Jitendra Kalita Vs. State of Assam and ors. - Court Judgment

Excerpt:
- - reported in (2000) 1 glt 243, has been consistently applied arid followed, had led the full bench to direct that notices be issued to all such muster roll/ work charged employees in all departments of the state, who are awaiting regularisation as well as those who have been so regularised, in order to ensure that they do not go unheard. 4411/95 was being extended to other categories of employees like casual, ad hoc, fixed pay and daily rated workers recognizing in all such categories of workers a right of regularisation under f the o. while in one set of writ petitions, as indicated hereinabove, the directions are for regularisation of the services of the ad hoc/casual employees, the other set of writ petitions contain interim as well as final directions for giving appointments to..... ranjan gogoi, j.1. two groups of mutually irreconcilable judicial verdicts, any one of which can be implemented at the peril of the other, has necessitated this reference to an expanded bench to decide which of the conflicting views should now hold the field. a post-cognizance realisation that the issue involved could have extensive ramification as one of the two views, that flows from a division bench judgment in the case of achyut chandra pathak and ors. v. state of assam and ors. reported in (2000) 1 glt 243, has been consistently applied arid followed, had led the full bench to direct that notices be issued to all such muster roll/ work charged employees in all departments of the state, who are awaiting regularisation as well as those who have been so regularised, in order to ensure.....

Judgment:

Ranjan Gogoi, J.

1. Two groups of mutually irreconcilable judicial verdicts, any one of which can be implemented at the peril of the other, has necessitated this reference to an Expanded Bench to decide which of the conflicting views should now hold the field. A post-cognizance realisation that the issue involved could have extensive ramification as one of the two views, that flows from a Division Bench Judgment in the case of Achyut Chandra Pathak and Ors. v. State of Assam and Ors. reported in (2000) 1 GLT 243, has been consistently applied arid followed, had led the Full Bench to direct that notices be issued to all such muster roll/ work charged employees in all Departments of the State, who are awaiting regularisation as well as those who have been so regularised, in Order to ensure that they do not go unheard.

2. The facts necessary to understand the precise scope of the reference made to the Full Bench need to be amplified at the outset:

In the several engineering and works related departments of the State, a muster roll of workers is maintained in addition to the employees working in the regular cadre. Such workers arc known as Muster Roll Workers. Also, in such engineering and works related Departments of the State there is another category of workers whose tenure of service and pay and allowances are charged to a particular on going work. Such employees are commonly known as work charged employees. Though muster roll and work charged establishments are normally to be found in the works related departments, which are basically the engineering departments of the State, the practice of engaging such workers has virtually come to be followed in all Departments of the State. In addition to the above two categories, each department of the State employs a large number of casual workers including fixed pay and daily rated workers. The extent of such employment in the State of Assam, which is outside the mainstream of employment, it must be noticed, is considerable.

3. In the year 1983, and to be precise, on 23.9.1983, a Cabinet decision was taken to the effect, that all muster roll labourers working in all Departments of the State, who have completed 15 years of service or more, may be regularised as Grade IV employees. What happened thereafter and how the decision of the Cabinet was implemented, if at all, is not very clear save and except that in a communication dated 15.3.1984 issued by the Chief Secretary of the State, the General Secretary of the P.W.D. Employees Union was informed that muster roll workers of the Public Works Department and other Engineering Departments, who have completed 15 years of continuous service was to be regularised with effect from 1.8.1984. By the said communication, the workers Union was further informed that work charged employees of the Engineering Departments, who have completed 5 years continuous service, were to be brought under the regular establishment. Admittedly and evidently, no scheme was prepared or detailed principles were laid down as to how the Cabinet decision dated 23.9.1983 was to be executed and implemented consistent with the rights under Articles 14 and 16 of the Constitution of such persons who came within the purview of the aforesaid Cabinet decision dated 23.9.1983. The position remained unchanged until the Chief Secretary to the Government of Assam addressed a communication bearing No. ABP 176/91/P11/188 dated 20.4.1995 to all the Commissioners and Secretaries of the Government of Assam. By the aforesaid communication dated, 20.4.1995 the Chief Secretary informed all concerned that in spite of the decision of the State Government to regularise the services of work charged and muster roll employees, no action for regularization of such employees have been taken. Accordingly, the Chief Secretary informed all the Departments to take necessary action, in consultation with the Finance Department, for early regularisation of the services of work, charge and muster roll employees who were engaged prior to 1.4.1993 The aforesaid communication dated 20,4.1995 was followed by, an office memorandum dated 11.10.1995 issuing strict instructions to, all concerned not to engage any further muster roll/work charged employees after 1.4.1993 and further a clarification was issued on 13.10.1995 to the effect that the O.M. dated 20.4.1995 was to operate provided the muster roll/work charged employees were not discharged or terminated on or before 20.4,1995.

4. Following the issuance of the O.M. dated 20.4.1995 a writ application, i.e., C.R. No. 4411 of 1995 was instituted before this Court seeking enforcement of what was contended to be a right to be regularised in terms of the O.M. dated 20.4.1995. A learned Single Judge of this Court by judgment and Order dated 23.9.1998 disposed of the aforesaid writ application holding the O.M. dated 20.4.1995 to be laving down a policy decision of the Government to regularise muster roll/work charged employees engaged prior to 1.4.1993. Accordingly, directions were issued by the learned Single Judge to implement the aforesaid policy decision by regularising the services of such employees engaged up to 1.4.1993. In deciding the aforesaid Civil Rule, the learned Single Judge also held that in view of the policy decision of the Government as reflected, in the O.M. dated 20.4.1995 and the cut off date stipulated therein, a muster roll/work charged employees engaged after 1.4.1993 will not have a legally enforceable right under the O.M. dated 20.4.1995 and, therefore, cases of such employees, i.e., engaged after 1.4.1993 were left to be decided by the Government.

5. Aggrieved by the aforesaid part of the judgment and Order dated 23.9.1998, the post-1.4.1993 employees moved a writ appeal being Writ Appeal No. 320 of 1995, which along with other connected cases was decided by this Court by judgment and Order dated 18.12.1999. In writ appeal No. 320 of 1995, it was decided by the Division Bench that the O.M. dated 20.4.1995 reflects a policy-decision of the Government and c such policy decision must necessarily have a cut off date, which in the instant case was fixed as 1.4.1993. The Division Bench after understanding the aforesaid O.M. dated 20,4.1995 to be vesting in all eligible incumbents a right of regularisation which is capable of being enforced by the Court, dismissed the writ appeal by taking the view, that no such right can be recognised in respect of the post-1.4.1993 employees. The aforesaid decision of the Division Bench in the case of Achyut Chandra Pathak and Ors. v. State of Assam and Ors. is reported in (2000) 1 GLT 243.

6. While the aforesaid developments were going on certain other developments in the form of judicial orders passed in similar and related cases had also occurred. Slowly but surely, the decision of the learned Single Judge in WP(C) No. 4411/95 was being extended to other categories of employees like casual, ad hoc, fixed pay and daily rated workers recognizing in all such categories of workers a right of regularisation under f the O.M. dated 20.4.1995 provided their engagements were prior to 1.4.1993. At the same time, the principle, as aforesaid, was being slowly extended from Grade IV to Grade III posts. In other words, a right of regularisation under the O.M. dated 20.4.1995 was being recognized by the Court in favour of Grade III employees working on fortuitous basis provided they were engaged prior to the cut off date, i.e., 1.4.1993. Though not strictly relevant for the purpose of the present case, but to make the narration complete, notice must be taken of the Government stand in respect of post-1.4.1993 employees. Though at one point of time service of all such employees were proposed to be terminated, subsequently, by a Notification dated 30.10.2001, a right to continue to remain in employment was recognized in such employees provided they had rendered 5 years of continuous service as on 24.1.2001.

7. To return to the mainstream of the necessary facts, the Court must now notice what had been happening in the Transport Department in the context of which department several conflicting orders of this Court came to be passed which provided the immediate plank for the present reference. In the Transport Department selections were held for filling up a limited number of posts of Lower Division Assistant in the year 1992 and 1988 ; of particular significance would be the selection of 1998. The selected candidates claiming aright to be appointed moved. the Court by instituting several writ applications, which were promptly answered by the Court by directing their appointment by adhering to the merit list prepared. In parallel but unrelated writ applications filed by ad-hoc/casual employees working in Grade III posts, who were appointed prior to 1.4.1993, the Court extended the principles laid down in Civil Rule No. 4411/1995 to cover such employees also. The number of posts being a handful, both sets of directions could not be implemented and implementation of one being at the peril of the other set of directions issued by the Court, the State was left wandering what to do. Contempt petitions arising out of what was perceived to be wilful violation of either set of directions also came to be instituted. To add to the multiple lis, dispute arose between the candidates who took part in the selection, as to the manner in which the selections were held and the select lists were prepared. Confronted with the above situation, the learned Single Judge of this Court hearing WP(C) No. 1684 of 2004 and WP(C) No. 1554 of 2004 pertaining to the Transport Department referred the matter to the Division Bench by Order dated 16.3.2004. The Division Bench took cognizance of all related matters of the Transport Department where conflicting claims were at issue and eventually by Order dated 24.8.2004, came to the following conclusion :

33. What emerges from the above discussion is that there are, broadly speaking, two conflicting classes of orders passed in various writ petitions. While in one set of writ petitions, as indicated hereinabove, the directions are for regularisation of the services of the ad hoc/casual employees, the other set of writ petitions contain interim as well as final directions for giving appointments to selected candidates of the 1998 selection process, Hence, if the directions, to appoint candidates from the 1998 selection process are carried out, the question of regularising the services of the ad hoc/casual employees would not be possible. At the same time, if the services of the ad-hoc/casual employees are regularised, as directed, the candidates, who have come on merit through a selection process, would not receive any appointment. This apart, within the limited number of h vacancies available, there are further directions for appointment on various other grounds as indicated hereinabove. In other words, if the Government attempts to carry out the directions contained for regularization of the services, it would expose itself to proceedings of contempt for not carrying the directions given for appointment of selected candidates as well as for appointment of candidates directed on various other grounds. This impasse needs to be resolved. It is, therefore, in the fitness of the things that the matter is re-opened and examined by a Larger Bench so as to pass appropriate and effective directions in Order a to put an end to the impasse and/or controversy, in question.

Let the matter be placed before the hon'ble Chief Justice for constituting a Larger Bench.

8. Though not expressly stated by the Division Bench in its views quoted and referred to above, the question as to whether O.M. dated 20.4.1995 engrafts a policy decision of the State for regularisation, and if so, the scope and extent thereof and the manner of its implementation which invariably would touch upon the correctness of the several earlier directions issued by the Court for such implementation from time to time, are supplementary questions inbuilt in the reference made. The Full Bench, therefore, by its Order dated 16.9.2005 directed notices to be issued to all concerned to enable all such parties likely to be affected by the decision of the Court to participate in the hearing. By the aforesaid order, the Full Bench also directed the Chief Secretary to file a comprehensive affidavit indicating whether the O.M. dated 20.4,1995 was issued pursuant to a Cabinet decision and to place before the Court the scheme or the principles, if any, by which such policy decision was being implemented.

9. While the response to the general notice issued under orders of this Court has not been very significant, the Chief Secretary to the Government of Assam has filed an affidavit dated 14.11.2005 before this Court placing before the Court copies of the Cabinet decision dated 23.9.1983, the letter of the Chief Secretary dated 15.3.1984 as well as some of the other decisions which have been referred to in the opening part of the present order. The Chief Secretary in the affidavit filed has further informed the Court that on 22.7.2005 the State Cabinet has taken a decision to regularise the services of the work charged/muster roll workers engaged prior to 1.4,1993 and pursuant to the aforesaid Cabinet decision, an Order has been issued by the competent authority g of the State with the concurrence of the Finance Department for creation of over 30000 posts against which such regularisations are proposed to be effected. Another affidavit filed by the Additional Chief Secretary on 22.2.2006 on certain other points makes it clear that the posts proposed to be created is only apart of the attempted solution as the number of work charged/muster roll employees are far more in number. What would be of particular significance and, therefore, must be noted is that in none of the affidavits filed it has been indicated that the O.M. dated 20.4.1995 was issued pursuant to any Cabinet/policy decision.

10. The question referred and what eventually confronts this Bench being capable of providing an answer not only to the cases of the Transport Department from which the reference has originated but to several other categories of cases pending before this Court, all such cases are required to be considered as the eventual answer of this Bench will extend to all such cases. The sheer number of cases that are awaiting an answer of this Bench makes it impossible for the Bench to go for an individual narration of facts. Neither any such individual narration is considered necessary; inasmuch as, all such cases are capable of being effectively compartmentalized. In the first category are the cases of the Transport Department where the enforcement of the O.M. dated 20.4.1999 is being claimed to provide regularisation to the concerned employees in various Class III posts in which they were appointed prior to 1.4.1993. Next are the selected candidates who contend that the O.M. dated 20.4.1995 is neither a policy decision nor does it embody a scheme of regularisation pursuant to a policy decision of the State. The selected candidates, alternatively, contend that the O.M. dated 20.4.1995, and the limited recognition granted to it in CR No. 4411 of 1995 does not make it applicable to Grade III posts. In the third compartment are the cases of the Transport Department wherein the selections made have been challenged by the unselected candidates. Coupled with the above 3 categories, there are the cases of the pre-1.4.1993 muster roll/ work charged employees who seek enforcement of the O.M. dated. 20.4.1995 on the basis that the said O.M. vests in them a legal right of regularization. Various other categories of employees engaged prior to 1.4.1993 on ad hoc, fixed pay and daily wage have also joined hands to contend that the O.M. dated 20,4.1995 vests in all such employees a legal right for regularisation. The last category of cases are those of the 'muster roll/work charged/casual and other categories of fortuitous employees engaged after 1.4.1993, who, notwithstanding, the decision of this Court in the case of Achyut Kumar Pathak (supra)have made another attempt to convince the Court that their cases for regularisation be also directed to be considered/made in terms of the O.M. dated 20.4.1995.

11, The projections made in the various categories of cases, as noticed above, have been sought to be rationalised by the in depth and strenuous arguments advanced on behalf of the respective parties.

Shri B. Goswami, learned Counsel for the petitioners in WP(C) No. 6222 of 2003 has attacked the validity of the selection made in the Transport Department and the select list dated 24.6.2003 published pursuant to the selection process initiated in the year 1998 by contending the same not to be based on a fair selection process. The said argument has been adopted by Shri R.P. Sharma, learned Counsel for the petitioners in WP(C) No. 6X39 of 2003 and WP(C) No. 1185 of 2004, who has further contended that no sanctity can be placed on the select list dated 24.6.2003 as the said select list is in variance with an earlier select list dated 16.3.2003 which was, in fact, placed before this Court in a connected contempt proceeding. Similarly, Shri M.C. Sarania, learned Counsel for the petitioners in WP(C) No. 1684 of 2004 has assailed the selection process including the select list dated 24.6.2003 by contending that the list of selected candidates is not in conformity with the law providing for reservation in Government employment.

12. On the other hand, Shri D.K. Misra, Shri A.K. Bhattacharyya and Shri P. Chaudhury, learned Counsels appearing for the selected candidates have defended the selection made and the select list published as being in conformity with all valid requirements of law.

While Shri P. Choudhury, learned Counsel for the petitioners in Contempt Case No. 356 of 2003 which has been filed alleging disobedience of the directions issued by this Court for appointment of the selected candidates, has argued that the O.M. dated 20.4.1995 runs contrary to the provisions of the Assam Public Services (Direct Recruitment to Class III and IV Posts) Rules, 1997. Shri Misra, learned Counsel for the selected candidates has gone a step further to contend that the O.M. dated 20.4.1995 is neither a policy decision of the competent authority nor has it been issued pursuant to any such policy decision. According to Shri Misra, the policy decision of the Government was really taken on 23.9.1983 and it covers only the muster roll workers who have put in 15 years of service. Shri Misra has contended that the aforesaid policy decision dated 23.9.1983 is a one-time measure as would be evident from the affidavit filed by the Chief Secretary. The aforesaid policy decision dated 23.9.1983 was not at all implemented. The O.M. dated 20.4.1995, according to Shri Misra, is a unilateral decision of the Chief Secretary of the State taken on the basis of the grievances raised by the Workers Union. Shri Misra has further submitted that it is the Cabinet of the State which alone would be competent to take decision in matters of policy and such a decision, once validly made, can be translated into action by enacting an appropriate law or a scheme for its implementation which safeguards the rights guaranteed under Articles 14 and 16 of the Constitution to all such persons who may be covered by the policy, at the same time, without, violating such right's of others. Shri Misra has relied on 3 decisions of the Apex Court reported in AIR 2001 SC 158 Union of India and Anr. v. Wing Commander T. Parthasarathy)) ; : (2002)ILLJ550SC (BALCO Employees' Union (Regd.) v. Union of India and Ors.) and : [2002]3SCR530 (Vinodant and Ors. v. University of Calicut and Ors.) to contend that implementation of a policy decision has to be by laws made or even by 'way of amendment of an existing law and that no such policy decision can be taken contrary to pre-existing rights conferred by law. Arguing further Shri Misra has contended that even assuming the O.M, dated 20.4.1995 to be engrafting a valid policy decision, its application has to be understood to be confined to muster roll and work charged employees alone and to no, other category of employees, much less. Grade III employees, It is additionally contended that the extension of the office memorandum in question to Grade III employees is plainly wrong in view of the clear language of the office memorandum restricting its operation only to muster roll and work charged employees.

13. Insofar as the other cases are concerned, the arguments advanced are on the similar lines.

The petitioners in all such cases, it is contended, have been working on uncertain basis for long. Relying on several judgments of the Apex Court including the judgments reported in : (2001)ILLJ710SC (Gujarat Agricultural University v. Rathod Labhu Bechar and Ors.) and : (1990)IILLJ318SC (Dharwad Distt. P.W.D. Literate Daily Wage Employees' Association and Ors. v. State of Karnataka and Ors.), it is contended that long years of continuance in service itself is indicative of the need for the particular employment to be made substantive. The fairness required on the part of the State as a model employer to treat all such categories of employees in a reasonable manner has been emphasized to persuade the Court to read a need for regularisation, which need is capable of being enforced through the Court. The observations of the Apex Court in the case of State of Haryana v. Piyara Singh reported in : (1993)IILLJ937SC particularly in paragraphs 44 to 50 have been stressed upon. These are the arguments advanced by Shri S. Shyam, learned Counsel, who has appeared for the casual employees of the Transport Department as well-as by Shri Jainal Abedin, and Shri A.K. Dasgupta, and all other learned Counsels on behalf of the muster roll, work charged and casual employees engaged in other departments.

14. Having perceived and understood the facts which had necessitated, the present reference the terms thereof, the issues arising and the arguments and counter-arguments advanced the Court must first understand how the situation has developed into the present magnitude and proportions. Admittedly, the number of muster roll workers and work charged employees, not to speak of other categories of casual employees, is huge and enormous. Though the exact number or even a reasonable approximation thereof is not available on record, learned Counsel for all the, parties are agreed that, it will not be incorrect on the part of the Court to assume that the total number of employees engaged on muster roll, work charged and other casual basis exceeds a hundred thousand. Even the other 30 thousand posts which have been a sought to be created pursuant to the Cabinet decision dated 22.7.2005 has been stated to be grossly inadequate to accommodate the existing muster roll and work charged employees alone, leaving aside the huge number of casual employees in different departments of the State.

15. Why the names, initially included in the Muster Roll or a person employed against a particular work were allowed to continue for decades is beyond reasonable comprehension. A muster roll is a roll of employees engaged in different engineering and works related departments of the State to meet specific exigencies of work whereas a work charged employee is one who is engaged against a specific work and whose c salary is charged against such work. The muster roll is not meant to be a record of the employees engaged in a Department. It is primarily a document required to be maintained to facilitate payment of wages. Similarly, the works executed by a Department against which salaries of the engaged worker can be charged are works that fall outside the area of routine works undertaken by the Department. Time and again it has been emphasized by the judicial verdict that such employment ought not to be continued for long ; either such services are to be dispensed with after completion of the work or if the work persists the State must make all endeavours to bring such employment on the main track of service under the State. Inclusion, in the Muster Roll or engagement against specific works does not follow adherence to any acceptable principle of recruitment in public service. The eligibility, suitability and fitness of such employees are hardly decided at the time of their induction. That is precisely why Courts had frowned upon the continuance of such employment for long as long employment, by itself, have always given rise to claims for regularisation. Regularisation not being a mode of appointment and the existence of a large work force under the State on an uncertain basis, having been perceived by all concerned, to be posing a human problem. Courts have repeatedly emphasized that the State must make all endeavours not to allow the and situation to go out of hand so as to become Constitutional aberration.

16. The recent pronouncement of the Constitution Bench of the Apex Court in Secretary, State of Karnataka v. Uma Devi (3) : (2006)IILLJ722SC , though largely in the context of the Court's power to issue orders/ directions for regularisation, contain certain observations highlighting ' the role of the State in this regard which will equally bind the State. The need and hence the power to make appointments on casual, ad hoc and daily wage basis, though a necessary adjunct to the administrative power of the State, the Apex Court has laid down that such employment should not be allowed to become the Order of the day. The State is duty bound to adhere to the Constitutional scheme of public employment and desist from long time actions giving rise to a separate class of employment termed as 'litiguous employment'. That apart, in Uma Devi (supra), the, Constitution Bench also held that long continuance of employees on irregular basis will not entitle such employees to claim equal treatment with those regularly recruited and further that no legitimate expectation capable of being enforced in law can be understood in favour of such employees. These are some of the vices expressed in Uma Devi (supra) which the State is obliged to take note of while exercising its powers and duties in the domain of public employment to ensure that a system guided by the rule of law prevails.

17. Having dealt with the question of how the action of the State is to be guided, we may now try to understand how the State had attempted to solve the present problem which has been occasioned by what must be perceived to be its failure to take timely action giving rise to what had become a human problem of enormous magnitude. Any solution to the problem of the magnitude to which it has been allowed to develop can be attempted by the State only in terms of a policy decision taken as a one-time measure. This would bring the Court to understand what is meant by the expression 'policy decision'. The role of the State is ever expanding and the problems confronting, a modern State are wide, varied and multifarious. There is hardly any aspect of human life governed by the rule of law which does not require State/Governmental action. Any decision of the State that has wide ramifications or has the effect, of entering into unexplored and virgin areas of human life or giving a positive/affirmative dimension or direction to State action may be understood as a policy decision.

18. The Executive Power of the Union under Article 53 of the Constitution, and that of the Constituent States, under Article 154, is vested in the President and the Governor respectively to be exercised directly or through officers subordinate. In so far as the States are concerned, Article 163 provides for a Council of Ministers to aid and advise the Governor in, the exercise of his functions except in cases where the Governor is required by the Constitution to act in his discretion. Under Article 162 of the Constitution the executive power of the State is co-extensive with the power of the State Legislature as enumerated by List II of the Seventh Schedule of the Constitution. As the State Legislature would be competent to enact laws in all matters enumerated in List II of the Seventh Schedule of the Constitution, the State executive will be empowered to exercise executive power in all such fields. Exercise of such executive powers, however, must be in conformity with the provisions of Article 166 of the Constitution which requires all executive action of the State to be taken in the name of the a Governor. As held in Rai Sahib Ram Jawaya Kapur and Ors. v. The State of Punjab reported in : [1955]2SCR225 , the Governor in whom the executive power of the State is vested is not the independent Governor acting on his own but it is the constitutional Governor, i.e., exercising powers with the aid and advice of the Cabinet. To effectuate , the aforesaid purpose Rules of Executive Business have been enacted by different State Governments regulating the manner of conduct of executive power of the State vesting certain decisions in the individual Minister and Ors. in the State Cabinet. It is the satisfaction of the Ministers individually or collectively as the Cabinet on which basis the executive power of the State is exercised in the name of the Governor c and it is the satisfaction of such Ministers or the Cabinet, as the case may be that is the satisfaction of the Governor under the Constitution. Policy decisions, therefore, have to be taken by the individual Ministers if the subject-matter, is otherwise within their domain or by the State Cabinet, as the case may be. The position has been succinctly explained d by the Apex Court in its judgment in the case of Rai Sahib Ram Jawaya Kapur (supra), in the following paragraphs.

(13) The limits within, which the executive Government can function under the Indian Constitution can be ascertained without much difficulty by reference to the form of the executive which our Constitution has set up. Our Constitution, though federal in its structure, is modeled on British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State.

The executive function comprises both the determination of the policy as well as carrying it into execution. This evidently includes the initiation of legislation, the maintenance of order, the promotion of social and economic welfare, the direction of foreign policy, in fact the carrying on or supervision of the general administration of the State.

(14) In India, as in England, the executive has to act subject to the control of the Legislature ; but in what way is this control exercised by the Legislature: Under Article 53(1) of our Constitution, the executive power of the Union is vested in the President but under Article 75 there is to be ft a council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions. The President has, thus, been made a formal or constitutional head of the executive and the real executive powers are vested in the Ministers or the Cabinet.

The same provisions obtain in regard to the Government or States; the Governor or the Rajpramukh, as the case may be, occupies the position a of the head of the executive in the State but it is virtually the council, of Ministers in each State that carries on the executive Government. In the Indian Constitution, therefore, we have the same system of parliamentary executive as in England and the Council of Ministers consisting, as it does, of the members of the Legislature is, like the British Cabinet, 'a hyphen which joins, a buckle which fastens the legislative part of the State to the executive part'.

The Cabinet enjoying, as it does, a majority in the Legislature concentrates in itself the virtual control of both legislative and executive functions; and as the Ministers constituting the Cabinet are presumably agreed on fundamentals and act on the principle of collective responsibility, the most important questions of policy are all formulated by them.

19. The above questions received another lucid and elaborate consideration of the Apex Court in Bhuri Nath and Ors. v. State of Jammu and Kashmir and Ors. reported in : [1997]1SCR138 , wherein, against others the decision of the Bench of seven Judges in the case of Samsher Singh v. State of Punjab (1994) 2 SCC 831 was considered. For a proper appreciation of the weighty arguments that have been advanced on the question of whether the office memorandum dated 20.4.1995 can be held to be a policy decision of the State, the views expressed in paragraphs 19 and 20 of the judgment in Bhuri Nath (supra) may be noticed and set out below.

19. By operation of Article 154, the executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. By operation of Article 162, subject to the provisions of the Constitution, the executive power of the State shall extend to all matters with respect to which the Legislature of the State has power to make the law. Thus, except his discretionary powers like that of appointing the Chief Minister, the Governor does not exercise any power in his individual discretion, the Governor is aided and advised by the Council of Ministers appointed by him under Article 163. The executive power of the State is coextensive with that of the legislative power of the State and the Governor in the constitutional sense discharges the functions under the Constitution with the aid and advice of the Council of Ministers except insofar as he is by or under the Constitution required to exercise his functions in his discretion. This is subject to Article 370 and the *Constitution (Application to Jammu and Kashmir) Order, 1950 repealed and revised by the Constitution (Application to Jammu and Kashmir) Order, 1954 and the Constitution of Jammu Kashmir, 1957, (Part V). All the executive actions of the State Government shall be expressed to be taken in the name of the Governor as per the business rules of the Government made in accordance with Article 166 of the Constitution and the business rules made by the Governor under Clause (3) thereof (Section 45 of the Constitution of Jammu and Kashmir). In Samsher Singh case (supra), a Bench of seven. Judges of this Court had held that under the Cabinet system of Government, as embodied in our Constitution, the Governor is the formal head of the State. He exercises all his powers and functions conferred on him by or under the Constitution with the aid and advice of his Council of Ministers save in spheres where the Governor is required, by or under the Constitution to exercise his functions in his discretion.. The satisfaction of the Governor for the exercise of any other powers or functions required by the Constitution is not the personal satisfaction of the Governor but is the satisfaction in the constitutional sense under the cabinet system of Government. The executive is to act subject to the control of the Legislature. The executive power of the State is vested in the Governor as head of the executive. The real executive power is vested in the Council of Ministers of the Cabinet. There is a Council of ' Ministers with the Chief Minister as its head to aid and advise the Governor in the exercise .of his executive functions. In R.K. Jain v. Union of India (1993) 4 SCC 119 it was held that the Cabinet system is a constitutional mechanism to ensure that before important decisions are taken, many sides of the question are weighed and considered. The Cabinet takes political decisions of importance and the permanent bureaucracy works out the details and implements the policy. The Cabinet headed by the Prime Minister bears collective responsibility for the governance of the country. The Cabinet as a whole is responsible for the advice and conduct of business by each of the members of the Cabinet of his Department and requires to maintain secrecy in the performance of the decision making process individually or collectively. They are also equally responsible individually and collectively for their acts and policies. The Cabinet, as a whole, is collectively responsible for the advice to the President and to Parliament and the people. In S.R. Bommai v. Union of India at SCC p. 238 in paras 313 and 314) this Court had held that the executive power of the Union shall be vested in the President and shall be exercised by him whether directly or through officers subordinate to him in accordance with the Constitution. All the executive actions of the Government shall be expressed to be taken in the name of the President under Article 77(1). Therefore, he acts with the aid and advice of the Council of Ministers under Article 78 of the Constitution headed by the Prime Minister as elaborated under paras 313 to 321. In Samsher Singh case, this Court had held, thus : (SCC p. 840, paras 28-29)

Under the Cabinet system of Government as embodied in our Constitution the Governor is/the constitutional or formal head of the State and he exercises all his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers save in spheres where the-Governor is required by or under the Constitution to exercise his functions in his discretion.

The executive power is generally described as the residue which does not fall within the legislative or judicial power. But executive power may also partake of legislative or judicial actions. All powers and functions of the President except his legislative powers as for example in Article 123, Ordinance making power and all powers and functions of the Governor except his legislative power as for example i n Article 213 being ordinance making powers are executive powers of the Union vested in the President under Article 53(1) in one case and the executive powers of the State vested in the Governor under Article 154(1) in the other case. Clause (2) or Clause (3) of Article 77 is not limited in its operation to the executive action of the Government of India under Clause (1) of Article 77. Similarly, Clause (2) or Clause (3) of Article 166 is not limited in its operation to the executive action of the Government of the State under Clause (1) of Article 166. The expression 'Business of the Government of India' in Clause (3) of Article 77, and the express/on. 'Business of the Government of the State' in Clause (3) of Article 166 includes all executive, business.'

20. The constitutional mechanism, i.e., cabinet system of Government is devised for convenient transaction of business of the executive power of the State. Though constitutionally the executive power of the State vests in the Governor, he does not, unless the Constitution expressly conferred on him, personally take the decision. The decisions are taken according to business rules at different levels and ultimately the decision rests with the authority specified in the business rules and is expressed to be taken in the name of the Governor. In substance and in reality, decisions, are taken by the Council of Ministers headed by the Chief Minister or the Minister or Secretary as per business rules. But they are all expressed to be taken by the Council of Ministers in the name of the Governor and authenticated by an authorized officer. The Governor being the constitutional head of the State, unless he is required to perform the function under the Constitution in his individual discretion, the performance of the executive power, which is coextensive with the legislative power, is with the aid and advice of the Council of Ministers headed by the Chief Minister.

20. In the present case as already noticed, a Cabinet decision was taken on 23.9.1983 to regularise the services of muster roll workers in all departments of the State Government provided such Muster Roll k workers had completed 15 years or more of service. The Cabinet decision dated 23.9.1983 can be accepted as a policy decision. However, a policy decision of the Government needs an acceptable and rational basis of implementation which basis must have a reasonable nexus to the rights of such persons who may come within the purview of the policy, at the same time without infringing the rights already vested in others. The policy decision dated 23.9.1983, i.e., to regularise muster roll employees who have rendered 15 .years of service is incapable of acceptable implementation by itself. Norms or principles have to be necessarily laid down with regard to its execution. For instance, amongst the persons covered by the aforesaid policy decision there may be people with 15 years of service as well as persons with longer length of service/Unless the decision is to be implemented at one time, principles will have to be necessarily laid down as to how the length of service rendered by an employee is to be considered and weighed. As the concerned employees are to be regularised against Grade IV posts whether to be eligible for regularisation an employee must possess the required eligibility or whether such conditions are to be dispensed with also have to be spelt out. Similarly, there may be several other details with regard to implementation of the policy decision which has to be worked out and laid down. All such requirements .flow from the duty f the State to ensure that in implementing a policy decision there is neither any arbitrariness nor any violation of the rights of affected persons under Articles 14 and 16 of the Constitution. What is sought to be emphasized is that a policy decision of the State Government must be implemented in accordance with certain laid down principles which principles, in turn, must be able to satisfy the tests of legality, propriety and reasonableness.

21. Clearly and evidently, the Cabinet decision dated 23.9.1983, though it can be termed as a policy decision by the competent authority of the State was not followed by laying down any norms/principles for its implementation in the form of a scheme in fact there is no material before the Court to show that the said policy was implemented at all. Thereafter, it appears that there was no further decision in this regard until the office memorandum dated 20.4.1995 was issued by the Chief Secretary to the effect that as the Government had decided that all muster roll/work charged employees are to be regularised such regularisations may be effected in cases of all employees who were engaged prior to 1.4.1993. Which particular decision of the Government is being referred to in the office memorandum dated 20.4.1995 is not spelt out in either the office memorandum itself or in any subsequent office memorandum or even in the affidavit filed by the Chief Secretary of the State in the present proceedings. Clearly and obviously, the office memorandum dated 20.4.1995 could not have been issued pursuant to the Cabinet decision dated 23.9.1983. Not only the office memorandum dated 20.4.1995 goes beyond the terms of the Cabinet decision dated 23.9.1983 by bringing within its fold work charged employees also the said office memorandum dated 20.4.1995 merely seeks to reiterate and reaffirm the existence of a Government decision to the said effect without specifying the details thereof and in any case without laying down any precise or particular manner for its implementation. The office memorandum dated 20.4.1995, on a careful consideration, together with the stand taken in the affidavit filed by the Chief Secretary would indicate that it was issued by the Chief Secretary unilaterally and without having the sanction of any valid exercise of the executive power of the State. The office memorandum dated 20.4.1995, therefore, cannot be understood to have been issued in exercise of the executive power of the State and further in accordance with the provisions of Article 166 of the Constitution. The office memorandum in question, rather, reflects the unilateral decision taken by a Government functionary who was also not competent or authorised to so act under the Assam Rules of Executive Business, 1968, framed under Article 166 of the Constitution.

As the aforesaid decision cannot be viewed by the Court as a valid policy decision of the State for the reasons indicated, the arguments advanced on the question of the sanctity and legality thereof on account of the absence of an appropriate manner of its execution in the form of a valid scheme, are matters that need to be gone into by the Court. What would be the correct parameters for the execution of a policy decision is a question that can reasonably arise once it is held that there is a policy decision in force. If there is no policy decision at all the legality thereof and the manner of its execution are issues that can hardly arise.

22. Notwithstanding the fact that this Court has held the office memorandum dated 20.4.1995 not to be embodying a valid policy decision of the State, it will be necessary to briefly deal with the question of extension of the aforesaid office memorandum dated 20.4.1995 to cover the cases of regularisation of different species of casual employment under the State, in addition to muster roll and work charged employees and also extension of the said office memorandum to cover the cases of such casual employees in Class III posts. In the discussions that have preceded an attempt has been made to bring out the fundamental distinction between muster roll/work charged employees and other species of casual employment like ad hoc employees ;. purely casual employees ; employees engaged on fixed pay for specified duration and daily rated employees. The office memorandum dated 20.4.1995 makes a specific reference to muster roll and work charged employees only and not to other species of casual employees. If the executive intention, was to regularise the employees of all categories of casual employment, perhaps, a more detailed enumeration or description of the categories of employees covered by the office memorandum dated 20.4.1995 would have been evident therein. On the contrary, the office memorandum dated 20.4.1995 a restricts its operation only to muster roll and work charged employees. While it is correct that in a larger perspective even the muster roll and work charge employees could be considered as a kind of casual employment, while understanding the purport and effect of the office memorandum dated 20.4.1995, in our considered view, the distinction , between the different species of casual employment must be kept in minS. Viewed in the above manner, we do not find any justification for extending the office memorandum dated 20.4.1995 to any category of employees other than muster roll and work charged employees. On the same reasoning, the application of the office memorandum dated 20.4.1995 to various categories of casual employees working in Class III posts will not be justified. Such application appears to have followed on the rationale that the office memorandum in question had brought within its fold work charged employees some of whom were engaged in Class III posts. The aforesaid feature of the office memorandum dated 20.4.1995, by itself, cannot be and sufficient justification to extend its application to other categories of casual employees in Class III posts. Having taken the above view, we must, however pointedly emphasise that the conclusions recorded above are capable of being reached on our finding that the office memorandum dated 20.4.1995 does not reflect a policy decision of the State and, therefore, the discussions that have e preceded; with regard to the scope and ambit of the said office memorandum dated 20.4.1995 are only for the purposes of making the discussions complete and to adequately clarify the question raised with regard to the extension of the said office memorandum to other categories of fortuitous employment.

23. Another significant fact which cannot escape our notice is the Cabinet decision dated 22.7.2005 for regularisation of muster roll/work charged employees engaged prior to 1.4.1993 as mentioned in the affidavit of the Chief Secretary dated 14th November, 2005 and the follow up decision of the State Government to create about 30,000 posts in Grade IV category to accommodate the regularisation in question. While it is not for us to speculate as to why a fresh Cabinet decision had to be taken on lines largely similar to what have been reflected in the office memorandum dated 20.4.1995, it would, perhaps, not be incorrect to observe that the necessity for a fresh Cabinet decision in the matter only fortifies our views recorded earlier that the office memorandum dated 20.4.1995 does not reflect a valid policy decision of the State. However, as neither the aforesaid Cabinet decision dated 22.7.2005 has been challenged before us nor any affected employee has sought for its enforcement we do not consider it prudent to record our views on the validity or correctness of the aforesaid decision dated 22.7.2005. Neither the manner of implementation of the said decision is a question that has been raised before us. In such circumstances, we make it clear that we express no opinion on the legality or validity of the Cabinet/ policy decision dated 22.7.2005 ; nor do we feel it necessary to issue any 'advisories' on the correct manner of the execution and implementation of the said Cabinet/policy decision dated 22.7.2005.

24. Closely connected with what has been discussed above is the question of what should be our views with regard to the regularisations already made in terms of the office memorandum dated 20.4.1995 either on Court orders or by the Government acting unilaterally. In this regard, the submission advanced by Sri A. K. Phukan, learned Advocate General of the State of Assam, must be noticed by us'.-Sri Phukan has argued that even if this Court is to take the view that the office memorandum dated 20.4.1995 does not reflect a policy decision of the State, while moulding our operative directions, the fact that the aforesaid office memorandum dated 20.4.1995 had all along been understood by all concerned, to be laying down a policy for regularisation and by this time thousands of persons have been regularised in terms of the aforesaid office memorandum, are facts that should receive our due consideration.

25. The learned Advocate General is correct. For over a decade now, the office memorandum dated 20.4.1995 has been understood to be laying down a policy for regularisation of different categories of employees and on that basis has been consistently acted upon. The number of affected employees, indeed, will be huge. All such employees have been regularised by the State Government acting either on the basis of the specific directions issued by this Court from time-to-time or by following, the principles deducible from judicial opinion(s) rendered by the Court. Should the position which has become virtually settled by long efflux of time be now reversed ?

There may be serious limitations in this Court to apply the doctrine of prospective overruling, as canvassed by the learned Advocate General, in view of the observations of the Apex Court, with regard to the availability of such a power to the High Courts as expressed in Managing Director, ECIL v. B. Karunakar : (1994)ILLJ162SC and Kailah Chand Sharma v. State of Rajasthan : [2002]SUPP1SCR317 . However, in the facts noted above, humanitarian considerations can and ought to be invoked by the Court to protect and preserve what has happened and refrain from unsettling what has become settled. Application of harmonizing principles on humanitarian considerations, which, we intend to do in the facts, of the present case, will only enhance the majesty of the law.

26. Before proceeding to indicate the reliefs that we think should be appropriately granted in the 'different' cases under consideration, our attention must also go, specifically, to the cases of the Transport Department out of which the present reference has originated. The aforesaid cases have been registered and numbered as W.P.(C) No. 6222 of 2003, W.P.(C) No. 6139 of 2003, W.P.(C) No. 5067 of 2003, W.P.(C) No. 973 of 2004, W.P.(C) No. 1185 of 2004, W.P.(C) No. 1547 of 2004, W.P.(C) No. 1544 of 2004 and C.O.P. No. 356 of 2003.

In the writ petitions out of the above group of cases wherein regularisation has been sought in Grade III posts on the basis of the office memorandum dated 20.4.1995 our answer has to be in the negative for the reasons already indicated in the preceding paragraphs.

However, in W.P.(C) No. 6222 of 2003, where the select list dated 24.6.2003 has been assailed, and in the other writ petitions where directions has been sought for appointment on the basis of the aforesaid select list, our conclusion must follow only upon consideration of certain essential facts.

The select list dated 24.6.2003 has been assailed primarily on two grounds. Firstly, it has been contended that there was an earlier select list dated 16.6.2003, containing 12 names, in all, whereas the impugned select list bifurcates the aforesaid names into a list of selected candidates and a list of wait-listed candidates (six in number in each category). It has further been contended that there was an earlier select list dated 21.2.2003 containing the names of 15 candidates which has been altered f by publication of the subsequent select lists dated 16.6.2003 and 24.6.2003.

27. The stand taken by the Commissioner of Transport in response to the aforesaid case projected by the unselected candidates is that the earlier select list dated 21.2.2003 was not in existence at any point of time and the same is a fabricated document in respect of which a F.I.R. as been filed. According to the Commissioner of Transport, the correct select list published after due selection consists of 12 names which has been put into two different categories, i.e., selected candidates and wait listed candidates and the same was published on 24.6.2003.

Not only the existence of any select list dated 21.2.2003 has been denied and disputed by the department, on the materials available on record, this Court cannot affirm the existence of any such select list. The Court will, therefore, have to carry out its adjudicatory process on the basis that the select list dated 24.6.2003 consisting of 12 names is the published select list.

The unselected candidates have also raised a question with regard to the validity of the selection process. Though the writ petitions filed in this regard do not contain any elaborate pleadings, as the records in original had been called for and placed before the Court and the same has been duly perused, we are of the view that it will only be correct for the Court to record its views in the matter on the basis of the original records made available for scrutiny of the Court instead of non-suiting the petitioners on the ground of the scanty pleadings contained in the writ petitions. A perusal of the records would go to show that the selection was made on the basis of a total of 200 marks out of which 100 marks were allotted for the written test, 20 marks for the typing test and 80 marks for the personal interviews. 40% of the total marks, therefore, was allotted to the personal interview segment of the selection. Though we would consider allotment of 40% of the total marks for the personal interviews to be on the higher side, on the strength of the law holding the field as on date, we do not consider the above to be a sufficiently safe basis to set aside the selection. Rather, we would consider it a better course of action to proceed to scrutinize the manner of award of marks to the candidates so as to satisfy ourselves that all that had been done is fair and just.

In this regard we have considered the marks awarded to the candidates who had undergone the selection and on such consideration we find that each of the selected candidates has been given very high marks in the interview segment and it is only on account of such high marks in the interview that the said candidates have been selected. While it is correct that the selected candidates have also secured equally high marks in the written test we have also noticed that other candidates who had secured equally high and even higher marks in the written test than the selected candidates have fared very poorly in the interview. The scrutiny of the marks awarded to the successful and unsuccessful candidates reveal a distinct pattern, i.e., those who have been selected have secured very high marks in the interview whereas those unselected have secured very low marks in the interview held. Such a uniform pattern, in our considered view, is unnatural and in spite of our best efforts we have not been able to persuade ourselves to accept the final result of the selection. We, therefore, set aside the select list dated 24.6.2003 and direct the posts in question to be readvertised. In the fresh selection to be held all candidates who had appeared in the earlier selection initiated by the advertisement published in the year 1998 should be allowed to appear subject to suitable relaxation of age in appropriate cases. Such relaxation of age, we have considered it proper to direct, as though the selection process was initiated in the year 1998, the select list was a published in the year 2003 and thereafter it is by virtue of the present Order that the Court has been able to render its opinion on the validity of the select list.

28. Our answers to the questions referred and also to the questions incidentally arising are self-contained in the various paragraphs of b the present order. However, to dispel all doubts and avoid any possible confusion we deem it appropriate to reiterate our conclusions to be as follows:

(1) The office memorandum dated 20.4.1995 does not reflect a valid policy decision of the State for regularisation of muster roll/work c charged employees.

No muster roll/work charged employee is entitled in law to seek and claim regularisation in terms of the aforesaid office memorandum dated 20.4.1995.

(2) However, as a large number of regularisations of different categories of employees have already been effected in terms of the office memorandum dated 20.4.1995, considering the human factor involved, the Court does not consider it necessary to pass orders setting aside any of the said regularisations. However, there will be no further regularisation in terms of the aforesaid office, memorandum, dated 20.4.1995, and/or such other judicial order(s) for regularisation, passed, in this regard, but has not yet been implemented.

(3) The office memorandum dated 20.4.1995 does not cover any category of employees other than muster roll and work charged employees. No policy decision has been taken by the State with regard to regularisation of different categories of casual/contingent/ ad hoc employees working in the different departments of the State Government. Such employees are, therefore, not entitled to claim any regularisation either under the office memorandum dated 20.4.1995 or under any other office memorandum in force.

(4) Casual employees of the Transport Department in Grade III posts are not entitled to regularisation in terms of the office memorandum dated 20.4.1995 or any other office memorandum in force.

(5) The selections held for filling up the vacant posts of L.D. Assistants in the Transport Department including the select list dated 24.6.2003 is found to be illegal and, therefore, set aside.

(6) The Court express no opinion with regard to the validity of the Cabinet decision dated 22.7.2005 or its implementation and execution. The matter will be considered, if required, at the appropriate time and stage.

All the writ petitions shall stand disposed of as being answered in terms our conclusions recorded above.