Holding

Ad‑hoc appointments made under a specific scheme and selected per its prescribed process cannot be subjected to annual termination and re‑appointment; they must continue as long as the scheme persists, though they remain ad‑hoc and are not entitled to regularisation.

Summary

The appellants, ex‑servicemen appointed as ad‑hoc border staff under the Prevention of Infiltration of Foreigners (PIF) Additional Scheme of 1987, challenged a 1995 circular that required annual termination and re‑appointment. They claimed that, since the scheme had been continuously extended for decades, they were entitled to regularisation, security of tenure, and pay increments like regular police personnel. The High Court initially allowed their claim, but a Division Bench set aside that order, holding that the scheme created only temporary posts. The Supreme Court examined whether ad‑hoc appointments under a specific scheme can be regularised and whether the circular’s annual termination process was lawful. It held that such appointments, being tied to the scheme, must continue for as long as the scheme exists but remain ad‑hoc and are not convertible into permanent posts. Consequently, the Court quashed the 1995 circular, directing that the appellants not be subjected to yearly terminations, while affirming that they are not entitled to regularisation or the full benefits of regular employees. The appeal was allowed in part.

Issues considered

Whether persons engaged under the PIF Additional Scheme, 1987 are entitled to regularisation in service.
Whether the procedure of annual termination and re‑appointment introduced by the circular dated 17‑03‑1995 is valid.
Whether the appellants are entitled to pay increments under a time‑scale of pay.

Subjects

service lawad‑hoc appointmentsregularisationschemeterminationpay incrementsconstitutional equalityadministrative lawpublic interest

Judgment

(2009) 9 S.C.R. 611

MD. ABDUL KADIR & ANR. A
v.
DIRECTOR GENERAL OF POLICE, ASSAM & ORS.
(Civil Appeal No. 7922 of 2002) ·

APRIL 22, 2009
B
[R.V. RAVEENDRAN AND B. SUDERSHAN REDDY, JJ.]

Service Law:

Ad hoc appointments under specific scheme/project - c
Claim for regularisation and salary at par with regular
1
counterparts - Prevention of Infiltration of Foreigners Scheme,
1960 - Appointments of ex-servicemen made under
Additional PIF Scheme, 1987 formulated by Government of
India for Assam - Circular dated 17.3. 1995 issued by D
Inspector General of Police (Border) Assam, laying down for
reappointment of ad hoc employees under the Additional PIF
Scheme, every year after giving them termination notice -
Held: When the ad hoc appointments are under a scheme
and are in accordance with the selection process prescribed E
by the Scheme, there is no reason why those appointments
under the Scheme should not be continued as long. as the
Scheme continues - Single Judge of High Court was justified
in observing that the process of termination and
reappointment every year should be avoided and the
appellants should be continued as long as the Scheme F
continues, purely on ad hoc and temporary basis, co-terminus
with the. scheme - The Circular dated 17.3.1995 being
contrary to the PIF Additional Scheme and the principles of
service jurisprudence, is quashed - Those appointed in a
time scale of pay shall be entitled to annual increments - As G
. regards the appointments on fixed salary, if the State
Government has treated such appointments on a time scale
and claims reimbursement from the Government of India on
that basis, the State Governmen,t should, in all fairness, pass
611 H
612 SUPREME COURT REPORTS [2009] 9· S.C.R.
,"'
,.
A on the benefit of such time scale of pay .
to the_
-
employees
concerned - When persons are engaged under the same
scale, discriminatory treatment i.e. extending benefit of
increments to some and denying the same to others should
be avoided - ConstituUon of India, 1950 - Articles 14 and 16.
B
Administrative Law

Policy matters - Jurisdiction of court to suggest change
t
in policy - ·Prevention of Infiltration of Foreigners Scheme,
· 1960 and Additional PIF Scheme 1987 for Assam - Ex-
c servicemen appointed on various additional posts on ad h.,oc
basis through regular selection process - Continuing for .
decades - Claim for regu/arisfltion and consequen~ial
monetary benefits - Held: Though the issue is a matter'. of
policy having financial and other implications, but where ,an
D issue involving public interest has not engaged the attention
of those concerned with policy, or where the failure to take
prompt decision of a pending issue is likely to be detrimental
to public interest, Courts will be failing in their duty if they do ·
not draw attention of the authorities concerned to the issue
E involved in appropriate cases - While cannot be and should
not be makers of policy, they can certainly be catalyst, when
there is a need for a policy or a change in policy - In the facts
and circumstances of the case, if those working as ad hoc or
temporary staff for decades on, are converted to regular ~
F permanent staff that would .boost their moral and efficiency.

CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7922 of 2002.

From the Judgment & Order dated 01.09.2000 of the High
G Court of Gauhati in Writ Appeal No. 154 of 1996.
1
· P.K. Goswami, S.K. Dubey, Rajiv Mehta, A. Henry, Sudha
Pal, Shreekant N. Terdal and Avijit Roy, (for Corporate law
Group) for the Appearing Parties.
H
•
\
i

MD. ABDUL KADIR & ANR. v. DIRECTOR GENERAL 613
OF POLICE, ASSAM & ORS.
_,
The following Order of the Court was delivered : A

ORDER

R. V. RAVEENDRAN, J. 1. The Government of India
formulated the Prevention of Infiltration of Foreigners Scheme
(PIF Scheme for short) for Assam, for strengthening the Assam B
Governmental machinery for detection and deportation of
foreigners in the year 1960. The scheme has been extended
from time to time and is in force even now. By communication
dated 3.6.1987, the Government of India informed the Govt. of
Assam about the sanction of the following additioJlal posts by c
the President under the PIF Scheme: lnspectors-5, Sub-
lnspectors-323, Head Constables-306 and Constables-646.
Under the said PIF Additional Scheme, the Government of India
agreed to reimburse the cost of pay and allowances of persons
employed in the additional posts provideq all the additional D
posts were filled by only ex-servicemen. It also agreed to
~
reimburse all other expenditure incurred by the State for the said
Additional Scheme. The PIF Additional Scheme provided that
the sanction will be valid for the period of two years from the
date of its issue (3.6.1987), to be reviewed thereafter along E
with the main PIF Scheme.

2. A selection board was constituted for selection of ex-
-t
• servicemen to the various posts which were sanctioned under
~
>
the Additional Scheme dated 3.6.1987. The first appellant, an
ex-serviceman, was selected and appointed as a sub-Inspector F
on 1.9.1988 after undergoing the selection process in the time
scate of pay of Rs.620-25-745-EB-30-895-EB-35-1315 plus
allowances. The second appellant, also an ex-serviceman, was
selected and appointed as a sub-Inspector on 17.3.1995 on a
fixed basic pay of Rs.1375/- (being the minimum in the pay G
t scale applicable to Sub-Inspectors) pli.Js allowances. The
appointment letters issued to them by the Inspector General of
Police (Border) Assam made it clear that the appointments
were purely on ad hoc and temporary basis and that they could
be dischargeq without assigning any reason or notice, in any H
614 SUPREME COURT REPORTS (2009) 9 S.C.R.

A contingency in future.

3. The Inspector General of Police, (Border) Assam issued
a Circular dated 17.3.1995 laying down the following procedure
for appointment/continuation of ex-serviceman as ad hoc Border
staff:
B
(i) All appointments shall be for a contract period of one
year.

(ii) Termination notice should be issued to every ad-hoc
c employee at. least 45 days before the date of expiry of one
year from the date of appointment.

(iii) The ad hoc employee, on receiving information
regarding termination from service, shall, if he desires to
continue, send an application seeking fresh appointment
D for a further term of one year. The application should reach
the office of IGB (B), Assam at least 30 days before the
·~ate of expiry of one .Year.

(iv) The concerned DIGP (Range)/Superintendent of Police
E shall send a performance report and medical certificate in
respect of each ad hoc employee to whom such
termination notice has been issued at least 30 days before
the date of such termination while forwarding the
applications for fresh appointment.
F
(v) The applications for fresh appointment shall be
considered with reference to the respective performance
report and medical certificate, and those found fit and
suitable will be re-appointed at least 20 days before the
date of expiry of the contract period of one year.
G
(vi) Such fresh appointment letters shall be issued by the 1 ·
Superintendent of Police (Border) Assam and the ad hoc
employees cleared for fresh appointment shall sign an
agreement and submit his joining report.
H
...
~
I
MD. ABDUL KADIR & ANR. v. DIRECTOR GENERAL 615
OF POLICE, ASSAM & ORS. [R.V. RAVEENDRAN, J.]
.I<.
I (vii) If application for fresh appointment is not received in A
due time, it will be taken that the ad-hoc employee has not
sought fresh appointment and he will not be considered
for fresh appointment.
4. Aggrieved by the process of termination and
reappointment introduced by the said circular dated 17.3.1995 8
~nd the consequences thereof appellants 1 and 2 filed Civil
Rule Nos.2065/1995 and 1698/1995 in the Gauhati High Court.
According to them, but for such yearly artificial terminations, the
ad-hoc employees would have the benefit of continuous service
and those who were appointed in a time scale of pay would c
have also got annual increments. The procedure contemplated
by the circular dated 17.3.1995, it was submitted, introduced
an element of uncertainty in regard to their service and gave
room for nepotism and corruption. The appellants pointed out
that the original PIF Scheme had continued from 1960 and the D
Additional Scheme was continued from 1987 without break,
and having regard to the importance of border security
requirements, it was a misnomer to call them as ad hoc
appointees; and as the posts were sanctioned by the President
', and the scheme was continuing forlong number of years, their E
services should be regularized. They' also pointed out that three-
fifth of Assam Police Border Organisation(PIF Additional
Scheme) was earmarked for regular police perso~nel and two
~ · fifth was reserved for ex-servicemen; and that though they
discharged the same functions as their police-brethren, they F
were discriminated by terming them as ad-hoc employees
thereby denying them security of tenure, benefit of pay scales
and other .service benefits. They also pointed out that ex-
servicemen recruited in Assam Special Peace Keeping Force
were extended several benefits available to regular employees
G
. . and they should also be extended such benefits. They therefore
prayed that (i) the system of appointing them on one year
contract basis be quashed; (ii) the various benefits extended
to ex-servicemen appointed to Assam Special Peace Keeping
Force under Office Memorandum dated 14.6.1984 may also
H
616 SUPREME COURT REPORTS (2009) 9 $.C.R.

::».
~-
\
..
A be extended to them; and (iii) they should be regularized in
service of the Border organization of Assam Police with all
consequential benefits including yearly increments in pay.
5. A learned Single Judge of the High Court allowed the
writ petition by order dated 29.2.1996. He held that the
B appellants should be allowed to continue as long as the scheme
was continued by the Government of India and they shall be
entitled to all service benefits as regular employees so long as :+ .
the scheme continued. He also held that the appellants shall .
be entitled to the benefits extended under the State
C Government Scheme for enrollment of ex-service personnel in
. Assam Special Peace Keeping Force, vide Official
Memorandum dated 14.6.1984. Feeling aggrieved the Director
General of Police, Inspector General of Police (Border) and
Superintendent of Police (Border), Assam, filed a writ appeal
D (WA No.154/1996). The appeal was allowed by a divi_sion
bench of the High Court by the impugned order dated 1.9.2000.
The Division Bench held that the Scheme contained in the
Office Memorandum dated 14.6.1984 of the State Government
· relating to Assam Special Peace Keeping Force will not apply
E to those who were inducted under the PIF Additional Scheme
dated 3.6.1987, which is a completely different scheme. The
Division Bench therefore set aside the order of the learned
Single Judge and dismissed the writ petitions. The said
judgment is under challenge in this appeal by special leave. t
F 6. At the outset, the learned counsel -for the appellants
st.ated that the prayer for relief based on the SchefT!e dated
14.6.1984 relating to Assam Special Peace Keeping. Force,
was not pressed. Therefore only two issues _arise for our
consideration: (i) whether the persons engaged under the PIF
G Additional Scheme, 1987, are entitled to be regularized in
service; (ii) whether the procedure introduced by circular dated ~ - ..:
17.3.1995 is valid.
7. The fact that the appellants were employed under the
PIF Additional Scheme is not disputed. The duration of PIF
H Additional Scheme under which they are employed was initially
. MD. ABDUL KADIR & ANR. v. DIRECTOR GENERAL 617
OF POLICE, ASSAM & ORS. [R.V. RAVEENDRAN, J.]

two years, to be reviewed for continuation along with the original A
· PIF Scheme. The said scheme is being extended from time to
time and is being continued. If the temporary or ad-hoc
engagement or appointment is in connection with a particular
project or a specific scheme, the ad hoc or temporary service
of the persons employed under the Project or Scheme would · B
come to an end, on completion/closure/cessation of the Project·
or the Scheme. The fact that the Scheme had been in operatiOn
I
for some decades or that the employee concerned has
continued on ad hoc basis for one or two decades would not
entitle the employee to seek permanency or regularization. Even c
if any posts are sanctioned with reference to the Scheme, such
sanction is of ad hoc or temporary posts co-terminus with the
scheme and not of permanent posts. On completion of the
project or discontinuance of the scheme, those who were
engaged with reference to or in connection with such Project D
6r Scheme cannot .claim any right to continue in service, nor
seek regularization in some other project or service. (See
Bhagwan Dass v. State of Haryana.- 1987 (4) SCC 634,
Delhi Development Horticulture Employees Union v. Delhi
Administration - 1992 (4) SCC 99, Hindustan Steel Worl<s
Construction Ltd., vs. Employees Union -1995 (3) SCC 474, E
UP Land Development Corporation vs. Amar Singh - 2003
(5) SCC 388,_ Madhya11Jik Shiksha Parishad UP v. Anil
Kumar Mishra' - 2005 (5) SCC 122, Secretary, State of
Kamataka v. Umadevi - 2006 (4) SCC 31, Indian Council of
Medical Research vs. K. Rajyalakshmi - 2007 (2) SCC 332, F
and Lal N[ohammed vs. Indian Railway Construction Co. Ltd.
- 2007 (2) SCC 513). In view o~ this settled position, the
appellants will not be entitled to regularization ..
8. We may next consider the challenge to the procedure G
• ·of annual termination and reappointment introduced by the
ci;cular dated 17.3.1995. The PIF Scheme and PIF Additional
Scheme were introduced by Government of India. The scheme.
does not contemplate or require such periodical termination and
re~appointment. Only ex-servicemen are eligible to be selected H
618 SUPREME COURT REPORTS (2009] 9 S.C.R.

A under the scheme and that too after undergoing regular
selection process under the Scheme. They joined the scheme
being under the impression that they will be continued as long
as the PIF Additional Scheme was continued. The artificial
annual breaks and reappointments 'Nere introduced by the state
B agency entrusted with the operation of the Scheme. This Court
has alwaysJrowned upon artificial breaks in service. When the
ad-hoc appointment is under a scheme and is in accordance
· with the selection process prescribed by the scheme, there is
no reason why those appointed under the scheme should not
c be continued as long as the scheme continues. Ad-hoc
appointments under schemes are normally co-terminus with the
scheme (subject of course to earlier termination either on
medical or disciplinary grounds, or for unsatisfactory service or
on attainment of normal age of retirement). Irrespective of the
0 length of their ad hoc service or the scheme, they will not be
entitled to regularization nor to the security of tenure and service
benefits available to the regular employees. In this background,
particularly in view of the continuing Scheme, the ex-serviceman
employed after undergoing selection process, need not be
E subjected to the agony, anxiety, humiliation and vicissitudes of
annual termination and re-engagement, merely because their
appointment is termed as ad hoc appointments. We are
therefore of the view that the learned Single Judge was justified
in observing that the proeess of termination and re-appointment
every year should be avoided and the appellants should be
F continued as long as the Scheme continues, but purely on ad
hoc and temporary basis, co-terminus with the scheme. The
circular dated 17.3.1995 directing artificial breaks by annual
terminations followed by fresh appointment, being contrary to
the PIF Additional Scheme and contrary to the. principles of
G service jurisprudence, is liable to be is quashed.
9. Before parting we may however refer to two aspects.
One is with reference to the term of the scheme itself. Second
is with reference to the pay.
H (9.1.) PIF Scheme has been in force for nearly five
...

.. MD. ABDUL KADIR & ANR. v. DIRECTOR GENERAL 619
OF POLICE, ASSAM & ORS. [R.V. RAVEENDRAN, J.]
i'-

decades. PIF Additional Scheme has been in force for more A
than two decades. The object of the Scheme :s detection and
deportation of illegal immigrants/fresh infiltrators/re-infiltrators,
establishment of second line of defence on Assam Bangladesh
Border to man the areas not covered by Border Security Force
and monitoring the occurrences on international border. The B
staff entrusted with such sensitive functions and duties can work
wholeheartedly and with commitment in adverse and hostile
conditions only if they have security of tenure, without having to
constantly worry about their future. If the task under the scheme
is perennial, there is no point in executing it.as a 'temporary' c
Scheme, though to start with it might have been thought that
the task was a short term task. Another aspect to be noticed
-t.
is that duties discharged by the Border staff belonging to
Assam Police Border Organization under the PIF Scheme is
said to be somewhat similar or parallel to the duties discharged
D
by regular forces like Border Security Force and Assam
J..
Special Peace keeping Force. Further, part of the very same
Border Organization under PIF Scheme is manned by regular
police personnel. Therefore, if those working as ad hoc or
temporary staff for decades on, are converted to regular
permanent staff, that would boost their morale and efficiency. E
.We are conscious of the fact that the issue is a matter of policy
having financial and other implications. But where an issue
.,, involving public interest has not engaged the attention of those
concerned with policy, or where the failure to take prompt
decision on a pending issue is likely to be detrimental to public F
interest, courts will be failing in their duty if they do not draw
attention of the concerned authorities to the issue involved in
appropriate cases. While courts cannot be and should not be
makers of policy, they can certainly be catalysts, when there is
~ a need for a policy or a change in policy. G
(9.2.) Another issue requiring consideration by the
respondents is the question of pay. The order of appointment
in the case of first appellant shows that he was appointed in-a
time scale of pay. First appellant and similarly placed will
H
r

620 SUPREME COURT REPORTS [2009] 9 S.C.R. ~

~

A therefore be entitled to increments in terms of the pay. scale.
Second appellant was appointed on a fixed pay. But even in
the case of second appellant and others appointed on fixed pay,
it is alleged that the State Government. had treated their
appointments as being in a time scale of pay and claiming
B reimbursement from the. Central Government on that basis. If
·
the State Government has treated the appointments on fixed
salary as appointments on a time scale, and claimed
1
reimbursement from the Government of India on that basis, the ·
State Government should, in all fairness, pass on the benefit
of such time-scale of pay to the employees· concerned. When .
c persons are engaged under the same Scheme, discriminatory
treatment, that is extending benefit of increments to some and
deny~ng the said benefit to others, should be avoided'. . ----

(9.3.) We hope that the respondents will endeavor to
0 address the aforesaid two grievances of the border staff
promptly and in an appropriate· manner. · ,1

10. The appeal is allowed in part accordingly as follows:
.
(i) The circular dated 17.3.1995 is quashed. The
appellants shall not be subjected to annual
E
terminations and re-appointments (subject to
observations in para 8 above) .
. (ii) The Qenefit of this order will be available to other
similarly situated ad hoc border staff, even if they
r
F have not approached the court for relief. In view of
the above, the interlocutory applications for
impleading are disposed of as having become
infructuous. .,_
I

(iii) This order will not however come in the way of ad
G hoc employees working as Border staff, being ~

subjected to any periodical medical examination or "\

service review to assess their fitness and suitability
for continuation.

R.P. Appeal partly allowed. ~
H