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Allahabad High Court · body

1992 DIGILAW 523 (ALL)

Sunil Kumar Srivastava v. State of U. P.

1992-04-16

B.K.SINGH

body1992
JUDGMENT B.K. Singh, J. - The controversy raised in this writ petition was subject matter of consideration of the judgment rendered by Hon'ble S.H.A. Raza, J. in 'Writ Petition No. 3721 of 1990 Majeed and others v. State of U.P. and others' decided on 1681991. After hearing the 'counsel the writ petition indicated above has been allowed and a writ in the nature of mandamus has been issued directing the opposite parties not to terminate the petitioners' services till a regular selection for the posts of registration clerks is made and the judgment further provides that whenever selection for the said posts is made the petitioners shall be considered for regular selection and then they shall be paid salary which other registration clerks are being paid. In view of the judgment, the parties' counsel agree that this writ petition may also be decided in the same terms. Accordingly, I propose to dispose of this writ petition. 2. The facts of this writ petition and the writ petition which has been decided by Hon'ble S.H.A. Raza, J. are identical and as such they need not to be elaborately dealt with. Suffice it to say that the petitioners are also like the petitioners of the earlier case daily rated registration clerks who were initially appointed for a period of ninety days and since the date of their appointment they have been working with artificial breaks in the Registration Office, Rae Bareli. 3. In this writ petition reliance has been placed on the decision of Hon'ble the Supreme Court in the case of Daily Rated Casual Labour Employed under P.&T. Department v. Union of India ( 1988 (1) SCC 122 ); Dharwad District P.W.D. Literate Daily Wage Employees Association and others v. State of Karnataka and Others (1990 (2) SCC 336) and K.C. Rejeeva and fifteen others v. State of Kerala (1991(1) SCC 31) and the judgment of Hon'ble S.H.A. Raza, J. In all the above decisions which have been relied in the judgment of Hon'ble S.H.A. Raza, J it has been held that since our country which is developing one, it has a vast surplus labour market and large scale unemployment offers a matching opportunity to the employer to exploit the needy. Under such market conditions the employer can dictate his terms of employment taking advantage of the absence of the bargaining power in the other. Under such market conditions the employer can dictate his terms of employment taking advantage of the absence of the bargaining power in the other. The unorganised job seeker is left with no option but to accept employment on take it or leave it terms offered by the employer. Such terms of employment offer no job security and the employee is left to the mercy of the employer. In such conditions if the petitioners who have been taken on daily wages basis are being exploited that does not speak well of the said agency. The State, which must act as model employer must in accordance with the provisions of the Constitution and specific directive principles, follow the socioeconomic policies enshrined therein. It can not be permitted that the persons may be turned out at the sweet will of the employer even though they fulfill the minimum qualification. 4. The present case is not a case where the petitioners do not fulfill the requisite qualifications and their employment and continuance on the post of registration clerks on daily wages proves that they possess necessary qualifications. In the case of Bhagwati Prasad v. Delhi Mineral Development Corporation ( 1990 (1) SCC 361 ) it has been held that practical experience would always aid the persons to effectively discharge the duties and is a sure guide to asses the suitability. In view of what has been stated above, it is also established that in case the petitioners who have acquired practical experience are retained then they shall be in a better position to effectively discharge the duties of Registration Clerks. 5. Thus I do not see any reason to differ with the decision of Hon'ble S.H.A. Raza, J. The writ petition accordingly succeeds and a writ in the nature of mandamus is issued to the opposite parties not to terminate the petitioners' services till a regular selection for the post is held and whenever any selection takes place the petitioners shall be considered for regular appointment in the light of what has been stated by me above and as provided in the judgment of Hon'ble S.H.A. Raza, J and then they shall be paid the same salary as the registration clerks on the regular side are being paid. It would, therefore, be appropriate to also direct that whenever regular selection takes place, the petitioners shall be preferred as against the outsiders. It would, therefore, be appropriate to also direct that whenever regular selection takes place, the petitioners shall be preferred as against the outsiders. The parties shall bear their own costs. (Petition allowed)