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Arun Kumar v. State Of U.P. & Another - WRIT - A No. 32763 of 1997  RD-AH 17 (4 April 2001)
CIVIL MISC. WRIT PETITION NO.32763 OF 1997
Arun Kumar v. State of U.P. and another
Hon'ble R.K.Agrawal, J.
The petitioner, Arun Kumar has filed the present petition under Article 226 of the constitution of India, seeking a writ, order or direction in the nature of Certiorari calling for the record of the case and to quash the order dated 21.7.1997 passed by the Secretary, Madhyamik Shiksha Parishad, U.P., Allahabad, respondent no. 2 [filed as Annexure-13 to the writ petition]. He further seeks a writ, order or direction in the nature of mandamus commanding the respondents to regularise the services of the petitioner as Junior Clerk in the grade of Rs.950-1500 w.e.f. the date his junior were regularised in services with all consequential benefits of seniority, pay fixation and further promotion etc. vis a vis his juniors and to pay the regular pay scale of junior clerk.
Briefly stated the facts giving rise to the present petition are as follows :
According to the petitioner he was initially appointed on 4.2.1983 as daily wage worker in the office of Madhyamik Shiksha Parishad, U.P., Allahabad. He continued to work till 1.10.1985 when his services were terminated. He raised an industrial dispute, which was referred by the State Government under section 4-I of the Industrial disputes Act,1947 for adjudication before the Labour Court, Allahabad. The reference was registered as Adjudication Case No.127 of 1990. The Labour Court, Allahabad gave an award on 24.12.1991 in the following terms :
"Atah Is Vivad me mera Punch Nirnay/award Is prakar hai ki Shramik Arun Kumar S/o Sri Bhanu Pratap singh "Shramik" ki sevayen dinank 1.10.1985 se prapt kiya jana Anuchit evam Vaidhanik hai, tatha use sewa me ukta tithi se Sa-vetan Punarsthapit kiya jata hai. Use seva se hataye jane ki tithi se Punarniyojit kit tithi tak ke avadhi ka bank wages bhi prapta hoga evam uski sevayen Atut Mani Jayengi.
Shramik vipachhi sevayojko se Rs.50/- vad-vyay bhi pane ka adhikari hai."
The aforesaid award was challenged by the State of U.P. and the Board of High School and Intermediate Education, U.P., Allahabad before this Court by means of Civil Misc.Writ Petition No.3106 of1993, which was dismissed vide judgment and order dated 21.1.1994. The order dated 21.1.1994 is reproduced below :
"Heard counsel for the petitioner and Sri K.P. Agarwal for respondent no.2.
In view of the decision of Hon'ble Supreme Court in the case of Bangalore Water Supply and sewage v. Its workmen [A.I.R. 1978 S.C. page 505] the award of the Labour Court dated 24.12.1991 and published on 8.4.1992 does not call for any interference by this Court under Article 226 of the Constitution.
The petition is, accordingly, dismissed. The petitioners are directed to payback wages to the respondent no.2 and also the current wages, which is being paid to the similarly placed employees."
Against the judgment and order dated 21.1.1994 passed by this Court in Civil Misc.Writ Petition No.3106 of 1993 referred to above, the State Government filed Special Leave Petition No.18306 of 1994 before the Hon'ble Supreme Court, which was dismissed on 19.1.1995. The Hon'ble Supreme Court had passed the following order while dismissing the Special Leave Petition.
"We have heard learned counsel for the parties. We see no ground to interfere with the impugned order of the High Court. The Special Leave Petition is dismissed."
It appears that the State Government filed a review petition before the Hon'ble Supreme Court which has also been rejected vide order dated 17.1.1996 by the Hon'ble Supreme Court. The Madhyamik Shiksha Parishad had reinstated the petitioner on 23.9.1995 in terms of the award passed by the Labour Court. It may be mentioned here that the State Government vide order dated 14.12.1990 had sanctioned 160 temporary posts for absorbing the daily wage employees of the Madhyamik Shiksha Parishad. After his reinstatement the petitioner-claimed regularisation/absorption of his services on the temporary posts in terms of the Government order dated 14.12.1990. When it was not being done, the petitioner approached this Court by filing Civil Misc.Writ Petition No.3727 of 1996, which was finally disposed off vide judgment and order dated 5.5.1997 with a direction to the petitioner to make a representation to the authority concerned which was to be decided by a speaking order within two months. Pursuant to the aforesaid directions contained in the judgment and order dated 5.5.97, the Secretary, Madhyamik Shiksha Parishad vide order dated 21.7.1997 had rejected the representation made by the petitioner on the ground that in terms of the Government Order dated 14.12.1990, whereby 160 posts of Junior Clerk have been created, 157 persons have been absorbed and whatever post is presently vacant is liable to be filled up from amongst the reserved category candidates belonging to SC/ST candidates. The Secretary, Madhyamik Shiksha Parishad had also negatived the claim made by the petitioner that the persons junior to him have been absorbed and the specific case of Narbada Prasad cited by the petitioner was justified on the ground that on 4.1.1991 when he was absorbed the petitioner was not in service and therefore, he is not entitled for any benefit.
I have heard Sri Shishir Kumar , learned counsel for the petitioner and the learned standing counsel appearing on behalf of the respondents.
It is not in dispute that the award given by the Labour Court on 24.12.1991 had become final between the parties. The Labour Court had held that the termination of services of the petitioner was illegal and not proper and is entitled for reinstatement with full back wages and continuity of services. The said award was upheld by this Court vide judgment and order dated 21.1.1994 and the Special Leave Petition filed by the State Government had also been dismissed by the Hon'ble Supreme Court on 19.1.1995. The effect of the award given by the Labour Court is that the petitioner is entitled for continuity of service and the termination order passed on 1.10.85 was illegal. Thus, on the date when the State Government had issued Government Order on 14.12.1990, the petitioner would be deemed to have been in service and therefore, entitled for being absorbed on the temporary post of Junior Clerk created by the State Government alongwith other persons. From a perusal of the order dated 21.7.97 passed by the Secretary, Madhyamik Shiksha Parishad, U.P. Allahabad, it is clear that the persons appointed subsequently, i.e. on 4.1.1991 have been absorbed. It is not disputed that the petitioner was appointed on daily wage basis on 4.2.1983 as per Annexure-9 to the petition. Thus, there is no justification for the respondent not to regularise/absorb the petitioner on the post of junior clerk created by the State Government vide Government Order dated 14.12.1990.So far as the question of filling up the three vacant post from among the candidates belonging to the Schedule Caste/Schedule Tribe category is concerned, it may be mentioned here that the State Government had sanctioned 160 posts in the year 1990 to absorb all the persons, who were working on daily wage basis without providing for any reservation. Further the respondents have not placed any material before the Court to show that they had applied the reservation while absorbing the daily wagers on the 160 sanctioned posts. Thus, the petitioner is entitled for being absorbed in terms of the aforesaid Government Order.
In view of the foregoing discussions, the writ petition succeeds and is allowed. The impugned order dated 21.7.1997 is hereby quashed. The respondentno.2is directed to absorb the petitioner on the post of Junior Clerk in terms of the Government Order dated 14.12.1990 from the date when the persons junior to him have been absorbed on the said post and to give all consequential benefits including payment of regular pay-scale and other dues. The Secretary, Madhyamik Shiksha Parishad, U.P., Allahabad, is directed to pass appropriate orders expeditiously, preferably within a period of one month from the date of production of the certified copy of this order before him.
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