Full Judgment Text
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
JUDGMENT
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.
1
Page 1
3. This appeal arises out of a judgment in CWP No.
13915 of 2002 of the High Court of Punjab and Haryana
rd
dated 23 January, 2003. 20 unsuccessful petitioners in
the above writ-petition are the appellants herein. The
High Court dismissed the writ petition following an earlier
th
judgment of a Division Bench in LPA 209 of 1992 dated 6
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
JUDGMENT
1
recruitment under section 17 of the Police Act, 1861
(hereinafter referred to as ‘the Act’) which enabled the
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
Page 2
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”
JUDGMENT
6. The appellants herein assert that all the appellants
are ex-servicemen and registered with the employment
2
exchange. They were recruited as Special Police Officers.
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
Page 3
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
JUDGMENT
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.
4
Page 4
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.
JUDGMENT
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 &
5
Page 5
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:
JUDGMENT
“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.
6
Page 6
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
JUDGMENT
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
7
Page 7
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
st
1 appellant - which we take to be representative of the
JUDGMENT
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
8
Page 8
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
JUDGMENT
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
9
Page 9
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
JUDGMENT
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
10
Page 10
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.
JUDGMENT
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.
11
Page 11
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
JUDGMENT
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
12
Page 12
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
JUDGMENT
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
13
Page 13
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
JUDGMENT
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.
14
Page 14
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
JUDGMENT
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
15
Page 15
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.”
JUDGMENT
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
16
Page 16
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
3
of the Police Act, 1861.
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
4
and Ors. (1987) 3 SCC 308.
JUDGMENT
29. The abovementioned process clearly indicates it is
not a case where persons like the appellants were
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.
17
Page 17
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 &
JUDGMENT
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
18
Page 18
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
JUDGMENT
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
19
Page 19
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
5
administration.
”
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
JUDGMENT
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
5
42 American Jurisprudence 902 Para 31
20
Page 20
abolished those posts. While examining the legality of
6
such abolition, this Court had to deal with an argument
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
JUDGMENT
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.”
21
Page 21
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
JUDGMENT
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
22
Page 22
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.
JUDGMENT
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
23
Page 23
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.
JUDGMENT
24
Page 24