JAWAHAR LAL GUPTA, J

(1) CAN the State or its instrumentalities refuse to regularise the services of an employee on the ground that there is a break of more than a month despite the fact that the employee was not to blame or the fact that the absence was for reasons entirely beyond his control This question has been answered in favour of the employee by different Benches of this Court. The correctness of the view has been doubted. Thus, these petitions were admitted for hearing before a Full Bench.

(2) THE issue arises in the context of the instructions issued by the State Government in march, 1996. After hearing the counsel for the parties, we find that the following questions arise:

1. Can the competent authority refuse to regularise the services of a daily wager merely because there was a break of more than a month even when the employer had caused the interruption in service

2. Can the employer refuse to regularise the services of an employee who had remained absent from duty for a continuous period of more than a month for reasons entirely beyond his control

3. Does the absence of the employee on january 31, 1996 disentitle him to claim regularisation in service despite the fact that he had remained in service prior to and after that date

4. Can this Court not go into these matters in proceedings under Article 226 of the constitution

Learned counsel for the parties have referred to the facts in CWP No. 2067 of 1997. These may be briefly noticed. The petitioners were appointed as beldars in the Public Works Department. The appointments were on daily wages. These were made on different dates during the period from the year 1988 to February 1, 1993. Their services were terminated on December 15. 1996. The petitioners maintain that in view of the instructions issued by the Government vide letters dated March 7, 1996 and March 18, 1996, they were entitled to regularisation of their services. The action of the respondents in ordering termination was illegal and violative of the instructions. Thus, the petitioners pray that the oral order by which their services were terminated on December 15, 1996 be quashed and that the respondents be directed to regularise their services with effect from the prescribed date viz. February 1, 1996. They also claim all the consequential benefits.

(3) A written statement has been filed on behalf of the respondents by the Executive engineer, Provincial Division, Public Works department. It has been averred that the petitioners were engaged on temporary muster rolls on daily wages with effect from November 21, 1991, February 3, 1992, December 24, 1992, February 3, 1993 and March 28, (sic)respectively. They were engaged for doing temporary work. Only petitioner No. 3 viz. Hem Raj was present on January 31, 1996. The year wise details of the days for which each of the petitioners had worked have been given in the documents at Annexures R. 1 to R. 5 with the written statement, the services of the petitioners "were not terminated by the respondents. . . . " They have "not turned up at (on) their own for doing the work". Since the petitioners do not fulfil the conditions laid down in the Government Circulars, their services were not regularised.

(4) IN the five annexures to the written statement, the details regarding the number of days for which each of the petitioners had worked during different years have been given. By way of illustration, the position regarding petitioner No. 1 may be noticed. He had been appointed on November 21, 1991. He had worked for a period of 63 days in the year 1991-92 viz,, from November 1991 to January 1992. From February 1992 to January 1993, he had worked for 274 days. Thereafter, during the year 1993-94, he had not worked even for a day in the months of May, June, July and august. Despite that, his number of working days during the year was 205. From February 1994 to January 1995, he had worked for 258 days. He had not worked during the month of february 1994. From February 1995 to january 1996, he had worked for 202 days. It has been further indicated that he was absent on January 31, 1996. Similar details regarding the remaining four petitioners have also been given.

(5) THE petitioners have filed a replication. It has been inter alia stated that no leave is granted to the daily wage employees. Whenever they are unable to attend duty, they are marked absent. No wages are paid for that day. All the petitioners have completed 240 days in every year. Therefore, in view of the government instructions, they are entitled to regularisation of their services. As for the details regarding petitioner No. 1, it has been averred "the muster roll was not issued for the months of May 1993 to August 1993. . . " similar is the position with regard to the other petitioners. It has been pointed out regarding petitioner No. 2 that "the gap of full month has been shown in January 1996 whereas the petitioner had worked for 20 days vide temporary muster roll No. 2152/2 Voucher no. 8/27. 2. 96. " The allegation that the petitioners had not reported for duty has been controverted, it has been specifically stated that their services were terminated on December 15, 1996. by a verbal order. They were in service on January 31, 1996. The petitioners also maintain tbat they are workmen and that they cannot be removed from service without observing the provisions of the Industrial disputes Act, 1947. They fulfil the conditions laid down in the two circular issued by the Government in March 1996. The break was on account of the action of the employer. Thus, they cannot be made to suffer. The petitioners have also referred to the decision of the Division Bench (R. S. MONGIA and S. S. SUDHALKAR JJ) in CWP No. 12687 of 1997 Ram Kumar v. Haryana Urban development Authority and another decided on november 27, 1997 in support of their claim. A copy of the order is at Annexure P. 3 with the petition.

(6) WHILE admitting the writ petition vide order dated November 3, 1997, their Lordships (R. S. MONGIA and M. L. SINGHAL, JJ) had noticed the decisions in the cases of Anand kumar v. HUDA 1995 (1) RSJ 230 and Giri Raj and others v. State of Haryana 1997 (2) RSJ 506 and observed as under:

"we have our reservation about the dicta laid down in the aforesaid judgments. It has been repeatedly held that if the government grants some concessions by way of instructions, then the same have to be very strictly construed. The question that arises is: Can by a judgment something be added to the instructions issued by the Government The instructions only give a right for regularisation subject to fulfilling certain conditions. Can the Court say that a particular condition need not be fulfilled to achieve the object Apart from that, can it be determined in a writ jurisdiction as to whether the person concerned was at fault for not attending the work for more than 30 days or it was at the volition of the employer. Can this point be gone into without evidence under Article 226 of the constitution of India for the foregoing reasons, we admit this case for hearing by a Full Bench"

(7) IN view of the above order, the petitions have been placed before this Bench. We have heard learned counsel for the parties. On behalf of the petitioners, the arguments were addressed by Y. P. Malik, J. K. Goel, R. N. Lohan and R. S. Mamli. The counsel contended that in view of the instructions issued by the state Government, the petitioners were entitled to the regularisation of their services. The employer cannot be permitted to deny: regularisation or terminate the services of the employees who fulfil the prescribed conditions. If an interruption occurs on account of the action of the employer or for reasons that are entirely beyond the control of the employee, he cannot be blamed or punished therefor. In such a case, the break of even more than a month should be condoned.

(8) MR. Surya Kant, Advocate General, haryana controverted the claim made on behalf of the petitioners.

(9) IT is in the background of the above noted contentions that the questions as posed at the outset have to be considered.

(10) REG. 1: Can the competent authority refuse to regularise the services of a daily wager merely because there was a break of more than a month even when the employer had caused the interruption in service the Government has the right to create posts and services. The Constitution and the other statutes empower the State or other authorities to frame rules. The provisions of the rules or regulations have to conform to the constitution and the law that may be enacted by the Legislature. The rule making authority can also issue instructions to either supplement the rules or to provide for matters which are not governed by any legislation or rules. In all such cases, the provisions of Articles 14 and 16 of the Constitution have to be kept in view. In matters relating to services under the state, equality of opportunity and fairness are the two guiding principles. The citizens right to the equality of opportunity in the matter of employment to the posts under the state is a constitutional guarantee. Equally, the action of every authority has to be fair and reasonable. In a sense, regularisation may appear to be a departure from the rule of equality of opportunity. A person may get a back door entry. Then his service is regularised. He becomes as good as a person who has competed and proved his merit and mettle. However, in view of the binding decisions of pronouncements of the Apex Court, particularly in the case of Piara Singh, AIR 1992 SC 2130 [LQ/SC/1992/511] : 1992 (4) SCC 118 [LQ/SC/1992/511] , regularisation has been duly recognized. Thus, the Governments have been issuing instructions periodically. By these instructions, provision for regularisation of the services of different categories of employees working on Class III and Class IV posts including those on work-charged, casual and daily-wage basis has been made. There is a clear rationale for the instructions. The process of recruitment is time-consuming. The number of posts in every department or service is limited. Usually, the number of candidates is large. A lot of time is taken in completing the process of selection. Sometimes, the exigencies of service do not permit the authority to wait. Thus, appointments are made on casual or daily basis. , in the very nature of things, such appointments are intended to meet an emergent situation. The object is primarily to tide over a difficult period. Such appointments are not intended to be a rule. However, the reality of the situation is that a purely ad hoc arrangement gets dragged on for years. The work continues to exist. In the meantime, the employee gains experience. He is also found to have satisfactorily performed the duties. Sometimes, he also becomes overage for regular appointment. In this situation, to throw the employee out of service can lead to hardship. To alleviate an unfair and undeserved misery, the State proceeds to consider the cases of the employees for regularisation. For this purpose, it issues instructions. It lays down certain conditions. These are necessarily in the nature of conditions of eligibility. In the very nature of things, a strict adherence to the prescribed parameters is essential. A person who does not meet the required standards cannot have a valid claim for regularisation. In the event of rejection, he cannot have a good cause for grievance. However, it must be mentioned that the conditions laid down by the Government should have a rational relationship with the requirements of the post. The imperative need to select and appoint the best persons should be kept in view. And while construing the instructions, the Court has to ensure that the salutary requirements of Articles 14 and 16 viz. equality and fairness are not violated. This principle would govern even the regularisation of services. Those who are found eligible and suitable alone should be accommodated. With these parameters in view, we have to examine the question as noticed above. In the present case, we are concerned with the instructions issued by the Government of haryana vide letters dated March 7, 1996 and march 18, 1996. With regard to the casual/daily-rated employees, the instructions make the following provision:

"casual/daily Rated Employees: the casual and daily rated employees who have completed five years service on january 31, 1996 and were in service on january 31, 1996, shall be regularised provided they have worked for a minimum period of 240 days in each year and the break in service in any year is not more than one month at a time. Such employees who have worked on different posts having different designations in the same department shall also be regularised if they fulfil other conditions. On regularisation, they shall be put in the time scale of pay applicable to the lowest Group d cadre in the Government and they would be entitled to all other allowances and benefits available to regular Government servants of the corresponding grade. "

In Para 4 of the instructions, it was further directed as under:"necessary action regarding regularisation of the services of such employees working in your Deptt. should be taken within 15 days in consultation with the Finance Deptt. If necessary, under intimation to government along with the number of employees so regularised"

The instructions of March 7, 1996 were modified through letter dated March 18, 1996 as under:"this matter has further been considered and after careful consideration it has now been decided to regularise the services of all those work-charged/casual/daily-rated employees who have completed 3 years service on January 31, 1996 and fulfil other conditions laid down in Haryana government letter of even number dated march 7, 1996"

Accordingly, Government instructions issued vide letter of even number dated March 7, 1996 should be considered as modified to the extent that the work-charged/casual/daily rated employees with 3 years service on January 31, 1996 instead of 5 years service on January 31, 1996, shall be eligible for regularisation". On a perusal of the above instructions, it is clear that a casual/daily-rated employee becomes eligible, for regularisation when he, (i) Has rendered 3 years service on or before January 31, 1996. (ii) Is in service on January 31, 1996. (iii) Has worked for a minimum period of 240 days in each year. (iv) The break in service in any year should not be more than one month at a time. (v) On regularisation, the employee becomes entitled to be put in the time scale of the post. He has to be paid the allowances etc. available to regular Government servants in the corresponding grade. Thus the instructions issued by the government contain concrete conditions. It has been inter alia provided that the employee should have completed 3 years of service. In each year, he should have worked for at least 240 days. At a time, the break should not be more than a month. He should be in service on january 31, 1996. These conditions are not unfair or arbitrary. These are relevant for determining the suitability of the employees. The Government can legitimately say that a person who remains absent from work for more than 30 days at a time, is not serious about the job. Such a person can be considered as ineligible for regularisation. Perse, there is no illegality in the conditions as laid down by the government. However, the question that arises is -Should the employee be denied regularisation when the Government itself causes the break of more than a month in the service of the employee Should the employee be allowed to suffer even when he is not to blame Would it be just and fair to adopt such a course one of the recognized facets of Article 14 of the Constitution is that every authority must act fairly. In the present day, the State and its officers perform various kinds of functions. These can be classified as judicial, quasi-judicial, administrative or even investigative. Irrespective of the compartment in which the function falls, the action cannot be arbitrary. The procedure and the order have to be fair. Resultantly, every action of the State government has to be tested on the touchstone of reasonableness. This position of law has been duly recognized in the decisions of the apex Court. In the present set of cases, it is the admitted position that in certain divisions etc. , the Department had not maintained muster rolls for spans of time exceeding 30 days. The employees were in service prior to the decision to discontinue the muster rolls and even on resumption thereof. Thus, their absence during the interregnum, was not voluntary. It was not on account of any default on the part of the employees. The break had occurred on account of the Departments own decision. In such a situation, it would be unfair to deny the benefit of regularisation to the concerned employees. To allow such a course of action would amount to permitting the employer to take advantage of its own wrong. In our opinion, it would be unfair to uphold the action of the authority in such a case. It is time that the State bears the burden of paying salaries. It is aware of its needs as also the problems that it faces in the day-to-day administration. Based on its experience, the state takes various policy decisions. It is entitled to have a moving space in performing its functions. Thus, the Court should be slow to interfere. However, even the Court has a duty. It has to intervene when the authority acts arbitrarily and unfairly. In our view the state or its authorities cannot be permitted to say we shall cause the break in your service. Having done that, we shall not regularise your services. " To allow this would be unfair and unjust. The Court cannot put its seal of approval on such an action. Thus, the first question is answered in favour of the petitioners. It is held that the State cannot deny the benefit of regularisation to an employee who has been forced to remain away from the job for more than a month on account of the action or inaction of the authority itself.

(11) REG. 2 : Can the employer refuse to regularise the services of an employee who had remained absent from duty for a continuous period of more than a month for reasons beyond his control the counsel contended that the action of the Government or the other respondents in refusing to regularise the services of an employee when he was unable to attend to duty for more than a month for reasons beyond his control is arbitrary and illegal. It is true that the decisions of the government or other authorities must conform to the requirements of law and be reasonable. However, the Courts can intervene only when the action is arbitrary or illegal. Otherwise, the courts are usually slow to interfere. What is the position in the present case the instructions stipulate that the employee should have worked for at least 240 days in a year. He should not have been absent for more than a month at a time. The condition with regard to denial of regularisation on account of absence from duty isprima facie just and fair. It is relevant in the context of the suitability of the employee for the job. It is indicative of his capacity and fitness. It is not difficult to imagine that if an employee remains absent for long durations of time, on one pretext or the other including reasons of health, the work in the office or organization would suffer. The authority may feel constrained, to employ another person. Keeping in view this situation, the Government has taken a policy decision that the services shall be regularised only in case the employee has not remained away from work for more than a month at a time. This policy decision is absolutely just and fair. Learned counsel for the petitioners contended that an employee might be unable to attend to his duties for reasons beyond his control. He may fall sick. He may be compelled to stay at home so as to be able to take care of the family. When the absence occurs, for such reasons, the authority should be under a duty to consider him for regularisation. The break should be condoned. In support of this claim, reliance was placed on the following observations in Anand Kumars case:

"likewise, if an interruption in service is due to sickness or authorized leave, or accident, or a legal strike or a lock- out, such interruption cannot be treated as break in service, so as to disentitle an employee the benefit of regularisation in service. It is significant to note that the definition of the expression "continuous service" used in section 25-B excludes, interruption of service on account of sickness or authorized leave or accident or a strike which is not illegal, or a lockout or a cessation of work which is not due to any fault on the part of the workman. Though Section 25-B cannot be invoked in its letter and spirit for the purposes of interpretation of the circulars issued by the Government for regularisation of daily wager/casual employees, the legislative intendment for enacting Section 25-B of the Industrial Disputes Act can certainly provide a reasonable guidance for the purpose of interpretation of the expression break in service, which is used in the circulars of the Government. Therefore, we are of the opinion that a break in service or interruption in service of a daily wager which has been brought about on account of circumstances beyond the control of daily wager/casual employee cannot be a ground for denying him the benefit of regularisation in service. "

In our view, the above observations unduly enlarge the scope of the instructions issued by the Government. Apparently, the instructions apply to all departments in the State. Various corporations and other organizations may have also adopted these. The departments/organizations may or may not fall within the definition of industry. The principles or the policy of industrial law cannot be applied to every department or organization. In the very nature of things, the provisions are confined to industrial establishments. Still further, a workman who has the protection under the Industrial law can seek his remedy under that law. The instructions govern only regularisation of services of an employee. The Industrial law does not govern this matter. Thus, we are unable to persuade ourselves to uphold the view expressed by the Division Bench in so far as the above observations are concerned. We are not unmindful of the fact that there may be situations where an employee may be prevented from attending to his duties for reasons entirely beyond his control. Such a situation can arise on account of various variables. There can be an accident. There can be sickness. There could as well be a family problem. The absence can be for long periods of time. In every case, the employee would turn around and putforth his reasons. Should the employer be under a duty to go into every matter Should it be called upon to enquire and decide as to whether or not the explanation given by the employee is acceptable This would be an unending exercise. It would open a Pandoras box for the employer. There would be avoidable waste of time and energy. It appears that on a consideration of the relevant aspects, the Government has chosen to lay down a limit of one month for absence from duty. We do not consider it appropriate to add to that stipulation. This would create an extra burden for the State and the other authorities. After all, regularisation of services is a departure from the normal rule. It is in the nature of a concession. It would not be even administratively appropriate to unduly enlarge it scope. Learned counsel referred to various reported and unreported decisions of various benches of this Court. It is not necessary to notice these decisions individually. The consistent view taken in these cases is that the benefit of regularisation shall not be denied to the employee where the break in service exceeds one month on account of the default on the part of the employer. To that extent, we find that the view is correct. The second question is accordingly answered against the employee. It is held that if an employee has remained absent from duty for any reason which is not attributable to the employer, he shall not be eligible for regularisation.

(12) REG. 3 : Does the absence of the employee on January 31, 1996 disentitle him to claim regularisation in service it was then contended that regularisation couldnt be denied merely on the ground that the employee was absent on January 31, 1996. Is it so the instructions clearly postulate that the employee should be "in service on January 31, 1996. " A reading of the plain words shows that there is no reference to the employees presence or absence. The instructions only require that his services should not have been terminated or that he should not have been removed from service prior to the stipulated date. However, we cannot interpret the instructions to mean that even if the employee has been continuously attending to his duties for the whole year, the mere act of absence on January 31, 1996, for whatever reason, shall disentitle him to the benefit of regularisation. This would be contrary to the plain language of the instructions. The third question is accordingly answered in favour of the employee.

(13) REG. 4: Can this Court not go into these matters in proceedings under Article 226 of the constitution we are not unmindful of the doubt expressed by the Motion Bench that the Court cannot add to the instructions by its judgment. In this context, we shall only say that powers of the High Court under Article 226 are wide. The Court has the power to reach injustice wherever it occurs. The Court can go into the constitutional validity of the provisions. The constitution permits the Court to interpret the provisions of Acts of Legislature and the Rules, regulations or Instructions framed by various authorities. The Court has the duty to interpret laws and instructions. Through the process of interpretation, the Court ensures that the government acts in conformity with law and the mandatory requirements of the constitution. In this process, the Courts are not powerless to add to the words of the Statute or the instructions. However, in the present case, we are not adding to the instructions. It is only by the process of interpretation and to ensure that the instructions conform to the requirements of Articles 14 and 16 of the constitution that the Government is being debarred from taking, advantage of its own wrong. We may add that if in a case it becomes necessary to even record evidence to ascertain the truth, the Court has the power to do so. The question is answered accordingly. In view, of the above, we hold that- (i) The condition that the break in service should not be more than one month at a time is reasonable. However, the benefit of regularisation can be denied only in a case where the break is attributable to the employee and not in a case where the employer has caused the break. (ii) The instructions do not require that the employee should have attended to the duties on january 31, 1996. The only requirement is that his services should not have been terminated and that he should be in service on that day. (iii) While hearing a petition under Article 226 of the Constitution, the Court can adopt such procedure as it considers reasonable in the circumstances of the case. It can even record evidence. As a result of the above, we hold that the view taken by a Bench of this Court in Anand kumars case to the effect that benefit of regularisation cannot be denied even in a case where the employee remains absent for reasons not attributable to the employer, is not correct. However, the view in so far as the break on account of the reasons attributable to the employer is concerned, embodies the correct statement of law. The writ petitions are disposed of in the above terms. The respondents shall now consider the claims of the petitioners in the light of the above decision within three months from the date of receipt of a certified copy of this order. If it is found that they fulfil the requirements of the instructions, their services shall be duly regularised. However, in cases where the petitioners have not performed their duties for certain durations of time, then they will not be entitled to the arrears of salary. In the circumstances, we make no order as to costs.