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ASHOK KUMAR AND OTHERS versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Ashok Kumar And Others v. State Of U.P. And Others - WRIT - A No. 14876 of 2005 [2005] RD-AH 1396 (25 May 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

RESERVED

Civil Misc. Writ Petition No.14876 Of 2005

Ashok Kumar and others........................................Petitioners

Versus

State of U.P. and others........................................Respondents.

********

Hon.Tarun Agarwala,J.

Twenty three Class-III daily wage employees working @ Rs.47.50 per day since 1999 in the office of the Advocate General at Allahabad have collectively challenged the action of the Advocate General of the State of U.P. in dispensing their services by an order dated 23.2.2005 on the ground that there are no funds available in the office of the Advocate General and Government Advocate to pay the wages to the daily wagers and that the State Government had sanctioned 60 Class-III posts on contract basis which has been filled up after a selection process.

Before dealing with the validity and justification of the impugned order, it would be necessary to look into the background which led to the initial appointment of the petitioners on daily wages on a Class-III post and the creation of 60 posts on contract basis. The facts, as culled out from the averments made in the writ petition, counter affidavit, rejoinder affidavit and supplementary affidavit is, that a note was submitted by the then Chief Standing Counsel on 16.1.1999 pointing out that in view of the work load, some more posts were required to be sanctioned from the State Government and in anticipation of such sanction, 16 persons may be employed on daily wage basis. On the basis of this note, the then Advocate General passed an order dated 16.1.1999 appointing 16 persons on daily wages which included eight petitioners.

On 5.6.1999, the Office Superintendent again submitted a note that due to the increase in the workload, some more persons may be engaged on daily basis. This note was forwarded by the then Chief Standing Counsel and, on this basis, the then Advocate General appointed fourteen persons on daily wages. In this way all the twenty three petitioners were appointed on daily wages in 1999 and,  since then, they are working continuously without any break in service as Class-III employees.

It transpires that the Chief Standing Counsel made a statement before a Division Bench hearing F.A.F.O. No.1420 of 2000 that the Advocate General had written a letter dated 7.6.1999 to the State Government to provide additional staff which had yet not been provided. On this basis, the Division Bench of this Court passed an order on 15.11.2001 directing the Law Secretary to the U.P. Government to explain as to why adequate staff was not being provided to the State Law Officers. Further orders were again passed by the Court on 29.11.2000 and 12.12.2000 directing the State Government that more steps are required to be taken to provide sufficient staff to the Government Counsels. Pursuant to the aforesaid directions, it transpires that the then Advocate General met the Principal Secretary (Law) on 3.1.2001, wherein, it was agreed that 26 posts of regular Grade Assistant Clerks would be created. It further transpires that the State Government in its G.O. dated 4.5.2002 proposed the absorption/regularisation of 26 Class-III daily wagers. It transpires that no further action was taken thereafter.

On the other hand, it transpires that based on a Public Interest Writ Petition No.9671 of 1989, Dori Lal vs. State of U.P. before the Lucknow Bench, the Principal Secretary to the State Government issued a letter dated 9.12.2004 to the Advocate General intimating him that in view of the additional work load in the Advocate General's office at Lucknow, the Governor had sanctioned the creation of 30 temporary posts of clerk on a contract basis @ Rs.5000/- per month upto 28.2.2005. It was further indicated in the said letter that the posts were purely temporary in nature and that these posts could be withdrawn at any time without any notice. The aforesaid letter was subsequently modified vide letter dated 16.12.2004 to the extent that the posts of clerks was increased from 30 to 60 posts on a contract basis. Based on the aforesaid, it transpires that an advertisement dated 21.12.2004 was issued from Lucknow in the daily newspaper Swatantra Bharat inviting applications for appointment of clerks in the office of Advocate General at Lucknow on a contract basis on a fixed salary of Rs.5000/- per month. The advertisement further stated that the appointment was only for a period of two months only. It transpires that based on the aforesaid advertisement, selections were made and appointments were made on 3.1.2005 which came to an end on 28.2.2005.

Heard Sri Ravi Kant, the learned Senior Counsel, assisted by Sri Manish Goyal for the petitioners and Sri Sudhir Agarwal, the learned Additional Advocate General assisted by Sri C.S.Singh, Additional Chief Standing Counsel for the respondents.

The learned counsel for the petitioners submitted that they were appointed on daily wages on account of the increase in the work load in the office of the Advocate General at Allahabad which had not diminished since their appointment and in fact, it had increased. Therefore, the requirement of work still existed and was permanent in nature. Consequently, their dispensation of services was not only arbitrary but also illegal. The learned counsel further submitted that they had been working continuously since 1999 without any break in service and, therefore, had acquired the requisite experience. The respondents, in fact had recommended their absorption and for this purpose the Standing Counsel agreed to create and sanction the said posts and, therefore to that extent, the petitioners acquired some kind of legitimate expectation for regularisation of their services on the post of a clerk. On other hand, the petitioners have been discriminated and some of the persons who were appointed on contract basis in January, 2005 were regularised within two months.

The learned counsel further submitted that the grounds for dispensation of the services of the petitioners, as indicated in the impugned order does not exist inasmuch as 60 posts on contract basis was created for the office of the Advocate General at Lucknow alone and that the filling up those posts at Lucknow had nothing to do in so far as the petitioners work at Allahabad was concerned. Further, the ground that there was no funds in the office of the Advocate General to pay the meagre wages does not stand to reason inasmuch as the office of the Advocate General was now spending much more on those persons appointed on contract basis. It was submitted that persons appointed on contract basis were being paid Rs.5000/- per month, whereas the petitioners were being paid @ Rs.47.50 per day which came to approximate Rs.1400/- per month.

The learned counsel further submitted that the appointments made on contract basis was given to favoured candidates who were the relatives of the employees in the office of the Advocate General and who had a close nexus with the functionaries in the office of the Advocate General. The learned counsel further submitted that the impugned order had also been passed in order to thwart the writ petition filed by the petitioners for the regularisation of their services. The learned counsel submitted that the writ petition was presented on 21.2.2005 whereas the impugned order was issued on 23.2.2005.

On the other hand, the learned Additional Advocate General submitted that the appointments of the petitioners were not against any sanctioned post and that there was no budget for the payment of their salary and that their salary was being paid from other heads. The learned Additional Advocate General submitted that since their appointments were made without any selection process and that their engagement was in excess of the sanctioned strength, the petitioners had no right to continue in service nor could they raise any grievance with regard to the dispensation of their service. The petitioners have no right to continue or demand to be retained in service. The learned Additional Advocate General further submitted that 60 posts on contract basis were sanctioned and advertised. Some of the daily wagers applied. Since the petitioners did not apply, they were not appointed on contract basis and now their services are no longer required after the appointments have been made on contract basis on the 60 posts. Consequently, this was another reason to dispense with the services of the petitioners.

Upon consideration of the submissions made by the learned counsels for the parties, I am of the opinion that the petitioners are entitled to the relief claimed.

Admittedly, the petitioners were appointed on daily wages as Class-III employees in order to meet the exigencies of the workload in the office of the Advocate General at Allahabad. They were not appointed against any sanctioned posts. However it has come on record that some assurance was given by the State Government before the Court that 88 Munshi Clerk-cum-Typist would be engaged shortly. This Court vide order dated 14.12.2000 held that more steps were required to be taken by the State Government in order to provide sufficient staff for the Government Counsels. It has also come on record that the State Government, subsequently made a specific proposal for regular absorption of 26 Class-III daily wage employees vide G.O. dated 4.5.2002. The then Advocate General had taken steps for sanctioning of the posts and for the regularization of the services of the petitioners. Thus, the action of the respondents  gave a flicker of hope to the petitioners that their services would be regularised. The action and conduct of the respondents raised the expectation of the petitioners for being considered for regular appointments. Even though the assurance did not develop in a crystallized right, nonetheless, it gave the petitioners some sort of a legitimate expectation, which was sufficient to give them a locus standi to seek a judicial review.

In Director, Institute of Management Development, U.P. V/s Pushpa Srivastava, 1992(4)SCC.33, Ashwani Kumar V/s State of Bihar, 1997(2)SCC 1, Daily Rated Casual Labour Vs. Union of India, 1988(1) SCC 122, Narendra Chaddha vs. Union of India, 1986(2)SCC 157, State of Haryana vs. Ram Diya, 1990(2)SCC 701, State of U.P. vs. Dr. Deep Narayan Tripathi, 1996(8) SCC 454 and Gujrat Agriculture University vs. Rathod Labhu Bechar and others, 2001(3) SCC 574, the Supreme Court held that where long period of service are rendered, the principles of legitimate expectation are squarely applicable. In the present case, even though the petitioners were appointed on daily wages, in view of the period of service rendered by them, it has assumed a certain kind of permanency keeping in mind the requirement and existence of work. Therefore, the stand of the respondents that the daily wagers had no right to challenge their dispensation of service is incorrect. The petitioners acquired a legitimate expectation which gave them a locus standi to seek a judicial review with regard to their dispensation of their services.

Even if the petitioners have a legitimate right to seek a judicial review with regard to the dispensation of their services, the question is, whether they have an indefeasible right to continue on a daily basis in the light of the fact that 60 posts were sanctioned on contract basis which were duly filled up after a selection process. In my opinion, the sanction of 60 posts does not affect the continuance of the services of the petitioners as daily wagers.  The letters of the Principal Secretary of the State Government dated 9.12.2004 and 16.12.2004 clearly indicates that 60 posts on contract basis was sanctioned for the Advocate General's office at Lucknow only. The advertisement dated 21.12.2004 which was issued also indicated that the applications were invited for the post of Clerks in the office of the Advocate General at Lucknow. From the reading of the counter affidavit, and the stand taken by the respondents, it is apparently clear that the office of the Advocate General at Lucknow is distinct from the office of the Advocate General at Allahabad in so far as the appointments are concerned. However, this much is clear, that 60 posts on contract basis was sanctioned for additional requirement of work in the office of the Advocate General at Lucknow which did not include the office of the Advocate General at Allahabad. Consequently, the appointments on contract basis on the 60 posts had nothing to do in so far as the engagement of the petitioners are concerned. The petitioners were engaged on daily wages on the basis of additional requirement of work at Allahabad, whereas, persons engaged on contract basis at Lucknow were engaged on account of additional requirement of work in the office of the Advocate General at Lucknow. Both the engagements were different and distinct. Consequently, the submission of the learned Additional Advocate General that the services of the petitioners were no longer required after the engagement of persons on contract basis is without any merit and is a clear afterthought. The engagement of persons on a contract basis at Lucknow was for a totally different reason and had nothing to do in so far as the engagement of the petitioners at Allahabad was concerned. Thus, I hold that even after the engagement of the persons on contract basis at Lucknow, the right of the petitioners to continue in service continued and was not hampered by the engagement of persons on contract basis at Lucknow.

This, now takes us to the second aspect or ground taken in the impugned order which states that the office of the Accountant General has no funds to pay the wages/salary to the daily wagers. The learned Additional Advocate General submitted that there was no separate budget to pay the salary to the petitioners. No doubt, financial constraints is a major ground for dispensing with the services of the daily wagers. But in the facts and circumstances of the present case, this plea of financial crisis does not appear to be plausible. The petitioners were being paid a meagre salary of Rs.47.50 per day. On the other hand, sixty persons were appointed on contract basis @ Rs.5000/- per month which comes to Rs.166.66 per day. The respondents chose to pay three times in excess to those persons employed on contract basis and on the other hand, the respondents chose to dispense the services of the petitioners on the ground of lack of funds. In my view, the plea of the respondent is neither plausible nor reasonable. Even otherwise, the matter with regard to sanctioning of the posts and for their absorption was pending with the State Government which was engaging the attention of the State Government. Why adequate steps were not taken by the Advocate General for the allocation of a budget towards payment of their wages is a mystery by itself.  In fact, the action of the respondents in not taking adequate steps was totally arbitrary. Further no justification has been shown by the respondents by way of any documentary proof to show that the respondents in fact were financially bankrupt. In my opinion, the plea of financial constraints was a mere afterthought to give some color to the impugned order.

In Chief Conservator of Forests and another vs. Jagannath Maruti Kondhara and others, 1996(2)SCC 293, the Supreme Court held:-

"Insofar as the financial strain on the State Exchequer is concerned, which submission is sought to be buttressed by Shri Dholakia by stating that in the Forest Department itself the causal employees are about 1.4 lakhs and if all of them were to be regularised and paid at the rate applicable to permanent workmen, the financial involvement would be in the neighborhood of Rs.300 crores- a very high figure indeed. We have not felt inclined to bear in mind this contention of Shri Dholakia as the same has been brought out almost from the hat. The argume RESERVED

Civil Misc. Writ Petition No.14876 Of 2005

Ashok Kumar and others........................................Petitioners

Versus

State of U.P. and others........................................Respondents.

********

Hon.Tarun Agarwala,J.

Twenty three Class-III daily wage employees working @ Rs.47.50 per day since 1999 in the office of the Advocate General at Allahabad have collectively challenged the action of the Advocate General of the State of U.P. in dispensing their services by an order dated 23.2.2005 on the ground that there are no funds available in the office of the Advocate General and Government Advocate to pay the wages to the daily wagers and that the State Government had sanctioned 60 Class-III posts on contract basis which has been filled up after a selection process.

Before dealing with the validity and justification of the impugned order, it would be necessary to look into the background which led to the initial appointment of the petitioners on daily wages on a Class-III post and the creation of 60 posts on contract basis. The facts, as culled out from the averments made in the writ petition, counter affidavit, rejoinder affidavit and supplementary affidavit is, that a note was submitted by the then Chief Standing Counsel on 16.1.1999 pointing out that in view of the work load, some more posts were required to be sanctioned from the State Government and in anticipation of such sanction, 16 persons may be employed on daily wage basis. On the basis of this note, the then Advocate General passed an order dated 16.1.1999 appointing 16 persons on daily wages which included eight petitioners.

On 5.6.1999, the Office Superintendent again submitted a note that due to the increase in the workload, some more persons may be engaged on daily basis. This note was forwarded by the then Chief Standing Counsel and, on this basis, the then Advocate General appointed fourteen persons on daily wages. In this way all the twenty three petitioners were appointed on daily wages in 1999 and,  since then, they are working continuously without any break in service as Class-III employees.

It transpires that the Chief Standing Counsel made a statement before a Division Bench hearing F.A.F.O. No.1420 of 2000 that the Advocate General had written a letter dated 7.6.1999 to the State Government to provide additional staff which had yet not been provided. On this basis, the Division Bench of this Court passed an order on 15.11.2001 directing the Law Secretary to the U.P. Government to explain as to why adequate staff was not being provided to the State Law Officers. Further orders were again passed by the Court on 29.11.2000 and 12.12.2000 directing the State Government that more steps are required to be taken to provide sufficient staff to the Government Counsels. Pursuant to the aforesaid directions, it transpires that the then Advocate General met the Principal Secretary (Law) on 3.1.2001, wherein, it was agreed that 26 posts of regular Grade Assistant Clerks would be created. It further transpires that the State Government in its G.O. dated 4.5.2002 proposed the absorption/regularisation of 26 Class-III daily wagers. It transpires that no further action was taken thereafter.

On the other hand, it transpires that based on a Public Interest Writ Petition No.9671 of 1989, Dori Lal vs. State of U.P. before the Lucknow Bench, the Principal Secretary to the State Government issued a letter dated 9.12.2004 to the Advocate General intimating him that in view of the additional work load in the Advocate General's office at Lucknow, the Governor had sanctioned the creation of 30 temporary posts of clerk on a contract basis @ Rs.5000/- per month upto 28.2.2005. It was further indicated in the said letter that the posts were purely temporary in nature and that these posts could be withdrawn at any time without any notice. The aforesaid letter was subsequently modified vide letter dated 16.12.2004 to the extent that the posts of clerks was increased from 30 to 60 posts on a contract basis. Based on the aforesaid, it transpires that an advertisement dated 21.12.2004 was issued from Lucknow in the daily newspaper Swatantra Bharat inviting applications for appointment of clerks in the office of Advocate General at Lucknow on a contract basis on a fixed salary of Rs.5000/- per month. The advertisement further stated that the appointment was only for a period of two months only. It transpires that based on the aforesaid advertisement, selections were made and appointments were made on 3.1.2005 which came to an end on 28.2.2005.

Heard Sri Ravi Kant, the learned Senior Counsel, assisted by Sri Manish Goyal for the petitioners and Sri Sudhir Agarwal, the learned Additional Advocate General assisted by Sri C.S.Singh, Additional Chief Standing Counsel for the respondents.

The learned counsel for the petitioners submitted that they were appointed on daily wages on account of the increase in the work load in the office of the Advocate General at Allahabad which had not diminished since their appointment and in fact, it had increased. Therefore, the requirement of work still existed and was permanent in nature. Consequently, their dispensation of services was not only arbitrary but also illegal. The learned counsel further submitted that they had been working continuously since 1999 without any break in service and, therefore, had acquired the requisite experience. The respondents, in fact had recommended their absorption and for this purpose the Standing Counsel agreed to create and sanction the said posts and, therefore to that extent, the petitioners acquired some kind of legitimate expectation for regularisation of their services on the post of a clerk. On other hand, the petitioners have been discriminated and some of the persons who were appointed on contract basis in January, 2005 were regularised within two months.

The learned counsel further submitted that the grounds for dispensation of the services of the petitioners, as indicated in the impugned order does not exist inasmuch as 60 posts on contract basis was created for the office of the Advocate General at Lucknow alone and that the filling up those posts at Lucknow had nothing to do in so far as the petitioners work at Allahabad was concerned. Further, the ground that there was no funds in the office of the Advocate General to pay the meagre wages does not stand to reason inasmuch as the office of the Advocate General was now spending much more on those persons appointed on contract basis. It was submitted that persons appointed on contract basis were being paid Rs.5000/- per month, whereas the petitioners were being paid @ Rs.47.50 per day which came to approximate Rs.1400/- per month.

The learned counsel further submitted that the appointments made on contract basis was given to favoured candidates who were the relatives of the employees in the office of the Advocate General and who had a close nexus with the functionaries in the office of the Advocate General. The learned counsel further submitted that the impugned order had also been passed in order to thwart the writ petition filed by the petitioners for the regularisation of their services. The learned counsel submitted that the writ petition was presented on 21.2.2005 whereas the impugned order was issued on 23.2.2005.

On the other hand, the learned Additional Advocate General submitted that the appointments of the petitioners were not against any sanctioned post and that there was no budget for the payment of their salary and that their salary was being paid from other heads. The learned Additional Advocate General submitted that since their appointments were made without any selection process and that their engagement was in excess of the sanctioned strength, the petitioners had no right to continue in service nor could they raise any grievance with regard to the dispensation of their service. The petitioners have no right to continue or demand to be retained in service. The learned Additional Advocate General further submitted that 60 posts on contract basis were sanctioned and advertised. Some of the daily wagers applied. Since the petitioners did not apply, they were not appointed on contract basis and now their services are no longer required after the appointments have been made on contract basis on the 60 posts. Consequently, this was another reason to dispense with the services of the petitioners.

Upon consideration of the submissions made by the learned counsels for the parties, I am of the opinion that the petitioners are entitled to the relief claimed.

Admittedly, the petitioners were appointed on daily wages as Class-III employees in order to meet the exigencies of the workload in the office of the Advocate General at Allahabad. They were not appointed against any sanctioned posts. However it has come on record that some assurance was given by the State Government before the Court that 88 Munshi Clerk-cum-Typist would be engaged shortly. This Court vide order dated 14.12.2000 held that more steps were required to be taken by the State Government in order to provide sufficient staff for the Government Counsels. It has also come on record that the State Government, subsequently made a specific proposal for regular absorption of 26 Class-III daily wage employees vide G.O. dated 4.5.2002. The then Advocate General had taken steps for sanctioning of the posts and for the regularization of the services of the petitioners. Thus, the action of the respondents  gave a flicker of hope to the petitioners that their services would be regularised. The action and conduct of the respondents raised the expectation of the petitioners for being considered for regular appointments. Even though the assurance did not develop in a crystallized right, nonetheless, it gave the petitioners some sort of a legitimate expectation, which was sufficient to give them a locus standi to seek a judicial review.

In Director, Institute of Management Development, U.P. V/s Pushpa Srivastava, 1992(4)SCC.33, Ashwani Kumar V/s State of Bihar, 1997(2)SCC 1, Daily Rated Casual Labour Vs. Union of India, 1988(1) SCC 122, Narendra Chaddha vs. Union of India, 1986(2)SCC 157, State of Haryana vs. Ram Diya, 1990(2)SCC 701, State of U.P. vs. Dr. Deep Narayan Tripathi, 1996(8) SCC 454 and Gujrat Agriculture University vs. Rathod Labhu Bechar and others, 2001(3) SCC 574, the Supreme Court held that where long period of service are rendered, the principles of legitimate expectation are squarely applicable. In the present case, even though the petitioners were appointed on daily wages, in view of the period of service rendered by them, it has assumed a certain kind of permanency keeping in mind the requirement and existence of work. Therefore, the stand of the respondents that the daily wagers had no right to challenge their dispensation of service is incorrect. The petitioners acquired a legitimate expectation which gave them a locus standi to seek a judicial review with regard to their dispensation of their services.

Even if the petitioners have a legitimate right to seek a judicial review with regard to the dispensation of their services, the question is, whether they have an indefeasible right to continue on a daily basis in the light of the fact that 60 posts were sanctioned on contract basis which were duly filled up after a selection process. In my opinion, the sanction of 60 posts does not affect the continuance of the services of the petitioners as daily wagers.  The letters of the Principal Secretary of the State Government dated 9.12.2004 and 16.12.2004 clearly indicates that 60 posts on contract basis was sanctioned for the Advocate General's office at Lucknow only. The advertisement dated 21.12.2004 which was issued also indicated that the applications were invited for the post of Clerks in the office of the Advocate General at Lucknow. From the reading of the counter affidavit, and the stand taken by the respondents, it is apparently clear that the office of the Advocate General at Lucknow is distinct from the office of the Advocate General at Allahabad in so far as the appointments are concerned. However, this much is clear, that 60 posts on contract basis was sanctioned for additional requirement of work in the office of the Advocate General at Lucknow which did not include the office of the Advocate General at Allahabad. Consequently, the appointments on contract basis on the 60 posts had nothing to do in so far as the engagement of the petitioners are concerned. The petitioners were engaged on daily wages on the basis of additional requirement of work at Allahabad, whereas, persons engaged on contract basis at Lucknow were engaged on account of additional requirement of work in the office of the Advocate General at Lucknow. Both the engagements were different and distinct. Consequently, the submission of the learned Additional Advocate General that the services of the petitioners were no longer required after the engagement of persons on contract basis is without any merit and is a clear afterthought. The engagement of persons on a contract basis at Lucknow was for a totally different reason and had nothing to do in so far as the engagement of the petitioners at Allahabad was concerned. Thus, I hold that even after the engagement of the persons on contract basis at Lucknow, the right of the petitioners to continue in service continued and was not hampered by the engagement of persons on contract basis at Lucknow.

This, now takes us to the second aspect or ground taken in the impugned order which states that the office of the Accountant General has no funds to pay the wages/salary to the daily wagers. The learned Additional Advocate General submitted that there was no separate budget to pay the salary to the petitioners. No doubt, financial constraints is a major ground for dispensing with the services of the daily wagers. But in the facts and circumstances of the present case, this plea of financial crisis does not appear to be plausible. The petitioners were being paid a meagre salary of Rs.47.50 per day. On the other hand, sixty persons were appointed on contract basis @ Rs.5000/- per month which comes to Rs.166.66 per day. The respondents chose to pay three times in excess to those persons employed on contract basis and on the other hand, the respondents chose to dispense the services of the petitioners on the ground of lack of funds. In my view, the plea of the respondent is neither plausible nor reasonable. Even otherwise, the matter with regard to sanctioning of the posts and for their absorption was pending with the State Government which was engaging the attention of the State Government. Why adequate steps were not taken by the Advocate General for the allocation of a budget towards payment of their wages is a mystery by itself.  In fact, the action of the respondents in not taking adequate steps was totally arbitrary. Further no justification has been shown by the respondents by way of any documentary proof to show that the respondents in fact were financially bankrupt. In my opinion, the plea of financial constraints was a mere afterthought to give some color to the impugned order.

In Chief Conservator of Forests and another vs. Jagannath Maruti Kondhara and others, 1996(2)SCC 293, the Supreme Court held:-

"Insofar as the financial strain on the State Exchequer is concerned, which submission is sought to be buttressed by Shri Dholakia by stating that in the Forest Department itself the causal employees are about 1.4 lakhs and if all of them were to be regularised and paid at the rate applicable to permanent workmen, the financial involvement would be in the neighborhood of Rs.300 crores- a very high figure indeed. We have not felt inclined to bear in mind this contention of Shri Dholakia as the same has been brought out almost from the hat. The argument relating to financial burden is one of despair or in terrorem. We have neither been impressed by the first nor frightened by the second inasmuch as we do not intend that the view to be taken by us in these appeals should apply, proprio vigore, to all causal labourers of Forest Department or any other Department of the Government."

In my opinion, the same principle as enunciated by the Supreme Court, as quoted aforesaid, squarely applies to the present facts and circumstances of the case. The plea of financial constraints is therefore, one of despair. The action of the respondent to dispense the services of the petitioners on this ground was wholly arbitrary.

The contention of the Additional Advocate General that the services of the petitioners are no longer required is misconceived and devoid of any merit. As I have held earlier, the engagement of those persons on contract basis at Lucknow Bench had nothing to do in so far as the engagement of the petitioners on daily wages at Allahabad was concerned. From the record, it is clear that the petitioners were appointed on account of excess work load. There is nothing to indicate that the work load had reduced. In fact, judicial notice can be taken with regard to the fact that the workload has increased tremendously in the last couple of years not only in the High Court but also in the office of the Advocate General as well.

The learned Additional Advocate General submitted that the initial entry of the petitioners was illegal and void as they were not appointed on a sanctioned post nor any budgetary sanction was made and, therefore, they had no right to continue. In this regard the learned Advocate General relied upon the decision in Ashwani Kumar and others vs. State of Bihar and others, AIR 1997 SC 1628, in which the Supreme Court held:-

" It is axiomatic that unless there is vacancy there is no question of filling it up. There cannot be an employee without a vacancy or post available on which he can work and can be paid as per the budgetary sanctions. It appears that Dr. Mallick suffering from wrong notions of power and authority under the said Government Resolution and without bothering to find out whether there were vacancies or not under the Scheme indulged in self-help to recruit as many Class III and Class IV employees as suited him and the result was that he loaded a dead weight of burden of these employees on the State exchequer by resorting to a completely unauthorised exercise. The State authorities were justified in refusing to release salaries for paying this unauthorised army of staff which represented a host of unwelcome guests."

"So far as the question of confirmation of these employees whose entry itself was illegal and void, is concerned, it is to be noted that question of confirmation or regularization of an irregularly appointed candidate would arise if the concerned candidate is appointed in an irregular manner or on ad hoc basis against an available vacancy which is already sanctioned. But if the initial entry itself is unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent on such a non-existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given it would be an exercise in futility."

The learned Additional Advocate General further submitted that the mere fact that the daily wagers were continuing for a long time did not entitle them to continue in service or claim for regularisation and submitted that a daily wager, in the absence of statutory provision, would not be entitled for regularisation and therefore, it was impermissible for the respondents to direct regularisation of the service of the petitioners. In support of his submission the learned Additional Advocate General placed reliance of the judgment of the Supreme Court in Himansu Kumar Vidyarthi and others vs. State of Bihar and others, 1997(76) FLR 237,  State of Haryana and others vs. Jasmer Singh and others,  1996(11) SCC 77 and State of Haryana and another vs. Tilak Raj and others,  2003(6)SCC 123.  The learned Additional Advocate General further invited my attention to the judgment of this Court in State of U.P. vs. Labour Court,  Haldwani and others,  1999(81)FLR 319 and State of U.P. vs. Rajendra  Prasad and others,  2004(54)ALR 85, on the proposition that a daily wager who was engaged in disregard to the statutory rules cannot be allowed to enter into the government service through the back door and cannot claim regularisation of service.

In my opinion the judgment cited by the learned Additional Advocate General are not applicable to the present facts and circumstances of the case. In the cases referred above, the basic question was with regard to the regularisation of the services. In the present case the question of regularisation is not under consideration. The services of the petitioners have been dispensed with on certain grounds as mentioned in the impugned order. One of the arguments raised is that inspite of the grounds mentioned in the impugned order, the petitioners do not have a right to continue in service as they were not employed on a sanctioned post and, that too, without any allocation of budget for their salary. In my view, the respondents are not permitted to raise this question. They cannot blow hot and cold. In 1999, the petitioners were appointed on account of additional work by the then Advocate General. Efforts were made by the then Advocate General for sanctioning of additional posts in order to absorb the petitioners. Certain orders were subsequently passed by this Court in relation to additional employment of staff of the office of the Advocate General. The Government had initiated the process and agreed in principle to absorb the daily wagers. With the change in the Government, the Advocate General changed and a new Advocate General took charge. It is, therefore, no longer for the present Advocate General to come forward and state that the earlier appointments cannot continue merely because the petitioners were not appointed on a sanctioned post. The present Advocate General is estopped from raising this plea and should have continued to plead with the State Government for the sanction of additional posts in order to absorb the daily wagers. If the daily wagers were surplus and were not required or the daily wagers were not competent, in that event, it would have been a different matter and it was open the respondents  to take steps to dispense the services of the petitioners on that ground. But, that is not the case. In the present case, the services of the petitioners have been dispensed with on the ground that 60 persons have been appointed on contract basis and that there are no funds to pay the wages to the daily wagers. I have already held that both these grounds are not applicable. Consequently their services could not be dispensed with on those grounds, therefore, they are entitled to continue in service.

In The Manager, Government Branch Press and another  vs. D.B. Belliappa, AIR 1979 SC 429, the Supreme Court held:-

"The protection of Articles 14 and 16(1) will be available even to such a temporary Government servant if he has been arbitrarily discriminated against and singled out for harsh treatment in preference to his juniors, similarly circumstances. It is true that the competent authority had the discretion under the conditions of service governing the employee concerned to terminate the latter's employment without notice. But, such discretion has to be exercised in accordance with reason and fair play and not capriciously. Bereft of rationality and fairness, discretion degenerates into arbitrariness which is the very antithesis of the rule of law on which our democratic polity is founded."

In view of the aforesaid, it is clear that there is a requirement of work which fact has not been denied by the respondents. Judicial notice can also be taken note of the fact that the work load has increased not only in the High Court but consequently in the office of the Advocate General, therefore, the services of the petitioners could not be dispensed with on the grounds mentioned in the impugned order. So long as the requirement of work exists, the petitioners' services are liable to be continued.

There is another aspect which is required to be considered. Much stress was laid by the Additional Advocate General that 60 persons have been appointed on contract basis after undergoing a selection process and, on the other hand, the petitioners were appointed without undergoing a selection process. These persons did not apply for appointment on the 60 posts and therefore, they have no right to continue. The submissions of the Additional Advocate General is devoid of any merit for the simple reason that the appointments on contract basis was confined to 60 posts and that too in the office of the Advocate General at Luknow. These appointments were distinct and different and it was not obligatory on the part of the petitioners to opt or apply for these posts. Merely because these posts had been filled up after a selection process would not automatically dispense the services of the petitioners for the simple reason that these 60 posts were for the Advocate General's Office at Lucknow and not for Allahabad whereas the petitioners were appointed for additional requirement of work at the Advocate General's Office at Allahabad.

Further it is an admitted position that the terms and conditions of the appointment of those persons on contract basis was upto 28.2.2005. During the course of the arguments, the Additional Advocate General admitted that the term of the persons appointed on contract basis had come to an end on 28.2.2005. In my opinion, the action of the respondents in dispensing the services of the petitioners was arbitrary and the reason is not far to see. The petitioners had filed Writ Petition No.10439 of 2005, which was presented before this Court on 22.2.2005, with regard to the regularisation of their services. An advance copy of this petition was served in the office of the Advocate General on 21.2.2005. In order to scuttle their writ petition, the impugned order was probably passed in haste on 23.2.2005. It seems that the respondents wanted to employ their own men and therefore, proceeded to appoint persons on contract basis. On the other hand, the respondents wanted to dispense the services of those persons who were appointed by the previous Advocate General. In my opinion, the appointment of persons on contract basis for a limited period in the same as appointing persons on daily wages. The action of the respondents in removing the daily wagers by a contract employee is arbitrary. The Supreme Court in Piara Singh's case (supra) held-

"that an adhoc or temporary employee should not be replaced by another adhoc or temporary employee."

This takes such to another aspect of the matter. Various malafidies have been alleged against the respondents. Instances has been given that close relatives of the employees and staff working in the office of the Advocate General have been appointed on contract basis. The reply given by the respondents in their counter affidavit are vague and not satisfactory and one is attempted to apply the principles laid down in Order 8 Rule 3 C.P.C. However, this Court is not entering into the malafidies alleged by the petitioners inasmuch as the writ petition is being allowed on other grounds. However, this Court is constraint to observe that five persons who were appointed on 1.6.2004 on daily wages were regularised on 16.2.2005. The respondents in their reply have submitted that their services were regularised on the existing vacancy because they were appointed again on contract basis in January, 2005. Since I have held that the appointments on contract basis and appointment on daily wages are one and the same, these persons could not jump the queue by virtue of their being appointed on a contract basis. The seniority list has to be prepared on the basis of seniority and absorption has to be made on the basis of the seniority list. This Court would have been inclined to set aside the order of regularisation of these persons but since these persons are not before the Court it is expected that the respondents will take remedial measures immediately and rectify the defect.

In view of the aforesaid the impugned order dated 23.2.2005 cannot be sustained and is quashed. The writ petition is allowed and the petitioners are entitled to continue in service.

Dated: 25.5.2005

AKJ.

nt relating to financial burden is one of despair or in terrorem. We have neither been impressed by the first nor frightened by the second inasmuch as we do not intend that the view to be taken by us in these appeals should apply, proprio vigore, to all causal labourers of Forest Department or any other Department of the Government."

In my opinion, the same principle as enunciated by the Supreme Court, as quoted aforesaid, squarely applies to the present facts and circumstances of the case. The plea of financial constraints is therefore, one of despair. The action of the respondent to dispense the services of the petitioners on this ground was wholly arbitrary.

The contention of the Additional Advocate General that the services of the petitioners are no longer required is misconceived and devoid of any merit. As I have held earlier, the engagement of those persons on contract basis at Lucknow Bench had nothing to do in so far as the engagement of the petitioners on daily wages at Allahabad was concerned. From the record, it is clear that the petitioners were appointed on account of excess work load. There is nothing to indicate that the work load had reduced. In fact, judicial notice can be taken with regard to the fact that the workload has increased tremendously in the last couple of years not only in the High Court but also in the office of the Advocate General as well.

The learned Additional Advocate General submitted that the initial entry of the petitioners was illegal and void as they were not appointed on a sanctioned post nor any budgetary sanction was made and, therefore, they had no right to continue. In this regard the learned Advocate General relied upon the decision in Ashwani Kumar and others vs. State of Bihar and others, AIR 1997 SC 1628, in which the Supreme Court held:-

" It is axiomatic that unless there is vacancy there is no question of filling it up. There cannot be an employee without a vacancy or post available on which he can work and can be paid as per the budgetary sanctions. It appears that Dr. Mallick suffering from wrong notions of power and authority under the said Government Resolution and without bothering to find out whether there were vacancies or not under the Scheme indulged in self-help to recruit as many Class III and Class IV employees as suited him and the result was that he loaded a dead weight of burden of these employees on the State exchequer by resorting to a completely unauthorised exercise. The State authorities were justified in refusing to release salaries for paying this unauthorised army of staff which represented a host of unwelcome guests."

"So far as the question of confirmation of these employees whose entry itself was illegal and void, is concerned, it is to be noted that question of confirmation or regularization of an irregularly appointed candidate would arise if the concerned candidate is appointed in an irregular manner or on ad hoc basis against an available vacancy which is already sanctioned. But if the initial entry itself is unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent on such a non-existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given it would be an exercise in futility."

The learned Additional Advocate General further submitted that the mere fact that the daily wagers were continuing for a long time did not entitle them to continue in service or claim for regularisation and submitted that a daily wager, in the absence of statutory provision, would not be entitled for regularisation and therefore, it was impermissible for the respondents to direct regularisation of the service of the petitioners. In support of his submission the learned Additional Advocate General placed reliance of the judgment of the Supreme Court in Himansu Kumar Vidyarthi and others vs. State of Bihar and others, 1997(76) FLR 237,  State of Haryana and others vs. Jasmer Singh and others,  1996(11) SCC 77 and State of Haryana and another vs. Tilak Raj and others,  2003(6)SCC 123.  The learned Additional Advocate General further invited my attention to the judgment of this Court in State of U.P. vs. Labour Court,  Haldwani and others,  1999(81)FLR 319 and State of U.P. vs. Rajendra  Prasad and others,  2004(54)ALR 85, on the proposition that a daily wager who was engaged in disregard to the statutory rules cannot be allowed to enter into the government service through the back door and cannot claim regularisation of service.

In my opinion the judgment cited by the learned Additional Advocate General are not applicable to the present facts and circumstances of the case. In the cases referred above, the basic question was with regard to the regularisation of the services. In the present case the question of regularisation is not under consideration. The services of the petitioners have been dispensed with on certain grounds as mentioned in the impugned order. One of the arguments raised is that inspite of the grounds mentioned in the impugned order, the petitioners do not have a right to continue in service as they were not employed on a sanctioned post and, that too, without any allocation of budget for their salary. In my view, the respondents are not permitted to raise this question. They cannot blow hot and cold. In 1999, the petitioners were appointed on account of additional work by the then Advocate General. Efforts were made by the then Advocate General for sanctioning of additional posts in order to absorb the petitioners. Certain orders were subsequently passed by this Court in relation to additional employment of staff of the office of the Advocate General. The Government had initiated the process and agreed in principle to absorb the daily wagers. With the change in the Government, the Advocate General changed and a new Advocate General took charge. It is, therefore, no longer for the present Advocate General to come forward and state that the earlier appointments cannot continue merely because the petitioners were not appointed on a sanctioned post. The present Advocate General is estopped from raising this plea and should have continued to plead with the State Government for the sanction of additional posts in order to absorb the daily wagers. If the daily wagers were surplus and were not required or the daily wagers were not competent, in that event, it would have been a different matter and it was open the respondents  to take steps to dispense the services of the petitioners on that ground. But, that is not the case. In the present case, the services of the petitioners have been dispensed with on the ground that 60 persons have been appointed on contract basis and that there are no funds to pay the wages to the daily wagers. I have already held that both these grounds are not applicable. Consequently their services could not be dispensed with on those grounds, therefore, they are entitled to continue in service.

In The Manager, Government Branch Press and another  vs. D.B. Belliappa, AIR 1979 SC 429, the Supreme Court held:-

"The protection of Articles 14 and 16(1) will be available even to such a temporary Government servant if he has been arbitrarily discriminated against and singled out for harsh treatment in preference to his juniors, similarly circumstances. It is true that the competent authority had the discretion under the conditions of service governing the employee concerned to terminate the latter's employment without notice. But, such discretion has to be exercised in accordance with reason and fair play and not capriciously. Bereft of rationality and fairness, discretion degenerates into arbitrariness which is the very antithesis of the rule of law on which our democratic polity is founded."

In view of the aforesaid, it is clear that there is a requirement of work which fact has not been denied by the respondents. Judicial notice can also be taken note of the fact that the work load has increased not only in the High Court but consequently in the office of the Advocate General, therefore, the services of the petitioners could not be dispensed with on the grounds mentioned in the impugned order. So long as the requirement of work exists, the petitioners' services are liable to be continued.

There is another aspect which is required to be considered. Much stress was laid by the Additional Advocate General that 60 persons have been appointed on contract basis after undergoing a selection process and, on the other hand, the petitioners were appointed without undergoing a selection process. These persons did not apply for appointment on the 60 posts and therefore, they have no right to continue. The submissions of the Additional Advocate General is devoid of any merit for the simple reason that the appointments on contract basis was confined to 60 posts and that too in the office of the Advocate General at Luknow. These appointments were distinct and different and it was not obligatory on the part of the petitioners to opt or apply for these posts. Merely because these posts had been filled up after a selection process would not automatically dispense the services of the petitioners for the simple reason that these 60 posts were for the Advocate General's Office at Lucknow and not for Allahabad whereas the petitioners were appointed for additional requirement of work at the Advocate General's Office at Allahabad.

Further it is an admitted position that the terms and conditions of the appointment of those persons on contract basis was upto 28.2.2005. During the course of the arguments, the Additional Advocate General admitted that the term of the persons appointed on contract basis had come to an end on 28.2.2005. In my opinion, the action of the respondents in dispensing the services of the petitioners was arbitrary and the reason is not far to see. The petitioners had filed Writ Petition No.10439 of 2005, which was presented before this Court on 22.2.2005, with regard to the regularisation of their services. An advance copy of this petition was served in the office of the Advocate General on 21.2.2005. In order to scuttle their writ petition, the impugned order was probably passed in haste on 23.2.2005. It seems that the respondents wanted to employ their own men and therefore, proceeded to appoint persons on contract basis. On the other hand, the respondents wanted to dispense the services of those persons who were appointed by the previous Advocate General. In my opinion, the appointment of persons on contract basis for a limited period in the same as appointing persons on daily wages. The action of the respondents in removing the daily wagers by a contract employee is arbitrary. The Supreme Court in Piara Singh's case (supra) held-

"that an adhoc or temporary employee should not be replaced by another adhoc or temporary employee."

This takes such to another aspect of the matter. Various malafidies have been alleged against the respondents. Instances has been given that close relatives of the employees and staff working in the office of the Advocate General have been appointed on contract basis. The reply given by the respondents in their counter affidavit are vague and not satisfactory and one is attempted to apply the principles laid down in Order 8 Rule 3 C.P.C. However, this Court is not entering into the malafidies alleged by the petitioners inasmuch as the writ petition is being allowed on other grounds. However, this Court is constraint to observe that five persons who were appointed on 1.6.2004 on daily wages were regularised on 16.2.2005. The respondents in their reply have submitted that their services were regularised on the existing vacancy because they were appointed again on contract basis in January, 2005. Since I have held that the appointments on contract basis and appointment on daily wages are one and the same, these persons could not jump the queue by virtue of their being appointed on a contract basis. The seniority list has to be prepared on the basis of seniority and absorption has to be made on the basis of the seniority list. This Court would have been inclined to set aside the order of regularisation of these persons but since these persons are not before the Court it is expected that the respondents will take remedial measures immediately and rectify the defect.

In view of the aforesaid the impugned order dated 23.2.2005 cannot be sustained and is quashed. The writ petition is allowed and the petitioners are entitled to continue in service.

Dated: 25.5.2005

AKJ.


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