JUDGMENT V.K. Shukla, J.
1. Petitioners have filed writ petition No. 12901 of 2004 for issuing writ in the nature of mandamus commanding the respondents to consider the regularization of their services on the post of sweeper in Town Area Bisanda, District Banda (subsequently upgraded as Nagar Panchayat, Bisanda, District Banda). Civil Misc. Writ Petition No. 60669 of 2005 has been filed questioning the validity of the action taken by respondents by proceeding to make appointment on the post of sweeper on contractual basis and further ceasing petitioners from performing and discharging their duties as sweeper.
2. Brief background of the case is that in Town Area Bisanda, District Banda, in the year 1990 there was strike and the attempt on the part of Chairman of the Town Area Committee to get the strike withdrawn failed and as the work was suffering, resolution was passed on 22.10.1990 for dispensing with the services of striking employees, and for making stop gap arrangement in their place for maintaining cleanliness in the aforesaid Town Area. Petitioners were appointed as sweeper on daily wage basis on the strength of resolution dated 22.10.1990 passed by the Town Area Committee. The said resolution was also approved by the District Magistrate, Banda. Petitioners claim that they had been appointed against sanctioned post and they have been continuing to perform and discharge their duties on the post of sweeper since 22.10.1990. Petitioners submit that In terms of the provisions as contained under U.P. Group D Post Daily Wagers Regularization Rules, 2001 and various Government Orders issued in the past for extending benefit of regularization, petitioners were raising their claim for extending benefit of regularization, as they were being perpetuated on daily wage basis. Petitioners claim that their services are liable to be regularized, and for extending the benefit of regularization writ petition No. 12901 of 2004 had been filed , wherein counter affidavit was invited. During the pendency of the aforementioned writ petition, petitioners continued to discharge and perform their duties as sweeper and were paid remuneration till August, 2005. Since September, 2005, petitioners have been restrained from performing and discharging duties, and applications have been invited for making appointments on the post of sweeper on contract basis. At this juncture, Civil Misc. Writ Petition No. 60669 of 2005 has been filed.
3. Counter affidavit has been filed, and therein it has been contended that enquiry had been conducted qua appointment of petitioners, and the said appointments have been found to be illegal, as such order, which has been passed on subsequent occasions canceling their appointments and ceasing them from discharging and performing duties is justifiable action and no right, whatsoever, of the petitioner has been infringed, and as the appointment itself was illegal, no advantage or benefit of regularization can be extended to the petitioners. Rejoinder affidavit has been filed disputing the averments mentioned in the counter affidavit and the statement of fact mentioned in the writ petition has been reiterated.
4. After pleadings aforementioned have been exchanged, both the writ petitions have been taken up together for final hearing and disposal with the consent of the parties.
5. Sri Rajendra Prasad Tiwari Tiwari, learned Counsel appearing for the petitioners, contended with vehemence that petitioners had been validly appointed as daily wagers as per resolution which was duly approved by the competent authority and without there being any lawful foundation and basis, petitioners have been ceased from performing and discharging their duties in order to deprive the petitioners of their legitimate right of regularization, as such writ petitions are liable to be allowed.
6. Sri S.F.A. Naqvi, learned Counsel representing the Nagar Palika Parishad, the then Town Area Committee, Bisanda, District Banda on the other hand, contended that appointment of petitioners was perse illegal and void, as such petitioners are not entitled to get the benefit of regularization, as such no interference be made.
7. After the respective arguments have been advanced, the undisputed position, which emerges is to the effect that on the strength of resolution dated 22.10.1990, petitioners were appointed as sweeper on daily wage basis and said resolution was approved by the District Magistrate, Banda on 22.11.1990. This is undisputed position that in lieu of performing and discharging duties, petitioners have been paid remuneration. Complaint had been made qua appointment of petitioners and enquiry report had been submitted way back on 21.11.1998, concluding therein that in resolution dated 22.11.1990 no details have been given of the safai employees, who were to be appointed, as such said appointments cannot be said to be proper appointment The fact of the matter is that resolution had been passed taking in view that striking employees had not returned back and slop gap arrangement was to be made. At the point of time when resolution had been passed, names of employees were not there and policy decision was taken to make such appointments and appointments had been made subsequent to the same. Consequently, infirmity, which has been pointed out that names were not there, was not of much consequence, inasmuch as arrangement was to be made by way of stop gap arrangement on temporary basis. The persons whose reference has been given by name in the report dated 21.11.1998, are certainly not the petitioners. Even after the report of Additional Commissioner dated 21.11.1998 had been submitted, all the petitioners continued to perform and discharge their duties without there being any action on the part of respondents on the said report. Record reveals that said report was transmitted by Director, Local Bodies to State Government on 21.06.2003 and State Government on 21.07.2004 asked for action and thereafter Director has written letter on 07.02.2005 for action, which was inclusive of cancellation of appointment also. Petitioners continued to function, remuneration was paid till August, 2005 and there after petitioners have been restrained from performing and discharging duties and their appointment has been sought to be cancelled. In the present case sequence of dates clearly demonstrate that there has been unreasonable delay in taking any action on the said report, which even otherwise was of no much consequence vis-a-vis petitioners, who had been appointed on daily wage basis on the strength of resolution duly approved by competent authority and had been continuing to perform and discharge their duties for the last fifteen years. It is well settled that whenever any authority is vested then that authority has to be exercised within reasonable period. Hon'ble Apex Court in the cases of State of Gujrat v. Patil Raghav Netha ; Mansa Ram v. S.P. Pathak and Ors. ; Ram Chand and Ors. v. Union of India and and State of Orissa and Ors. v. Burdandan Sharma reported in 1995 (Supp) 3 SCC 249, has taken the view that exercise of power is always subject to inherent limitation of power being exercised within a reasonable period and as to what would be the reasonable period is dependent upon different facts and situation peculiar in each case. Here, report against petitioners had been submitted on 21.11.1998, and power of cancelling appointment of petitioners had been exercised after seven years. The snail pace with which proceedings have been undertaken, in the facts of present case, cannot be said to be exercise of power within reasonable period. Ceasing of employment of petitioners based on report dated 21.11.1998 cannot be said to be justifiable exercise of power and the power in the present case has been arbitrarily exercised without there being any lawful justification for the same. Consequently, the order of cessation/cancellation of employment of petitioners is hereby quashed and set aside.
8. Now the next question to be considered is as to whether petitioners being daily wagers, are their services liable to be regularized as a matter of right. The Hon'ble Apex Court in its latest pronouncement in Appeal (civil) 3595-3612 of 1999 dated 10.04.2006 in the case of Secretary, State of Karnataka and Ors. v. Umadevi and Ors., has mandated that where even irregular appointments have been made and the incumbents have been working for 10 years or more in duly sanctioned post but not under the covers of orders of courts or tribunal then process of regularization be set in motion within six months from the date of the order. Paragraphs 44 and 45 of the said judgment being relevant are being quoted below:
44. One aspect needs to be clarified, there may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa (supra), R.N. Nanjundapaa (supra) and B.N. Nagarajan (supra) and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals, the question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context Union of India, the State governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned vacant posts but not under the cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed, the process must be set in motion within six months from this date. We also clarify that that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.
45. It is also clarified that those decisions which run counter to the principles settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents.
9. Thus, as per latest pronouncement of Hon'ble Apex Court, even where irregular appointments have been made against duly sanctioned post, their cases are liable to be considered for regularization, they cannot be thrown away. Consequently, following the aforementioned decision, it is hereby directed that claim of petitioners for extending the benefit of regularization be adverted to Nagar Panchayat, Bisanda, District Banda and further petitioners be permitted to discharge their duties as sweeper and the minimum of the pay scale be paid to them, till matter of regularization is not finalized. Consequently, both the writ petitions are allowed.
10. No order as to costs.