Vijai Kant Shukla vs State Election Commissioner, U.P.and others

P.C. Verma, J.—All the above mentioned Writ Petitions arise out of a common question of law and fact, hence they have been consolidated together and are being disposed of by this common judgment.

The petitioners of these petitions have prayed for issue of a writ in the nature of certiorari to quash the order of termination of services of the petitioners and allow the petitioners to continue in service and to pay the salary regularly every month by not giving effect to the impugned orders.

The petitioners were appointed/engaged by the District Panchayat Raj Officer/Assistant District Election Officer/District Election Officer to perform the ministerial work in the Election Office on daily wages for a fixed term in different districts. A requisition was made by the State Election Commissioner (hereinafter referred to as Commission) to sanction staff to manage the work of the elections. The State Government considered the requisition of the Commission and decided that the additional staff available in the office of the District Magistrate and surplus/retrenched employee of the Local Bodies i.e. specially from octroi Department, which has recently been abolished, to be engaged for the election work of the Local Bodies. The Government issued a letter to the Commission to this effect specially indicating therein that the appointments shall be made on adhoc basis for a period of four months. The decisions of the State Government was communicated to the Commission in its turn and wrote to all the District Magistrate requiring them to engage the staff for the purposes of election as Senior Clerk, Junior Clerk and Class IV employees for a period of four months from the additional staff of the Collectorate on the fixed honorarium. Along with this letter the posts sanctioned for the purposes of election work for four months were also circulated. These posts were to be filled from the additional staff of the Collectorate or surplus staff of Octroi Department/Pathkar Department of the Local Bodies. It was also provided by the State Election Commission, UP. in the letters issued to all the District Magistrate that Rs. 1250/ will be paid to Senior Clerk, Rs. 1000/ will be paid to the junior Clerk and Rs. 750/ will be paid to the Class IV employee employed/engaged to do election work.

It has been reported by various District Magistrates that in their district surplus staff was not available, therefore, in that situation, the Commission directed the District Magistrate to appoint the staff for four months on contract basis/daily wages. The rate of wages will be Rs. 45/per day for Class III employees and Rs. 35/ per day for Class IV employees. It was also indicated that the District Magistrates shall ensure that the persons taken on contract basis on the aforesaid rates of wages must possess experience of election work and the contract shall be only for four months. From perusal of the annexures annexed with the writ Petitions it appears that the petitioners were engaged on contract basis on daily wages to perform the election work. The elections of the Local Bodies were held in 1995 as scheduled but a lot of remaining work was pending in the Election Office and at the Head quarter of the Election Commission including completion of the Election Registers, maintenance of accounts, upkeep of the Election records, the temporary posts which were sanctioned against which the petitioners were engaged on contract basis as dailywagers at the rate mentioned above were extended and continued till 28.2.1997. Therefore, the petitioners were allowed to work against those posts on contract basis till 28.2.1997 as State Election Commission, U.P., Lucknow vide its letter dated 26.10.1996 directed all the District Magistrates to disengage the staffso engaged for election work after 28.2.1997 and the Commission has accorded sanction only upto 28.2.1997.

Learned Counsel for the petitioners contended that posts on which the petitioners were engaged were created in each district and the petitioners were entitled for being regularised as they were working earlier against those posts on daily wages, they should not have been disengaged.

Learned Counsel for the respondents i.e. Election Commission, submitted that the posts were created but it was provided in the said Government Order that these posts should be filled up by the retrenched employees or the additional staff of the Collectorate and the employees retrenched in the Octroi Department and in case the retrenched employees or the additional Staff of the Collectorate are not available then the names of those candidates who have worked in the elections of the Lok Sabha and Vidhan Sabha on three tier elections of the Panchayats and Local Bodies, who have sufficient experience in the election work be appointed and for this purpose the names of the candidates from all the Districts were required to be submitted.

Learned Counsel for the respondents submitted that the petitioners are not retrenched employees of Octroi Department, therefore, they are not entitled for being considered for regularisation on the regular posts created by the Government of three tier elections of the Local Bodies and Panchayati Raj in each districts.

Learned Counsel for the petitioners submitted that it has not been stated in the counteraffidavit by the Commission any where that in the District concerned the surplus staff of the Collectorate or retrenched employee of the Octroi department of the Local Bodies in the District were available and were entitled for regularisation. Since according to the Commission itself that in case the retrenched employes of the Octroi Department of the Local Body and the surplus staff from the Collectorate, are not available, the names of the candidates who have worked in three tier elections of the Panchayati Raj and Local Bodies and who have experience of work be sent for being considered for regular appointment. It is not in dispute that the petitioners have worked in three tier elections and their engagement was upto 28.2.1997, therefore, if the retrenched employees of the Octroi department or the additional/surplus staff of the Collectorate were not available for regular appointment on these posts, the petitioners were entitled to be considered for regular appointment in view of the policy decision of the Commission itself.

In view of the aforesaid facts and circumstances of the cases, the writ Petitions mentioned above are allowed in part and a writ in the nature of mandamus is issued directing the Opposite parties to consider the petitioners for regularisation in case the retrenched employees of Octroi Department or Local Bodies or the additional staff from the Collectorate is not available for regularisation on the regular posts. The petitioners will not be entitled for any wages after 28.2.1997 as the temporary posts against which they were appointed on contract basis have not been sanctioned. No order as to cost.