N.K. Jain, J.
1. This special appeal is directed against the order dated February 9, 1992 passed by learned single Judge whereby he has allowed the writ petition and directed the respondent to regularise the petitioner's services on the post of tractor driver on which he was held to be appointed in the award of the Labour Court, Udaipur and also directed the respondents to fix the petitioner at the regular pay scale applicable to the driver w.e.f. October 12, 1982 with all consequential benefits.
2. The facts which are necessary to be noticed for the disposal of this special appeal are that the petitioner was retrenched on September 8, 1992 (Anx. 9) after giving notice of termination with three months wages. The same was challenged by means of writ petition under Article 226 of the Constitution. The learned single Judge allowed the writ petition as observed above. Hence, this special appeal.
3. Mr. Bishnoi, learned counsel for the appellant has assailed the order of the learned single Judge mainly on the ground that the respondent was appointed as a Pump Mistry under the 'Grow More Food Scheme' and his services were terminated as that scheme was discontinued which was mentioned in the termination order itself, therefore, the learned single Judge has erred in holding that the termination order was passed in contravention of Section 25F of the Industrial Disputes Act. He has contended that the learned single Judge has erred in granting relief of regularisation on the basis of affidavit filed by the respondents in the year 1989 considering that the petitioner has worked for 25 years, he should be regularised and should be paid regular pay scale on the basis of principle of equal pay for equal work without there being any pleading in the writ petition. He has also contended that the learned single Judge has not considered the affidavit filed by Vikas Adhikari to the effect that the respondent was not appointed regularly. He has lastly urged that the respondent continued in service upto the year 1992 due to stay order of this Court whereas he attained the age of superannuation in the year 1986. He has relied on Delhi Development Horticulture Employees' Union v. Delhi Administration, Delhi (1992-1I-LLJ-452) (SC), State of Haryana v. Piara Singh (1993-II-LLJ-937) (SC) and State of West Bengal and Ors. v. Hari Narayan Bhowal (1995-II-LLJ-328) (SC).
4. Mr. Mridul, learned counsel for the respondent has opposed the submissions of Mr. Bishnoi and submitted that the learned single Judge has rightly allowed the writ petition and the impugned order calls for no interference. He has relied on Narender Chadha and Ors. v. Union of India 1986 AIR SC 638, Goa, Daman & Diu Housing Board v. Ramakant V.P. Darvoktai 1991 AIR SC 2089 and Madan Singh and Ors. v. State of Haryana and Ors. 1988 AIR SC 2133.
5. We have heard learned counsel for the parties and perused the material on record as well as the case law cited at Bar.
6. In Delhi Development Horticulture Employees' Union v. Delhi Administration, Delhi (supra), it has been observed that persons employed under the scheme, therefore, could not ask for more than what the scheme intended to give them and while interpreting Articles 41, 21 and 16, their lordships of the Supreme Court have held that persons employed under Jawahar Nehru Rozgar Yojna cannot claim regularisation merely because they have put in more than 240 days service.
7. In State of Haryana v. Piara Singh (supra), their lordships of the Supreme Court has observed that the Court must act with due care and caution while issuing direction to regularise unconditionally all persons who have put in one year's service. Their lordships have also held the condition in Government order that employee must have been sponsored by employment exchange as reasonable and wholesome requirement designed to curb back-door entry.
8. In State of West Bengal and Ors. v. Hari Narayan Bhowal (supra), their lordships of the Supreme Court have held as under:
'It need not be impressed that the principle of 'equal pay for equal work' can be enforced, only after persons claiming, satisfy the Court that not only the nature of work is identical but in all other respects they belong to the same class and there is no apparent reason to treat equals as unequals. Unless a very clear case is made out and the Court is satisfied that the scale provided to a group of persons on the basis of the material produced before it amounts to discrimination without there being any justification, the Court should not take upon itself the responsibility of fixation of scales of pay, especially when the different scales of pay have been fixed by Pay Commission or Pay Revision Committees, having persons as members who can be held to be experts in the field and after examining all the relevant material. It need not be emphasised that in the process undertaken by the Court, an anomaly in different services may be introduced, of which the Court may not be conscious, in the absence of all the relevant materials being before it. Till the claimants satisfy on material produced, that they have not been treated as equals within the parameters of Article 14, Courts should be reluctant to issue any writ or directions to treat them equal particularly when a body of experts has found them not to be equal.'
9. In view of the aforesaid decisions it is clear that creation and abolition of a post is the prerogative of the Executive and the Executive lays down the conditions of service by making rules under the proviso to Article 309 of the Constitution. The Courts are to see that executive acts fairly and gives a fair deal to its employees. The normal rule, of course, is regular recruitment through the prescribed agency but exigencies of administration may some times call for an ad hoc or temporary appointment to be made. If for any reason, an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularisation provided he is eligible and qualified according to rules and his service record is satisfactory and further his appointment does not run counter to the reservation policy of the State.
10. In this case it is not disputed that the respondent was initially appointed as Mistry for maintaining Pump set vide order dated December 27, 1965 (Anx. 1). He was retrenched on July 26, 1977. The petitioner made grievance before the payment of Wages Authority on March 26,1977 and reference was made. An ex-parte award was passed on March 15, 1979. Against the said award, the writ petition bearing No. 1728/80 was filed which was decided on September 3,1981 holding that Labour Court was justified in ordering reinstatement as the procedure was not followed. In pursuance of the order, the petitioner was again appointed on October 3, 1981 but he was again retrenched after having notice along with three months wages vide order dated September 8, 1982 (Anx.9). The operation of the retrenchment order was stayed by this Court on October 13, 1982, and time was granted to the non-petitioner to file an affidavit explaining the prime objection of the petitioner in respect of the compensation of notice pay as contemplated by Section 25F of the I.D. Act. One Bhagwati Shanker filed an affidavit on July 3, 1993 stating that the respondent did not appear before the Medical Board constituted to ascertain his correct age despite letters/notices dated July 23, 1986, July 28, 1986, December 19, 1991 and December 31, 1991 and as the petitioner completed 60 years he was superannuated vide order dated March 31, 1992. It has also been stated that there is no post of Tractor Driver in the Panchayat Samiti rather Panchayat Samiti had no tractor, as such the respondent did not at all work for the last 12 years. Mr. Bhagwati Shanker, Vikas Adhikari of the Panchayat Samiti further stated that the respondent has already completed 70 years of age and he was superannuated on March 31, 1992. He has also stated that the age of the respondent has been shown as 70 years in the voter list as on January 1, 1988 which has been placed on record. The petitioner did not file any counter to the said affidavit. From a close scrutiny of the material which is available on record, it is clear that the petitioner has not produced any order showing that he was appointed as tractor driver on regular basis according to rules framed for recruitment by the employer Panchayat Samiti. The petitioner has not pleaded in the writ petition that he was working as tractor driver and working continuously. What he has stated is that the retrenchment of the petitioner is illegal inasmuch as no compensation whatsoever has been paid to him. The petitioner has also not pleaded that he was discharging the same duties and responsibilities as they are being discharged by the drivers of other Panchayat Samities. The learned single Judge ordered regularisation of the petitioner as well as granted him regular pay scale on the basis of an affidavit filed by general power of attorney holder in the year 1989 that the drivers of other Panchayat Samities are getting Rs. 900/-Having given our earnest consideration to the facts and circumstances of the present case, in our opinion, it was not a fit case to exercise writ jurisdiction when the alleged facts were disputed by the respondent and relief granted by the learned single Judge was not specifically pleaded and sought in the writ petition. Therefore, we are of the view that in the absence of any proof furnished by the petitioner that he worked as driver and in the absence of any pleading in the writ petition, the learned single Judge has erred in passing the order of regularisation of the petitioner along with regular pay scale particularly when the grievance of the petitioner was only that he was not paid wages according to Section 25F along with the notice of retrenchment.
11. It is pertinent to note that in the affidavit filed on October 4, 1982 in support of the writ petition, the petitioner has shown his age as 54 years and even according to his own affidavit the petitioner had attained the age of superannuation in the year 1986 but he continued in service as such on the strength of stay order till he was superannuated by order dated March 31, 1992. The continuation of the petitioner even after attaining the age of superannuation i.e. 60 years was per se illegal and against the law, therefore, no order of regularisalion could be passed on that basis that too when it has occurred due to non-appearance of the petitioner before the Medical Board despite several notices. In this view of the matter, the principle enunciated in Narender Chadha 's case (supra) is not applicable to the facts of the present case and the other cases cited by Mr. Mridul are also not helpful to him. As discussed above, the impugned order passed by the learned single Judge deserves to be set aside. However, under the circumstances of the case and taking a compassionate view of the matter, we order that whatever amount has been paid to the petitioner shall not be required to be refunded by him.
12. Consequently, the special appeal is allowed. The impugned order dated February 9, 1992 passed by the learned single Judge is set aside as observed above. No order as to costs.