FAKHRUDDIN, N. G. KARAMBELKAR, JJ.

( 1 ) THE petitioner has filed this Letters Patent appeal against an order passed by the learned single Judge of this Court in W. P. No. 992/1997 Dhaneshwar Sharma and others v. Nagar Panchayat, Jaura and others, decided on July 8, 1997.

( 2 ) BRIEFLY stated, the facts are that appellant Dhaneshwar Sharma and one Vinod kumar Sharma (who has been impleaded in this appeal as respondent No. 4) were employed as clerks on daily wages by Nagar Panchayat, jaura. Their services were terminated. They filed Writ Petition No. 992/1997 on June 28, 1997 on the ground that they were appointed as clerks on clear vacant posts under Madhya pradesh Municipal Employees (Recruitment and Conditions of Service) Rules, 1968 (for short, the 'rules') respectively from May 1, 1996 and from January 1, 1997 in Nagar panchayat, Jaura. Petitioner No. 1 appellant had worked continuously for more than 240 days in a year and petitioner No. 2 had worked for continuously satisfactorily in a clear vacant post. It was further contended that the petitioners' services were terminated on the orders of respondent No. 3, Deputy Director, urban Administration, Gwalior, who had no jurisdiction to remove them, as they were employees of Nagar Panchayat, Jaura. It is submitted that in violation of the Rules the petitioners' services have been illegally terminated. The writ Court found that the petitioners could not demonstrate that they were appointed on clear vacant posts in the establishment of Nagar Panchayat, Jaura. It was found that they were engaged on daily wages only on the basis of need of work and were not appointed to any clear vacant posts and, as such had no right to post. It was also noted that at the time of filing of the petition, the petitioners were disengaged, and their disengagement could not be construed to be a retrenchment under the Industrial Disputes act. The petition was accordingly dismissed summarily.

( 3 ) IN appeal filed by petitioner No. 1 dhaneshwar Sharma, petitioner No. 2 Vinod kumar Sharma has been joined as respondent no. . 4; on February 2, 1998 this Court noted that the respondents (in the writ petition) did not get opportunity of filing return and, as such, they were granted time to file return. In the return filed by respondent Nos. 1 and 2 they have disputed the contentions raised in the memo of appeal and it is stated that the appellant was not appointed on any clear vacant post under the Rules. It was contended that the appellant had not worked for more than 240 days in a year. It is stated that he had worked only for 179 days. It is further stated that there was no work available and as there was paucity of funds the services of the appellant and others who were engaged as daily wages employees on muster roll were discontinued. The appellant filed rejoinder with which he has filed copy of the attendance register for July 1997 (Annexure A/1) and reiterated therein whatever he has stated in the memo of appeal. It was contended in the rejoinder also that the appellant was employed as daily wages employee in the General Section of the Nagar panchayat against a vacant post with effect from May 1, 1996 till the end of August 1997 and he had worked continuously for more than 240 days in a year. It is also submitted that the respondent No. 2 has not disbursed the appellant's salary for the months of July and august 1997 though he was marked present and worked for this period. It is further submitted that even after the decision in the writ petition he was allotted to work, whereas the respondents No. 1 and 2 have filed copy of the muster roll to show that the appellant worked only up to August 20, 1997. Be that as it may.

( 4 ) THE writ Court considered the decision in case of Himanshu Kumar Vidyarthi and others v. State of Bihar and others, 1997 (4)scc 391 : 1998-II-LLJ-15 and declined to grant relief.

( 5 ) LEARNED counsel for the respondents no. 1 to 3 drew our attention to a Full Bench decision of t

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