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2011 DIGILAW 1640 (ALL)

Rizwan Ullah Ansari v. State of U. P. and Others

2011-07-08

V.K.SHUKLA

body2011
Hon’ble V.K. Shukla,J.—Petitioner has approached this Court requesting therein for quashing of the order dated 09.06.2010 passed by Assistant Director of Education (Basic) Region Gorakhpur/Basti and further prayer has been made that writ in the nature of mandamus be issued commanding the respondents not to interfere in the functioning of the petitioner and discharging his duty as Jeep Driver, in the Office of District Basic Education Officer Kushinagar. 2. Brief background of the case as is reflected from the body of the writ petition that petitioner has been engaged on daily wage basis as Jeep driver in the office of District Basic Education Officer, Kushinagar. Annexure-1 to the writ petition in question reflects that District Basic Education Officer, Kushinagar proceeded to mention that as new Jeep has been received in the office of District Basic Education Officer and post of Jeep driver was sanctioned and vacant and as such on daily wage basis petitioner has been engaged. 3. This is accepted position that at no point of time any regular process of selection has been undertaken before proceeding to engage petitioner on daily wage basis and record in question reflects that straight away petitioner moved an application on 29.10.1999 and said application in question was considered by the District Basic Education Officer, Kushinagar and accordingly engagement on daily wage basis was made. Petitioner has stated that he has been performing and discharging duties on daily wage basis. Petitioner has stated that during his functioning as Jeep driver in the office of District Basic Education Officer, Kushinagar he has been allocated duties in Panchayat Election and other V.I.P duty. Petitioner has further stated that on 16.08.2002 as no regular selection has been made he requested for his absorption. Petitioner has further stated that up to December, 2003 wages has been paid but after January, 2004 no payment whatsoever was made. Petitioner has further stated that he has been repeatedly representing the matter and thereafter he filed Civil Misc. Writ Petition No. 37724 of 2005 before this Court and this Court on 10.05.2005 called for counter affidavit and as per petitioner said writ petition is still pending and thereafter on 09.06.2010 orders have been passed by Assistant Director of Education (Basic) Gorakhpur/Basti Region with a direction to respondent no. Writ Petition No. 37724 of 2005 before this Court and this Court on 10.05.2005 called for counter affidavit and as per petitioner said writ petition is still pending and thereafter on 09.06.2010 orders have been passed by Assistant Director of Education (Basic) Gorakhpur/Basti Region with a direction to respondent no. 5 Ram Niwas Mishra to ensure his presence in the office of District Basic Education Officer, Kushinagar as Jeep Driver and his salary has to be drawn from the office of Assistant Director of Education (Basic) Gorakhpur and Basti Region. Petitioner thereafter has tried to contend that ever after order dated 09.06.2010 vehicle in question was being driven by him till 05.07.2010 and thereafter petitioner was not permitted to discharge duty. At this stage petitioner has rushed to this Court. 4. Counter affidavit has been filed and to the said counter affidavit rejoinder affidavit has been filed in the present case. 5. After pleadings inter se parties have been exchanged present writ petition has been taken up for final hearing and disposal with the consent of the parties. 6. Sri K.M.Asthana, learned counsel for the petitioner contended with vehemence that petitioner continued to function as Jeep driver for more than 12½ years and in this background claim of the petitioner is liable to be regularized and absorbed and arrangement which has been so made by placing Ram Niwas Mishra, respondent no. 5 is unsustainable and uncalled for and for the period for which petitioner has functioned, wages to be ensured. 7. Countering the said submission learned Standing counsel submits that petitioner is daily wager and his appointment has been made without undertaking any process of selection whatsoever, in such a situation and in this background once decision has been taken to discontinue the service of the petitioner and arrangement has been made by asking Ram Niwas Mishra, respondent no. 5 to perform and discharge duty as Jeep driver at the office of District Basic Education Officer then this Court cannot come to rescue of the petitioner. 8. After respective arguments have been advanced factual position on which there is no dispute that in the office of District Basic Education Officer, Kushinagar new Jeep has been received and further as per the letter of District Basic Education Officer, Kushinagr post of driver was also sanctioned and lying vacant. 8. After respective arguments have been advanced factual position on which there is no dispute that in the office of District Basic Education Officer, Kushinagar new Jeep has been received and further as per the letter of District Basic Education Officer, Kushinagr post of driver was also sanctioned and lying vacant. Petitioner moved an application on 29.10.1999 seeking his engagement and District Basic Education Officer, Kushinagar has proceeded to engage him on daily wage basis. 9. This is accepted position that no process of selection whatsoever has been undertaken before engaging petitioner on daily wage basis and petitioner claims that since then he has been performing and discharging duties and further claims that after year 2003 remuneration has not been paid to him. Petitioner being daily wager, has no right to claim his continuance on the post in question in view of the judgment of Hon’ble Apex Court in the case of Secretary State of Karnataka v. Uma Devi, reported in 2006(4) SCC 1 and specially when his appointment is totally dehors the Rules, without undertaking any regular process of selection. Once engagement was on daily wages basis and authorities concerned in their wisdom have chosen not to take any work from the petitioner then petitioner cannot insist as matter of right that he should be engaged on daily wage basis in the office of District Basic Education Officer on account of fact that till today no regular selection has been made. Assistant Director of Education (Basic) Gorakhpur/Basti Region has got full competence to accord placement to Jeep driver and to take work and in the present arrangement has been made by him by directing Ram Niwas Mishra, respondent no. 5 to function as Jeep driver in the office of District Basic Education Officer, Kushinagar. Petitioner being daily wagers has no right to claim continuance on the post in question, then in this background petitioner cannot legitimately oppose for making such arrangement by Additional Director of Education Gorakhpur/Basti Region who is competent to make such arrangement. In this background order dated 09.06.2010 does not suffer from any infirmity whatsoever. 10. Petitioner at last contended before this Court that for the period for which he has worked, wages qua which he is entitled has not been ensured to him. 11. In this background order dated 09.06.2010 does not suffer from any infirmity whatsoever. 10. Petitioner at last contended before this Court that for the period for which he has worked, wages qua which he is entitled has not been ensured to him. 11. Disputed question of facts as to whether petitioner has been performing and discharging duties cannot be adjudicated and answered in writ jurisdiction. In such a situation as claimed by petitioner that he has functioned and wages has not been ensured accordingly qua the same liberty is given to the petitioner to approach Assistant Director of Education (Basic) Gorakhpur/Basti Region. Any such claim being made said claim be considered in accordance with law within four months from the date of presentation of certified copy of the order passed by this Court. 12. With the above direction present writ petition is disposed of. _____________