Delhi High Court
Yogender Prasad And Another vs State Of Manipur And Others on 30 August, 1999
Equivalent citations: 2000IAD(DELHI)491, 83(2000)DLT59
Author: N.G. Nandi
Bench: N.G. Nandi
ORDER N.G. Nandi, J.
1. In this petition under Article 226 of the Constitution of India, the petitioner has been seeking direction to the respondents for absorption/redeployment of the petitioners as LDCs on regular basis, preferably at New Delhi, Manipur Bhawan-I or II against the available vacan- cies, otherwise at Manipur Office, Imphal and allow the petitioners regular pay scale of LDCs.
2. The say of the petitioners is that the petitioners were appointed to work as LDCs in lottery Section of the respondents at Manipur Bhawan-I, Government of Manipur, New Delhi on a consolidated pay/daily wages; that the petitioners were issued a regular order to appoint them as LDCs in the Lottery Department at Manipur Bhawan, New Delhi from 19.12.1996 and 31.8.1996 respectively at Rs. 80/- per day; that the appointment of the petitioners have been extended from time to time for a period of six months on one go and have been in continuous service for 2 to 3 years; that the last order extending the petitioners services is for the period from 2.4.1999 to 30.9.1999; that the respondents closed the Lottery Section and have decided to terminate the services of the petitioners; that the deci- sion to terminate the services of the petitioners is illegal and violative of the statutory rules regarding CCS ( Re-Deployment of Surplus Staff) Rules 1990; that the respondents have decided to open Manipur Bhawan-II at New Delhi for which new posts including those equivalent to LDCs have been created. Thus, according to the petitioners, the services of the petition- ers cannot be terminated and on closure of Lottery Section, the petitioners are required to be absorbed in Manipur Bhawan-I or II as LDCs against existing/newly created vacancies.
3. The respondents filed affidavit in reply inter-alia contending that, the petition is not maintainable as the petitioners do not have any vested right to be absorbed as there is no sanctioned posts against which the petitioners are to be absorbed; that the petitioners were engaged temporarily on casual basis to assist the Ticket Examiner posted in Delhi in conduct of Lottery draws; that in Delhi, lottery draws are not being held now and the services of the petitioners are no longer required and the petitioners are not entitled to automatic absorption as LDCs merely because their services were engaged intermittently for few months.
4. It has been submitted by Ms. Oberoi, learned counsel for the petition- ers that the petitioners worked as LDCs on casual basis in Lottery Section of Manipur Bhawan-I, New Delhi; that the said Lottery Section has been closed; that the services of the petitioner No. 1 from 19.12.1996 and of petitioner No. 2 from 31.8.1996 have been extended from time to time with practically no break and the last extension has been upto 30th September, 1999; that till 6.7.1999, the petitioners reported to duty and marked their presence and the termination letter dated 24.6.1999 was served on the petitioners on 7.7.1999; that the petitioners have worked for almost three years with artificial break of a day or two.
5. It is submitted by Mr. Nohin Singh, learned counsel for respondents that the petitioners were appointed on casual basis, not against any regu- lar post and have no right of regularisation; that the Lottery Section has been closed with effect from 20.7.1999 and the petitioners have been rendered surplus and their services are not required and they have no right of automatic regularosation.
6. Relying on the decision in the case of State of Punjab & Others Vs. Gursharan Singh & Others, , it has been contended that on the closure of the Lottery Department, the petitioners cannot be relieved and they are entitled to absorption and if there are no posts available in equivalent or lower grades, suitable direction be issued to the respondents for the absorption of the petitioners. In the case before the Supreme Court, the Engineering College, Bhatinda was handed over to an autonomous body and the respondents were rendered surplus and claimed absorption, the Supreme Court held that this is like abolition of the post and staff either have to face removal or absorption as per Government Policy. Some posts were shown available in equivalent or Lower Grades, hence the directions to absorb the respondents.
7. In the case of Surinder Singh & Another Vs. Engineer-in Chief, C.P.W.D. & Others , following the principle laid down in the case of Dhirendra Chamoli & Another Vs. State of U.P. . It has been held that daily wage workers of C.P.W.D. entitled to the wage equal to regular and permanent employees employed there to do identical work, it would not be open to the Government and Public Sector Undertakings, who are supposed to function as model employers, to contend that the doctrine being abstract one is not enforceable in court.In the case of Dhirendra Chamoli & Another Vs. State of U.P. (supra), the Supreme Court, while allowing the writ petitions directed the Central Government "to accord to these petitioners, who are employed by Nehru Yuvak Kendra and who are concededly performing the same duties as Class IV employees, the same salary and conditions of service as are being received by Class IV employees, except regularization which cannot be done since there are no sanctioned posts. But we hope and trust that posts will be sanctioned by the Central Government in different Nehru Yuvak Kendras so that these persons can be regularised......"
8. In the case of Bhagwati Prasad & Others Vs. Delhi State Mineral Development Corporation, , it has been held that three years service ignoring artificial breaks for short period by daily rated workers held, sufficient for confirmation- any break of more than three months to be excluded in computation of three years period- Regularisation to be made by phases in accordance with seniority. The Supreme Court directed that 16 of the petitioners who were ousted from the service pending the writ petition should be reinstated immediately. Suit- able promotion avenues should be created and the respondents should consid- er the eligible candidates for being promoted to such posts.
9. On behalf of the respondents, reliance is placed on the decision in the case of Khagesh Kumar & Others Vs. Inspector General of Registration & Others, , Considering the facts that the appointment of Registration Clerks on daily wages not against a regular appointment for short period/periods in a year for clearing the documents for registration will not entitle them to regularisation as they do not fulfill condition of three years service contained in Rule 4(1)(iii) on the basis of the Regularisation Rules.
The principle laid down in the case of Khagesh Kumar & Others Vs. Inspector General of Registration & Others (supra) will not be applicable to the present case since the question in this petition is that of the absorption of the petitioners who have worked with practically no break/artificial break for more than two and half years to three years having been rendered surplus on account of closure of Lottery Department by the respondents.
10. In the case of State of H.P. Vs. Ashwani Kumar & Others (1996) 1 Supreme Court Cases page 773, relied on by the repondents, the Supreme Court held that the daily wagers engaged by the State Government on muster roll basis in Central Scheme and paid out of the funds provided by the Central Government, services of such daily wagers terminated on closure of the scheme, no direction to regularise such daily wagers or to continue them in their place can be issued. The principle enunciated by the Supreme Court will not be helpful to the respondents for the reason that in the case on hand, the petitioners were not engaged in any Central Scheme and it is not shown that they were paid out of the funds specially provided by the State Government. The petitioners are paid by the State Government its own funds.
11. Annexure P2A1 is the receipt suggesting payment of Rs. 1040/- from the Director, Manipur State Lotteries, New Delhi on account of salary and honorarium for the month of December 1996 (19.12.1996 to 31.12.1996). Annexure P2A2 is again the receipt pertaining to petitioner Sanjay Bhatna- gar for the period 12.8.1996 to 31.8.1996 @ Rs. 80/- per day. This would suggest that both the petitioners have been working from 19.12.1996 and 12.8.1996 respectively and their services have been extended with a break of one day for a further period of six months and likewise the services of both the petitioners have been extended upto 30.9.1999, the petitioners have also filed the copy of the muster roll for the months of June and July 1999. It is suggested that the petitioners last signed the muster roll on 6.7.1999. The present petition was presented on 30.6.1999 and by order dated 1.7.1999, this Court issued notice returnable on 21.7.1999. Thus, petitioner No. 1 has been working from 19.12.1996 and petitioner No. 2 from 12.8.1996 with one day break after every six months and their services have been extended from time to time till 30.9.1999. Thus, it would be seen that as far as petitioner No. 2 is concerned, he worked for more than 2 years 10 months whereas petitioner No. 1 worked for more than two and a half years with practically no break since the break of one day would be nothing but a eye wash to deprive the petitioners of their continuity of services and legitimate rights.
12. In the submission od Ms. Oberoi, learned counsel for the petitioner, there are already two vacancies available in Manipur Bhawan - I. In this regard she has filed the copies of two orders on 22nd June, 1999 issued by Under Secretary(GD), Government of Manipur The contents of both the orders are reproduced hereunder :-
(i) No. 7.1.99-GAD : On the recommendation of the D.P.C. held on 10.6.99 at Imphal Smt. Sushma Gautam LDC, Manipur Bhawan, New Delhi is hereby appointed as UDC on promotion in the Manipur Bhawan, Calcutta against the post vacated by Smt. K. Narwani, UDC in the pre-revised scale of pay of Rs. 1200-30-1560-EB-40-2040/- p.m, with usual allowances as admissible under rules with immediately effect and until further orders.
(ii) No. 7.1.99-GAD : On the recommendation of the D.P.C. held on 10.6.99 at Imphal Smt. K. Narwani LDC of Manipur Bhawan, New Delhi is hereby appointed as Care-Taker on promotion in the Manipur Bhawan, Calcutta in the pre-revised scale of Rs. 1350-30- 1440-40-1800-EB-80-2200/- p.m. with usual allowances as admissa- ble under rules with immediately effect and until further orders.
It would be seen from the above that one post of LDC became available on promotion of Smt. K. Narwani as Care Taker in Manipur Bhawan, Calcutta and another post of LDC in Manipur Bhawan, New Delhi became available on promotion of Smt. Sushma Gautam as UDC.That means Smt. Suhma Gautam and Smt K. Narwani both have been promoted from LDC as UDC and Care Taker respectively and sent to Manipur Bhawan, Calcutta.
13. It is not disputed that out of the four daily wagers, only these two petitioners have carried their termination to the Court by way of petition under Article 226 of the Constitution whereas other two did not challenge the order of termination of their services. In view of two orders dated 22nd June, 1999 reproduced above, there is no manner of doubt that on 22.6.1999 i.e. before the passing of the impugned termination orders on 24.6.1999, two posts of LDCs had become available and petitioners should have been regularised at least against the said two vacancies, as pointed out above, the petitioners having been working for more than two and a half years continuously since I do not regard the artificial break of one day to be the break that can disentitle the petitioners to continuance of service and other benefits flowing therefrom since a break of a day or so would be nothing but mala fide with ulterior object, as pointed out above.
14. The petitioners services have been terminated pending this petition as the impunged termination order dated 24.6.1999 has been served to them on 7.7.1999 and as per the copy of the muster roll, referred to above, both of them marked their presence last on 6.7.1999 and following the principle laid down in the case of Bhagwati Prasad & Others Vs. Delhi State Mineral Development Corporation (supra). I am inclined to direct the respondents to reinstate both the petitioners as LDCs in Manipur Bhawan - I, New Delh in forthwith against the two vacancies available in Manipur Bhawan -I, New Delhi, as pointed out above, with all consequential benefits accruing to the petitioners on account of the reinstatement with a further direction to the respondents to allow both the petitioners their regular pay-scale as LDC.
The petition allowed accordingly.