# Wali Mohd v. Superintendent, Distt. Jail, Bulandshahr & others

- **Citation:** (1999) 2 ILRA 31
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1998-01-14
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/wali-mohd-v-superintendent-distt-jail-bulandshahr-others-39211
- **Pages:** 7

## Text

2 All.] ALLAHABAD SERIES
31
month caused in sending information to the Central Government, the
representation filed by the petitioner could not be decided within
reasonable time which has rendered the continued detention of the
petitioner illegal and he is liable to be released forthwith. Even if it is
accepted that report of the Advisory Board was required from the
State Government, the report was admittedly received on 14.1.1998,
there is no explanation on record as to why it was kept for fifteen
days and not sent to Central Government immediately. The Central
Government could also not postpone the decision on the
representation of the detenu for indefinite period. The Central
Government was bound to discharge its legal obligation promptly on
the basis of the material before it, and non- receipt of any paper from
the State Government could not afford a valid excuse for the long
delay. Thus, judged from any angle, conclusion is same that there
was inordinate delay in deciding the representation.

22. For the reasons stated above, this petition is allowed. The
continued detention of the petitioner is found illegal and the
respondents are directed to release him forthwith if his detention is
not required in any other case.

Petition Allowed.
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1998
------
December, 16
1998
------
Wali Mohd.
 Vs.
Superintendent,
Distt. Jail,
Bulandshahr
& others
------
D.P.
Mohapatra,C.J.
R.R.K.
Trivedi,J.
THE INDIAN LAW REPORTS [1999
32
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By the Court

1. The Petitioner allege to have been employed on daily wage basis
in a project under the Indian Council of Medical research, an
organized body of the Union of India at Shankergarh.

2. Mr. Ali Murtaza, holding brief of Mr. Rakesh Dwivedi submits
that the project is still continuing yet the petitioners have been asked
not to report on duty from 13.12.1991 orally, on 12th December,
1991. He contends that since the petitioners had been working for
more than three years, they have acquired a right to be considered for
being regularized. He, secondly, contends that the petitioners are still
continuing without any break and have completed 24 days in a year.
Their services could not be terminated. He also contends that since
the petitioners were holding temporary posts, therefore, article 311 is
very much attracted and as such, the termination of service of the
petitioners cannot be sustained. He relied on the decision in the case
of P. I. Dhingra. Vs. Union of India (AIR 1953 SC 36) in support of
his contention that Article 311 is also attracted in respect of
temporary posts since it does not make any distinction between a
person holding permanent or temporary posts.

3. In support of his contention that the petitioners are eligible for
being considered for regularization, he had relied on a decision in
the case of State of Haryana. Vs. Piara Singh (AIR 1992 SC 2130).
He particularly relied on the ratio decided in paragragh 17 of the said
decision. On these grounds, he claims that the writ petition should be
allowed and the petitioners should be reinstated.

4. Mr. K. R. Singh, learned Standing Councel on the other hand
contends that the petitioners being daily wage labours do not have
any right to any post and as such neither Article 3ll of the
Constitution of India is Attracted nor they have acquired any right to
be considered for regularization nor the could claim any right against
the order of termination. He also relies on a decision in the case of
Himansu Kumar Vidyarthi. Vs state of Bihar (1997(76) FLR 237) in
support of his contention that the daily wage employee has nor right
to the post and concept of retrenchment cannot be extended to
1998
------
Channey Lal
& others
 Vs.
Director,
M.R.C.&another
------
D.K.Seth,J.
2 All.] ALLAHABAD SERIES
33
such/daily wage employee and his disengagement cannot be said to
be arbitrary. Relying on the decision in the case of Pushpa Agarwal ,
Vs. Regional Inspectress of Girls School, Meerut (1995 (70) FLR
20), he contends that the principal of retrenchment as provided under
the Central Industrial Disputes Act and the Rules framed thereunder,
is also attracted in respect of a workman governed under the U.P.
Industrial Disputes Act and the rules framed there under.

5. I have heard both the learned counsel at length, and gone through
the writ petition and have also confronted Mr.Murtaza about the
pleading as to whether it has been pleaded that the petitioners are
working for three years or more. The counsel had drawn my
attention to paragraphs 4,6 and ll of the writ petition in order to make
out a pleeding. On a plain reading of the said three paragraph, it does
not show that such a case has been made put. Except the said three
Paragraph, there are no other paragraph from which he could
decipher any statement to the extent that the petitioners have been
working continuously for a period over three years in order to
appreciate the factual aspect, it may be useful to refer to the said
three paragraphs, which are quoted below

6. That the above project was sanctioned in the year 1986-87, and
started operating in the year 1987 with about 30.32 employees. All
the appointments that were made, were purely temporary
appointments. At the time when the petitioners were appointed, were
already approximately 16-17 persons working in the project and
taking the appointment of the petitioner also into account, the
strength went upto 31. Thereafter. All the persons continued to
function on the posts on which they were appointed. The petitioners
are appointed as Surveillance/Intervention workers. The petitioners
are , therefore, the employees of malaria Research Center which is a
body sponsered by the Health Ministry of the Union of India and the
Indian Council of Medical research.

7. That all the petitioners were continuously functioning on their
posts without any break. It was only for the first time, this was done
by the respondent no.2 who is the new Officer -in-Charge, who had
come in the month of June, 1991.

8. That the fact that approximately 30 persons have been continuing
in the Research Centre for nearly last three years or more, Indicate
that such number of workman are required by the centre
permanently. Therefore, putting the break of or terminating the
1998
------
Channey Lal
& others
 Vs.
Director,
M.R.C.&another
------
D.K.Seth,J.
THE INDIAN LAW REPORTS [1999
34
services of the petitioners not on the ground of work or conduct,
amounts to unfair treatment and harassment taking advantage of
precarious nature of the petitioners service. It is well settled that if
the work is there and if the petitioners are suitable, then it is
absolutely unfair to terminate the services of the petitioners for the
purposes of appointing other persons".

9. On a plain reading of the said three paragraphs, it shows that the
petitioners have not made out any such case. On the other hand in
paragraph 4 it is contended that the project was sanctioned in the
year 1986-87 and there were 30-32 employees in 1987 and when the
petitioners were appointed, there were already 16-17 persons
working. But it is not mentioned as to on which date or at least in
which year the petitioners were appointed, Though in paragraph 6, it
was said that they were continuing without any break form the date
of their appointment but nowhere the date of appointment having
been disclosed, the said statement cannot help the petitioners in
absence of mentioned of any year or duration: In paragraph ll,
though it has been said that approximately 30 persons had been
continuing for nearly last three years or more, but nowhere it is
contended that the petitioners have been continuing for three years or
more. Thus there appears to be wholly absence of material
particulars in the pleadings so as to make out a case on the basis
whereof the entire argument was advanced by Mr. Murtaza, could
be substantiated.

10. The Principal which was advanced by Mr. Murtaza though are
beyond all doubts being settled principal of law but those principals
are attracted only on the basis of the facts as would be apparent from
the pleadings. Though Mr. Murtaza had made certain statement at
the bar but such statements do not form part of the pleadings. The
High Court of record, It cannot rely on the statements made at the
Bar unless it forms part of the pleadings borne on record.

11. The principal of Article 3ll as contended by Mr. Murtaza does
not apply in the present facts and circumstances of the case since,
admittedly, the petitioners have not been able to make out a case that
they were holding any civil post. Admittedly they are not members
of any civil services, There is nor pleading that the petitioners had
been holding any civil post under the state. A workman employed on
a daily wage basis in a project does not hold a civil post, there is no
question of distinction of temporary or permanent. Therefore, the
decision in the case of P.L. Dhingra,(Supra), relied on by
1998
------
Channey Lal
& others
 Vs.
Director,
M.R.C.&another
------
D.K.Seth,J.
2 All.] ALLAHABAD SERIES
35
Mr.Murtaza does not help him in the facts and attracted on the basis
of the pleadings that has been made out as observed above.

12. The question of regularisation as has been sought to be
advanced by Mr.Murtaza relying in the case of Piara Singh, Supra
also appears to be wholly misconceived. In asmuch as, in paragraph
17 of the said decision, it was held as follows:-

" Now coming to the direction that all those
adhoc/temporary employees who have continued
employees who have continued for more than an year
should be regularised, we find it difficult to substain
it. The direction has been given without reference to
the existence of a vacancy. The direction in effect
means that every adhoc/temporary employee who has
been continued for one year should be regularised
even though(a) no vacancy is available for him which
means creation of a vacancy(b) he was not sponsored
by the Employment Exchange nor was he appointed in
pursuance of a notification calling for application
which means he had entered by a back-door(c) he was
not eligible and/or qualified for the post at the time of
his appointment(d) his record of service since his
appointment is not satisfactory. These are in addition
to some of the problems indicated by us in para 12
which would arise from giving of such blanket orders.
None of the decisions relied upon by the High Court
justify
such
wholesale,
Unconditional
orders.
Moreover, from mere continuation of an adhoc
employee for one year, it cannot be presumed that
there is need for a regular post. Such a presumption
may be justified only when such continuance extends
to several years. Further, there can be no "rule of
thumb" in such matters. Conditions and circumstances
of one unit may not be same as of the other. Just
because in one case, a direction was given to
regularise employee who have put in one year's
service as far as possible and subject to fulfilling the
qualifications, it cannot be held that in each and every
case such a direction must follow irrespective of and
without taking into account there other relevant
circumstances and considerations. The relief must be
moulded in each case having regard to all the relevant
1998
------
Channey Lal
& others
 Vs.
Director,
M.R.C.&another
------
D.K.Seth,J.
THE INDIAN LAW REPORTS [1999
36
facts and circumstances of that case. It cannot be a
mechanical act but a judicious one. Judged from this
standpoint, the impugned directions must be held to be
totally untenable and unsustainable ."

13. A plain reading the said paragraph shows that in the said case, it
was never contended that a daily wage labour could be regularised
even when there is no vacancy on the other hand , the court cannot
give direction for creation of any post. However. In the fact and
circumstances of the said case, the court had given certain directions
for formulating scheme for regularization. In the present case, no
interim order has been granted. Admittedly, the petitioners were out
of employment since 13th december,1991. Then again there is no
pleading in order to bring facts suitable for the purpose of issuing
direction for formulating a scheme. At the same time, in the case of
Himanshu kumar Vidyarthi,(Supra) it was held by the apex court that
a daily wage employee has no right to the post. Therfore, the concept
of retrenchment cannot be extended to a daily wage employee. The
disengagement of a daily wage labour, who is engaged for a day is
not a termination of service. Since a daily wage labour is engaged
only on the basis of a contract lasting for a day only and each
engagement is a fresh engagement, non-engagement or disengagement , therfore, is held not to be arbitrary.

14. In the case of Smt.Pushmpa Agarwal,(Supra), it was held that
the principal of retrenchment as enunciated in the Central Industrial
Disputes Act is also attracted in the case Governed by the U.P.
Industrial Disputes Act. By reason thereof, the principal enunciated
in the case of Himanshu Kumar Vidyarti (Supra) can very well be
attracted in the cases where an employee is engaged on a daily
wage basis governed by the U.P.Industrial Disputes Act, as in the
present case. In the circumstances, it appears that no case of
interfernce has been made out in writ jurisdiction.

15. Therefore, the writ fails and is accordingly dismissed. No cost.

16. At this stage Mr.Murtaza submitts that the court may be pleased
to issue a direction for consideration of the representation that might
be made by the petitioners having regard to continuation of their
services.

The Pleading, as observed earlier, does not show that
there were sufficient materials in order to issue such a direction for
consideration of the representation, particularly when the petitioners
1998
------
Channey Lal
& others
 Vs.
Director,
M.R.C.&another
------
D.K.Seth,J.
2 All.] ALLAHABAD SERIES
37
were no more in employment since 13th December, 1991 namely for
over long seven years. In the fitness of the things, this Court feels
that it is not a case fit for giving liberty to the petitioners to make
representations for being considered by the respondents.

Petition Dismissed.
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By the Court

1. Heard shri A.N.Singh, learned counsel appearing for the
petitioner and Shri Anil Tiwari, learned counsel representing the
Vice-Chancellor of the Sampurnanad Sanskrit Vishwavidyalaya,
Varanasi.

2. Indisputably, the Petitioner is a senior most teacher of Shri Kuber
Nath Sanskrit Mahavidyalaya, Kuber Nath Deoria, and in that
capacity he is officiating and acting as principal of the college as
1998
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November, 30