# Tahir Hasan v. C/M, District Co-operative Bank Ltd. and another

- **Citation:** (2003) 2 ILRA 330
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-05-20
- **Case number:** Civil Misc. Writ Petition No. 24034 of 1995
- **Bench:** Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tahir-hasan-v-c-m-district-co-operative-bank-ltd-and-another-40093
- **Pages:** 4

## Headnote

Sri M.S. Negi
S.C.

U.P. Cooperative Societies Employees
Service Regulation 1975- Regulation 5
(a)
(b)
Regularisation-
Petitioner
engaged to work as class 4th employees
for different times on different post
w.e.f. 16.3.89 filing representations-can
not be ground for exemption from
limitation- if the appointment approved
by
Cooperative
Institutional
Board-
detail
guidelines
given
for
framing
scheme for regulation.

Held- Para 19 printed

Case law discussed:
1997 (4) SC-391, AIR 1992 SC-2130
2001 (i) ESC-65

## Text

http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
330
23. The appeal is partly allowed and
the order of conviction and sentence
passed against Basant Singh and Udai
Singh under Section 302 read with
Section 34 I.P.C. are set aside and they
are acquitted from the charges. The
appeal preferred by Bharat Singh is
dismissed. Learned Additional Sessions
Judge has sentenced him to undergo life
imprisonment and a fine of Rs.5,000/- has
been imposed on him and in default of
payment
of
fine
further
rigorous
imprisonment of six months has been
awarded. In case of deposit of fine of
Rs.5,000/- whole of it would be given to
Smt. Pushpa Devi, widow of deceased
Kripal Singh.

24. As per the record, accused
Bharat Singh is in Jail, he will serve out
the sentence passed against him. Chief
Metropolitan Magistrate, Kanpur Nagar
shall verify from jail that accused Bharat
Singh actually lodged in jail in connection
with this case. If, he is enjoying his
liberty, he shall be arrested and lodged in
jail to serve out sentence.

25. Let a copy of this judgement and
order alongwith record of the case be sent
to the lower court for necessary action
and compliance under intimation to this
Court within two months from the date of
receipt of the copy of this judgment.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.05.2003

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 24034 of 1995

Tahir Hasan

...Petitioner
Versus
Committee of Management, District Cooperative Bank Ltd. Muzaffarnagar and
another

 ...Respondents

Counsel for the Petitioner:
Sri R.K. Jain
Sri Rahul Jain

Counsel for the Respondents:
Sri M.S. Negi
S.C.

U.P. Cooperative Societies Employees
Service Regulation 1975- Regulation 5
(a)
(b)
Regularisation-
Petitioner
engaged to work as class 4th employees
for different times on different post
w.e.f. 16.3.89 filing representations-can
not be ground for exemption from
limitation- if the appointment approved
by
Cooperative
Institutional
Board-
detail
guidelines
given
for
framing
scheme for regulation.

Held- Para 19 printed

Case law discussed:
1997 (4) SC-391, AIR 1992 SC-2130
2001 (i) ESC-65

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard the learned counsel for the
parties and perused the record.

2. The petitioner is an under
graduate and passed Intermediate (Class
XII) examination. He applied for the post
http://www.allahabadhighcourt.nic.in
2 All] Tahir Hasan V. C/M, District Co-operative Bank Ltd. and another
331
of Class IV in the District Co-operative
Bank Ltd., Muzaffarnagar. On 16.3.89, he
was called for an interview and was
selected as a water boy. An appointment
letter dated 9.5.89 was issued to him,
which is appended as Annexure-2 to this
petition. He was employed for a period of
90 days. The petitioner joined his duties
on 2.6.89 as a watch-boy in the Bank at
the rate of Rs.30/- per day. His services as
a daily rated workman was terminated on
16.8.89, vide annexure-4 to the petition.

3.

The petitioner was again
appointed on 2.11.89 as a daily wage
employee for a specified period of 90
days and his services came to an end on
29.1.90.

4. On 7.2.90, the petitioner was
appointed yet for another period of 90
days, for sweeping work at the head office
vide letter dated 3.5.90. Thereafter, he
was not given any appointment. Thus, in a
span of one year, he was employed for
204 days.

5. It has been submitted by the
learned counsel for the petitioner that
there are 86 sanctioned posts of the class
IV employees but only 66 persons are
working against these sanctioned posts.
The remaining 20 sanctioned posts are
still lying vacant in the Bank. It is alleged
that the work on these posts is being taken
from the daily wage employees, like the
petitioner with artificial breaks in service.

6. Learned counsel for the petitioner
has invited the attention of the court
relating to paragraphs 14 and 16 of the
writ petition in which it has been stated
that the opposite party has been making
fresh appointments for few months and
terminates the services of the daily wage
employees, like the petitioner.

7. It has been further submitted that
a large number of writ petitions have been
filed before this Court and the orders
passed in one of the writ petition viz. writ
petition no.1673/93 is being quoted
hereunder:

"Issue notice.

In case the posts are available and
juniors to the petitioners are working and
the conduct of the petitioners are alright,
then the petitioners will be allowed to
continue on the post held by them and
they shall be paid their salaries."

8. From perusal of the record, it
appears that the appointment of the
petitioner from time to time was for a
specific period according to the exigency
of work.

9. The interim order as relied on by
the petitioner is of no help to him and the
Court has clearly indicated while passing
the order that the petitioner may be
allowed to continue on the following
contingencies:

(i) If posts are available, and

(ii) Juniors to the petitioners are
working,

(iii) Conduct of the petitioners are
alright.

10. It is the settled law that it is the
employers' prerogative to fill-up the post
which has fallen vacant. The employer
has right to determine the strength of
workforce in the establishments. If the
employer makes appointment for a
specific period due to exigency of work
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
332
then the regularization on the post cannot
be claimed as a matter or right.

11. It appears from the record that
the petitioner was appointed thrice for
different types of work for a specific
period and did not approach the court at
the relevant time for relief. On the
contrary he filed representations dated
1.1.91, 16.2.92, 13.7.92, 7.11.93, 11.5.94
and 5.1.95. It cannot be presumed that
filing of the representation will extend the
period of limitation, if the relief is not
claimed within the reasonable time.

12. The stand taken by the
respondents is that the petitioner has no
right on the post of daily wage employees
as all the appointments had been made
under Regulation 5 (11) (b) of the U.P.
Co-operative
Societies
Employees
Service Regulations, 1975.

13. Regulation 5 (11) (b) provides
that an adhoc appointment can be made
only for a maximum period of six months.
The appointments have to be approved by
the
U.P.
Co-operative
Institutional
Service
Board.
The
petitioner's
appointment has never been approved by
the Board. It is stated on behalf of the
Bank that there are no vacancy of Class
IV employee in the Bank and all the
employees
are
working
against
86
vacancies, which was sanctioned for the
Bank.

14. It has further been denied by the
counsel appearing for the Bank that
petitioner has not completed 240 days of
continuous service in a year and no fresh
appointment has been made. A daily wage
employee has no right to the post and if
there is a vacancy, then that should be
filled in accordance with law.

15. Reliance has been placed in the
case reported in 1997 (IV) S.C. 391-
Himanshu Kumar Vidyarthi and others
Vs. State of Bihar and others in which it
has been held:

"The petitioners who were appointed
on daily wages as Assistant Driver and
peon in Co-operative Training Institute
under
the
State
Government,
were
terminated from service. They contended
that they were retrenched from service in
violation of Section 25-F of the Industrial
Disputes Act, 1947.

Rejecting this contention,

Held:- Every department of the
Government be treated to be industry.
When the appointments are required by
the Statutory rules, the concept of
industry to that extent stands excluded.
The petitioners were not appointed to the
posts on the basis of need of the work.
They are temporary employees working
on daily wages. Their disengagement
from service cannot be construed to be
retrenchment
under
the
Industrial
Disputes
Act.
The
concept
of
retrenchment
therefore
cannot
be
stretched to such an extent as to cover
these employees. Since the petitioners are
only daily wage employees and have no
right to the posts, their disengagement is
not arbitrary."

16. In these circumstances, it would
be proper to frame a scheme for the
regularization/absorption of daily wage
employees in the sense. The Apex Court
in the case of State of Haryana and
others Vs. Piare Singh and others, 1992
S.C. 2130 and Niadar and others Vs.
Delhi Administration and others, has
http://www.allahabadhighcourt.nic.in
2 All] U.P. State Electricity Board and others V. Presiding Officer and another
333
held that Scheme should be framed for
regularization of daily wage employees.

17. These decisions aforesaid have
been approved by the Supreme Court in
the case of Hindustan Machine Tools Vs.
M. Ranga Reddy 2001 (1) ESC 65.

18. I therefore, dispose of the writ
petition
in
view
of
the
Articles
38(1),19(e) and 43 of the Constitution
with the following directions:

(i) Respondents will prepare a list of
all daily wages, adhoc employees and
casual employees, employed after 1.1.89,
who are still in the employment on the
date of this judgment.

(ii) The list will also include those
employees
whose
case
regarding
termination are pending before the High
Court, Labour Court or Civil Court.

(iii) The seniority list will be
prepared
from
the
initial
date
of
appointment of the employees.

(iv) No further daily wage, adhoc or
casual/ temporary employee shall be
appointed/engaged henceforth till the list
is exhausted.

(v) The list prepared as above will
be sent to the Service Institutional Board
for approval within three months from the
date of this judgment.

(vi) On approval of employees they
shall be regularised against the existing
sanctioned posts strictly according to
seniority in existing vacancies and in
future as and when vacancies arise.

(vii) The employees shall be
appointed keeping in view the eligibility
criteria's and medical fitness, and post
conduct of the employees.

19. The petitioner's service having
not been approved by the Service
Institutional Board, is not liable to be
regularised in service. However, his case
for appointment in the Bank may be
considered according to the scheme given
by this Court above or any other scheme
of regularization which has been adopted
by the Board along with other daily wage
employees.

20. In view of the aforesaid
observations and reasons, the petition is
dismissed.

No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14TH JANUARY, 2003

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No. 17727 of 1985

U.P. State Electricity Board, and others

 ...Petitioners
Versus
The Presiding Officer and another

 ...Respondents

Counsel for the Petitioners:
Sri Sudhir Chandra
Sri B.P. Singh
Sri Sudhir Agarwal
Sri B. Dayal
Sri Tarun Agarwal
Sri V. Sahai

Counsel for the Respondents:
Sri K.P. Agarwal