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2009 DIGILAW 386 (ALL)

STATE OF U. P. AND OTHERS v. VINOD KUMAR MISHRA

2009-02-03

DILIP GUPTA, H.L.GOKHALE

body2009
JUDGMENT Honble H.L. Gokhale, C.J.—Heard Mr. M.S. Pipersenia, learned Additional Chief Standing Counsel for the State of U.P. in support of this appeal. Mr. Ashok Nath Tripathi, appears for the respondent. 2. The appeal seeks to challenge the judgment and order passed by learned Single Judge on 12th July, 2005, whereby the learned Single Judge has allowed the writ petition filed by the respondent herein and set aside the order dated 29th July, 2003 passed by the Superintending Engineer, Gorakhpur. 3. The case of the respondent was that after completing the course of Commercial Practice Stenographer Diploma, he was appointed as an Apprentice in the Irrigation Department by the order dated 7th May, 1993 issued by the Chief Engineer, Irrigation Department, Gorakhpur under the provisions of Apprenticeship Act, 1961 and he worked as an Apprentice in the office of the Executive Engineer, Flood Works Division, Deoria from 24th May, 1993 to 23rd May, 1994. After completing his apprenticeship, he was engaged as a daily wager in the same office for working on the Electronic Typewriter from 24th May, 1994 to 23rd September, 1994. This engagement was subsequently extended from time to time and ultimately he was appointed in the Workcharge Establishment of the office in the pay-scale of Rs. 825-1200 by the order dated 11th March, 1998 issued by the Superintending Engineer. Subsequently, an office memo dated 28th December, 1998 was issued by the Chief Engineer for appointment of Junior Clerks by holding a typing test of all the eligible work-charge employees under the provisions of the U.P. Irrigation Department Ministerial Services Rules, 1971. A Selection Committee was directed to be constituted under Clause I of the aforesaid circular. Amongst others, the respondent also appeared in the test conducted by a Committee consisting of two Superintending Engineers and two Executive Engineers and he was placed at Serial No. 5 in order of merit and appointed as a Junior Clerk by the order dated 26th April, 1999 issued by the Chief Engineer, Irrigation Department, Gorakhpur. The respondent continued to work as a Junior Clerk when his services as a Junior Clerk were terminated by the order dated 21st November, 2002. This order was challenged in Writ Petition No. 55172 of 2002 which was allowed by the judgment and order dated 2nd January, 2003 solely on the ground that he had not been afforded any opportunity of hearing whatsoever. This order was challenged in Writ Petition No. 55172 of 2002 which was allowed by the judgment and order dated 2nd January, 2003 solely on the ground that he had not been afforded any opportunity of hearing whatsoever. It was, however, left open to the Department to pass a fresh order in accordance with law. A fresh show cause notice was then issued to the respondent to which a reply was submitted and thereafter the services were again terminated by the order dated 29th December, 2003 which was impugned before the learned Judge in the writ petition out of which the present Appeal arises. 4. The aforesaid departmental order recites that a Committee of two Executive Engineers was constituted to submit the report. The Committee concluded that the engagement of the respondent as a daily wager was bad and so his appointment in the Workcharge Establishment and as a Junior Clerk automatically were bad in law. The respondent was given an opportunity to respond to the report and he filed a detailed representation. The order merely states that after perusing the report of the Committee and the reply submitted by the respondent, the report should be accepted. Accordingly, the engagement as a muster roll employee, his appointment as an Apprentice and as a Junior Clerk was set aside. 5. The learned Single Judge observed that the appellants committed gross illegality in failing to consider the reply of the respondent particularly that he had been engaged as a daily wager after completing his Apprenticeship Training with the permission of the Superintending Engineer and that his services as a daily wager had not been regularized under the Government Order dated 7th February, 1997. The writ petition was accordingly allowed and the order dated 29th September, 2003 was set aside. 6. The submission of Mr. Pipersenia, are two folds. Firstly, he submits that there was a ban on employment of daily wagers under the Government Order dated 6th May, 1992 and so the respondent could not have been engaged as a daily wager w.e.f. 24th May, 1994. It is also his submission that the respondent could not have been appointed on the• Workcharge Establishment in view of the Government Order dated 7th February, 1997. He further submits that under Section 22 (1) of the Apprenticeship Act, 1961, there is no obligation on the employer to offer an employment. 7. Mr. It is also his submission that the respondent could not have been appointed on the• Workcharge Establishment in view of the Government Order dated 7th February, 1997. He further submits that under Section 22 (1) of the Apprenticeship Act, 1961, there is no obligation on the employer to offer an employment. 7. Mr. A.N. Tripathi, learned Counsel for the respondent, however, urged that the State Government subsequently relaxed the ban imposed under the Government Order dated 6th May, 1992 by the Government Order dated 31st October, 1992 and it was provided that in certain exigencies, engagement of daily wagers should be made with the prior approval of the Superintending Engineer and in the present case, the respondent had been engaged with the prior approval of the Superintending Engineer. So far as his engagement in the Workcharge Establishment is concerned, Mr. Tripathi submitted that this was not even the ground taken in the impugned order. In respect of the provisions of Section 22 of the Apprenticeship Act, 1961, he submitted that it is true that there is no obligation on the employer to offer an employment after completion of the apprenticeship, yet in the present case as the department required the services of the respondent for working on the Electronic Typewriter, he was engaged on daily wage basis and he continued as such till he was appointed in the Workcharge Establishment and ultimately appointed as a Junior Clerk. 8. We find that the sole reason mentioned in the impugned order for terminating the services of the respondent is that his entry as a daily wager was bad in law. Learned Standing Counsel submitted that this was so because of the ban imposed on engagement of daily wagers by the Government Order dated 6th May, 1992. This contention cannot be accepted for the simple reason that the ban had been relaxed by the subsequent Government Order dated 31st October, 1992 and the engagement of daily wage basis should be made in certain cases with the prior approval of the Superintending Engineer and in the present case, the respondent was engaged on a daily wage basis with the prior approval of the Superintending Engineer. Thus, the reason assigned in the impugned order is without any substance. Thus, the reason assigned in the impugned order is without any substance. The appointment of the respondent as a Junior Clerk could not have been cancelled on the ground that his engagement as a daily wager was bad in law. 9. The contention of the learned Standing Counsel that his appointment in the Workcharge Establishment was contrary to the provisions of the Government Order dated 7th February, 1997 cannot also be accepted for the simple reason that this was not even the ground mentioned in the impugned order. This apart, we find that after having worked in the Workcharge Establishment, the respondent appeared before the Committee constituted by the Chief Engineer at the test and was ultimately selected on merit to be appointed as a Junior Clerk. 10. Mr. Pipersenia, relied upon a judgment in the case of Secretary, State of Karnataka and others v. Uma Devi and others, 2006(2) ESC 192 (SC) : (2006) 4 SCC 1 and drew our attention to the fact that the Supreme Court has commented upon the action of the Union, the States, their departments and instrumentalities in making irregular appointments either on contract or daily wage basis and to continue with them year after year. 11. It is no doubt true that the Apex Court has emphasised that the public employment should be in consonance with Articles 14 and 16 of the Constitution of India, but in the instant case, the respondent had been selected as a Junior Clerk on the basis of the examination conducted by the Committee pursuant to the Rules referred to above. This apart, in paragraph 53 of that very judgment, the Apex Court has also noted that there are persons who have continued to work for ten years or more without the intervention of orders of the Courts or Tribunals and the question of regularisation of such employees may have to be considered on merits and in this context it has further been observed that the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed persons, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the Courts or of Tribunals. 12. In the circumstances, we do not find any error in the order passed by the learned Single Judge. 12. In the circumstances, we do not find any error in the order passed by the learned Single Judge. The appeal is, therefore, dismissed. Interim order, if any, stands vacated. ————