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Tuesday, August 13, 2013

Appointment of Special police officers from ex-service men = whether this court can compel the State of Punjab to create posts and absorb the appellants into the services of the State on a permanent basis consistent with the Constitution Bench decision of this court in Umadevi’s case. = The appellants herein assert that all the appellants are ex- servicemen and registered with the employment exchange. They were recruited as Special Police Officers.[2] = i) That it will not be possible to provide police guard to banks unless the Banks were willing to pay for the same and additional force could be arranged on that basis, it was decided that police guards should be requisitioned by the Banks for their biggest branches located at the Distt. and Sub Divisional towns. They should place the requisition with the Distt. SSPs endorsing a copy of IG CID. In the requisition, they should clearly state that the costs of guard would be met by them. It will then be for the police department to get additional force sanctioned. This task should be done on a top priority. In the meantime depending upon the urgency of the need of any particular branch, police Deptt. may provide from police strength for its protection. ii) For all other branches guards will be provided by Distt. SSP after selecting suitable ex-servicemen or other able bodied persons who will be appointed as Special Police Officer in terms of Section 17 of the Police Act. Preference may be given to persons who may already be in possession of licence weapons. All persons appointed as SPO for this purpose will be given a brief training for about 7 days in the Police Lines in the handling of weapons taking suitable position for protection of branches. These SPOs will work under the discipline and control and as per Police Act, they will have the same powers, privileges and protection and shall be amenable to same penalty as an ordinary police personnel.”= The other factor which the State is required to keep in mind while creating or abolishing posts is the financial implications involved in such a decision. The creation of posts necessarily means additional financial burden on the exchequer of the State. Depending upon the priorities of the State, the allocation of the finances is no doubt exclusively within the domain of the Legislature. However in the instant case creation of new posts would not create any additional financial burden to the State as the various banks at whose disposal the services of each of the appellants is made available have agreed to bear the burden. If absorbing the appellants into the services of the State and providing benefits at par with the police officers of similar rank employed by the State results in further financial commitment it is always open for the State to demand the banks to meet such additional burden. Apparently no such demand has ever been made by the State. The result is – the various banks which avail the services of these appellants enjoy the supply of cheap labour over a period of decades. It is also pertinent to notice that these banks are public sector banks. We are of the opinion that neither the Government of Punjab nor these public sector banks can continue such a practice consistent with their obligation to function in accordance with the Constitution. Umadevi’s judgment cannot become a licence for exploitation by the State and its instrumentalities. For all the abovementioned reasons, we are of the opinion that the appellants are entitled to be absorbed in the services of the State. The appeals are accordingly allowed. The judgments under appeal are set aside. We direct the State of Punjab to regularise the services of the appellants by creating necessary posts within a period of three months from today. Upon such regularisation, the appellants would be entitled to all the benefits of services attached to the post which are similar in nature already in the cadre of the police services of the State. We are of the opinion that the appellants are entitled to the costs throughout. In the circumstances, we quantify the costs to Rs.10,000/- to be paid to each of the appellants.

                   published in       http://judis.nic.in/supremecourt/imgst.aspx?filename=40625                                 
      Reportable




                        IN THE SUPREME COURT OF INDIA


                        CIVIL APPELLATE JURISDICTION


                        CIVIL APPEAL NO. 1059 OF 2005


Nihal Singh & Others                         …Appellants
            Versus
State of Punjab & Others                           …Respondents


                                    WITH
                     CIVIL APPEAL NO.  6315     OF 2013
               [Arising out of SLP (Civil) No. 12448 of 2009)

Bhupinder Singh & Others                     …Appellants
            Versus
State of Punjab & Others                           …Respondents



                               J U D G M E N T

Chelameswar, J.

1.    Leave granted in SLP (Civil) No.12448 of 2009.


2.    Since both the appeals raise a common question of law,  the  same  are
being disposed of by this common judgment.  For the sake of convenience,  we
shall refer to the facts in Civil Appeal No.1059 of 2005.

3.    This appeal arises out of a judgment in CWP No. 13915 of 2002  of  the
High  Court  of  Punjab  and  Haryana  dated  23rd   January,   2003.     20
unsuccessful petitioners in  the  above  writ-petition  are  the  appellants
herein.  The High Court dismissed the writ  petition  following  an  earlier
judgment of a Division Bench in LPA 209 of 1992 dated 6th  September,  1993,
which in turn arose out of Civil Writ  Petition  No.  5280  of  1988.    The
facts leading to all these writ petitions as could be culled  out  from  the
material on record are as follows:-

4.    There was a large scale disturbance in the State of Punjab  in  1980s.
State was not  in  a  position  to  handle  the  prevailing  law  and  order
situation with the available  police  personnel.  Therefore,  the  State  of
Punjab resorted to recruitment under section 17[1] of the Police  Act,  1861
(hereinafter referred to as ‘the  Act’)  which  enabled  the  State  (police
officers not  below  the  rank  of  Inspector)  to  appoint  Special  Police
Officers.

5.    The factual background in which persons such as the appellants  herein
came to be appointed is recorded in the judgment in LPA No. 209 of  1992  as
follows:-
          “I was at the meeting held on March 24, 1984 between  the  Advisor
          to the Governor of Punjab and Senior officers of the banks in  the
          public Sector  Operating  in  Punjab  that,  after  reviewing  the
          security arrangements for banks in Punjab,  it  was  decided  that
          SPOs be appointed for the said purpose in terms of section  17  of
          the Police Act, 1861 (hereinafter referred to as the Act).    This
          step was taken as it was felt that it would not  be  possible  for
          the State Govt. to provide the requisite police  guards  to  banks
          and that, thereafter, this additional force be raised, in order to
          do so, the banks undertook to take over the  financial  burden  of
          the SPOs to be appointed, but it was clearly  understood  that  as
          per the provisions of the Act, such Police Officers would be under
          the discipline and control of the Senior Superintendent of  Police
          of the district concerned.   As regards their remuneration it  was
          decided that SPOs would be paid an honorarium of Rs. 15/- per day.
             This  was,  however,  later  enhanced  to  Rs.  30/-  per  day.
          Relevant in the context of the  SPOs  to  be  appointed,  was  the
          further decision”


6.     The  appellants  herein  assert  that  all  the  appellants  are  ex-
servicemen  and  registered  with  the  employment  exchange.    They   were
recruited as Special Police Officers.[2]

7.    The appointment order of the first appellant reads as follows:
      “Nihal Singh s/o Shri Nidhan Singh r/o Kallah PS Sadar 7-7  is  hereby
      appointed as a Special Police Officer under section 17 of  the  Police
      Act, 1961, in the rank of SPO and  is  assigned  special  constabulary
      number 277.  He shall be entitled to all privileges under  Police  Act
      1861 and shall be under the administrative control of the  undersigned
      in the matter of discipline etc.


      He shall be paid Rs.35/- per day by the concerned bank of  posting  as
      honorarium from the date he actually takes over charge of his duty.”




8.    In the background of  such  appointments,  various  persons  who  were
appointed, including the appellants herein, approached  the  High  Court  of
Punjab & Haryana from  time  to  time  seeking  appropriate  directions  for
regularisation of their services.  It appears that  the  petitioners  herein
also had approached the High Court earlier in CWP No.19390 of  2001  praying
that  their  services  be  regularized  in   the   light   of   notification
No.11/34/2000-4PP-III/1301 dated 23.1.2001.   The  said  writ  petition  was
dismissed by order dated 12.12.2001 directing consideration of the cases  of
the petitioners therein (appellants herein) in accordance with the  law  and
pass a speaking order.


9.    Pursuant to the said directions, the Senior Superintendent of  Police,
Amritsar (hereinafter referred to as ‘the SSP’) purported  to  consider  the
cases  of  the  appellants  herein  and  passed  an  order  dated  23.4.2002
rejecting the claim of the appellants.  The relevant portion  of  the  order
reads as follows:
      “In compliance with the aforesaid order dated 12.12.2001 passed by the
      Hon’ble High Court of Punjab and Haryana, the joint legal notice dated
      3.4.2001  (Annexure  P-4)  submitted  by  the  petitioners,  has  been
      examined by the undersigned and it has been found that the  petitioner
      is not entitled to claim the relief of regularization of his  services
      as he was appointed as SPOs (Bank  Guards)  on  daily  wages  basis  @
      Rs.30/- per day by the SSP/Amritsar vide No.14477-80/B  dated  27.4.87
      S.P.O. (Bank Guard), on the request of the Bank Authorities which were
      increased later on from time to time as per Govt. instructions.   They
      were appointed as SPO (Bank Guards) in order to  provide  them  power,
      privileges and protection of  ordinary  police  official  as  provided
      under section 18 of the Police Act 1861 due to terrorism in the  State
      at that time.  The petitioners are still working as  guards  with  the
      Gramin Banks and daily wages is being given by the  Bank  Authorities.
      No seniority of  the  S.P.O.  (Bank  Guard)  has  been  maintained  in
      Amritsar District.  SPO (Bank Guard) is still working with the  Gramin
      banks in Amritsar district and he can lay his claim, if  any,  to  the
      bank authorities instead of the Police Department.


      Keeping in view the above legal notice dated 3.4.2001  (annexure  P.4)
      has  been  considered.   The  notification  No.11/34/2000-4PP-III/1301
      dated 23.1.2001 is not applicable in the  case  bank  guard  as  their
      daily wages are being paid by the bank.  As such,  the  claim  of  the
      petitioner (Bank Guards) SPO Ajit Singh No.247/ASR is not maintainable
      against the State of Punjab or this Office. Legal notice Annexure  P-4
      is devoid of any legal force and is being rejected.  The petitioner be
      informed personally.”

10.    Challenging  the  said  order,  the  appellants  herein  once   again
approached the High Court  of  Punjab  &  Haryana  in  Civil  Writ  Petition
No.13915 of 2002 which came to be dismissed by the judgment under appeal.

11.   As already noticed, the appellants’ writ  petition  was  dismissed  on
the basis of an earlier judgment of the  High  Court  of  Punjab  &  Haryana
passed in Letter Patent Appeal No.209 of 1992.  In the  said  Letter  Patent
Appeal filed by the persons similarly situated  as  the  appellants  herein,
the High Court of Punjab & Haryana recorded a categoric finding  that  there
is a relationship of master and servant between the State of Punjab and  the
SPOs:
      “Such being the situation, there can be no escape from the  conclusion
      that the relationship of master and servant of SPOs is with the  State
      govt. and not with the banks.”


However, the claim of the SPOs for regularization was refused holding:
      “As regards regularization of the services of Special Police Officers,
      by the very nature and  purpose  of  their  appointment  as  such,  no
      occasion arises to warrant such regularization.  As mentioned earlier,
      there is no regular cadre for such  posts,  nor  have  any  particular
      number of posts been created for this purpose.  These factors  clearly
      mitigate against such services being regularized.”




12.   Relying on the said conclusion, the writ petition  of  the  appellants
herein also came to be dismissed. Hence the present appeal.

13.   We are required to examine  the  correctness  of  the  decision  dated
23.4.2002 of the SSP as approved by the judgment under appeal.  
The  reason
assigned by the SSP for rejecting the claim of the appellants (the  relevant
portion of which order is already extracted above) is  that  the  appellants
are working as guards with various banks and their wages are being  paid  by
such banks and, therefore, their claim for regularization, if any, lay  only
to the concerned bank but not to the police department.

14.   Learned counsel for the appellants Shri  R.K.  Kapoor  submitted  that
the conclusion of the SSP that appellants cannot have any claim against  the
State of Punjab to seek regularization of their services  is  clearly  wrong
in view of the fact that the master and servant relationship exists  between
the appellants and the State of Punjab.  Coming to  the  conclusion  of  the
High Court that in the absence of regularly constituted cadre or  sanctioned
posts,  regularization  of  the  services  of  the  appellants   cannot   be
guaranteed, Shri Kapoor argued that the  authority  to  create  posts  vests
exclusively with the State.  The State cannot  extract  the  work  from  the
persons like the appellants for decades and turn  back  to  tell  the  court
that it cannot regularize the services of such persons in view of  the  fact
that these appointments were not made against any sanctioned posts.


15.   On the other hand, Shri Kuldip Singh, learned  counsel  appearing  for
the State submitted that in the light of the Constitution Bench decision  of
this Court in Secretary, State of Karnataka and Ors v. Umadevi (3)  and  Ors
(2006) 4 SCC 1, in absence of a sanctioned post the relief  such  as  prayed
by the appellants cannot be given.


16.   As can be seen from the order of appointment of the  1st  appellant  -
which we take to be representative of the orders of appointment of  all  the
appellants  (a  fact  which  is  not  disputed  by  the   respondent),   the
appointment was made by the SSP in exercise of  the  statutory  power  under
section  17  of  the  Act.   
It  is  categorically  mentioned  in  the  said
appointment order that the appellants are entitled  to  all  the  privileges under the Act. The powers, privileges and obligations of the SPOs  appointed in exercise of the powers under section 17  of  the  Act  are  specified  in section 18 which reads as follows:
      “Every special police officers so appointed shall  have  same  powers,
      privileges and protection, and shall be liable  to  perform  the  same
      duties and shall be amenable to the same penalities and be subordinate
      to the same authorities, as the ordinary officers of police.”

17.   It is obvious both from the said  section  and  also  the  appointment
orders, the appellants are  appointed  by  the  State  in  exercise  of  the
statutory power under section 17 of the Act.  The  appellants  are  amenable
to the disciplinary control of the  State  as  in  the  case  of  any  other
regular police officers.  The only distinction is that they are to  be  paid
daily wages of Rs.35 (which came to be revised from time to time).  
Further, such payment was to be made by the bank to whom the services of each one  of the appellants is made available.


18.   From the mere fact that the payment of wages came  from  the  bank  at
whose disposal the services of each of  the  appellants  was  kept  did  not
render the appellants employees of those banks.  The appointment is made  by
the State.  The disciplinary control vests with the State.  The two  factors
which conclusively establish that the relationship  of  master  and  servant exists between the State  and  the  appellants.
A  fact  which  is  clearly
recognized by the division bench of the High Court in LPA  No.209  of  1992.
It may be worthwhile mentioning here that under  the  law  of  contracts  in
this country the consideration for a contract need  not  always  necessarily
flow from the parties to a contract. The decision of the SSP to  reject  the
claim of the appellants only on the basis that the payment of wages  to  the
appellants herein was being made  by  the  concerned  banks  rendering  them
disentitled to seek regularization of  their  services  from  the  State  is
clearly untenable.

19.   Coming to the judgment of the division bench  of  the  High  Court  of
Punjab & Haryana in LPA No.209 of 1992 where the claims  for  regularization
of the similarly situated persons  were  rejected  on  the  ground  that  no
regular cadre or sanctioned posts are available for regularization of  their
services, the High Court may be factually right in recording that  there  is
no  regularly  constituted  cadre  and  sanctioned   posts   against   which
recruitments of persons like the  appellants  herein  were  made.   However,
that does not conclusively decide the issue  on  hand.  The  creation  of  a
cadre or sanctioning of posts for a cadre is  a  matter  exclusively  within
the authority of the State. That the State did not choose to create a  cadre
but chose to make appointments of persons creating contractual  relationship
only demonstrates  the  arbitrary  nature  of  the  exercise  of  the  power
available under section 17 of the Act.  The  appointments  made  have  never
been terminated thereby enabling various banks to utilize  the  services  of
employees of the State for a  long  period  on  nominal  wages  and  without
making available any other service  benefits  which  are  available  to  the
other employees of the State, who are discharging functions similar  to  the
functions that are being discharged by the appellants.


20.   No doubt that the powers under section 17 are meant  for  meeting  the
exigencies contemplated under it, such as, riot  or  disturbance  which  are
normally expected to be of a short duration. Therefore, the State might  not
have initially thought of creating either a cadre or permanent posts.


21.   But we do not see any justification for the State to  take  a  defence
that after permitting the utilisation of the services  of  large  number  of
people like the appellants for decades to say that there are  no  sanctioned
posts to absorb the appellants.  Sanctioned posts do not fall  from  heaven.
State has to create them  by  a  conscious  choice  on  the  basis  of  some
rational assessment of the need.


22.   The question is
whether this court can compel the State of  Punjab  to
create posts and absorb the appellants into the services of the State  on  a permanent basis consistent with the  Constitution  Bench  decision  of  this court in Umadevi’s case.  
To answer this question, the  ratio  decidendi  of
the Umadevi’s case is required to be examined.  In  that  case,  this  Court
was considering the legality of the action of  the  State  in  resorting  to
irregular appointments without reference to the  duty  to  comply  with  the
proper appointment procedure contemplated by the Constitution.
      “4. … The Union, the States, their departments  and  instrumentalities
      have resorted to irregular appointments, especially in the lower rungs
      of the service, without reference to  the  duty  to  ensure  a  proper
      appointment  procedure  through  the  Public  Service  Commissions  or
      otherwise as per the rules  adopted  and  to  permit  these  irregular
      appointees or those appointed  on  contract  or  on  daily  wages,  to
      continue year after year, thus, keeping out those who are qualified to
      apply for the post concerned and depriving them of an  opportunity  to
      compete for the post. It has also led to  persons  who  get  employed,
      without the following of a  regular  procedure  or  even  through  the
      backdoor or on daily wages, approaching the courts, seeking directions
      to  make  them  permanent  in  their  posts  and  to  prevent  regular
      recruitment to the posts concerned. The courts have  not  always  kept
      the legal aspects in  mind  and  have  occasionally  even  stayed  the
      regular process of employment being set in motion and in  some  cases,
      even directed that these illegal, irregular or  improper  entrants  be
      absorbed into service. A class of employment which can only be  called
      “litigious employment”, has risen like a phoenix  seriously  impairing
      the constitutional  scheme.  Such  orders  are  passed  apparently  in
      exercise of the wide powers under Article  226  of  the  Constitution.
      Whether the wide powers under Article  226  of  the  Constitution  are
      intended to be used for a purpose certain to  defeat  the  concept  of
      social justice and equal opportunity for all, subject  to  affirmative
      action in the  matter  of  public  employment  as  recognised  by  our
      Constitution, has to be seriously pondered over.”


                                                         (emphasis supplied)


23.   It can be seen from the above that the  entire  issue  pivoted  around
the fact that the State initially made appointments  without  following  any
rational procedure envisaged under the Scheme of  the  Constitution  in  the
matters of public appointments.  This court while recognising the  authority
of the State to make temporary appointments engaging workers on daily  wages
declared that the regularisation of the employment  of  such  persons  which
was made without following the procedure conforming to  the  requirement  of
the Scheme of the Constitution in the matter of public  appointments  cannot
become an alternate mode of  recruitment  to  public  appointment.   It  was
further declared that the jurisdiction of the  Constitutional  Courts  under
Article 226 or Article 32 cannot be exercised to  compel  the  State  or  to
enable  the  State  to  perpetuate  an  illegality.  This  court  held  that
compelling the State to absorb persons who were employed  by  the  State  as
casual workers or daily-wage workers for a long period on  the  ground  that
such a practice would be an arbitrary practice and violative of  Article  14
and would itself offend another aspect of Article 14 i.e.  the  State  chose
initially to appoint such persons without any rational procedure  recognized
by law thereby depriving vast number of other eligible candidates  who  were
similarly situated to compete for such employment.

24.   Even going by the principles laid down in Umadevi’s case,  we  are  of
the opinion that the State of  Punjab  cannot  be  heard  to  say  that  the
appellants are not entitled to be absorbed into the services  of  the  State
on permanent basis as their  appointments  were  purely  temporary  and  not
against any sanctioned posts created by the State.


25.   In our opinion, the initial appointment of the  appellants  can  never
be categorized as an irregular appointment.  The initial appointment of  the
appellants is made in accordance with the statutory  procedure  contemplated
under the Act. The decision to resort to such a procedure was taken  at  the
highest level of the State by conscious choice as  already  noticed  by  us.
The High Court in its decision in LPA  No.209  of  1992  recorded  that  the
decision to resort to the procedure under section 17 of the  Act  was  taken
in a meeting dated 24.3.1984  between  the  Advisor  to  the  Government  of
Punjab and senior officers of the various Banks in the public sector.   Such
a decision was taken as there was a need to provide  necessary  security  to
the public sector banks.  As the State was not  in  a  position  to  provide
requisite police guards to the banks, it was decided by the State to  resort
to section 17 of the Act.  As the employment of such additional force  would
create a further financial burden on the State, various public sector  banks
undertook to take over the financial burden arising out of such  employment.
 In this regard, the written statement filed before the High  Court  in  the
instant case by respondent  nos.1  to  3  through  the  Assistant  Inspector
General of Police (Welfare & Litigation) is necessary to be noticed.  It  is
stated in the said affidavit:
      “2.   That in meeting of higher officers held on 27.3.1984 in Governor
      House Chandigarh with Shri Surinder Nath, IPS, Advisor to Governor  of
      Punjab, in which following decisions were taken:-


        i) That it will not be possible to provide police  guard  to  banks
           unless the Banks were willing to pay for the same and additional
           force could be arranged on  that  basis,  it  was  decided  that
           police guards should be requisitioned by  the  Banks  for  their
           biggest branches located at the Distt. and Sub Divisional towns.
             They  should  place  the  requisition  with  the  Distt.  SSPs
           endorsing a copy of IG CID.  In  the  requisition,  they  should
           clearly state that the costs of guard would be met by them.   It
           will then be for the police department to get  additional  force
           sanctioned.  This task should be done on a top priority.  In the
           meantime  depending  upon  the  urgency  of  the  need  of   any
           particular  branch,  police  Deptt.  may  provide  from   police
           strength for its protection.

       ii) For all other branches guards will be  provided  by  Distt.  SSP
           after selecting suitable  ex-servicemen  or  other  able  bodied
           persons who will be appointed as Special Police Officer in terms
           of Section 17 of the Police Act.  Preference  may  be  given  to
           persons who may already be in  possession  of  licence  weapons.
           All persons appointed as SPO for this purpose will  be  given  a
           brief training for about 7 days  in  the  Police  Lines  in  the
           handling of weapons taking suitable position for  protection  of
           branches.  These SPOs will work under the discipline and control
           and  as  per  Police  Act,  they  will  have  the  same  powers,
           privileges and protection and shall be amenable to same  penalty
           as an ordinary police personnel.”

26.   It can be seen from the above that a selection  process  was  designed
under which the District Senior Superintendent  of  Police  is  required  to
choose suitable  ex-servicemen  or  other  able  bodied  persons  for  being
appointed as Special Police Officers in terms of section 17 of the Act.   It
is indicated that the persons who are already in possession  of  a  licensed
weapon are to be given priority.


27.    It  is  also  asserted  by  the  appellants  that  pursuant  to   the
requisition by the police department  options  were  called  upon  from  ex-
servicemen who were willing to be enrolled as Special Police Officer  (SPOs)
under section 17 of the Police Act, 1861.[3]


28.   Such a procedure making recruitments through the employment  exchanges
was held to be consistent with the requirement of Articles 14 and 16 of  the
Constitution by this Court in Union of India and Ors.  v.  N.  Hargopal  and
Ors. (1987) 3 SCC 308.[4]


29.   The abovementioned process clearly indicates it is not  a  case  where
persons like the appellants were arbitrarily  chosen  to  the  exclusion  of
other eligible candidates.  It  required  all  able  bodied  persons  to  be
considered by the SSP who was charged with the responsibility  of  selecting
suitable candidates.


30.   Such a process of selection is sanctioned by law under section  17  of
the Act.  Viewed in the context of the situation prevailing  at  that  point
of time in the State of  Punjab,  such  a  process  cannot  be  said  to  be
irrational.  The need was to obtain the services of  persons  who  had  some
experience and training in handling an extraordinary  situation  of  dealing
with armed miscreants.


31.   It can also be noticed from the written  statement  of  the  Assistant
Inspector General of Police  (Welfare  &  Litigation)  that  preference  was
given  to  persons  who  are  in  possession  of  licensed   weapons.    The
recruitment of the appellants and other similarly situated persons was  made
in the background of terrorism prevailing in the State  of  Punjab  at  that
time as  acknowledged  in  the  order  dated  23.4.2002  of  the  SSP.   The
procedure which is followed during the normal times  of  making  recruitment
by inviting applications and scrutinising the same to identify the  suitable
candidates  would  itself  take  considerable  time.   Even  after  such   a
selection  the  selected  candidates  are  required  to  be  provided   with
necessary arms and also be trained in  the  use  of  such  arms.   All  this
process is certainly time consuming.  The requirement of the  State  was  to
take swift action in an extra-ordinary situation.

32.   Therefore, we are  of  the  opinion  that  the  process  of  selection
adopted  in  identifying  the  appellants  herein  cannot  be  said  to   be
unreasonable or arbitrary in the sense that  it  was  devised  to  eliminate
other eligible candidates.  It may be worthwhile to note that  in  Umadevi’s
case, this Court was dealing with appointments made  without  following  any
rational procedure in the lower rungs of various services of the  Union  and
the States.


33.   Coming to the other aspect of the  matter  pointed  out  by  the  High
Court - that in  the  absence  of  sanctioned  posts  the  State  cannot  be
compelled to absorb the persons like the appellants  into  the  services  of
the State, we can only say that  posts  are  to  be  created  by  the  State
depending upon the need to employ people having regard to various  functions
the State undertakes to discharge.
      “Every sovereign Government has within its own jurisdiction right  and
      power to create whatever public offices it may regard as necessary  to
      its proper functioning and its own internal administration.”[5]




34.   It is no doubt that the assessment of the need  to  employ  a  certain
number of people for discharging a particular responsibility  of  the  State
under the Constitution is always with the executive Government  of  the  day
subject to the overall control of the  Legislature.    That  does  not  mean
that an examination by a Constitutional Court regarding the accuracy of  the
assessment of the need is barred.   This Court in S.S. Dhanoa  v.  Union  of
India (1991) 3 SCC 567 did examine the correctness of  the  assessment  made
by the executive government.  It was a case where Union of  India  appointed
two Election Commissioners in addition to the  Chief  Election  Commissioner
just before the general elections to  the  Lok  Sabha.   Subsequent  to  the
elections, the new government abolished those posts.   While  examining  the
legality of such abolition, this Court  had  to  deal  with  an  argument[6]
whether the need to have additional commissioners ceased subsequent  to  the
election.  It was the case of the Union of India  that  on  the  date  posts
were created there was a need to have additional commissioners  in  view  of
certain factors such as the reduction of the lower age limit of  the  voters
etc.  This Court categorically held that “The truth  of  the  matter  as  is
apparent from the  record  is  that  …….there  was  no  need  for  the  said
appointments…..”.


35.   Therefore, it is clear that the existence of the need for creation  of
the posts is a relevant factor reference to which the  executive  government
is required to take rational decision based on relevant  consideration.   In
our opinion, when the facts such as the ones obtaining in the  instant  case
demonstrate that there is need for the creation of  posts,  the  failure  of
the executive government to apply its mind and take  a  decision  to  create
posts or stop extracting work from persons such  as  the  appellants  herein
for decades together itself would be  arbitrary  action  (inaction)  on  the
part of the State.


36.   The other factor which the State is required to  keep  in  mind  while
creating or abolishing posts is the financial implications involved in  such
a decision.  The creation of posts necessarily  means  additional  financial
burden on the exchequer of the State.  Depending upon the priorities of  the
State, the allocation of the finances is no  doubt  exclusively  within  the
domain of the Legislature.  However in the  instant  case  creation  of  new
posts would not create any additional financial burden to the State  as  the
various banks at whose disposal the services of each of  the  appellants  is
made available have agreed to bear the burden. If absorbing  the  appellants
into the services of the State  and  providing  benefits  at  par  with  the
police officers of similar rank employed by the  State  results  in  further
financial commitment it is always open for the State to demand the banks  to
meet such additional burden.  Apparently no such demand has ever  been  made
by the State.  The result is – the various banks which  avail  the  services
of these appellants enjoy the supply  of  cheap  labour  over  a  period  of
decades.  It is also pertinent to notice that these banks are public  sector
banks.  We are of the opinion that neither  the  Government  of  Punjab  nor
these public sector banks can  continue  such  a  practice  consistent  with
their  obligation  to  function  in  accordance   with   the   Constitution.
Umadevi’s judgment cannot become a licence for  exploitation  by  the  State and its instrumentalities.


37.   For all the abovementioned reasons, we are of  the  opinion  that  the
appellants are entitled to be absorbed in the services of  the  State.   The
appeals are accordingly allowed.  The judgments under appeal are set  aside.



38.   We direct the State of  Punjab  to  regularise  the  services  of  the
appellants by creating necessary posts within a period of three months  from
today.  Upon such regularisation, the appellants would be  entitled  to  all
the benefits of services attached to the post which are  similar  in  nature
already in the cadre of the police services of the State.   We  are  of  the
opinion that the appellants are entitled to the costs  throughout.   In  the
circumstances, we quantify the costs to Rs.10,000/- to be paid  to  each  of
the appellants.


                                                         ………………………………………..J.
                                         (H.L. Gokhale)



                                                         …………………………………..……J.
                                         (J. Chelameswar)
New Delhi;
August 7, 2013.
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[1]    Section 17, Police  Act,  1861  –  When  it  shall  appear  that  any
unlawful assembly, or riot or disturbance of the peace has taken  place,  or
may be reasonably apprehended, and that  police  force  ordinarily  employed
for preserving the peace is not sufficient for its preservation and for  the
protection of the inhabitants and the security  of  property  in  the  place
where such unlawful assembly or  riot  or  disturbances  of  the  peace  has
occurred, or is apprehended, it shall be lawful for any police  officer  not
below the rank of Inspector to apply to the nearest  Magistrate  to  appoint
so many of the residents of the neighbourhood as such  police  officers  may
require to act as SPOs for such time and within  such  limits  as  he  shall
deem necessary and the Magistrate to whom such application  is  made  shall,
unless he sees cause to the contrary, comply with the application.

[2]    Ground IV of SLP - …It was  the  Police  Department  which  sent  the
intimation to the employment exchange and thereafter all  the  ex-servicemen
who were enrolled with the Employment Exchange  were  called  upon  and  got
their option to be enrolled as Special Police Officer (SPOs)  under  section
17 of the Police Act, 1861.   Those persons who were  having  armed  licence
were enrolled as SPOs and this enrolment was made by the  Superintendent  of
Police, Amritsar.   Similar orders were  passed  by  the  Superintendent  of
Police regarding all the petitioners between 1986 to 1994.
[3]    Paragraph 4 of the Writ petition and at page 34 of the SLP
Paperbook:

      “That the Government made a  policy  to  enrol  the  ex-servicemen  to
guard the  life  and  property  of  the  Government  employees  as  well  as
Government employees.  All  the  petitioners  being  ex-servicemen  enrolled
themselves  in the employment exchange.   The  police  department  sent  the
intimation to the employment exchange and thereafter all  the  ex-servicemen
who were enrolled with the Employment Exchange  were  called  upon  and  got
their option to be enrolled  in  as  Special  Police  Officer  (SPOs)  under
section 17 of the Police Act, 1861 (hereinafter called as the SPOs).   Those
persons who were having  armed  licence  were  enrolled  as  SPOs  and  this
enrolment was made by the Superintendent of Police, Amritsar.”

[4]    9.  … We, therefore, consider that insistence on recruitment  through
Employment Exchanges advances rather than restricts  the  rights  guaranteed
by Articles 14 and 16 of the Constitution.  The submission  that  Employment
Exchanges do not reach everywhere applies  equally  to  whatever  method  of
advertising vacancies is adopted.  Advertisement in  the  daily  press,  for
example, is also equally ineffective as it does not reach everyone  desiring
employment.
[5]    42 American Jurisprudence 902 Para 31

[6]    “21. In the first instance, the petitioner  and  the  other  Election
Commissioners were appointed  when  the  work  of  the  Commission  did  not
warrant their appointment. The  reason  given  by  respondent  1  (Union  of
India), that on account of the Constitution (61st  Amendment)  Act  reducing
the voting age and the Constitution (64th Amendment)  and  (65th  Amendment)
Bills relating to election to the Panchayats and Nagar Palikas, the work  of
the Commission was expected to increase and, therefore, there was  need  for
more Election Commissioners, cuts  no  ice.  As  has  been  pointed  out  by
respondent 2, the work relating to revision of electoral  rolls  on  account
of the reduction of voting age was completed in all the States except  Assam
by the end of July 1989 itself, and at the Conference of the Chief  Elecoral
Officers at Tirupati, respondent 2 had declared that the entire  preparatory
work relating to the conduct of the then ensuing general  elections  to  the
Lok Sabha would be completed by August in the whole of  the  country  except
Assam. Further,  the  Constitution  (64th  and  65th  Amendment)  Bills  had
already fallen in Parliament, before the appointments.  In  fact,  what  was
needed was more secretarial staff for which  the  Commission  was  pressing,
and not more Election Commissioners. What instead was done  was  to  appoint
the petitioner and the other Election  Commissioner  on  October  16,  1989.
Admittedly, further the views of the Chief Election  Commissioner  were  not
ascertained before making the said appointments. In fact, he  was  presented
with them for the first time  in  the  afternoon  of  the  same  day,  i.e.,
October 16, 1989.”

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