Allahabad High Court
Shri Diwakar Yadav Son Of Shri Gokul ... vs The State Of U.P. Through Secretary, ... on 11 May, 2007
Author: Rakesh Tiwari
Bench: Rakesh Tiwari
JUDGMENT Rakesh Tiwari, J.
1. Heard learned Counsel for the parties and perused the record.
2. The services of the petitioner are governed by the United Provinces Town Area Act 1914 (hereinafter referred as to the Act, 1914). He was initially engaged by the Chairman of the Town Area Committee as Moharrir (Clerk) temporarily on daily wages in July 1984 in the office of the Town Area Committee, Doharighat, District Mau (hereinafter referred to as Town Area Committee). He was then appointed as Lineman on daily wages on the basis of resolution passed on 12.2.1989 by the Town Area Committee.
3. On 8.1.1992 the Secretary, Nagar Vikas, State of U.P. issued Government Order/letter No. 171/90-1-92, Nagar Vikas Anubhag-1 Lucknow to all the District Magistrates in U.P. that process for creation of posts for regularisation of the services of all daily wage employees in local bodies who are working in the Government Bodies since prior to 11.10.1989 and who have completed 240 clays of continuous service in each of the three years is under active consideraton as it was proposed to absorb such daily wagers in the future vacancies. In this backdrop it was expected that the services of such daily wagers may not be terminated except in cases of their long absence or they not being found useful to the department on administrative grounds.
4. The letter dated 8.1.1992 is as under:
Lskok esa] LkeLr ftykf/kdkjh] mRrj izns'kA uxj fodkl vuqHkkx &1 y[kuÅ fnukad 8 tuojh] 1992 foÔ; % fofHkUu LFkkuh; fudk;ksa esa 11-10-1989 dks dk;Zjr nSfud osruHkksxh deZpkjh dk izdj.kA egksn;] vkidks ;g lwfpr fd;k tk pqdk gS fd fofHkUu fudk;ksa esa 11-10-1989 dks tks nSfud osru Hkksxh deZpkjh dk;Zjr Fks] vkSj ftUgksusa mDr frfFk dks rhu o"kZ dh lsok vkSj izR;sd o"kZ esa 240 fnu dk;Z djusa dh 'krsZ iwjh dj yh Fkh muds fu;efrdj.k gsrq inksa ds l`tu dh dk;Zokgh py jgh gSA blh Øe esa ;g Hkh lwfpr fd;k x;k Fkk fd 11-10-1989 dks dk;Zjr ,sls deZpkjh ftUgksaus mDr frfFk dks rhu o"kZ dh lsok vkSj izR;sd o"kZ esa 240 fnu dk;Z djusa dh 'krZ iwjh ugha dh Fkh] mUgsa Hkfo"; dh fjfDr;ksa esa lek;ksftr fd;k tk;sxk rFkk lsok ls fudkyk ugha tk;xkA dqN deZpkfj;ksa ls ,slh f'kdk;r izkIr gqbZ gS fd ,sls deZpkjh dks lsok ls fudkyk tk jgk gSA 2& bl laca/k esa iqu% Li"V fd;k tkrk gS fd fofHkUu LFkkuh; dk;ksZa esa nSfud osru ds ,sls deZpkjh tks 11-10-1989 dks dk;Zjr Fks] mUgsa lsok ls fudkyk ugha tk;sxkA ;fn ,sls deZpkjh yEch vof/k rd vuqifLFkr jgs gks ;k iz'kklfud n`f"V ls vuqi;qDr gksa rc ;FkkfLFkfr LFkkuh; #I ls mudh mi;ksfxrk ds ckjsa esa fopkj dj fu.kZ; fy;k tk ldrk gSA fdurq lkekU; fl)kur LFkkuh; fudk;ksa dks Li"V dj fn;k tk;s fd mDr izdkj ds deZpkjh vU;Fkk lsok ls ugha gVk;s tk;saxsA Hkonh;
g0 vLi"V ¼ih0,y0 iqfu;k½ lfpo
5. The Chairman, Town Area Committee in exercise of power under Section 10 of the U.P. Town Area Act, 1914 and in pursuance of the G.O./letter dated 8th January, 1992 appointed the petitioner temporarily on 25.2.1992 in anticipation of creation of a sanctioned post.
6. The case of the petitioner is that ever since his joining the post in the Town Area Committee, he has continously worked except Sundays and gazetted holidays, without break in service and that he was appointed by order dated 25.2.1992 along with other candidates on a vacant post on permanent basis.
7. The petitioner also claims that he had been continuously working since his appointment against the said permanent vacancies.
8. In support of his claim the petitioner has placed reliance upon guidelines in letter No. 5832/9-122-62 SA /92 Nagar Vikas Anubhag Lucknow dated 26.6.1992 of the Secretary, Nagar Vikas, Government of Uttar Pradesh Lucknow. It is stated in the letter that on coming to know that appointments in Local Bodies are being made in violation of rules and instruction issued by the State Government in this regard, directed all the District Magistrates of the State and Directors of Local Bodies not to appoint any person from outside on any permanent post that has become vacant or is available due to creation of a new post except by prior approval from the State Government until and unless all the employees working on daily wages in the department who had been working are not absorbed. The guidelines in the letter also provided that first right of appointment on a permanent vacant post caused by retirement or death of a permanent employee would be that of a daily wager working in that Local Body prior to 1.10.1989 who has worked for 240 days or more continuously for at least in each of the three years; that such appointment would be on the basis of inter se seniority of daily wagers. The guidelines in the aforesaid letter further provided that appointments from outsider candidates may be made only if no daily wager working in the Local Body fulfilling the above conditions is available and that such appointments have to be made by requisitioning the names from the employment exchange and in accordance with recruitment process for filling up permanent vacancy (ies) and that appointment in any other manner is to be made. The guidelines issued in the order dated 26th June 1992 is as under:
la0 583@9&1&92&62 lk- 0@9 izs"kd] Jh ih0,y0 iqfu;k] Lkfpo] mRrj izns'k 'kkluA Lskok esa] 1& leLr e.Myk;qDr mRrj izns'k 2& leLr ftyk eftLV~sV mRrj izns k 3& leLr eq[; uxj vf/kdkjh mRrj izns'k 4& funs'kd] LFkkuh; fudk;] mRrj izns'k Yk[kuÅA Ukxj fodkl vuqHkkx &8 y[kuÅ fnukad 26 twu 1992 fo"k; % LFkkuh; fudk;ksa esa fu;fer #I ls fjDr gq, inksa ij fu;qfDr ds laca/k esaA egksn;] eq>s ;g dgus dk funsZ'k gqvk gS fd 'kklu ds laKku esa ;s ckr vkbZ gS fd fofHkUu LFkkuh; fudk;ksa esa dk;Zjr deZpkfj;ksa dh lsok fuo`fRr ;k e`R;q ds dkj.k fjDr gq, fu;fer inksa ij LFkkuh; fudk;ksa }kjk fu;eksa dh mYys?ku djrs gq, fu;qfDr;ksa dh tk jgh gSaA ;g fLFkfr [ksntud gS vkSj bl rjg dh vuf;fer #i ls dh xbZ fu;qfDr;ksa ds laca/k esa mRrjnkf;Ro fu/kkZfjr fd;k tk;sxk vkSj dBksj dk;Zokgh dh tk;sxhA 'kklu usa fopkjksijkUr ;g vko';d le>k gS fd bl fo"k; ij fn'kk funsZ'k tkjh dj fn;s tk;sa] vFkkZr LFkkuh; fudk;ksa esa fu;fer #I ls 'kklu dh vuqefr ls u;s in ds l`tu lsok fuo`fRr ;k e`R;q ds dkj.k fjDr gq, inksa ij dsoy vko';drk dh vfuok;Zrk dks /;ku esa j[krs gq, fuEu izdkj ls fu;qfDr;kWa dh tk ldsaxhA 1& LFkkuh; fudk;ksa esa ;fn 'kklu dh vuqefr ls l`ftr u;s in miyC/k gksusa ds dkj.k fdlh deZpkjh dh lsok fuo`fRr ds dkj.k ;k fdlh deZpkjh ds e`R;q ds fu;fer inksa dh fjfDr;kW gksrh gSa rks ml ij lcls igys ml lFkkuh; fudk; esa dk;Zjr ,sls nSfud osru Hkksxh deZpkfj;ksa esa ls ofj"Brk ds vk/kkj ij vkj{k.k ds fu;eksa dk ikyu djrs gq, fu;qfDr;kW dh tk;saxh tks nSfud osru Hkksxh deZpkjh 11-10-1989 dks dk;Zjr Fks fdUrq mugksusa ml fnu rhu o"kZ dh yxkrkj lsok vkSj izR;sd o"kZ esa 240 fnu ds dk;Z dh 'krZ deZpkjh ds #Ik esa dk;Zjr FksA 2& ;fn iz'uxr LFkkuh; fudk; esa bl izdkj ;k vU; fdlh Hkh izdkj ds dksbZ nSfud osru Hkksxkh deZpkjh dk;Zjr ugha gSA lHkh ckgj ds vH;fFk;ksa ds fy, ,Eiyk;esaV ,Dlpsat ls uke ekWxusa dh vU; lHkh izfØ;kvksa vkSj fu;eksa dk ikyu djusaa rFkk p;u ftyk eftLV~sV dh ns[kjs[k esa djkusa dh vufokZ;Zrk gksxh vkSj ,slh fu;qfDr;ksa esa Hkh vkj{k.k dksVk fu;ekuqlkj iwjk dh tk ldsaxhA 3& vU; fdlh Hkh izdkj ls fu;qfDr;kW ugha dh tk ldsaxhA 4& d`I;k bu fn'kk funsZ'kksa dk v{kjl% ikyu lqfuf'pr djkusa dk d"V djsaA Hkonh;
g0 vLi"V ¼ih0,y0 iqfu;k½ lfpo
9. The petitioner further claims that as he was not paid his emoluments from Nov 92 to April 93 as such writ petition no Nil of 93 Kanhaiya Lal and Ors. v. State of U.P. and Ors. was filed by him claiming salary from November 1992. The writ petition was dismissed vide judgment and order dated 7.5.1993. However, a direction to the Chairman, Town Area Committee was issued by the Court to decide the application of the petitioner for payment of salary to the petitioner and Ors. by appropriate orders. The order dated 7.5.1993 is as under:
The petitioner's case is that he has not been paid his salary since November. 1992. According to petitioner, neither any termination order has been passed against the petitioner nor he has been removed from service. In this view of the matter, I direct the President, Town Area Committee, Doharighat, District Mau to pass appropriate orders on the petitioner's application for payment of salary, within a month of the receipt of the certified copy of this order along with a copy of this application to be given by the petitioner for payment of salary.
The writ petition is accordingly, dismissed.
10. The petitioner accordingly moved the Chairman, Town Area Committee by means of applicaton/representation dated 7.5.1993.
11. It appears apart from the application/representation of the petitioner and Ors. who had filed the writ petition No. nil of 1993 for payment of salary, complaint was also received by the District Magistrate inter alia alleging illegal appointment and payment of salary to the petitioner and four other employees appointed alongwith him. The District Magistrate in the circumstances got an enquiry conducted in the complaint and after verifying the records by his order dated 24.8.1993 in exercise of powers under Section 39 of the Town Area Act, 1961, directed the Chairman Town Area Committee for cancellation of the appointment of the persons appointed alongwith the petitioner.
12. It appears from perusal of the order dated 24.8.1993 that the petitioner and some other daily wagers had been appointed illegally and de hors the rules in as much as the posts against which they claim to have been working was neither in existence on abolition of Octri/Road Tax nor any post had been created by the State under paragraph 9 of the Town Area Manual.
13. The order passed by the District Magistrate appended as Annexure No. 6 to the writ petition is as under:
dk;kZy; ftyk eftLV~sV] em La0 180@LFkk0 fu0@93&94 fnukad vxLr 24] 1993 v/;{k ¼uke ls½ uxj ds lfefr nksgjh ?kkV vki }kjk uxj ds lfefr nksgjh ?kkV esa fu;qfDr ikWp deZpkfj;ksa loZJh fnokdj ;kno] dugs;k yky] lqjs'k ;kno] o f=yksdh ;kno ds fu;qfDr ds fo:) f'kdk;rksas dh tkWp djkbZ xbZA vkiusa Jh fnokdj ;kno dks fnukad 25-2-92 esa eksgfjj ds in ij LFkk;h fu;fer #Ik esa vkSj t; flag ;kno dugs;k yky o f=yksdh ;kno dks fnukad 20-4-92 esa vLFkk;h #Ik ls fu;fer fu;qfDr eksgfjj ds in ij dh rFkk 'ks"k ikWpksa Jh lqjs'k ;kno dks pijklh ds in ij vLFkkbZ #Ik ls fu;fer fu;qfDr dk vkns'k tkjh fd;k gSA tkWp ls Li"V gS fd vki }kjk fu;qfDr djrs le; ;g in Vkmu ,fj;k esa fjDr ugha Fkh vkSj u dksbZ in vc fjDr gqvkA ;s lHkh in o"kZ 1979 esa pqWxh@iFkdj lekIr dj fn;s tkus ds dkj.k Lor% lekIr gks x;s FksA bl fu;qfDr ds iwoZ Vkmu ,fj;k eSuqvy ds iSjk 9 ds vuq#Ik ,sls lsokvksa dh lwph rS;kj dj eq>ls Lohd`r ugha djkbZ xbZ gS vkSj u 'kklu }kjk dksbZ u;k l`ftr fd;k x;k gSA bl rjg vki }kjk dh xbZ ;g fu;qfDr;kW voS/kkfud gSA vr% eSa Vkmu ,fj;k vf/kfu;e 1981 dh /kkjk 39 d ds vUrxZr iznRr vf/kdkjksa dk iz;ksx djrs gq, mijksDr lHkh ikWpksa deZpkfj;ksa dh fu;qfDr dk vkns'k fujLr dj nsusa gsrq vkidks vkns'k nsrk gwWA vki bu deZpkfj;ksa dh lsok,a mijksDr inksa ls rRdky lekir dj nsaA 'kklukns'k la0 171@9&1&92 uxj fodkl vuqHkkx &1 fnukad 8-1-92 ds vUrxZr 11-10-89 dks dk;Zjr jgusa ds dkj.k Jh fnokdj ;kno nSfud osru Hkksxkh deZpkjh ds #Ik esa cusa jgsaxsA ekuuh; mPp U;k;ky; bykgkckn ds vkns'k ds vuqikyu esa lsok lekfIr dh frfFk rd bu deZpkfj;ksa dk osru nSfud Hkksxh deZpkjh ds #Ik esa ns fn;k tk;s vkSj tks vLFkkbZ@LFkkbZ deZpkjh ds #I esa vki }kjk vf/kd Hk Hkqxrku dj fn;k x;k gS] mldk lek;kstu Hkh dj fy;k tk;sA lsok lekfIr ds Ik'pkr ls Jh fnokdj ;kno dks NksM+dj 'ks"k pkj ls dk;Z u fy;k tk;s g0 viBuh;
¼v#.k dqekj flUgk½ ftyk eftLV~sV em
14. It is apparent from the aforesaid order that as regards, the petitioner, the order dated 24.8.1993 passed by the District Magistrate directing the Chairman. Town Area Committee to terminate the services of the petitioner was a conditional order. Whereas the appointment of the petitioner along with others who had been so appointed on non-eixsting permanent posts was cancelled on aforesaid grounds of illegality but, however, in view of Government Order/letter dated 8.11.1992, the petitioner was continuously working on daily wage basis since prior to w.e.f. 11.10.1989. The petitioner was accordingly issued order dated 30.8.1999 pursuant to the aforesaid order dated 24.8.1993 passed by the District Magistrate.
15. Shri Fahim and four other persons namely Phool Chand Pandey, Mewa Ram. Ramesh Chand and Jageshwar who had been appointed and working in the Town Area Doharighat, claimed regularisation of their services and payment of salary at par with permanent employees on the principle of 'equal pay for equal work' by means of writ petition No. 19863 of 1989. The writ petition was allowed by the High Court vide order and judgment dated 15.5.1993 directing payment of salary as regular/temporary employees till their services are not regularized or made permanent. The relevant extract of the order is as under:
;g fof/k }kjk LFkfir fl)kur gS fd lasokjr jkT; deZpkjh ;k jkT; ds ifjdj.k ds deZpkjh leku dk;Z ds fy, leku osru ikusa ds vf/kdkjh gSA uxj {ks= lfefr vf/kfu;e ds vurxZr cuk;h xbZ LFkkuh; fudk; gS vkSj jkT; ljdkj }kjk lapkfyr gksrh gSA rnqulkj lafo/kku ds vuqPNsn 12 ds vUrxZr jkT; dh ifjf/k esa vkrh gSA uxj {ks= lfefr esa dk;Zjr deZpkjh leku dk;Z ds fy, leku osru ikus ds vf/kdkjh gSA ;kfpdk dh ifjfLFkfr;ksa ls ;g li"V gS fd ;kph x.k nSfud osru Hkksxh deZpkjh ds #I esa ogha dke dj jgs gSa tks os vLFkkbZ deZpkjh ds #Ik esa dj jgs Fks blfy, ;fn rdZ ds fy, ;g eku fy;k tk;s fd lEijh{kk laca/kh vkifRr dh ;kphx.k dks vLFkkbZ #Ik ls fcuk in dk l`tu fd;s gq, fu;qfDr ugha fd;k tk ldrk Fkk] lgh gS] rc Hkh leku dk;Z ds fy, leku osru ds fl)kur ds vk/kkj ij ;kphx.k nSfud osruHkksxh deZpkjh ds #Ik esa ogh osru ikus ds vf/kdkjh Fks] tks osru ;kphx.k dks vLFkkbZ deZpkjh ds #Ik esa fn;k tk jgk FkkA blfy, lEijh{kk laca/khg vkifRr ds vk/kkj ij vLFkkbZ deZpkjh ds osru ls ?kVkk dj ;kphx.k dks nSfud osru Hkksxh deZpkjh ds #Ik esa csru nsusa dk dksbZ vkSfpR; Fkk] u mDr jkf'k dh dVkSrh ;hphx.k ds osru ls dh tk ldrh FkhA lEijh{kk lacaf/k vkifRr ds vk/kkj ij ;kphx.k dks nSfud osruHkksxh deZpkjh ds #Ik esa fu;aqfDr djus dk Hkh dksbZ vkSfpR; ugha gSA ;fn uxj {ks= lfefr ;g vko';drk vuqHko djrh gS fd uxj {ks= lfefr esa dqN inksa dks l`ftr fd;s tkus dk vko';drk gS] rks in l`tu gsrq og vko';d vuqefr jkT; ljdkj ls izkIr dj ldrh gS vksj mDr vuqefr dh iR;k'kk esa vLFkkbZ O;oLFkk dke pykus ds fy, dj ldrh gSA mDr vLFkkbZ O;oLFkk djds uxj {ks= lfefr usa dksbZ =qfV ugha dh Fkh ! ;fn vLFkkbZ #i ls fdlh deZpkjh dks uxj {ks= lfefr esa vko';drkuqlkj fu;qDr fd;k x;k gS rks mldks nSfud osruHkksxh deZpkjh ds #i esa icjofrZr djusa dk dksbZ vkSfpR; ugha gS vkSj mDr lEijh{kk laca/kh vkifRr ds vk/kkkj ij ;kphx.k dks nh gqbzZ /kujkf'k izfri{kh la0 2 o 3 ls olwy u dh tk;sA mDr fLFkfr;ksa ds vk/kkj ij eSa vknsf'kr djrk gwW fd ;kphx.k dks fu;fer vLFkkbZ deZpkjh ds #Ik esa ns; osru mudks fu;fer gksus rd fn;k tk;sA iwjd 'kiFki= esa nkf[ky fd;s x;s layXud ds vk/kkj ij ;kphx.k dk dFku ;g gS fd ftu r`rh;@prqFkZ Js.kh deZpkfj;ksa dh Js.kh ds vUrxZr vkrs gS vkSj rnuqlkj mDr 'kklukns'k fnukd 3-2-92 ds vk/kkj ij fu;fer fd;s tkus ds vf/kdkjh gS ;kphx.k rnuqlkj bl vkns'k dh izekf.kr izfrfyfi ikus ds lkFk izfri{khx.k dks vius dks fu;fer fd;s tkus dk izR;kosnu 'kklukns'k fnukad 3-2-92 ds lanHkZ esa nsa vkSj vkns'k vkSj izR;kosnu dh izfr izkIr gksusa ds nks ekg ds vUnj ;kphx.k dk izR;kosnu fuf.kZr fd;k tkosA fjV ;kfpdk rnuqlkj Lohdkj dh tkrh gSA i{kdkj ;kfpdk dk Hkkj Loa; ogu djsaxsaA bl vkns'k dh izekf.kr izfrfyfi ;kfpdkx.k ds vf/koDrk dks vko';d dksVZQhl vkSj izkFkZuk Ik= nsusa ij ,d lIrkg ds vUnj nh tk;sA g0 vkj0ch0 esgjks=kß
16. It appears during the pendency of the present writ petition an application was moved by the petitioner and Ors. before the then Chairman, Nagar Panchayat for payment of salary of regular employee. The Chairman vide his order dated 12.3.1997 directed for payment of basic pay etc., to the petitioner and other employees working with him on daily wage basis pursuant to orders of the District Magistrate dated 24.8.1993. The petitioner alleges that he was also appointed in pursuance of the aforesaid order dated 12.3.1992 as a regular employee on temporary basis with other consequential benefits, and has been getting regular grade of lineman in view of judgment dated 15.5.1993 in Civil Misc. Writ No. 19863 of 1989 as they are doing the same work as regular temporary employees which is performed by a permanent employee and that they are entitled to same scale of pay on the principle of 'equal pay for equal work'. It is urged that the Court in the aforesaid judgment dated 15.5.1993 has considered the question of then-appointment without any post having been created by the State Government and the audity objections in this regard and yet held that they could neither have been reverted as daily wagers nor any deduction from their salaries could have been ordered.
17. The counsel has further relied upon the judgment wherein the Court had observed that the Town Area Committee could raise demand upon the State Government for creation of posts in the circumstances and that it can appoint the petitioners in anticipation of sanction of posts as local arrangement.
18. Relying upon the observations made in the judgment dated 15.5.1993 in Civil Misc. Writ No. 19863 of 1989 the contention of the learned Counsel for the petitioner is that the petitioner is qualified for the post having passed Intermediate (Class 12th) examinaiton. He also possesses industrial training certificate for two years in Electrical Branch and has also undergone apprenticeship training for two years as line man in the office of Junior Engineer, Electricity Division, Aligarh from 25.10.1985 to 24.10.1987. It is alleged by Shri Mool Bihari Saxena, counsel for the petitioner that the petitioner was informed that his representation for regularisation of his services may be considered in case he withdraws the instant writ petition. Thereafter the petitioner filed second supplementary affidavit bringing on record the aforesaid fact. It is also alleged by the petitioner by persuading the petitioner in this manner the Chairman was trying to appoint his own men on the post the petitioner and Ors. were working, which is mala fide, unjustified and unwarranted.
19. It is lastly submitted by the counsel for the petitioner that writ petition No. 35296 of 1997 was filed by Shri Jai Singh Yadav and 3 other employees of the Town Area Doharighat who had been appointed alongwith the petitioner and whose services had also been terminated alongwith him vide order dated 30.8.1993. The writ petition has been allowed by the High Court vide judgment dated 21.3.2006 as such he is also entitled to parity in relief as granted to the petitioner in the aforesaid writ petition. The operative portion of the judgment dated 21.3.2006 is as under:
In my view, the impugned order passed by the respondents is not only violative of the principles of natural justice, but is purely malafide. It is clear that no opportunity of hearing was given to the petitioners before terminating their services. Even if the respondents were in financial crisis, nontheless, the respondents cannot unilaterally issue an order of termination.
The order of termination can only be passed after giving a show cause notice and opportunity of hearing, especially, in the light of the fact that the petitioners were given a regular appointments.
Consequently, on the short ground, the writ petition is liable to be allowed. The impugned order dated 30.8.1993 is quashed and the petitioners are entitled to reinstatement in the service. The petitioners are also entitled to be given the pay with effect from Nove 1992 till 30.8.1993, i.e. till the date of the order of termination. However, the petitioner would not be entitled for the payment of salary for the period 1.11.1993 till the passing of this order. The respondents are directed to reinstate the petitioner and pay them the salary from this day onwards. The petitioner would be entitled for salary on the basis of revised pay scale and other consequential benefits that would flow as if they were in continuous service.
In view of the aforesaid, the writ petition is allowed.
20. Shri A.B. Singh, learned Counsel for the respondents has submitted that there is no record of petitioner in the Town Area regarding his engagement in 1984 on daily wages and his continuous working thereafter as claimed by him. He has relied upon the application and the appointment letter filed by the petitioner supported with an affidavit to establish that the petitioner was appointed on, 13.2.1989 as lineman temporarily as per resolution of the Town Area Committee. He also submits that Government Order dated 8.1.1992 is not applicable in the case as the petitioner had not completed 3 years of service on 11.10.1989.
21. It is then submitted that eventhough the appointment of the petitioner on regular basis was illegally made by the earlier Chairman vide his order dated 25.2.1995 as there having no post sanctioned or available in the Town Area Committee at the relevant time of appointment, such illegalities cannot be allowed to perpetuate. He states that the illegality in the appointment of the petitioner is also apparent from the order dated 24.8.1993 passed by the District Magistrate after enquiry into the matter that even in writ petition No. 35296 of 1993 there is no averment that permanent posts in the Town Area on which the petitioner claims to have been appointed, were in existence and the procedure prescribed for regular appointment was followed or not.
22. It is urged that subsequently the Government imposed ban on future appointments and adjustment against future vacancies is not permissible in law as such there is no illegality in the order passed by the District Magistrate dated 24.8.1993 in exercise of power under Section 39A of the Town Area Manual.
23. It is submitted that even in the counter affidavit on behalf of the Nagar Panchayat, in that writ petition the Executive Officer has averred that against the President of Nagar Panchayat, action has been taken for not bringing the correct facts to the notice of the court resulting in the writ petition being allowed by the High Court.
24. Shri A.B. Singh, learned Counsel for the respondents further submits that the aforesaid order passed by the President Nagar Panchayat appointing the petitioner on basic pay etc., in anticipation of sanction of posts of lineman ignoring the order passed by the District Magistrate dated 25.8.1993 is illegal as such appointment(s) could not have been made in the Town Area without there being vacancies in existence.
25. He further submits that demand for creation of posts has been made to the State Government by letters dated 10.3.2000 and 23.3.2000 for creation and sanction of posts at Town Area, Doharighat which is still pending consideration. Therefore, in the aforesaid facts and circumstance, the petitioner has rightly been directed by the Executive Officer for payment on daily wage basis.
26. The counsel for the respondents has placed reliance in this regard on paragraphs 15, 16 and 17 of the decision rendered in M.P. Housing Board and Anr. v. Manoj Srivastava 2006 All. C.J. 997 (SC) wherein it has been held that:
A daily wager does not hold a post unless he is appointed in terms of the Act and the Rules framed thereunder. He does not derive any legal right in relation thereto.
The effect of such an appointment recently came up for consideration in State of U.P. v. Neeraj Awasthi and Ors. , wherein this Court clearly held that such appointments are illegal and void. It was further held:
The fact that all appointments have been made without following the procedure of services of some persons appointed have been regularized in past, in our opinion, cannot be said to be a normal mode which must receive the seal of the Court. Past practice is not always the best practice. If illegality has been committed in the past, it is beyond comprehension as to how such illegality can be allowed to perpetuate. The State and the Board were bound to take steps in accordance with law. Even in this behalf Article 14 of the Constitution of India will have no application. Article 14 has a positive concept. No equality can be claimed in illegality is now well-settled.
In the instant case, furthermore, no post was sanctioned. It is now well-settled when a post is not sancitoned, normally, directions for reinstatement should not be issued. Even if some posts were available is for the Board or the Market Committee to fill-up the same in terms of the existing rules. They, having regard to the provisions of the regulations, may not fill up all the posts.
27. It is now well-settled that only because a person had been working for more than 240 days, he does not derive any legal right to be regularized in service.
28. It is stated by learned Counsel for the respondents that it is now well-settled in Madhyamik Shiksha Parishad, U.P. v. Anil Kumar Mishra and Ors. , Executive Engineer, ZP Engineering Division and Anr. v. Diggmbara Rao and Ors. , Dhampur Sugar Mills Ltd. v. Bhola Singh and Neeraj Awasthi (Supra) that a person who has worked for more than 240 days in a calender year does not derive any legal right to be regularized in service.
29. Reliance has also been placed by the counsel for the respondents upon the decision rendered by Hon'ble the Apex Court in State of Karnataka and Ors. v. KGSD Canteen Emploxees Welfare 84 : 2006 ALL. CJ 330), it was held in Para 46 of the judgment that:
The question which now arises for consideration is as to whether the High Court was justified in directing regularization of the services of the respondents. It was evidently not. In a large number of decisions, this Court has categorically held that it is not open to a High Court to exercise its discretion under Article 226 of the Constitution of India either to frame a scheme by itself or to direct the State to frame a scheme for regularising the services of adhoc employees or daily wages employees who had not been appointed in terms of the extant service rules framed either under a statute or under the proviso to Article 309 of the Constitution of India. Such a scheme, even if framed by the stale, would not meet their requirements of law as the executive order made under Article 162 of the Constitution of India cannot prevail over a statute or statutory rules framed under proviso to Article 309 thereof. The State obligated to make appointments only in fulfilment of its constitutional obligation to laid down in Articles 14, 15 and 16 of the Constitution of India and not by way of any regularization scheme. In our constitutional schemes, all eligible persons similarly stated must have given opportunity to apply for and receive considerations from appointments at the hands of the authorities of the State. Denial of such a claim by some officers of the State times and again had been deprecated by this Court. In any view, in our democratic polity, an authority howsoever high it may be cannot act in breach of an existing statute or the rules which hold the field.
30. He also cited State of Punjab v. Jasdip Singh and Ors. in support of his contention that appointment of the petitioner was void as there was no post in existence at the time of his appointment. The Constitution Bench held that:
If no post was available at the time when the respondent therein could be confirmed, such appointment would be void. The effect of such void appointment has been held to be conferring no legal right stating:
...When an order is void on the ground that the authority which made it had no power to make it cannot give rise to any legal rights, and as suggested by the learned advocate general, any person could have challenged the status of the respondents as Tehsildars by instituting proceedings for the issue of in writ of quo warranto under Article 226 of the Constitution. Had such proceedings been taken it would not have been possible for the respondents to justify their status as permanent Tehsildars and the High Court would have issued a writ of quo warranto depriving the respondents of their status as permanent Tehsildars....
31. He further submits that the reference in this regard may also be made to the decisions rendered in Union Public Service Commission v. Girish Jayanti Lal Vaghela and Ors. 2006 (2) SC 137 and has concluded that in view of the Government Order dated 26.6.1992 the District Magistrate has rightly cancelled the appointment of the petitioner made by the President Nagar Panchayat in absence of post while keeping the petitioner on daily wages in the facts and circumstances of this case.
32. In rebuttal the counsel for the petitioner states that this Court in writ petition No. 35296 of 1997 filed by Jai Singh and Ors. has held that the order was malafide and unilateral without giving opportunity of hearing, in view of the fact that they were given the regular appointments and that case of the petitioner being similar and on identical facts, he is entitled for all the benefits, which have been given to the petitioners of that writ petition who have been reinstated after quashing the order of termination dated 30.8.1993 and that in view of the Government Orders dated 8.1.1992 and 26.6.1992 and subsequent rules of 2001, the petitioner is not only entitled for regularisation but also other benefits.
33. Shri Mool Bihari Saxena, counsel for the respondents, in rebuttal stated that in the special appeal challenging the validity and correctness of the order dated 21.3.2006 passed in writ petition No. 35296 of 931 the four petitioners in that petition have been reinstated in the Town Area and are working as regular worker.
34. In-spite of time prayed by the standing counsel who had accepted notices on behalf of respondent Nos. 1, 2 and 3, which was allowed by the Court as far back as on 6.7.1994 no counter affidavit has been filed by the State Government.
35. Since the petitioner was working as daily wage since 1989 in the Town Area and thereafter had been appointed as Moharrir on 25.2.1992 the order of the District Magistrate dated 24.8.1993 and the consequential order of the Chairman dated 30.8.1993 reverting the petitioner could not have been pressed without notice and opportunity of hearing particularly in view of the judgment dated 15.5.1993 passed in writ petition No. 19863 of 1989.
36. The petitioner was given the regular grade on the post of line-man on the basis of unanimous resolution and the order of the Chairman dated 30.3.1997. Thereafter, the Executive Officer had no authority to review the order dated 30.3.1997 passed by the Chairman as he cannot be termed as a higher authority than the Committee and the Chairman. The Executive Officer also ignored the fact that he passed the order after eight years in total violation of cannons of principles of natural justice. The order of the Executive Officer therefore suffers from, vice of arbitrariness and non application of mind and is without jurisdiction.
37. Since in the meantime many vacancies have occurred but the case of the petitioner was not considered rather other persons have appointed vide order dated 26.6.1993 on the basis of seniority as such the contention of the learned Counsel for the respondents Shri A.B. Singh that the petitioner cannot be granted appointment on regular basis as no order for creation of post by the State Government has been passed, has no force.
38. It is admitted to the parties that petitioner had been appointed on 25.2.1992 temporarily in regular pay scale in anticipation of vacancies due to retirement/death of some employees and creation of posts by the State Government in view of its policy decision reflected in the G.O. Dated 8.1.1992 which was reinforced by the guidelines contained in subsequent letter dated 26.6.1992 of the State Government.
39. There is another reason that the respondents could not have terminated the services of the petitioner in view of Government Order dated 8.1.1992. The petitioner cannot be denied the fact that he has been engaged in 1984 on daily wages merely on the statement of the respondent as there is no basis for denial of the claim of the petitioner that he was in their employment since 1984 hence in the aforesaid circumstances the Government Order is applicable as petitioner had been in employment for three years with the respondents.
40. Even though the petitioner does not appear to have been appointed on or against a permanent substantive vacancy as claimed by him, however, the fact cannot be overlooked that the respondents had themselves appointed the petitioner on the post of Moharrir, which stood absorbed. The respondents were restrained by order dated 5.5.1993 read with order dated 15.5.1993 from terminating the services of the petitioner and for the payment of his salary at par to regular employees on the bias of principles of equal pay for equal wonk which were not challenged by the respondents and have become final.
41. The respondents had full knowledge that the petitioner is being paid regular salary of the post of Moharrir for last 18 years by the Department even though the said post was not existing at the time of his appointment and that he is working since 1997 as regular employee on the basis of the aforesaid judgments yet he has been reverted without any opportunity or notice.
42. It appears from record that the Executive Officer, Nagar Panchayat Doharighat after filing the counter affidavit on behalf of the Chairman on 25.2.2005, served a notice dated 5.3.2005 upon the petitioner on 15.3.2005 informing him that he would not be paid regular grade and instead would get payment on daily wage basis till some order is passed by a competent authority. Thus, the order of the Chairman dated 30.3.1997 passed on the basis of the unanimous resolution of the Committee giving the regular grade was by-passed and nullified withdrawn by the Executive Officer as if he was higher authority than the Committee and the Chairman having the powers of review. The status report of the Town Area Committee regarding vacancies and the various affidavits filed by the petitioner indicated that the seniority of the petitioner who was serving since 13.2.1989 was ignored and fresh appointments and promotions were made in the meantime.
43. As regards the law cited by the counsel for the respondent it is clearly distinguishable on facts and law.
44. A perusal of the judgment in M.P. Housing Board and Anr. (supra) clearly shows that it was a case where the petitioners claimed regularization on the ground that in the past also some persons appointed on daily wage basis had been regularized. In that backdrop, the Court held that a daily wager does not hold a post and if some illegality has been committed in making appointments, such illegality cannot be allowed to perpetuate. In that case also, no post had been sanctioned as in the present case. But in the present case, State Government has taken a policy decision for regularization of the services of daily wage employees who were allowed to work in the Local Bodies, who had completed three years continuous service and 240 days in each of these three years prior to 11.10.1989. There were also no guidelines issued by the Government as in the present case where it has been provided to impose ban on recruitment till all daily wage employees who were eligible, as stated above, are absorbed in service.
45. There is no reason to differ from the ratio laid down in the decisions in Madhyamik Shiksha Parishad. U.P. (supra), Executive Engineer, ZP Engineering Division and Anr. (supra) Dhampur Sugar Mills Ltd., v. Bhola Singh, (supra) and Neerai Awasthi (supra) wherein it has been opined that a person who has worked for more than 240 days does not derive any legal right for regularization of his services.
46. The petititioner has been given regular pay scale by the Town Area Committee in pursuance of Government order dtated 8.1.1992 and guidelines dated 26.6.1992 as well as judgment rendered on 7.5.1993 in Writ Petition Nos. nil of 1993 and dated 15.5.1993 in Civil Misc. Writ No. 19863 of 1989. Since this Court in the aforesaid writ petitions has already held that payment of regular salary to the petitioner on the principle of 'equal pay for equal work' was justified as such, salary cannot be recovered from the petitioner in the instant case.
47. It cannot be denied that the State Government can lay down certain conditions/qualifications for regularization of employees as a matter of policy For considering regularization of the services of the employees who are otherwise qualified for appointment.
48. In State of Karnataka and Ors. (supra) as well as in State of Punjab v. Jagdip Singh (supra), the question for consideration before the Court was whather High Court was justified in directing regularization of services of the respondents. It was held that the High Court could not pass orders for regularization of the services of ad hoc or daily wage employees who were not appointed under the extant service rules framed under a statute or under the proviso to Article 309 of the Constitution of India. These cases are also distinguishable as in the instant case, Government had taken a policy decision to regularize the services of daily wage employees who had been continuously working for long time in the Local Bodies.
49. The policy decision appears to have been taken by the State Government being a welfare state to regularize the services of daily wage employees who had been continuously working for long time in the Local Bodies due to shortage of employees or for any other reasons.
50. For the reasons stated above, I am of the view that writ petition No. 35296 of 1993 has been allowed in similar circumstances quashing the same order of termination dated 30.5.1993 regarding the other persons who have been appointed with the petitioner in the same town area on the ground of denial of opportunity as such, the petitioner who is similarly placed is also entitled for grant of same relief alongwith other four persons who were appointed directly with the petitioner, when no post was in existence.
51. The orders dated 24.8.1993 and 30.8.1993 passed in violation of the principles of natural justice are liable to be quashed by this Court and are accordingly quashed.
52. The writ petition is accordingly allowed in terms of judgment rendered in Civil Misc. Writ No. 35296 of 1993 directing the respondents to consider regular appointment of the petitioner notionally from the date of first vacancy of Lineman which may have occurred due to retirement or death of an employee or by virtue of creation of post. The respondents shall also consider question of seniority of the petitioner accordingly after issuance of Government Order dated 8.1.1992. No order as to costs.