Kishan Swaroop & Others vs State Of U.P. & Others
2014 Latest Caselaw 4980 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 36
 

 
Case :- WRIT - A No. - 37261 of 1999
 

 
Petitioners :- Kishan Swaroop & Others
 
Respondents :- State Of U.P. & Others
 
Counsel for Petitioners :- Sri  Abhai Saxena
 
Counsel for Respondents :- C.S.C.
 

 
Hon'ble Rakesh Tiwari,J.

Hon'ble Ashok Pal Singh,J.

( By Hon'ble Rakesh Tiwari, J.)

Heard learned counsel for the parties on Civil Misc. Delay Condonation Application No. 338010 of 2013 and Civil Misc. Restoration Application No. 338014 of 2013 and perused the affidavits filed in support of the aforesaid applications. Cause shown is sufficient. Delay is condoned. The application for condonation of delay is allowed. The order dated 10.7.2009 dismissing the writ petition in default is recalled. The restoration application is also allowed. The writ petition is restored to its original number and status.

Heard learned counsel for the parties on merit of the writ petition and perused the record.

This writ petition has been filed by the petitioners for the following reliefs.

1.Issue a writ, order or direction in the nature of certiorari quashing the judgment and order dated 17.2.99 passed by the State Public Services Tribunal, Lucknow ;

2.Issue a writ, order or direction in the nature of mandamus directing the respondents to allow the petitioners to continue in service with effect from 1.3.92 and pay them salary month to month ;

3.Issue any other writ order or direction which this Court may deem fit and proper in the circumstances of the case; and

4.Award cost of the petition to the petitioner."

Brief facts of the case are that the petitioners were appointed as daily wage employees in Nal Koop Nirman Khand-II, Moradabad on 15.6.1986 and they had worked continuously without break from 15.6.86 to 1.3.92. Their services were terminated orally on 1.3.1992 by the Executive Engineer, Nalkoop Nirman Khand-II, Moradabad. Aggrieved, the petitioners filed Claim Petition No. 276 of 1995, Kishan Swaroop and others versus State of U.P. and others, before the State Public Services Tribunal, Lucknow, which was dismissed vide judgment and order dated 17.2.99. The relevant portion of the judgment and order dated 17.2.99 reads thus:-

" In the instant case, the petitioner appears to be reeling under a wrong notion of law regarding his right to be regularized on the basis of the work being taken by the O.Ps. from them on daily wage basis. Any right which is claimed on such basis must proceed with orders of appointment by the competent authority, even though for a specified period against the specified salary. In the instant case, the petitioners did not file any orders of appointment by which they claim to have been appointed as Class IV employees on daily wages and continued as such from 15.6.86 to 1.3.92. However, right of an employee can be determined only on the basis of the terms and conditions of his appointment. If the very basis is wanting no right can be claimed simply because work has been taken from a particular person by a particular department on daily wage, even though for a period of more than three years or more claiming to hold a civil post, it is necessary to have ordered of appointment by the competent authority. None of the petitioners has filed any proof of their appointment by a competent authority eliciting terms and conditions and emoluments/ salary to be paid in lieu of work taken from them. The petitioners have placed reliance on the cases of Pankaj Kumar Srivastava versus State of U.P. and others & U.P. Sahkari Sangrah Karamchari Sangh, district Lakhimpur Kheri versus State of U.P. and others, reported in 1997 (15) LCD 398 and 1997 (15) LCD-746. A careful perusal of the aforesaid judicial pronouncements brings out a clear cut distinction if we test the facts and circumstances of the present case viz-a-viz the one's dealt with in the said rulings. In both these rulings admittedly the petitioners were appointed by the competent authorities and they rendered their services on the basis of the said appointmentletters against different modes of salary or commission. But in the instant case, there being no proof of any appointment of the terms and conditions of service and emoluments attached with them for the work taken on daily wages from the petitioners, no relief for regularization of the alleged services can be granted.

Yet another contention raised on behalf of the petitioners is that they being scheduled caste candidates should have been absorbed as posts were and still available. Even the contention of the petitioners is not acceptable for want of proof of there being public servant within the meaning of the Public Services Tribunal Act, 1976 unless they prove that they were appointed against specified salary or emoluments by a competent authority even though for a specified period, they cannot claim to be on the rolls of the State employee so as to claim reservation viz-a-viz the other regular employee. They also cannot claim to have been discriminated on the ground of juniors being regularly appointed. The question of senior and junior comes only when a regular appointment or selection has been made and the seniority of the appointees or selectees is prepared and maintained. In the instant case, there is no such proof and therefore, there is no question of any discrimination or violation of Articles 14 and 16 of the Constitution of India.

For the reasons disclosed above, the claim petition has absolutely no merit to foot in and therefore, is liable to be dismissed."

The learned counsel for the petitioners submits that the petitioners have right to continue in service with effect from the date their juniors, namely, Pradeep Kumar Gupta, Vikram Singh & Rajendra Singh have been regularized in service; that the petitioners had worked continuously from 15.6.86 to 1.3.92 as such the respondents have violated Articles 14 and 16 of the Constitution of India and the finding recorded by the Tribunal is perverse and illegal being not based on records.

After hearing learned counsel for the parties and on perusal of record it appears that the petitioners were engaged as daily wage employees in Nal Koop Nirman Khand-II, Moradabad on 15.6.1986 and their services were orally terminated on 1.3.1992. They filed Claim Petition before the Tribunal against the order dated 1.3.92, which was dismissed vide judgment and order dated 17.2.1999 on the ground that as none of the petitioners had filed their appointment letters before the Tribunal issued by the competent authority eliciting terms and conditions and emoluments/salary to be paid in lieu of work taken from them. The learned counsel for the petitioners could also not show us the engagement/appointment letter of the petitioners. The question of senior and junior comes only when a regular appointment or selection has been made on a post and not otherwise of daily wager unless rules applicable to the department provide for the same. If an employee is engaged in exigencies of work on daily wage basis, Court can not direct for his absorption in permanent employment in view of the decision rendered by the Apex Court in 2006(109) FLR-826, Secretary, State of Karnataka versus Uma Devi and others wherein it has been held that Constitution does not contemplate any appointment on a substantive vacancy outside the mandate contained in the Constitutional Scheme except by following procedure prescribed for recruitment regarding the posts. Though, Constitution does not prohibit employment of daily wager for discharging duties in respect of posts, which are sanctioned, yet such temporary employment cannot be resorted to defeat the very basic Constitutional Scheme of public employment. It has further been held therein that ordinarily it is not proper for the Courts to direct absorption in permanent employment of those who have been engaged without following due Constitutional process. Therefore, all appointments in public service are to be made subject to Constitutional mandate.

In our considered opinion, the Tribunal has rightly rejected the claim petition of the petitioners that as daily wagers they had no indefeasible right to continue on the post on which they were working, hence no interference is required by this Court.

For the reasons stated above, the writ petition is dismissed. No order as to costs.

Dated 26.8.2014

CPP/-