Future of Unemployed Youth & Vote Bank Politics

For the country's youth, employment, education, corruption and clean governance are paramount. But, the nation has been destroyed by vote bank politics and the employment is one area where the youth is exploited to the hilt by political parties/politicians for electoral benefits. 

And, the Judgement quashing the policy of regularisation of adhoc/contract/temporary employees; delivered by HON'BLE MR. JUSTICE RAJESH BINDAL attacks such exploitation. I am personally very fond of Justice Rajesh Bindal, as he was the Judge who had dared to issue notice in my case challenging the selection process in the office of Advocate General, Haryana, despite the fact that maximum persons in the AG Office were relatives of High Court Judges, Ministers/Politicians and senior bureaucrats. Further, he dared to issue notice in my case challenging the draconian Works of Defence Act, rendering the lands of farmers virtually a barren land. Below summary is the crux/highlights of the judgment delivered by HON'BLE MR. JUSTICE RAJESH BINDAL:-

HIGHLIGHTS/SUMMARY OF JUDGMENT

The framing of the policies in June/July, 2014 was to achieve political objectives is clearly made out as the Haryana State was due for Assembly elections in October, 2014. Apparently, action was to please the voters. The constitutional scheme as well as judgment of Hon'ble the Supreme Court were just brushed aside for political gains.

In fact, the exercise for framing the four policies in June and July, 2014 was merely to please the voters as the State was in election mode and Assembly elections were due in October, 2014. For gaining personal benefits, the bosses were not concerned about any order or judgment of the court; hence, they dared to violate the same.

Such an action was deprecated by Hon'ble the Supreme Court in earlier judgments and need to be deprecated strongly. The extent to which political heads of the State can go to please the voters is evident from the policies dated 7.7.2014 dealing with Group 'B', 'C' and 'D' employees. Code of Conduct was to be notified in the State for Assembly elections to be held in October, 2014. In fact, at that stage, the State was in a hurry to pass orders, which may or may not stand judicial scrutiny so that they could claim credit and leave it to the courts to adjudicate upon the issues and take dis-credit. Vide this policy, even illegal appointments were sought to be regularised. The object of the aforesaid policy was merely to regularise the services of the employees, who had been appointed by the Government when came into power by adopting illegal means, i.e., back door entrants.

The argument regarding legitimate expectation is totally misconceived. No one can expect something, which is not legally due to him. If the very basis on which they are making claim of legitimate expectation is illegal, no rights will flow. No one can claim any right on the basis thereof or take a plea that they had legitimately expected that with the appointment on ad hoc/contract/work-charged/daily wages and part-time basis, in future their services will be regularised. In fact, neither such a promise can be made nor formation of such a scheme creates an enforceable right in favour of a person. Regularisation business is not a side window opened to validate irregular/illegal appointments.

In all the appointments being made by the State on contract basis, due process is never followed. The system applied is merely pick and choose. Applications are taken from favourites and appointment letters are issued for different considerations.

Article 21 (RIGHT TO LIVELIHOOD): The issue raised regarding violation of right to life as enshrined under Article 21 of the Constitution of India was also deliberated upon by the Constitution Bench in Umadevi (3) and others' case (supra) and the same was over-ruled. Paragraphs 50 and 51 thereof are extracted below:

“50. It is argued that in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, the action of the State in not making the employees permanent, would be violative of Article 21 of the Constitution. But the very argument indicates that there are so many waiting for employment and an equal opportunity for competing for employment and it is in that context that the Constitution as one of its basic features, has included Articles 14, 16 and 309 so as to ensure that public employment is given only in a fair and equitable manner by giving all those who are qualified, an opportunity to seek employment. In the guise of upholding rights under Article 21 of the Constitution of India, a set of persons cannot be preferred over a vast majority of people waiting for an opportunity to compete for State employment. The acceptance of the argument on behalf of the respondents would really negate the rights of the others conferred by Article 21 of the Constitution, assuming that we are in a position to hold that the right to employment is also a right coming within the purview of Article 21 of the Constitution. The argument that Article 23 of the Constitution is breached because the employment on daily wages amounts to forced labour, cannot be accepted. After all, the employees accepted the employment at their own volition and with eyes open as to the nature of their employment. The Governments also revised the minimum wages payable from time to time in the light of all relevant circumstances. It also appears to us that importing of these theories to defeat the basic requirement of public employment would defeat the constitutional scheme and the constitutional goal of equality.

51. The argument that the right to life protected by Article 21 of the Constitution of India would include the right to employment cannot also be accepted at this juncture. The law is dynamic and our Constitution is a living document. May be at some future point of time, the right to employment can also be brought in under the concept of right to life or even included as a fundamental right. The new statute is perhaps a beginning. As things now stand, the acceptance of such a plea at the instance of the employees before us would lead to the consequence of depriving a large number of other aspirants of an opportunity to compete for the post or employment. Their right to employment, if it is a part of right to life, would stand denuded by the preferring of those who have got in casually or those who have come through the back door. The obligation cast on the State under Article 39(a) of the Constitution of India is to ensure that all citizens equally have the right to adequate means of livelihood. It will be more consistent with that policy if the courts recognize that an appointment to a post in government service or in the service of its instrumentalities can only be by way of a proper selection in the manner recognized by the relevant legislation in the context of the relevant provisions of the Constitution. In the name of individualizing justice, it is also not possible to shut our eyes to the constitutional scheme and the right of the numerous as against the few who are before the court. The Directive Principles of State Policy have also to be reconciled with the rights available to the citizen under Part III of the Constitution and the obligation of the State to one and all and not to a particular group of citizens. We, therefore, overrule the argument based on Article 21 of the Constitution.”

The adherence to the rule of equality in public employment is the basic feature of our Constitution; hence, the rule of law is the core of our Constitution. The Court will not pass any order upholding violation of Article 14 or pass an order over-looking the need to comply with the requirements of Article 14 read with Article 16 of the Constitution of India. In contractual appointment, the term comes to an end on expiry of the period of engagement or the work. Merely because a temporary employee or a casual worker continues to work beyond the term of his appointment, he will not be entitled to be absorbed in regular service merely on the basis of the length of such continuance.

In National Fertilizers Ltd. and others v. Somvir Singh, (2006) 5 SCC 493, Hon'ble the Supreme Court opined that regularisation is not a mode of appointment. The very appointment made in violation of the recruitment rules and also in violation of Articles 14 and 16 of the Constitution of India would be a nullity.

In State of Orissa and another v. Mamata Mohanty, (2011) 3 SCC 436, Hon'ble the Supreme Court considered the issue regarding appointments being made without advertisement. It opined that any appointment even on temporary or ad-hoc basis without inviting applications of all eligible candidates is violative of Articles 14 and 16 of the Constitution of India, as it deprives all eligible candidates from consideration. A person employed in violation of these principles is not entitled to any relief including salary.

Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates.

In fact, what is experienced is that it is not only that the State is the biggest litigant, rather, it is the creature of majority of avoidable litigation because of its actions which are either patently in violation of Rules or contrary to law laid down by courts. Unless stern action is taken against those involved in these types of actions, this process will not stop. Senior officers are expected to put their strong view forward if that is not in line with law of the land. They should not become party to any action which is patently in violation of law only to please their political bosses.

As the officers have not mended their ways, the HC considered issuing notice to the Chief Secretary for violation of law laid down by Hon'ble the Supreme Court but could not exercise that jurisdiction in view of the judgment of Hon'ble the Supreme Court in Vitusah Oberoi and others v. Court of its own Motion, (2017) 2 SCC 314.

FINDINGS

77.       As there are thousands of employees who had been appointed on ad-hoc/contract/work-charged/daily wages, to take care of the work being carried out by them in different departments, we direct that they be allowed to continue for a period of six months, during which the State shall ensure that regular posts, wherever required, are advertised and the process of selection is completed. Under no circumstances, any adhoc/contract/work-charged/daily wages employees shall be allowed to continue thereafter.

78.       This Court cannot lose sight of the fact that even the employees to some extent may not be said to be at fault. They are swayed by the promises made to them or the assurances given, which may not be legally tenable. To take care of the fact that all such employees, who had been appointed on ad-hoc/contract/work-charged/daily wages may not suffer on account of they being over-age, it is directed that all such employees be given relaxation in age to the extent of the period they have worked continuously on ad-hoc/contract/work-charged/daily wage basis in the next process of selection, which is to be carried out in terms of the directions given by this court. The aforesaid relaxation shall be one time measure and not in any subsequent selection.