S.B. Sinha, C.J.
1. The status of the home guards appointed in terms of the Bombay Home Guard Act, 1947 (in short, 'the said Act') as extended to Delhi is the question involved in these three writ petitions.
2. The writ petitioners herein were appointed as Home Guards. Their services were sought to be terminated pursuant whereto they filed original applications before the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as 'the Tribunal'), which had been dismissed inter alia on the ground that they are not holders of civil post.
3. The contention of the petitioners is that the State under the garb of the statutory scheme under the said Act read with Delhi Home Guard Rules, 1954 (hereinafter referred to as 'the Rules') had been abusing their statutory power in terms whereof the Home Guards are recruited as labourers to supplement the normal regular work force engaged in its various Departments such as Police, Railways, etc.
4. The modus operandi of the respondents, according to the petitioners, is that their services are utilized as regular employees performing duties of regular nature continuously for years together and thus although they have become public/civil servants for all intents and purports, their services are terminated on mere whims and fancies of the State. Despite the fact that the petitioners had been appointed in terms of the provisions of the said Act, according to the learned counsel, there exists a relationship of master and servant between the State and the petitioners.
5. It has been contended that the Home Guards are paid out of the Central Government Fund. They performed their duties under the control and supervision of the Officers of the Government. The duties assigned to them are public in nature and the same are performed as the regular employees of the State. They are also working for the whole time and their services are not requisitioned only in emergency.
6. In that view of the matter, the petitioner would contend that it cannot be said to be a voluntary work by any stretch of imagination.
7. Mr. Vinay Sabharwal, the learned counsel appearing on behalf of the petitioner would contend that the petitioners are being exploited by taking advantage of the unemployment and poverty prevailing in the country and such an attitude on the part of the State, namely, exploiter of labour must be held to be illegal. Reliance in this connection has been placed on Daily Rated Casual Labour Employed Under P&T; Department v. Union of India and Ors. : (1988)ILLJ370SC .
8. The learned counsel would contend that such a practice is vocative of the provisions contained in Articles 14, 16 and 21 of the Constitution of India (in short, 'the Constitution') as thereby their basic human rights as also the fundamental rights are violated.
9. The learned counsel would contend that having regard to the fact that the employees have been working for a period of more than 240 days, their services should be directed to be regularized. Strong reliance in this connection has been placed on Secretary, Haryana State Electricity Board v. Suresh and Ors. etc. : (1999)ILLJ1086SC ; Management of D.C. Dewan Mohideen Sahib & Sons and Janab S. Ahmed Hussain & Sons v. The Industrial Tribunal, Madras : [1964]7SCR646 ; Union of India and Anr. v. U.D. Dwivedi : AIR1997SC1313 ; and Workmen Employed in Associated Rubber Industry Ltd., Bhavnagar v. Associated Rubber Industry Ltd., Bhavnagar and Anr. : (1986)ILLJ142SC .
10. Relying upon or on the basis of the decision of the Apex Court in Bandhua Mukti Morcha v. Union of India and Ors. : [1984]2SCR67 , the learned counsel appearing on behalf of the petitioners would contend that not only protection is to be extended to the employees, but also such protection of health and strength of workers, men and women, and their children must be extended so as to prevent abuse and lack of opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief.
11. The learned counsel would contend that had the petitioners been appointed in terms of the provisions of the said scheme, their services could not have been continued for a period beyond 3 years. It was contended that long and continuous service would give rise to a presumption about the need for regular work force. Reliance in this connection has been placed on State of Haryana and Ors. etc. etc. v. Piara Singh and Ors. etc. etc. : (1993)IILLJ937SC .
12. The learned counsel would further contend that even the Apex Court in Balwinder Singh v. State of Punjab : (1999)IILLJ1411SC had laid down the law that preference in appointment should be given to the members of Home Guards, but even the said decision had not been followed.
13. Mr. V.K. Tandon, the leaned appearing on behalf of respondent Nos. 3 to 5, however, would support the judgment of the Tribunal and submit that the petitioners having been appointed under a Statute, they cannot claim a status, which is not contemplated thereby.
14. With a view to consider the rival contentions of the parties, at the outset we may consider the relevant provisions of the Act.
'2. Constitution of Home Guard and appointment of Commandant General and Commandant: (1) The Chief Commissioner of Delhi shall constitute for the Union Territory of Delhi a volunteer body called the Home Guards, the members of which shall discharge such functions and duties in relation to the protection of persons, the security of property and the public safety as may be assigned to them in accordance with the provision of this Act and the rules made there under.
Provided that the Chief Commissioner of Delhi may, by notification in the official Gazette divide the Union Territory of Delhi into two or more areas and constitute such a volunteer body for each such area.
(2) The Chief Commissioner of Delhi may appoint a Commandant of each of Home Guards constituted under Sub-section (1).
(3) The Chief Commissioner of Delhi shall appoint a Commandant General of the Home Guards in whom shall vest the general supervision and control of the Home Guards throughout the Union Territory of Delhi and until a Commandant is appointed under Sub-section (2), the Commandant General may also exercise the powers and perform the functions assigned to the commandant by or under this Act.
3. Appointment of members--(1) Subject to the approval of the Commandant General, the Commandant may appoint as members of the Home Guards such numbers of persons, who are fit and willing to serve, as may from time to time be determined by the Chief Commissioner of Delhi, and may appoint any such member to any office of Commandant the Home Guards.
(2) Notwithstanding anything contained in Sub-section (1) the Commandant General, may subject to the approval of the Chief Commissioner of Delhi, appoint any such member to any post under his immediate control.
4. Functions and duties of members--(1) The Commandant may at any time call out a member of the Home Guards for training or to discharge any of the functions or duties assigned to the Home Guards in accordance with the provision of this Act and the rules there under.
(2) The Commandant General may in an emergency call out a member of the Home Guards for training or to discharge any of the said functions or duties in any part of the Union Territory of Delhi.
5. Powers, protection and control--(1) A member of the Home Guards when called out under Section 4 shall have the same powers and protection as an officer of police appointed under any Act for the time being in force.
(2) No prosecution shall be instituted against member of the Home Guards in respect of anything done or purporting to the done by him in the discharge of his functions or duties as such member except with the previous sanction of the District Magistrate.'
15. Section 6 provides for control of police force over the Home Guards.
16. Section 6-A postulates that every member of the Home Guards, upon cessation, would forthwith deliver up to the Commandant his certificate of appointment or of office and the arms, accouterments, clothing and other necessary items which had been furnished to him. Section 6-B provides for punishment of the members. Sub-section (1-A) of Section 6-B reads thus:-
'Notwithstanding anything contained in this Act, the Commandant shall have the authority to discharge any member of the Home Guards at any time subject to such conditions as may be prescribed, if, in the opinion of the Commandant, the services of such members are no longer required. The Commandant General shall have the like authority in respect of any member of the Home Guards appointed to a post under his immediate control.'
17. The said Act also provides for an appeal against an order of punishment. Section 9-A reads thus:-
'Home Guards not disqualified from contesting elections to the State Legislature or local bodies.'
18. Pursuant to or in furtherance of the powers conferred upon the Chief Commissioner of Delhi under the said Act, the Rules have been framed. Rule 6 of the Rules provides that a pledge shall be made by every person on his appointment as a member of the Home Guards in Form 'B'. Rule 8 of the Rules is in following terms:
'8. Term of Office-The term of office of a member of the Home Guards shall be three years.
Provided that the appointment of any such member may at any time be terminated by the Commandant General or the Commandant, as the case may be before the expiry of the term of office--
(a) by giving one month's notice, or
(b) without such notice, if such member is found to be medically unfit to continue as member of Home Guards.'
19. Rules 17 and 18 of the Rules read thus:-
'17. Functions and duties - (1) The functions and duties of the Home Guards shall be such as may be assigned by the Chief Commissioner or the Commandant General from time to time.
(2) A member of the Home Guards constituted or any area shall be liable to serve in any other area in which the Act is in force.'
'18. Compensation - If a member of the Home Guards suffers any damage to his person or property while under training or on duty, he shall be paid such compensation as may be determined by the Chief Commissioner; provided that such damage is not caused by his own negligence or willful act, omission in contravention of any of the provisions of the Act or rules made there under to orders or directions issued by his superior officers.'
20. The said Act postulates that the Home Guards would be a voluntary organization and the services of the members thereof can be requisitioned as and when required by the Commandant in the interest of the country. The said Act and the Rules further postulate that the members of the Force would be volunteers.
21. The petitioners having not questioned the virus of Section 2 of the said Act and the relevant Rules before the Tribunal cannot be permitted to raise the said contentions for the first time before this Court.
22. In Man Sukh Lal Rawal and Ors. v. Union of India and Ors., Civil Writ Petition No. 4286 of 1997 decided on 26.05.1999 a Division Bench of this Court having regard to the provisions of the said Act, inter alia, held:-
'The two questions that have been raised by the petitioners before us are whether they are entitled to be regularized as members of the Home Guards, and whether their services can be terminated without following the procedure laid down by Rule 8 of the Rules.
In so far as the first question is concerned, the genesis, history and concept of the Home Guards clearly show that it is not an 'employment' or a 'source of employment'. It is a volunteer body where citizens voluntarily offer their services for the benefit of society. There are no hard and fast rules for recruitment or the nature of duties and functions that are to be performed by a member of the Home Guards. It is also not as if a member of the Home Guards cannot have employment elsewhere. A member of the Home Guards can be a professional or a government servant or a person carrying on any trade or occupation, industrial worker, university student, etc.; it can be anyone who can give some spare time for the benefit of the community. In fact, of the applicants who were before the Tribunal, admittedly some of them were employed in the government and some in the private sector. This being the position, there cannot be any question of regularizing any person as a volunteer or for carrying on any voluntary activity. A contrary view will destroy the very ethos and character of the Home Guards.'
23. Referring to the decision of the Apex Court in SLP (Civil) No. 12465/90 in the case of Rameshwar Dass Sharma and Ors. v. State of Punjab and Ors., it was held:-
'In this view of the matter, we have no doubt in our minds that the petitioners are not entitled to be regularized as members of the Home Guards. In fact, such a concept does not exist except in the case of personnel involved in training, command or control.'
24. The ratio of the said decision, thereforee, runs contrary to the submissions made by the learned counsel for the petitioners.
25. As regards termination of their services, it was held that Rule 8 of the Rules can be invoked. Having held so, the Division Bench observed:-
'What does, however, disturb us a little bit is the fact that many of the Petitioners have been rendering services as Home Guards for several years, in some cases for almost about twenty years. It does appears a little unfair to them to be suddenly told that when their existing tenure comes to an end, they will not be re-enrolled. In such a situation, it will be extremely difficult for them to look for a job in the open market.
The saving grace, however, is that the Government does give weightage to a member of the Home Guards for appointment to a Group 'C' or a Group 'D' post with the Government. Moreover, para 1.23 on page 15 of the booklet says that Respondent No. 1 has requested State Governments 'to provide assistance to unemployed Home Guards in seeking gainful employment on the completion of their term of employment'. We hope the Respondents are aware of both these responsibilities.'
26. The observations made by the Division Bench do not constitute the ratio of the decision. The fact remains that in a similar situation, a Division Bench of this Court has held that termination of service of the Home Guards in terms of Rule 8 of the Rules would be valid and they cannot be directed to be regularized.
27. The submission of the learned counsel on behalf of the petitioners to the effect that the appointments have been made contrary to the provisions of the said Act, in our opinion, itself is sufficient for the purpose of arriving at a finding that no relief can be granted to the petitioners.
28. It is not in dispute that having regard to the provisions of the said Act and the Rules framed there under and keeping in view the several decisions of this Court as also the Supreme Court of India, the organization of the Home Guards is a voluntary organization.
29. If authorities for their own benefit had been mis-utilising the same, action can be taken against them, but thereby no legal right can be said to have been acquired by the petitioners to which they are not entitled to there under.
30. If the submission of Mr. Sabharwal having regard to the fact that the petitioners had been continuously working with various Departments including Police, Railways, etc. between 12 to 13 years and thus in truth and substance, they are not a part of the volunteer work force is accepted, such appointments must be held to be contrary to the purpose and object which the provisions of the Act seek to achieve.
31. We may now consider the decisions cited by Mr. Sabharwal, the learned counsel appearing for the petitioners.
32. The doctrine of lifting the veil cannot be in our considered opinion applied in the instant case. The said doctrine keeping in view the decision of the Apex Court in Secretary, Heroine State Electricity Board's case (Supra) can be lifted only in a case where a principal employer treated the concerned employees as contract labourers, although there exits relationship of master and servant between the principal employer and the employee. Such a question in the instant case does not arise inasmuch as the very nature of employment of the Home Guards is governed by the provisions of the statutes and the rules framed there under.
33. In Daily Rated Casual Labour's case (Supra), the Apex Court was concerned with a case the daily rated casual labourers in the P&T; Department asked for equal pay that of regular employees in terms of the doctrine of equal pay for equal work. Therein a claim was directed to be made for absorption of the casual labourers continuously working for the Department for more than one year. However, unfortunately therein the earlier decisions of the Apex Court had not been taken note of, we would advert to this question a little later.
34. The question, which arose in Secretary, Heroine State Electricity Board's case (Supra), arose out of an award passed by the Labour Court wherein the question as to whether the contractor was a smoke screen of the principal employer in terms of the provisions of the said Act was taken into consideration. In the fact of that case, it was held that there existed a relationship of master and servant between the principal employer and the concerned workmen although they had been shown to be the employees of the contractor. Reliance therein had been placed on the decisions of the Apex Court in Air India Statutory Corporation, etc. v. United Labour Union & Ors., etc,JT 1996 (11) SC 170 which has since been over-ruled by the Constitution Bench of the Apex Court in Steel Authority of India Ltd. and Ors. v. National Union Waterfront Workers & Ors., : (2001)IILLJ1087SC wherein the circumstances under which contract labour could be treated as the contract workmen of the principal employer has been held in the following terms:-
'107. An analysis of the cases, discussed above, shows that they fall in three classes : (i) where contract labour is engaged in or in connection with the work of an establishment and employment of contract labour is prohibited either because the industrial adjudicator/court ordered abolition of contract labour or because the appropriate Government issued notification under Section 10(1) of the CLRA Act, no automatic absorption of the contract labour working in the establishment was ordered; (ii) where the contract was found to be a sham and nominal, rather a camouflage, in which case the contract labour working in the establishment of the principal employer were held, in fact and in reality, the employees of the principal employer himself. Indeed, such cases do not relate to abolition of contract labour but present instances wherein the Court pierced the veil and declared the correct position as a fact at the stage after employment of contract labour stood prohibited; (iii) where in discharge of a statutory obligation of maintaining a canteen in an establishment the principal employer availed the serviced of a contractor the courts have held that the contract labour would indeed be the employees of the principal employer.'
35. So far as the observations made in the said decision to the effect that the persons who worked for a period of more than 240 days in a year are entitled to be regularized are concerned, the same is contrary to a larger Bench decision of the Apex Court in Madhyamik Siksha Parishad, U.P. v. Anil Kumar Mishra and Ors., : (1994)IILLJ977SC wherein it was held:-
'4. We are unable to uphold the order of the High Court. There were no sanctioned posts in existence to which they could be said to have been appointed. The assignment was an ad hoc one, which anticipated spent itself out. It is difficult to envisage for them, the status of workmen on the analogy of the provisions of Industrial Disputes Act, 1947, importing the incidents of completion of 240 days' work. the legal consequences that flow from work for that duration under the Industrial Disputes Act, 1947 are entirely different from what, by way of implication, is attributed to the present situation by way of analogy. The completion of 240 days' work does not, under that law import the right to regularization. It merely imposes certain obligations on the employer at the time of termination of the service. It is not appropriate to import and apply that analogy, in an extended or enlarged form here.'
36. The decision of the Apex Court in Management of D.C. Dewan Mohideen Sahib's case (Supra) is again in a case where a question arose as to whether the concerned persons were independent contractors or workmen.
37. The decision of the Apex Court in U.D. Dwivedi's case ( Supra) has no application to the fact of the present case.
38. In Piara Singh and Ors.'s case (Supra), as regards directions issued by the High Court and the Tribunal for regularization of the employees, the Apex Court observed:-
'12. As would be evident from the observations made and directions given in the above two cases, the court must, while giving such directions, act with due care and caution. It must first ascertain the relevant facts, and must be cognizant of the several situations and eventualities that may arise on account of such directions. A practical and pragmatic view has to be taken, inasmuch as every such direction not only tells upon the public exchequer but also has the effect of increasing the cadre strength of a particular service class or category. Now, take the directions given in the judgment under appeal. Apart from the fact the High Court was not right--as we shall presently demonstrate in holding that the several conditions imposed by the two Governments in their respective orders relating to regularization are arbitrary not valid and justified -- the High Court acted rather hastily in directing wholesome regularization of all such persons who have put in one year's service, and that too unconditionally. We may venture to point out the several problems that will arise if such directions become the norm:
(a) Take a case where certain vacancies are existing or expected and steps are taken for regular recruitment either through Public Service Commissioner or other such body, as the case may be. A large number of persons apply. Inevitably there is bound to some delay in finalizing the selections and making the appointments. Very often the process of selection is stayed or has to be re-done for one or the other reason. Meanwhile the exigencies of administration may require appointment of temporary hands. It may happen that these temporary hands are continued for more than one year because the regular selection has not yet been finalised. Now according to the impugned direction the temporary hands completing one years' service will have to be regularized in those posts, which means frustrating the regular selection. There would be no post left for regularly selected persons even if they are selected. Such cases have indeed come to this court from these very two States.
(b) In some situations, the permanent incumbent of post may be absent for more than a year. Examples of this are not wanting. He may go on deputation, he may go on Faculty Improvement Programme (F.I.P.)., or he may be suspended pending enquiry into charges against him and so on. There may be any number of such situations. If a person is appointed temporarily in his place and after one year he is made permanent where will the permanent incumbent be placed on his return? Two persons cannot hold the same post on a regular o permanent basis.
(c) It may also happened that for a particular post a qualified person is not available at a given point of time. Pending another attempt at selection later on an unqualified person is appointed temporarily. He may continue for more than one year. If he is to be regularised, it would not only mean foreclosing of appointment of a regular qualified person, it would also mean appointment of an unqualified person.
(d) Such directions have also the effect of disregarding and violating the rule relating to reservation in favor of backward class of citizens made under Article 16(4). What cannot be done directly cannot be allowed to be done in such indirect manner.
(e) Many appointments may have been made irregularly -- as in the case -- in the sense that the candidates were neither sponsored by the Employment Exchange nor were they appointed after issuing a proper advertisement calling for applications. In short, it may be a back door entry. A direction to regularize such appointments would only result in encouragement to such unhealthy practices.
These are but a few problems that may arise, if such directions become the norm. There may be many such and other problems that may arise. All this only emphasizes the need for a fuller consideration and due circumspection while giving such directions.'
39. The said decision, thus, runs counter to the submission of Mr. Sabharwal.
40. The decision of the Apex Court in Lakshminarayan Ram Gopal & Sons Ltd. v. Govt. of Hyderabad, : [1954]25ITR449(SC) has no application in the facts and circumstances of this case inasmuch as therein the question arose was as to whether the relationship of the concerned persons were that of agent, servant or independent contractor.
41. The question raised in this writ petition is squarely covered by a Division Bench decision of this Court in Chander Bhushan Rai & Sons/Dev Kumar and Anr./Jitender Prasad Singh and Ors. v. Govt. of NCT of Delhi and Anr. in CWP Nos. 3600, 3601 & 3602 of 2001 on 21st February, 2002.
42. The respondent indisputably being a State in the matter of recruitment is bound to comply with the constitutional requirements as adumbrated under the Articles 14 and 16 of the Constitution.
43. It is now a well-settled principle of law that when an employer frames any recruitment rules, it is bound to comply therewith. The officers of a State cannot make any appointment in violation of such recruitment rules. Any appointment made in violation of the recruitment rules as also Articles 14 and 16 of the Constitution of India, would b nullities. Although in terms of Article 16 of the Constitution of India, nobody has any right of appointment, all persons who were eligible thereforee, had a right to be considered. Even no document has been produced by the petitioner to show that such appointments had been made in terms of the recruitment rules or prior thereto any advertisement had been issued. There is nothing on record to show on what basis the writ petitioners fled their applications for recruitment. No reason has also been assigned as to why the recruitment rules could not be complied with.
44. It is well known that he who comes by backdoor must go by that door (See State of UP and Ors. v. UP State Law Officers Association and Ors., : [1994]1SCR348 .
45. In State of M.P. & Anr. v. Dharam Bir, : [1998]3SCR511 the apex court has clearly held that if an ad hoc appointment continued for about a decade, the nature of appointment would not change in the absence of any statutory rules. The apex court held that:-
'23. It is not disputed that the respondent was promoted to the post of Principal, Class II for a short period of six months or till the availability of candidates duly selected by the Commission, whichever was earlier. It is also not disputed and the Tribunal itself has found it as a fact that the respondent was placed on the post of Principal only in an ad hoc capacity. Consequently, the post, having not been filed up on a regular basis in accordance with the Rules, was rightly treated by the appellant to the vacant. That being so, the respondent had only ad hoc status which he would continue to hold till it was altered by the appointing authority.
24. Government service is essentially a matter of status rather than a contract. A Constitution Bench of this Court in Roshan Lal Tandon v. Union of India had observed as under:'It is true that the origin of government service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office the government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. In other words, the legal position of a government servant is more one of status than a contract The hallmark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. The emolument of the government servant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee. It is true that Article 311 imposes Constitutional restrictions upon the power of removal granted to the President and the Governor under Article 310. But it is obvious that the relationship between the Government and its servant is not like and ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status. It is much more than a purely contractual relationship voluntarily entered into between the parties. The duties of status are fixed by the law and in the enforcement of these duties society has an interest. In the language of jurisprudence status is a condition of membership of a group of which powers and duties are exclusively determined by law and not by agreement between the parties concerned.'
46. In Municipal Corporation, Bilsaspur v. Veer Singh Rajput and Ors., : (1998)9SCC258 it has been clearly held that where serious irregularities in the matter of appointment had been discovered and if the same had been made on political consideration, no relief can be granted by the courts. The apex court observed:
'3... The appointments, however are irregular and made on political considerations. There are clear government directions for reduction of establishment expenditure and a prohibition on the filling of vacant posts or creating new posts including regularization of daily-waged employees. The order of the High Court for regularization of such employees is not warranted. It is in the teeth of these administrative directions and cannot be sustained...'
47. Yet again, in Nazira Beguam Lashkar and Ors. v. State of Assam and Ors., JT 2000 (Supp.2) SC 417 it was noticed:
'14. ... The decisions cited by Mr. Parikh, in support of his contention, not only do not support his contention but on the other hand appear to us to be against his contention. In Ashwani Kumar's Case, : (1997)IILLJ856SC , this Court in no uncertain terms held that as the appointments had been made illegally and contrary to all recognized recruitment procedures and were highly arbitrary, the same were not binding on the State of Bihar. This Court further went on to hold in the aforesaid case that the initial appointments having been contrary to the statutory rules, the continuance of such appointees must be held to be totally unauthorized and no right would accrue to the incumbent on that score. The Court had also held that it cannot be said that principles of natural justice were violated or full opportunity was not given to the employees concerned to have their say in the matter before their appointments were recalled and terminated.'
48. In any event, as the petitioners themselves took a change by taking part int eh recruitment process and having not succeeded therein, now cannot be permitted to turn round and contend that they had regularly been appointed. From the fact that they had never made any complaint until the retirement of the above-mentioned two officers, is itself a pointer to show that they were aware that their appointments were illegal. Had they contended that their appointments have been made on a regular basis, they would not have applied for appointment on regular posts and complete with the other candidates. It is evident from the statements made from the counter-affidavit that some of the writ petitioners did not apply thereforee, as they did not have the requisite qualifications.
49. Recently a Division Bench of the Andhra Pradesh High Court, of which one of us was a Member, in Superintending Engineer, CPWD, Hyderabad v. Tekmalla Raj Shekhar and Ors., : 2001(6)ALD64 noticed various decisions of different High Courts, which are as under:-
'14. In Secretary, A.P. Social Welfare Residential Educational Institutions Society v. P. Venkata Kumari : 2001 (1) ALT 366. [Para 14] a Division Bench of this Court has clearly held that regularization is not a mode of appointment and in absence of any statutory rules the Part-time employees, ad hoc employees and NMRs did not derive any legal right whatsoever to continue in service and no such direction can be issued inasmuch as for the purpose of obtaining a writ of or in the nature of mandamus the petitioner must establish existence of a legal right in himself and a corresponding legal duty in the respondents.
15. It was further held in no uncertain terms that the Court cannot direct creation of more posts.
16. Recently in State of West Bengal v. Krishna Kumar Majumdar, it was held:
'... An appointment on regular post must be made in terms of the Recruitment Rules having regard to the principles adumbrated under Articles 14 and 16 of the Constitution of India. In the instant case, as indicated hereinbefore, neither any appointment has been made by the writ petitioner that such appointment has been made in accordance with the Recruitment Rules or in consonance with the principle laid down under Articles 14 and 16 of the Constitution of India. Such appointment, thereforee, cannot be encouraged. Furthermore, a finding of fact has been arrived at by the competent authority that the writ petitioners were appointed on contractual basis and that too for a period of 2 years at one point of time.'17. Even in State of Heroine v. Piara Singh the apex Court has clearly held that when an employee is appointed on ad hoc basis the same itself is a pointer to the effect that no regular post is available. The said principle should be applied also in relation to NMR. It has been held in the said case thus:-
'...Ordinarily speaking, the creation and abolition of a post is the prerogative of the Executive. It is the Executive again that lays down the conditions of service subject, of course, to a law made by the appropriate Legislature. This power to prescribe the conditions of service can be exercised either by making Rules under the proviso to Article 309. of the Constitution or (in the absence of such Rules) by issuing Rules/instructions in exercise of its executive power. The Court comes into the picture only to ensure observance of fundamental rights, statutory provisions, Rules and other instructions, if any, governing the conditions of service. The main concern of the Court in such matters is to ensure the Rule of law and to see that the executive act fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16. 18. We may notice that it has clearly been held that even the definition of worker under the Factories Act can only be read for the said purposes only. It is for the appropriate Government to decide whether employment of contract labour should be prohibited or only regulated. The Court or the Tribunal has no say therein. [See Sujan Benerjee v. Union of India, Ranjit Kumar Chanda v. State of West Bengal] In Union of India v. Shri Rajinder Singh it has been held:
'...An employee must be appointed upon compliance of the provisions of the Recruitment Rules. When a particular status is conferred upon an employee, the same cannot be changed unless there exits any statutory provision thereforee.
'... A regular appointment can only be made in terms of the Recruitment Rules and subject to the candidate's possessing the requisite qualification and also subject to existence of any sanctioned post.
'An employee is borne in the cadre only when he is appointed upon fulfilling the requirement thereforee in a sanctioned post.
19. Referring to W.B. Essential Commodities Supply Corporation v. MD Sarif, Director of Public Instructions W.B. v. Dr. Krishna Prasad Ghoshand Anr. and Swapan Kumar Benerjee v. Union of India it has been held in Union of India v. Registar'The question as to whether the petitioners had fulfilled the essential conditions for regularization or not, is essentially a question of fact. In law, nobody is entitled to claim regularization unless there exists any statutory provision in this regard. Only because a person has worked for more than 240 days, the same by itself would not be a ground for direction to regularize the service of the concerned employee.'
50. In view of the aforementioned binding precedents of this Court, we are of the opinion that the petitioners cannot be said to be the civil servants and as such the Tribunal has rightly held that they have no jurisdiction to entertain the application under Section 19 of the Administrative Tribunal Act.
51. However, the petitioners have pointed the malpractices taken recourse to by a section of the officers to the provisions of the said Act, the Union of India through the Department of Personnel & Training must see to it that the provisions of the said Act are not misused.
52. Home Guards are not meant to be appointed in ordinary course. The Government is supposed to make appointments in terms of the said Act, as a result whereof a relationship of master and servant is not to come into being, as thereby a constitution of disciplined volunteer force is contemplated.
53. Any deviation from the said legislative policy would be ultra vires.
54. In the event, it is found by the State that vacancies occurring in these various Departments should be filled up, the same should be done in accordance with law.
55. In the event, the cadre strength is required to be increased, recourse thereto must be taken in accordance with law, but the authorities of the respondent No.1 must remember what cannot be done directly, cannot be permitted to be done indirectly.
56. It is also high time that the Appropriate Government should devolve an appropriate scheme in relation to the Home Guards, who had been rendering services for a number of years.
57. These writ petitions are disposed of with the aforementioned observations and directions. However, in the facts and circumstances of the case, there shall be no order as to costs.