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2010 (4) AWC 3431 (LB)
(ALLAHABAD HIGH COURT—LUCKNOW BENCH)
Devi Prasad Singh and S. C. Chaurasia, JJ.
W.P. No. 8840 (S/B) of 1992
Decided on December 7, 2009
Ajai Shanker Rai
Versus
M.D., U. P. Shram Evam Nirman Sahkari Sangh Ltd. and others
Regularisation - Employment Dispute - U. P. Industrial Disputes Act, Section 6N, U. P. Co-operative Labour Federation - Section 6N of the U. P. Industrial Disputes Act, Umadevi (3) case, State of Orissa and others v. Prasana Kumar Sahoo, Kendriya Vidyalaya Sangathan and others v. L. V. Subramanyeswara and another, Mahadeo Bhau Khilare (Mane) and others v. State of Maharashtra and others, State of U. P. and others v. Desh Raj, Chief Commissioner of Income-tax, Bhopal and others v. M/s. Leena Jain and others, Indian Drugs and Pharmaceuticals Ltd. v. Workman, Surinder Prasad Tiwari v. U. P. Rajya Krishi Utpadan Mandi Parishad and others, A. Umarani v. Registrar, Co-operative Societies and others, Ghaziabad Zila Sahkari Bank Ltd. v. Addl. Labour Commissioner and others, U.P.S.E.B. v. Pooran Chandra Pandey, Official Liquidator v. Dayanand and others, Harminder Kaur and others v. Union of India and others, State of Karnataka and others v. Sri G. V. Chandrashekar, State of Bihar v. Upendra Narayan Singh
Fact of the Case:
The petitioner, an Assistant Engineer at the U. P. Co-operative Labour Federation, challenged the termination of his services under Article 226 of the Constitution of India. The petitioner's appointment was initially on a stop gap arrangement and was extended multiple times. After a series of legal battles, the petitioner's services were terminated again, leading to the present writ petition.
Finding of the Court:
The court found that the petitioner's services were terminated in compliance with the previous court orders and that the petitioner, being appointed in an ad hoc arrangement, had no right to claim regularisation. The court also cited various judgments, including Umadevi (3) case, to support its finding.
Issues: The issues revolved around the termination of the petitioner's services, the legality of the termination, and the petitioner's claim for regularisation and parity with identically situated persons.
Ratio Decidendi: The court held that appointments made de hors the rules or scheme do not confer any right for regularisation or absorption, even if a person served for a long period. The court also emphasized that every appointment should be made with due advertisement of vacancies after considering all eligible candidates to compete for selection on merit.
Final Decision: The writ petition was dismissed as devoid of merit, and the court upheld the termination of the petitioner's services.
Devi Prasad Singh, J.—Heard Sri U. K. Srivastava, learned counsel for the petitioner and Shri Rakesh Kumar, learned counsel for the respondents.
2. Petitioner was appointed as Assistant Engineer in the U. P. Co-operative Labour Federation (in short hereinafter referred (‘as Federation’) and approached this Court under Article 226 of the Constitution of India feeling aggrieved with the impugned order of termination from service.
3. In brief, initially on 2.1.1989 petitioner was appointed by the Federation on the post of Apprentice Assistant Engineer in stop gap arrangement for 89 days on consolidated salary. Appointment was extended after lapse of 89 days from time to time by passing orders on 5.4.1989, 5.7.1989 and 5.10.1989. Thereafter, by an order dated 13.9.1989 he was appointed as Assistant Engineer on ad hoc basis in stop gap arrangement in the regular pay scale with the rider that services may be terminated at any time. Again on 22.3.1990 he was appointed on ad hoc basis for 89 days. The term of appointment was expired on 13.6.1990.
4. It appears that petitioner had filed Writ Petition No. 7491 of 1990 with the prayer for quashing of the oral termination order dated 1.7.1990. Writ Petition No. 7491 of 1990 was allowed on 13.11.1991 with direction to the respondents to permit the petitioner to continue in service. In the said writ petition counter-affidavit has been filed. While allowing the writ petition this Court had observed that the services could not have been terminated without due compliance of provision contained in Section 6N of the U. P. Industrial Disputes Act. The petitioner should have been given notice as well as compensation in lieu of retrenchment. After receipt of judgment passed by this Court, the Managing Director of the Federation had allowed the salary of three months to the petitioner by order dated 17.12.1991 and thereafter again services were terminated on 24.12.1991 with one month salary. The order of termination dated 24.12.1991 again impugned by the petitioner in Writ Petition No. 75 (SB) of 1992 pointing out that the services were terminated without following the retrenchment procedure given under the Industrial Disputes Act. In pursuance to interim order passed earlier, High Court had also passed the interim order thereafter by judgment and order dated 18.9.1992 the Writ Petition No. 75 (SB) of 1992 was decided finally and order of termination dated 24.12.1991 was set aside with liberty to respondents to pass afresh order. In consequence thereof petitioner was allowed to discharge duty. Thereafter, petitioner had filed a Writ Petition No. 7988 of 1992 with the prayer that he may be given revised pay scale and also be regularised in the services. It appears that after filing of writ petition again petitioner’s services were terminated on 2.12.1992 with one month salary and compensation in accordance to provision contained in Section 6N of the U. P. Industrial Disputes Act. The order of termination dated 2.12.1992 has been challenged in the present writ petition. A Division Bench of this Court by interim order dated 22.12.1992 had declined to grant any interim order but provided that in case the post of Assistant Engineer is vacant or filled up in due course of time the petitioner may be given preference over and above freshers.
5. While filing the supplementary affidavit and assailing the impugned order it has been stated by the petitioner’s counsel that six sanctioned post have been filled up from identically situated person but petitioner’s case has not been considered only because he approached this Court for judicial review of the order. It has also been stated that petitioner has been discriminated by the opposite parties in the matter of appointment and regularisation and the impugned order suffers from substantial illegality.
6. While refuting the arguments advanced by the petitioner’s counsel, Shri Rakesh Kumar, learned counsel for the respondents submits that services were ter
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