allowances. The second appellant, also

an ex-serviceman, was selected and appointed as a sub-

Inspector on 17.3.1995 on a fixed basic pay of Rs.1375/-

(being the minimum in the pay scale applicable to Sub-

Inspectors) plus allowances. The appointment letters issued

to them by the Inspector General of Police (Border) Assam

made it clear that the appointments were purely on ad hoc 3

and temporary basis and that they could be discharged

without assigning any reason or notice, in any contingency

in future.

3. The Inspector General of Police, (Border) Assam issued

a Circular dated 17.3.1995 laying down the following

procedure for appointment/continuation of ex-serviceman as

ad hoc Border staff:

(i) All appointments shall be for a contract period of one year.

(ii) Termination notice should be issued to every ad-hoc employee at least 45 days before the date of expiry of one year from the date of appointment.

(iii) The ad hoc employee, on receiving information regarding termination from service, shall, if he desires to continue, send an application seeking fresh appointment for a further term of one year. The application should reach the office of IGB (B), Assam at least 30 days before the date of expiry of one year.

(iv) The concerned DIGP (Range)/Superintendent of Police shall send a performance report and medical certificate in respect of each ad hoc employee to whom such termination notice has been issued at least 30 days before the date of such termination while forwarding the applications for fresh appointment.

(v) The applications for fresh appointment shall be considered with reference to the respective performance report and medical certificate, and those found fit and suitable will be re-appointed at least 20 days before the date of expiry of the contract period of one year.

(vi) Such fresh appointment letters shall be issued by the Superintendent of Police (Border) Assam and the ad hoc employees cleared for fresh appointment shall sign an agreement and submit his joining report.

4 (vii) If application for fresh appointment is not received in due time, it will be taken that the ad-hoc employee has not sought fresh appointment and he will not be considered for fresh appointment.

4. Aggrieved by the process of termination and

reappointment introduced by the said circular dated

17.3.1995 and the consequences thereof appellants 1 and 2

filed Civil Rule Nos.2065/1995 and 1698/1995 in the Gauhati

High Court. According to them, but for such yearly

artificial terminations, the ad-hoc employees would have

the benefit of continuous service and those who were

appointed in a time scale of pay would have also got annual

increments. The procedure contemplated by the circular

dated 17.3.1995, it was submitted, introduced an element of

uncertainty in regard to their service and gave room for

nepotism and corruption. The appellants pointed out that

the original PIF Scheme had continued from 1960 and the

Additional Scheme was continued from 1987 without break,

and having regard to the importance of border security

requirements, it was a misnomer to call them as ad hoc

appointees; and as the posts were sanctioned by the

President and the scheme was continuing for long number of

years, their services should be regularized. They also

pointed out that three-fifth of Assam Police Border

Organisation(PIF Additional Scheme) was earmarked for regular 5

police personnel and two fifth was reserved for ex-

servicemen; and that though they discharged the same

functions as their police-brethren, they were discriminated

by terming them as ad-hoc employees thereby denying them

security of tenure, benefit of pay scales and other service

benefits. They also pointed out that ex-servicemen

recruited in Assam Special Peace Keeping Force were

extended several benefits available to regular employees

and they should also be extended such benefits. They

therefore prayed that (i) the system of appointing them on

one year contract basis be quashed; (ii) the various

benefits extended to ex-servicemen appointed to Assam

Special Peace Keeping Force under Office Memorandum dated

14.6.1984 may also be extended to them; and (iii) they

should be regularized in service of the Border organization

of Assam Police with all consequential benefits including

yearly increments in pay.

5. A learned Single Judge of the High Court allowed the

writ petition by order dated 29.2.1996. He held that the

appellants should be allowed to continue as long as the

scheme was continued by the Government of India and they

shall be entitled to all service benefits as regular

employees so long as the scheme continued. He also held 6

that the appellants shall be entitled to the benefits

extended under the State Government Scheme for enrollment

of ex-service personnel in Assam Special Peace Keeping

Force, vide Official Memorandum dated 14.6.1984. Feeling

aggrieved the Director General of Police, Inspector General

of Police (Border) and Superintendent of Police (Border),

Assam, filed a writ appeal (WA No.154/1996). The appeal was

allowed by a division bench of the High Court by the

impugned order dated 1.9.2000. The Division Bench held that

the Scheme contained in the Office Memorandum dated

14.6.1984 of the State Government relating to Assam Special

Peace Keeping Force will not apply to those who were

inducted under the PIF Additional Scheme dated 3.6.1987,

which is a completely different scheme. The Division Bench

therefore set aside the order of the learned Single Judge

and dismissed the writ petitions. The said judgment is

under challenge in this appeal by special leave.

6. At the outset, the learned counsel for the appellants

stated that the prayer for relief based on the Scheme dated

14.6.1984 relating to Assam Special Peace Keeping Force,

was not pressed. Therefore only two issues arise for our

consideration: (i) whether the persons engaged under the

PIF Additional Scheme, 1987, are entitled to be regularized 7

in service; (ii) whether the procedure introduced by

circular dated 17.3.1995 is valid.

7. The fact that the appellants were employed under the

PIF Additional Scheme is not disputed. The duration of PIF

Additional Scheme under which they are employed was

initially two years, to be reviewed for continuation along

with the original PIF Scheme. The said scheme is being

extended from time to time and is being continued. If the

temporary or ad-hoc engagement or appointment is in

connection with a particular project or a specific scheme,

the ad hoc or temporary service of the persons employed

under the Project or Scheme would come to an end, on

completion/closure/cessation of the Project or the Scheme.

The fact that the Scheme had been in operation for some

decades or that the employee concerned has continued on ad

hoc basis for one or two decades would not entitle the

employee to seek permanency or regularization. Even if any

posts are sanctioned with reference to the Scheme, such

sanction is of ad hoc or temporary posts co-terminus with

the scheme and not of permanent posts. On completion of the

project or discontinuance of the scheme, those who were

engaged with reference to or in connection with such

Project or Scheme cannot claim any right to continue in 8

service, nor seek regularization in some other project or

service. (See Bhagwan Dass v. State of Haryana - 1987 (4)

SCC 634, Delhi Development Horticulture Employees Union v.

Delhi Administration - 1992 (4) SCC 99, Hindustan Steel

Works Construction Ltd., vs. Employees Union - 1995 (3) SCC

474, UP Land Development Corporation vs. Amar Singh - 2003

(5) SCC 388, Madhyamik Shiksha Parishad UP v. Anil Kumar

Mishra - 2005 (5) SCC 122, Secretary, State of Karnataka v.

Umadevi - 2006 (4) SCC 31, Indian Council of Medical

Research vs. K. Rajyalakshmi - 2007 (2) SCC 332, and Lal

Mohammed vs. Indian Railway Construction Co. Ltd. - 2007

(2) SCC 513). In view of this settled position, the

appellants will not be entitled to regularization.

8. We may next consider the challenge to the procedure of

annual termination and reappointment introduced by the

circular dated 17.3.1995. The PIF Scheme and PIF Additional

Scheme were introduced by Government of India. The scheme

does not contemplate or require such periodical termination

and re-appointment. Only ex-servicemen are eligible to be

selected under the scheme and that too after undergoing

regular selection process under the Scheme. They joined the

scheme being under the impression that they will be

continued as long as the PIF Additional Scheme was 9

continued. The artificial annual breaks and reappointments

were introduced by the state agency entrusted with the

operation of the Scheme. This Court has always frowned upon

artificial breaks in service. When the ad-hoc appointment

is under a scheme and is in accordance with the selection

process prescribed by the scheme, there is no reason why

those appointed under the scheme should not be continued as

long as the scheme continues. Ad-hoc appointments under

schemes are normally co-terminus with the scheme (subject

of course to earlier termination either on medical or

disciplinary grounds, or for unsatisfactory service or on

attainment of normal age of retirement). Irrespective of

the length of their ad hoc service or the scheme, they will

not be entitled to regularization nor to the security of

tenure and service benefits available to the regular

employees. In this background, particularly in view of the

continuing Scheme, the ex-serviceman employed after

undergoing selection process, need not be subjected to the

agony, anxiety, humiliation and vicissitudes of annual

termination and re-engagement, merely because their

appointment is termed as ad hoc appointments. We are

therefore of the view that the learned Single Judge was

justified in observing that the process of termination and

re-appointment every year should be avoided and the 10

appellants should be continued as long as the Scheme

continues, but purely on ad hoc and temporary basis, co-

terminus with the scheme. The circular dated 17.3.1995

directing artificial breaks by annual terminations followed

by fresh appointment, being contrary to the PIF Additional

Scheme and contrary to the principles of service

jurisprudence, is liable to be is quashed.

9. Before parting we may however refer to two aspects.

One is with reference to the term of the scheme itself.

Second is with reference to the pay.

9.1) PIF Scheme has been in force for nearly five decades.

PIF Additional Scheme has been in force for more than two

decades. The object of the Scheme is detection and

deportation of illegal immigrants/fresh infiltrators/re-

infiltrators, establishment of second line of defence on

Assam Bangladesh Border to man the areas not covered by

Border Security Force and monitoring the occurrences on

international border. The staff entrusted with such

sensitive functions and duties can work wholeheartedly and

with commitment in adverse and hostile conditions only if

they have security of tenure, without having to constantly

worry about their future. If the task under the scheme is 11

perennial, there is no point in executing it as a

`temporary' Scheme, though to start with it might have been

thought that the task was a short term task. Another aspect

to be noticed is that duties discharged by the Border staff

belonging to Assam Police Border Organization under the PIF

Scheme is said to be somewhat similar or parallel to the

duties discharged by regular forces like Border Security

Force and Assam Special Peace keeping Force. Further, part

of the very same Border Organization under PIF Scheme is

manned by regular police personnel. Therefore, if those

working as ad hoc or temporary staff for decades on, are

converted to regular permanent staff, that would boost

their morale and efficiency. We are conscious of the fact

that the issue is a matter of policy having financial and

other implications. But where an issue involving public

interest has not engaged the attention of those concerned

with policy, or where the failure to take prompt decision

on a pending issue is likely to be detrimental to public

interest, courts will be failing in their duty if they do

not draw attention of the concerned authorities to the

issue involved in appropriate cases. While courts cannot be

and should not be makers of policy, they can certainly be

catalysts, when there is a need for a policy or a change in

policy.

12

9.2) Another issue requiring consideration by the

respondents is the question of pay. The order of

appointment in the case of first appellant shows that he

was appointed in a time scale of pay. First appellant and

similarly placed will therefore be entitled to increments

in terms of the pay scale. Second appellant was appointed

on a fixed pay. But even in the case of second appellant

and others appointed on fixed pay, it is alleged that the

State Government had treated their appointments as being in

a time scale of pay and claiming reimbursement from the

Central Government on that basis. If the State Government

has treated the appointments on fixed salary as

appointments on a time scale, and claimed reimbursement

from the Government of India on that basis, the State

Government should, in all fairness, pass on the benefit of

such time-scale of pay to the employees concerned. When

persons are engaged under the same Scheme, discriminatory

treatment, that is extending benefit of increments to some

and denying the said benefit to others, should be avoided.

9.3) We hope that the respondents will endeavor to address

the aforesaid two grievances of the border staff promptly

and in an appropriate manner.

13

10. The appeal is allowed in part accordingly as follows:

(i) The circular dated 17.3.1995 is quashed. The

appellants shall not be subjected to annual

terminations and re-appointments (subject to

observations in para 8 above).

(ii) The benefit of this order will be available to other

similarly situated ad hoc border staff, even if they

have not approached the court for relief. In view of

the above, the interlocutory applications for

impleading are disposed of as having become

infructuous.

(iii) This order will not however come in the way of ad

hoc employees working as Border staff, being

subjected to any periodical medical examination or

service review to assess their fitness and

suitability for continuation.

________________J.

(R V Raveendran)

New Delhi; _________________J. April 22, 2009. (B Sudershan Reddy)