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2014 DIGILAW 537 (PNJ)

Narendra Kumar v. Haryana Labour Welfare Board

2014-03-12

AMOL RATTAN SINGH

body2014
ORDER : Amol Rattan Singh, J. This petition sought quashing of an office order dated 03/04.03.1994, passed by the Chairman, Haryana Labour Welfare Board, Chandigarh (1st respondent), terminating the services of the petitioner with immediate effect. Regularisation of services of the petitioner (now represented by his legal representatives) was further sought, on the post of Resident Supervisor in the Haryana Labour Welfare Board, Chandigarh, on the basis of a resolution stated to have been passed by the Board on 25.11.1993. As a matter of fact, it seems that the petition was originally filed seeking only regularization of the petitioners' services on the said post, as the order of the Division Bench, issuing notice on 07.03.1994, states that the petitioner shall be allowed to hold the post with the "usual break of one day". However, a subsequent order, dated 08.08.1994, records that the petitioners' services had been terminated during pendency of the writ petition, whereas, as a matter of fact, the termination order was prior to 07.03.1994. 2. Be that as it may the petition was admitted to regular hearing vide order dated 17.02.1995, with a direction that the interim stay would continue. Though, back in 1995, counsel for the respondents had staled that the written statement filed to the original writ petition be treated as the reply to the amended petition also, however, when the case came up for hearing now, an application for placing on record the written statement to the amended petition was filed, which was allowed on the date that the arguments were heard and judgment was reserved, as no replication was sought to be filed on behalf of the petitioner. 3. The facts leading up to filing of the writ petition, are that the late petitioner, Narender Kumar, was appointed as a Resident Supervisor in the pay-scale of Rs. 950-1500/- for a period of 89 days, vide order dated 27.12.1991 (Annexure P-1). The petitioner was posted to the Holiday Home of the respondent Welfare Board at Haridwar, then in Uttar Pradesh. One of the conditions of the said order was that the appointment can be terminated at any time without notice and without assigning any reasons. 4. 950-1500/- for a period of 89 days, vide order dated 27.12.1991 (Annexure P-1). The petitioner was posted to the Holiday Home of the respondent Welfare Board at Haridwar, then in Uttar Pradesh. One of the conditions of the said order was that the appointment can be terminated at any time without notice and without assigning any reasons. 4. The petitioner continued on the said post by virtue of extensions given to him from time to time, each for a period of 89 days, with seemingly no break in between, as per the chart produced in Para 4 of the petition, which has not been denied. The last extension given was on 03.12.1993, effective from 11.12.1993 till 09.03.1994. Prior to his last two extensions, the petitioner was transferred from Haridwar to Chandigarh, vide order dated 24.08.1993. 5. On 25.11.1993, the respondent-Board passed a resolution by which the services of those employees who complete two years employment, were approved to be regularized, subject to their work and conduct being satisfactory. The petitioners' name, along with 13 others, was also recommended to be approved for such regularization subject to the same condition, in view of the fact that he would be completing two years' continuous service on 30.12.1993, by virtue of the extensions given to him from time to time, each for a period of 89 days. 6. Though the petitioners' claim is that vide the said resolution his name was approved for regularization, the stand of the Board is that the services of those employees who had joined on 89 days basis were to be regularised and they were to be issued new appointment letters, as soon as they completed two years' service, if their work and conduct had remained satisfactory. Thus there was a general approval for regularisation but each case had to be, therefore, specifically approved. 7. Further, the petitioners' contention in his petition, was to the effect that for the years 1991-92 and 1992-93, be received Annual Confidential Reports with a grading of "Very Good". The reply of the Board, on the other hand, is that the grading for these 2 years was "Good", but during the year 1993-94, during inspection it was found that he had embezzled an amount of Rs. 2,274/-. Consequently, he was not inducted into regular service and, instead, his temporary services were terminated vide the impugned order. The reply of the Board, on the other hand, is that the grading for these 2 years was "Good", but during the year 1993-94, during inspection it was found that he had embezzled an amount of Rs. 2,274/-. Consequently, he was not inducted into regular service and, instead, his temporary services were terminated vide the impugned order. The order is stated to have been passed in accordance with Clause (ii) of his appointment letter and is a non-stigmatic order. The impugned order is reproduced herein below:-- "Haryana Labour Welfare Board No. HLWB/EST./ Dated: 04.03.1994 Office Order Sh. Narender Kumar was appointed as Resident Supervisor on temporary basis for a period of 89 days with the condition that this appointment can be terminated at any time without notice or without assigning any reason therefore. His services are hereby terminated with immediate effect being no longer required. Dated: 03.03.1994 Krishan Muirj Hooda, Chairman, Haryana Labour Welfare Board, Chandigarh. Endst. No. HLWB/EXt/1057-58 dated 04.03.1994 A copy is forwarded to the following for information and necessary action. 1. Bill Accountant Haryana Labour Welfare Board, Chandigarh. His pay may be claimed up to 03.03.1994. 2. Sh. Narender Kumar son of Sh. Ishwar Singh, V.P.O. Sanghi, District Rohtak. Sd/- Joint Labour Commissioner, for Chairman, Haryana Labour Welfare Board, Chandigarh." 8. The reply further states that the said amount of Rs. 2,274/- was found to have been embezzled, upon an inspection having been conducted by the Senior Accounts Officer of the Board from 23.12.1993 to 26.12.1993. A perusal of the said report, which has been annexed with the amended reply, shows that it is with regard to bogus/fake billing having been made by the petitioner in respect of workmen of different companies, who where shown to have stayed at the Holiday Home at Haridwar on different dates, between May to July, 1993. 9. Six such cases have been given by the Senior Accounts Officer vide his report dated 07.01.1994, in which he reported that in the case of two persons who were shown by the petitioner to have visited the Holiday Home, they were actually on duty in their respective establishments on the dates in question and, as such, the reimbursement of fare made by the petitioner was not on account of any travel actually made by them, or any tickets purchased by them. 10. 10. In four other cases where the workmen are stated to have stayed at the Holiday Home, reimbursement made to them is stated to be on account of additional tickets which were actually never bought or presented by them to the petitioner. As such, the petitioner is stated to have actually embezzled the amounts which he had shown to have been reimbursed to the workmen mentioned in the report. All these cases are of the period between May, 1993 to the end of July, 1993. 11. Thus, on account of the above, the termination orders were issued to the petitioner, who nevertheless, on the strength of the interim order passed by this Court, continued to remain in service till 04.09.2006, on which date he submitted his resignation, on the ground that he was mentally disturbed as he had not been given any allowances, earned leave, medical leave or even annual increments, for the 12-13 year period in between. The fact of the resignation having been accepted or not is not mentioned in the reply, seemingly on account of the fact that the petitioners' services had actually been terminated and his continuation in employment was only on account of the stay order in his favour. 12. As per the reply, he never attended office after 04.09.2006 and unfortunately died on 15.04.2007. 13. Mr. S.K. Hooda, learned counsel for the petitioner, firstly submitted that in view of the fact that the petitioner had actually completed two years service before the report dated 07.01.1994 was submitted, he would be entitled to the benefit of the resolution dated 25.11.1993 and, consequently he should have been regularized in service. Thereafter, in case any allegations were pending against him, me same could only be substantiated or negated by way of regular disciplinary proceedings, in which the petitioner would have to be given a complete chance to participate and to defend himself. On the other hand, he contended, what has been done is that simply on the basis of the report, without any opportunity to the petitioner to defend himself, his services were terminated, with no reasons assigned for the same. As such, me petitioner would be entitled to the relief claimed in the petition, by setting aside the termination order and ordering regularization of his services, with effect from the date he completed two years employment with the respondent-Board, with all consequential benefits flowing there from. As such, me petitioner would be entitled to the relief claimed in the petition, by setting aside the termination order and ordering regularization of his services, with effect from the date he completed two years employment with the respondent-Board, with all consequential benefits flowing there from. 14. Learned counsel for the petitioner further argued that the petitioners' juniors were regularized, in terms of the resolution of the Board dated 25.11.1993. 15. Suraj Bhan Hooda, learned counsel for the respondents, on the other hand, submitted as under: (i) That the termination was as per condition. (ii) of the appointment order of the petitioner, to the effect that "the appointment can be terminated at any time without notice and without assigning any reasons therefore." (ii) That the petitioner was appointed on 89 days basis without any recourse to the normal employment method of inviting candidates from the Employment Exchange. (iii) That the petitioner was a temporary employee, whose appointment kept getting extended for 89 days vide each extension order and, not being a regular employee, no regular enquiry was required. (iv) That the condition put in the proposal put up to the Board on 19.11.1993, recommending the regularization of the services of the petitioner along with 13 others, upon their completing two years of employment, was that their work and conduct were satisfactory. In fact this was what was approved by the Board vide the resolution passed/meeting held, on 25.11.1993. (v) That in any case, as per the law now settled in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, it has been held that even if someone was wrongly regularized earlier, such regularization cannot he done now. (vi) That the impugned order of termination is completely a non- stigmatic order, in tune with the petitioners' appointment order and as such, such an order cannot be assailed in the case of a temporary employee. In this regard, learned counsel for the respondents relied upon a judgment of the Hon'ble Supreme Court in Pavanendra Narayan Verma Vs. Sanjay Gandhi P.G.I. of Medical Sciences and anr, (vii) That the petitioner had voluntarily submitted his resignation on 04.09.2006 and thereafter he did not attend work, despite notice having been issued to him, till the date he died. As such, no further relief, other than that given by virtue of the stay order, can be granted. 16. In rebuttal, Mr. Sanjay Gandhi P.G.I. of Medical Sciences and anr, (vii) That the petitioner had voluntarily submitted his resignation on 04.09.2006 and thereafter he did not attend work, despite notice having been issued to him, till the date he died. As such, no further relief, other than that given by virtue of the stay order, can be granted. 16. In rebuttal, Mr. S.K. Hooda, learned counsel for the petitioner, submitted that the respondents having admitted that the ACRs of the petitioner had remained at least "Good" prior to 1993-94, his subsequent conduct could not be taken into account to either block his regularization or to terminate his services in the manner that it has been done. He further submitted that it is obvious from a perusal of the proposal put up to the Board on 19.11.1993 (Annexure P-3), that exemption for appointment, without reference to the Employment Exchange, had been obtained from the competent authority, i.e. the Labour and Welfare Minister, Haryana and as such, the contention of counsel for the respondents to that effect, was untenable. He also submitted that upon non-regularization of the petitioner, despite having completed two years employment on 30.12.1993, he had submitted a representation (Annexure P-5) on 17.01.1994 to the Labour Welfare Commissioner, seeking such regularization. 17. To support his contentions, Mr. S.K. Hooda relied upon the following judgments:-- (i) Om Prakash Goel Vs. The Himachal Pradesh Tourism Development Corporation Ltd., Shimla and another, (ii) Smt. Rajinder Kaur Vs. State of Punjab and Another, (iii) Rajinder Kumar Vs. State of Haryana and Others, (iv) Rajan Devi v. The State of Haryana and others, 1991 (3) RSJ 160; (v) Jagjit Singh, Ex-Constable v. The Director General of Police, Punjab, Chandigarh and others, 1991(1) RSJ 653; (vi) Ved Parkash and others v. State of Haryana and others, 1991(1) RSJ 678. 18. After considering the stand taken in the pleadings as also the arguments raised by both learned counsel on either side, I am of the view that unfortunately, no relief can be granted to the petitioner. 19. 18. After considering the stand taken in the pleadings as also the arguments raised by both learned counsel on either side, I am of the view that unfortunately, no relief can be granted to the petitioner. 19. Two fold issues are involved in this case:-- (i) the right of a temporary employee with regard to continuation after a prima facie case of embezzlement has been made out against him and (ii) regularization of service, of a temporary employee, especially when his appointment was not made after following the rules prescribed for the method of recruitment or after giving equal opportunity of such employment to the general public. 20. Coining first to the issue of the petitioner' termination vide the impugned order dated 4.3.1994, the said order was passed without any reference to his misconduct and as such is a non-stigmatic order. The order further states that the termination was as per the petitioners' appointment order, which appointment was on a temporary basis for a period of 89 days. The obvious question is as to whether such an order could have been passed, even though it does not cast any stigma on the petitioner by making any reference to the reason for his termination, as has been given in the written statement filed by the respondents. Normally, of-course, termination on account of any misconduct of an employee can be only upon providing an opportunity to the employee to defend himself against the charges of such misconduct and, in my view, the petitioner should have at least been given that basic opportunity to do so, even though, being a temporary employee, such opportunity would not have been by way of regular disciplinary proceedings as are instituted in the case of a regular employee. Whether or not such opportunity was given to him without any recording made with respect to the same, is impossible to comment upon, in the absence of any averment in the pleadings on either side and in the absence of any record produced to that effect. 21. However, even having expressed this Courts' opinion on a basic issue of fairness of opportunity, the question is, can an order simplicitor of termination, in the case of a temporary employee, be set aside in law, on the above ground? 21. However, even having expressed this Courts' opinion on a basic issue of fairness of opportunity, the question is, can an order simplicitor of termination, in the case of a temporary employee, be set aside in law, on the above ground? That question, because of the law prevailing on the issue, has to be answered in the negative and it has to be held that such termination cannot be faulted in the case of such an employee, if it is as per his terms of appointment. The petitioners' appointment was initially made on 27.12,1991 by way of the following communication addressed to him:-- "From The Welfare Commissioner, Haryana 30 Bays Building, Sector-17, Chandigarh To Sh. Narender Kumar s/o Sh. Ishwar Singh, Village & P.O. Sanghi, District, Rohtak (Haryana). No.HLWB/4268 Dated 27.12.1991 Subject: Appointment to the post of Resident Supervisor. ... You are hereby offered the post of Resident Supervisor, Holiday Home, (Haryana), Haridwar in the pay scale of Rs. 950-20-1150-EB-25-1500 on purely temporary basis for a period of 89 days on the following terms and conditions:-- (i) You shall have to furnish a declaration to the effect that in the event of your being married, you have only one living wife and you shall not contract living wife. (ii) The appointment can be terminated at any time without notice and without assigning any reasons therefore. (iii) No T.A./D.A. Will be allowed for joining the appointment, If you accept the offer of appointment, on the terms and conditions specified above, you should report for duty in the office of Resident Supervisor, Holiday Home (Haryana), Haridwar within a week of the receipt of this letter under intimation to this office. If you fail to join the duty by the due date without sufficient reasons this offer would stand cancelled. Sd/- Joint Labour Commissioner, for Chairman, Haryana Labour Welfare Board, Chandigarh. Endst. No. HLWB/ Dated:-- A copy is forwarded to the following for information and necessary action:-- 1. Bill Assistant, Haryana Labour Welfare Board, Chandigarh. 2. Sh. Hukam Singh, Resident Supervisor, Holiday Home (Haryana) Niranjani Akhara Road, Ambala House, Mayapuri, Haridwar and he is directed to hand over charge of Holiday Home to Sh. Narender Kumar S/o. Sh. Ishwar Singh and report for duty in the Head Officer immediately. Sd/- Joint Labour Commissioner, for Chairman, Haryana Labour Welfare Board, Chandigarh." 22. 2. Sh. Hukam Singh, Resident Supervisor, Holiday Home (Haryana) Niranjani Akhara Road, Ambala House, Mayapuri, Haridwar and he is directed to hand over charge of Holiday Home to Sh. Narender Kumar S/o. Sh. Ishwar Singh and report for duty in the Head Officer immediately. Sd/- Joint Labour Commissioner, for Chairman, Haryana Labour Welfare Board, Chandigarh." 22. Thus, firstly, the appointment was on purely temporary basis, even though in a regular pay-scale, for a period of only 89 days. Secondly, as per Clause (ii) of the above appointment letter, the appointment could be terminated at any time without notice and without assigning any reasons thereof. Thirdly, as already said earlier, the appointment was not by recourse to a normal method of recruitment, giving equal opportunity to the general public. 23. Subsequent extensions in the appointment, each for a period of 89 days, were admittedly given on the same terms and conditions, even as per pleadings in the writ petition, though the subsequent orders have not been annexed thereto. 24. Whereas Clause (ii) of the appointment letter can, in certain circumstances, be termed to be wholly arbitrary, however, where termination in terms of the said clause is on account of mis-conduct or the work of the employee not being to the satisfaction of the employer, it has been held that no fault can be found in such termination. In this regard, the judgment of the Supreme Court in State of U.P. and Others Vs. Rekha Rani, (2011) 11 SCC 441 can be cited. In that case, the Supreme Court was seized of a matter where, though the respondent-employee (a Doctor in Ayurvedic medicine), was not discontinued as a result of any misconduct but simply was not continued after her one year temporary employment expired, the Apex Court nonetheless held, while referring to State of Uttar Pradesh and Another Vs. Kaushal Kishore Shukla, (1991) 1 SCC 691 that no opportunity of hearing was necessary for termination of services in the case of a temporary employee. A perusal of the judgment in Shuklas' case (supra) reveals that it was held as under:-- "6. The High Court held that the termination of respondent's services on the basis of adverse entry in the character roll was not in good faith and the punishment imposed on him was disproportionate. It is unfortunate that the High Court has not recorded any reasons for this conclusion. The High Court held that the termination of respondent's services on the basis of adverse entry in the character roll was not in good faith and the punishment imposed on him was disproportionate. It is unfortunate that the High Court has not recorded any reasons for this conclusion. The respondent had earned an adverse entry and complaints were made against him with regard to the unauthorised audit of the Boys Fund in an educational institution, in respect of which a preliminary inquiry was held and thereupon, the competent authority was satisfied that the respondent was not suitable for the service. The adverse entry as well as the preliminary inquiry report with regard to the complaint of unauthorised audit constituted adequate material to enable the competent authority to form the requisite opinion regarding the respondents suitability for service. Under the service jurisprudence a temporary employee has no right to hold the post and his services are liable to be terminated in accordance with the relevant service rules and the terms of contract of service. If on the perusal of the character roll entries or on the basis of preliminary inquiry on the allegations made against an employee, the competent authority is satisfied that the employee is not suitable for the service whereupon the services of the temporary employee are terminated, no exception can be taken to such an order of termination. 7. A temporary Govt. servant has no right to hold the post, his services are liable to be terminated by giving him one month's notice without assigning any reason either under the terms of the contract providing for such termination or under the relevant statutory rules regulating the terms and conditions of temporary Govt. servants. A temporary Govt. servant can, however, be dismissed from service by way of punishment. Whenever, the competent authority is satisfied that the work and conduct of a temporary servant is not satisfactory of that his continuance in service is not in public interest on account of his unsuitability, misconduct or inefficiency, it may either terminate his services in accordance with the terms and conditions of the service or the relevant rules or it may decide to take punitive action against the temporary Government servant. If it decides to take punitive action it may hold a formal inquiry by framing charges and giving opportunity to the Govt. If it decides to take punitive action it may hold a formal inquiry by framing charges and giving opportunity to the Govt. servant in accordance with the provisions of Article 311 of the Constitution, Since, a temporary Govt. servant is also entitled to the protection of Article 311(2) in the same manner as a permanent Govt. servant, very often, the question arises whether an order of termination is in accordance with the contract of service and relevant rules regulating the temporary employment or it is by way of punishment. It is now well-settled that the form of the order is not conclusive and it is open to the Court to determine the true nature of the order. In Parshotam Lal Dhingra Vs. Union of India (UOI), AIR 1958 SC 36 a Constitution Bench of this Court held that the mere use of expressions like 'terminate' or 'discharge' is not conclusive and in spite of the use of such expressions, the Court may determine the true nature of the order to ascertain whether the action taken against the Govt. servant is punitive in nature. The Court further held that in determining the true nature of the order the Court should apply two tests namely: (1) whether the temporary Govt. servant had a right to the post or the rank or (2) whether he has been visited with evil consequences; and if either of the tests is satisfied, it must be held that the order of termination of a temporary Govt. servant is by way of punishment. It must be borne in mind that a temporary Govt. servant has no right to hold the post and termination of such a Govt. servant does not visit him with any evil consequences. The evil consequences as held in Parshotam Lal Dhingra's case (supra) do not include the termination of services of a temporary Govt. servant in accordance with the terms and conditions of service. The view taken by the Constitution Bench in Dhingra's case has been reiterated and affirmed by the Constitution Bench decisions of this Court in The State of Orissa and Another Vs. Ram Narayan Das, AIR 1961 SC 177 ; Champaklal Chimanlal Shah Vs. The Union of India (UOI), AIR 1964 SC 1854 ; Jagdish Mitter Vs. The Union of India (UOI), AIR 1964 SC 449 ; A.G. Benjamin v. Union of India; Samsher Singh Vs. Ram Narayan Das, AIR 1961 SC 177 ; Champaklal Chimanlal Shah Vs. The Union of India (UOI), AIR 1964 SC 1854 ; Jagdish Mitter Vs. The Union of India (UOI), AIR 1964 SC 449 ; A.G. Benjamin v. Union of India; Samsher Singh Vs. State of Punjab and Another, (1974) 2 SCC 831 : Samsher Singh Vs. State of Punjab and Another, ( AIR 1968 SC 1089 Supra) These decisions have been discussed and followed by a three Judge Bench in State of Punjab and Another Vs. Shri Sukh Raj Bahadur, AIR 1968 SC 1089 (Emphasis supplied in the present judgment) 8. Learned Counsel for the respondent urged that the allegations made against the respondent in respect of the audit of Boys Fund of an educational institution were incorrect and he was not given any opportunity of defence during the inquiry which was held ex parte, Had he been given the opportunity, he would have placed correct facts before the inquiry officer. His services were terminated on allegation of misconduct founded on the basis of an ex parte enquiry report. He further referred to the allegations made against the respondent in the counter-affidavit filed before the High Court and urged that these facts demonstrate that the order of termination was in substance, an order of termination founded on the allegations of misconduct, and the ex parte enquiry report. In order to determine this question, it is necessary to consider the nature of the respondent's right to hold the post and to ascertain the nature and purpose of the inquiry held against him. As already observed, the respondent being a temporary Govt. servant had no right to hold the post, and the competent authority terminated his services by an innocuous order of termination without casting any stigma on him. The termination order does not indict the respondent for any misconduct. The inquiry which was held against the respondent was preliminary in nature to ascertain the respondent's suitability and continuance in service. There was no element of punitive proceedings as no charges had been framed, no inquiry officer was appointed, no findings were recorded, instead a preliminary inquiry was held and on the report of the preliminary inquiry the competent authority terminated the respondent's services by an innocuous order in accordance with the terms and conditions of his service. There was no element of punitive proceedings as no charges had been framed, no inquiry officer was appointed, no findings were recorded, instead a preliminary inquiry was held and on the report of the preliminary inquiry the competent authority terminated the respondent's services by an innocuous order in accordance with the terms and conditions of his service. Mere fact that prior to the issue of order of termination, an inquiry against the respondent in regard to the allegations of unauthorised audit of Boys Fund, was held does not change the nature of the order of termination into that of punishment as after the preliminary inquiry the competent authority took no steps to punish the respondent instead it exercised its power to terminate the respondent's services in accordance with the contract of service and the Rules." 25. A similar view, with some additional safeguards in favour of employees in temporary employment, was expressed by a Division Bench of this Court in Gurcharan Singh v. State of Punjab & another, (1997) 2 SLR 642 : (1997 Lab IC 2362). Para No. 7 of that Judgment runs as under:- "7. It appears to us that attention of the Division Bench which decided Harjot Kamal Singh's case was not drawn to the clear difference in the nature of appointment of the petitioners in Rajni Bala's case and Gordhan Singh Gulia's case. Apparently due to this the Division Bench expressed its reservation regarding the observations made in Gordhan Singh Gulia's case and Rajni Bala's case. However, we have no doubt in our mind that their no conflict between the two sets of decisions and a careful reading of them lead to the following conclusions:-- (i) A person who has been appointed on ad hoc or temporary basis without any selection does not acquire any right whatsoever to hold the post or to be continued in service and his service can be terminated without any notice. The Court will not protect the appointment of such ad hoc appointee because that would amount to perpetuation of illegality committed by the appointing authority in making backdoor appointment. The Court will not protect the appointment of such ad hoc appointee because that would amount to perpetuation of illegality committed by the appointing authority in making backdoor appointment. (ii) However, where a person is appointed on ad hoc or temporary basis after due consideration of the competing claims of other similarly situated persons, me employer is not vested with an absolute right to terminate the service of the person on the basis of arbitrary, irrational and unconscionable conditions of employment incorporated in the letter of appointment and if the Court finds that termination of service is not supported by reasons or the action taken by the employer is otherwise arbitrary, the same will be liable to interference by the Court. (iii) Service of an ad hoc appointee falling in category (ii) above cannot be terminated till the availability of regularly selected persons except where the Government decides not to continue the post or the work or performance of such ad hoc appointee is found to be unsatisfactory or where it becomes necessary to terminate the service of ad hoc appointee as a measure of disciplinary action." Thus, in a case of appointments made without recourse to a proper method of recruitment and selection process, services of a temporary employee have been held to be liable to termination, without notice, in terms of the letter granting employment. 26. Further, in the judgment cited by Mr. Suraj Bhan Hooda, on behalf of the respondents, i.e. Pavanendra Narayan Verma Vs. Sanjay Gandhi P.G.I. of Medical Sciences and anr, (2002) 1 SCC 520 while dealing with the issue of termination of a temporary employee by an order simplicitor, it has been held as under: "28. Therefore, whenever a probationer challenges his termination the Court's first task will be to apply the test of stigma or the "form" test. If the order survives this examination the "substance" of the termination will have to be found out. 29. Before considering the facts of the case before us one further, seemingly intractable, area relating to the first test needs to be cleared viz. What language in a termination order would amount to a stigma? Generally speaking when a probationer's appointment is terminated it means that the probationer is unfit for the job, whether by reason of misconduct or ineptitude, whatever the language used in the termination order may be. What language in a termination order would amount to a stigma? Generally speaking when a probationer's appointment is terminated it means that the probationer is unfit for the job, whether by reason of misconduct or ineptitude, whatever the language used in the termination order may be. Although strictly speaking, the stigma is implicit in the termination, a simple termination is not stigmatic. A termination order which explicitly states what is implicit in every order of termination of a probationer's appointment, is also not stigmatic. The decisions cited by the parties and noted by us earlier, also do not hold so. In order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job. 30. As was noted in Dipti Prakash Banerjee Vs. Satvendra Nath Bose National center for Basic Sciences, Calcutta and Others, (2002) 1 SCC 520 "28. At the outset, we may slate that in several cases and in particular in State of Orissa v. Ram Narayan Das it has been held that use of the word 'unsatisfactory work and conduct' in the termination order will not amount to a stigma." Thus, it is obvious that when a non-stigmatic order has been held to be good in the case of a regularly selected employee, during his period of probation, obviously the impugned order passed in the case of the petitioner who was only an employee appointed for a period of 89 days vide each appointment order, cannot be held to be bad. 27. Coming to the judgments relied upon by Sh. S.K. Hooda, learned counsel for the petitioner. The first judgment, in the case of Om Parkash Goel (supra) was the case of a temporary employee whose termination order was quashed by the Supreme Court and the judgment of the High Court, dismissing the employees' petition, was set aside. In that case, the petitioner before the Court was an Accountant on probation in the transport wing of the Tourism Development Corporation who detected some irregularities and upon his pointing them out and his stand being supported by the employees' union, his services were terminated after giving him one months' pay in Lieu of notice, as per terms and conditions of his appointment letter. It was held as under by their Lordships of the Supreme Court:-- "4. It was held as under by their Lordships of the Supreme Court:-- "4. From the above decisions it can be seen that it is well-settled that in a case of an order of termination even that of a temporary employee the Court has to see whether the order was made on the ground of misconduct if such a complaint was made and in that process that Court would examine the real circumstances as well as the basis and foundation of the order complained of and if the Court is satisfied that the termination of services is not so innocuous as claimed to be and if the circumstances further disclose that it is only a camouflage with a view to avoid and enquiry as warranted by article 311(2) of the Constitution, then such a termination is liable to be quashed. In the above mentioned decisions, the impugned termination order was accordingly quashed." Thus it would be seen that, in that particular case, the petitioners' termination was set aside after the Court went into the reasons behind the termination and found that such termination was actually on account of the petitioner having pointed out the financial irregularities and embezzlements which were taking place in the Corporation. Obviously, the present case is not of such a nature and nothing at all has been stated to that effect, either in the petition or even in any argument made in Court. The said case cited by Shri S.K. Hooda, would not, therefore, apply to the present case at all. 28. Two of the other cases, one from the Apex Court and one of a co-ordinate Bench of this Court, relied upon by Learned counsel for the petitioner, do support the stand taken by him to some extent, inasmuch as in both those cases, the issue was as to whether or not a Police Constable could be discharged from service during his/her probationary period, in terms of Rule 12.21 of the Punjab Police Rules, 1934, on the ground that he or she is unlikely to prove to be an efficient Police Officer. In the case before the Supreme Court, i.e. Smt. Rajinder Kaur Vs. State of Punjab and Another, (1986) 4 SCC 141 it was held by their Lordships, after discussion on the case law on the subject, as under :-- 13. In the case before the Supreme Court, i.e. Smt. Rajinder Kaur Vs. State of Punjab and Another, (1986) 4 SCC 141 it was held by their Lordships, after discussion on the case law on the subject, as under :-- 13. "On a conspectus of all these decisions mentioned hereinbefore, the irresistible conclusion follows that the impugned order of discharge though couched in innocuous terms, is merely a camouflage for an order of dismissal from service on the ground of misconduct. This order has been made without serving the appellant any charge-sheet, without asking for any explanation from her and without giving any opportunity to show cause against the purported order of dismissal from service and without giving any opportunity to cross-examine the witnesses examined, that is, in other words the order has been made in total contravention of the provisions of Article 311(2) of the Constitution. The impugned order is, therefore, liable to be quashed and set aside. A writ of certiorari be issued on the respondents to quash and set aside the impugned order dated 9.9.1980 of her dismissal from service. A writ in the nature of mandamus and appropriate directions be issued to allow the appellant to be reinstated in the post from which she has been discharged. The appeal is thus allowed with costs. The authorities concerned will pay all her emoluments to which she is entitled to in accordance with the extant rules as early as possible in any case not later than eight weeks from the date of this judgment". A similar view was expressed by a co-ordinate Bench of this Court in Jagjit Singh, Ex-Constable v. The Director General of Police, Punjab, Chandigarh and Ors. (1991) 1 RSJ 653. 29. These judgments, though essentially holding that even in the case of a temporary employee, dismissal cannot be ordered without an inquiry having been conducted, would not come to the petitioners' rescue, in view of the fact that in both these cases the employees were appointed after due selection, and it was during the course of their period of probation in service that they were discharged from such service, on the ground mentioned above. 30. 30. Though Rule 12.21 of the Punjab Police Rules has been subject-matter of some controversy and discussion in various judgments, both, of this Court and of the Hon'ble Supreme Court, that issue is not being gone into in the present case, as the petitioner in the present case was employed, in each successive term of his appointment, for a period of 89 days each and was not appointed as per procedure adopted for regular appointment in service, even though he was appointed against a permanent post, on the terms and conditions given in the appointment letter. Hence, applying the test laid down in Parshotam Lal Dhingras' case ( AIR 1958 SC 36 ), referred to in Shuklas' case (1991 AIR SCW 793) (supra), it cannot be said that the petitioner had a vested right to hold the post in question. 31. This would then bring us to the near question, of whether the petitioner, having been appointed against a permanent post, even though for a period of 89 days each time, was entitled to be regularized against such post after he had completed 2 years on such temporary employment, in terms of the resolution/decision of the Haryana Labour Welfare Board (Respondent No. 1 dated 25.11.1993 (Annexure P4), prior to his termination. Learned counsel for the petitioner would want this Court to proceed on the ground that the petitioner having completed 2 years employment on 30.12.1993, was entitled to such regularization in terms of the decision of the Board referred to above, since such period was completed prior to submission of the enquiry/audit report dated 07.01.1994; and since he would then be a regular employee on that date, his services could not have been terminated by way of the impugned order, without going through the procedure of a regular departmental inquiry/disciplinary proceedings. 32. 32. Whereas, no doubt, learned counsels' contention may sound at least technically correct at first blush, I cannot bring myself to agree with the same, in view of the fact that even as per the decision dated 25.11.1993, it was decided as under:-- xxxxx ''Apart from this, the Board also resolved that those employees working in me Board on 89 days basis and if this extension in service is to be allowed before this meeting of the Board, (sic) The same may be allowed by the Chairman Haryana Labour Welfare Board and its approval may be obtained in the next meeting of the Board and as soon as those employees who complete two years period and action may be taken as per proposal with regard to the regularisation of their services." The proposal, as put up to the Board, vide agenda item No. 8, on 19.11.1993 (Annexure P-3 with the petition), which included the petitioners' name also for regularization, along with other employees, was as under:-- xxxxxx "As such it is proposed that the Board may accord its administrative approval for the regularisation of those employees who were appointed without the approval of the Board as also on 89 days basis and extension in service given to them from time to time so as to avoid Audit objection. Besides it is also proposed that those employees as soon as they complete two years and their work and conduct is satisfactory, after completing necessary requisite formalities and after indicating two years probating period, new appoint letter may be issued." (Emphasis supplied) Thus, firstly, the recommendation to the board was for regularisation of the employees' services upon completion of 2 years employment on the condition of work and conduct being satisfactory; secondly, as is obvious from the decision dated 25.11.1993, action was to be taken as per the proposal and approval obtained from the Board in its next meeting, after the employees had completed 2 years of service. Taking the second point first, there is nothing on record to show that such approval was ever granted by the Board after the decision dated 25.11.1993, in the petitioners' case. Taking the second point first, there is nothing on record to show that such approval was ever granted by the Board after the decision dated 25.11.1993, in the petitioners' case. It is equally obvious that the same would be for the reason pertaining to the first point, i.e. that in the meanwhile, within 8 days of the petitioner having completed two years of employment, the report of the Accounts Officer, giving instances of embezzlement of small amounts of money by the petitioner, was submitted on 7.1.1994 and as such the petitioners' case could not have been approved by the Board in the circumstances. At this stage it would need to be reiterated that, at that point, the petitioner, not being a regular employee, even though some explanation could have been sought from him with regard to the alleged mis-conduct. even so, as per the law laid down in the judgment of Kaushal Kishore Shukla (supra), the employer was not bound to seek such clarification, in view of the terms and conditions of each appointment of the petitioner from time to time, on 89 days basis. 33. Other than the above, on the larger issue of regularization of the services of temporary employees, upon their having been in employment for some periods of time, that matter is now well-settled in view of the 5 Judge Bench decision in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, (2006) 4 SCC 1 as cited by Sh. Suraj Bhan Hooda, learned counsel for the respondent. The relevant paragraphs from the abovesaid decision are reproduced here-in-under:-- "47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post. xxxxxxxxx 49. It is contended that the State action in not regularizing the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in Tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution. 50. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution. 50. It is argued that in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, the action of the Suite in not making the employees permanent, would be violative of Article 21 of the Constitution. But the very argument indicates that there are so many waiting for employment and an equal opportunity for competing for employment and it is in that context that the Constitution as one of its basic features, has included Articles 14, 16 and 309 so as 10 ensure that public employment is given only in a fair and equitable manner by giving all those who are qualified, an opportunity to seek employment. In the guise of upholding rights under Article 21 of the Constitution of India, a set of persons cannot be preferred over a vast majority of people waiting for an opportunity to compete for State employment. The acceptance of the argument on behalf of the respondents would really negate the rights of the others conferred by Article 21 of the Constitution, assuming that we are in a position to hold that the right to employment is also a right coming within the purview of Article 21 of the Constitution. The argument that Article 23 of the Constitution is breached because the employment on daily wages amounts to forced labour, cannot be accepted. After all, the employees accepted the employment at their own volition and with eyes open as to the nature of their employment. The Governments also revised the minimum wages payable from time to time in the light of all relevant circumstances. It also appears to us that importing of these theories to defeat the basic requirement of public employment would defeat the constitutional scheme and the constitutional goal of equality. 51. The argument that the right to life protected by Article 21 of the Constitution of India would include the right to employment cannot also be accepted at this juncture. The law is dynamic and our Constitution is a living document. 51. The argument that the right to life protected by Article 21 of the Constitution of India would include the right to employment cannot also be accepted at this juncture. The law is dynamic and our Constitution is a living document. May be at some future point of time, the right to employment can also be brought in under the concept of right to life or even included as a fundamental right. The new statute is perhaps a beginning. As things now stand, the acceptance of such a plea at the instance of the employees before us would lead to the consequence of depriving a large number of other aspirants of an opportunity to compete for the post or employment. Their right to employment, if it is a part of right to life, would stand denuded by the preferring of those who have got in casually or those who have come through the back door. The obligation east on the State under Article 39(a) of the Constitution of India is to ensure that all citizens equally have the right to adequate means of livelihood. It will be more consistent with that policy if the courts recognize that an appointment to a post in Government service or in the service of its instrumentalities, can only be by way of a, proper selection in the manner recognized by the relevant legislation in the context of the relevant provisions of the Constitution. In the name of individualizing justice, it is also not possible to shut our eyes to the constitutional scheme and the right of the numerous as against the few who are before the court. The Directive Principles of State Policy have also to be reconciled with the rights available to the citizen under Part III of the Constitution and the obligation of the State to one and all and not to a particular group of citizens. We, therefore, overrule the argument based on Article 21 of the Constitution. 52. Normally, what is sought for by such temporary employees when they approach the court, is the issue of a writ of mandamus directing the employee the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons. 52. Normally, what is sought for by such temporary employees when they approach the court, is the issue of a writ of mandamus directing the employee the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Rai Shivendra Bahadur Vs. The Governing Body of the Nalanda College, AIR 1962 SC 1210 That case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. This Court held that m order that a mandamus may issue to compel the authorities to do something, it must be shown That the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it, This classical position continues and a mandamus could not be issued in favour of the employees directing the Government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent. 53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in State of Mysore and Another Vs. S.V. Narayanappa, AIR 1967 SC 1071 , R.N. Nanjundappa Vs. T. Thimmiah and Another, (1972) 1 SCC 409 and B.N. Nagarajan and Others Vs. State of Karnataka and Others, and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not sub-judice, need not be reopened based on this judgment, but there should be no further by passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme. 54. It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents." 34. Hence, even if Mr. Shri Krishan Hoodas' contentions with regard to the termination order being bad are accepted at face value (which, of-course, is not the case as already held hereinabove), regularization of the petitioners' service, even though it may have been acceptable at the point of time when such regularization was proposed in 1993-94, cannot be directed, in view of the authoritative pronouncement on the subject in Umadevis' case (supra), as the petitioner, even if all outer parameters are dropped, does not fall within the exception carved out in para No. 53 of the said judgment. In any case, that issue is rendered academic in view of the fact that even in terms of the regularization policy then prevailing, the petitioner has been held to be not entitled thereto, in view of his conduct as a temporary employee having been found unsatisfactory or doubtful, by the respondents. 35. In any case, that issue is rendered academic in view of the fact that even in terms of the regularization policy then prevailing, the petitioner has been held to be not entitled thereto, in view of his conduct as a temporary employee having been found unsatisfactory or doubtful, by the respondents. 35. As such, learned counsel for the petitioners' contention that the petitioners' alleged juniors were regularized, also cannot come to his rescue in view of both the facts that, firstly, the petitioners' conduct as a temporary employee was not found satisfactory by the respondents and secondly, the law having gone through a sea change in the meanwhile, no such regularization can be ordered. 36. Even if for academic value, the judgments on regularization which have been cited by Sh. S.K. Hooda, would also need to be mentioned here, though they cannot be held to be applicable, for both reasons cited above, Other than the judgments cited by him on the general issue of regularization prior to the pronouncement in Umadevis' case, he has also cited a judgment of a co-ordinate Bench of this Court, in the case of Jagmal Singh and Ors. v. State of Haryana CWP No. 23745 of 2011, decided on 25.09.2012, i.e. after Umadevis' case. In that case, the Hon'ble Judge had relied upon 2 earlier judgments of this Court, in Arun Kumar & Ors. v. State of Haryana & Ors. (CWP No. 4821 of 2011 decided on 19.4.2012) and Ved Pal and Ors. v. State of Haryana and Ors. (CWP No. 11691 of 2009 decided on 10-02-2012). Quoting from one of the 2 cases, it was held (in CWP No. 23745 of 2011) that:-- XXXX "In view of the above also, especially in the tight of the fact that persons similarly appointed subsequent to the petitioners have been regularized whereas the claim of the petitioners has only been rejected on the ground that the regularization policy stands withdrawn, cannot be accepted as they had a better and prior right to consideration for regularization than the persons who have been appointed later than the petitioners. The moment the persons junior to the petitioners, whose cases cannot be distinguished with regard to the nature of appointment, work and responsibilities from that of petitioners, stands regularized on the vacant or created post, on which the petitioners had a prior and superior right by virtue of their length of service. Articles 14 and 16 stand violated and in such circumstances, the action of the respondents in rejecting the claim of the petitioners cannot be sustained. Reliance placed by the counsel for the respondents in G.V. Chandershekar's case (2009 AIR SCW 2346 : 2009 Lab IC 1731) (supra) would not affect the decision of this case as there are no statutory rules governing the service and in the absence of such rules, the provisions as contained under the ID Act would apply which would be further tapered with the observations of the Supreme Court in para 53 of the Secretary, State of Karnataka and Others Vs. Umadevi and Others, and State of Karnataka and Others Vs. M.L. Kesari and Others, (2006) 4 SCC 1 State of Karnataka and Others Vs. M.L. Kesari and Others, (2010) 9 SCC 247 in which a direction was given by explaining Umadevis' case (supra), to the effect that the directions given in Para No. 53 of Umadevis' case, with regard to regularization of those who had completed 10 years of service at the time when the judgment of Umadevis' case was rendered, must be given effect to, even though the 6 month period given in Umadevis' case had expired. Thus, the learned co-ordinate Bench deciding CWP No. 23745 of 2011, placed reliance on the directions contained in Kesaris' case (supra), to order regularization of the petitioners before it, who had been granted continuity of service by the Labour Court, thus giving them 10 years of service by legal fiction. Obviously, the above said case does not apply to the present petitioner. Hence, in view of all that has been discussed above and in the circumstances of the case, the petitioner cannot be given anything more than what he already got by way of continuation in employment, by virtue of the stay order dated 07.03.1994. Consequently, the writ petition has to fail and is, thus, dismissed, with no order as to costs.