JUDGMENT O.P. Garg, J.
1. Counter and rejoinder affidavits have been exchanged. Heard Sri S.K. Chaubey, learned Counsel for the petitioners and Sri R.S. Maurya, as well as, learned Standing Counsel for the respondents.
2. The petitioners who are 4 in number, were appointed on ad hoc basis in Town Area Khamariya, district Varanasi. The petitioner No. 1 Ram Raj Pandey, petitioner No. 2 Rajendra Prasad Pandey, petitioner No. 3 Vijay Bahadur Patel and petitioner No. 4 Amar Bahadur Yadav were respectively appointed on the posts of Safai Naik, Water Tax Collection Amin, Lineman and Clerk. They are alleged to be working continuously on their respective posts right from the date of appointment. It is alleged that by an order dated 20.7.1991, the services of the petitioners have been dispensed with and they are not allowed to perform their duties. By means of the present writ petition, it is prayed that the order dated 20.7.1991, terminating the services of the petitioners, as orally stated by respondent No. 2, the Chairman Town Area Committee, be quashed and the respondent Nos. 2 and 3 be commanded not to interfere with the performance of duties by the petitioners.
3. in the counter affidavit it has been pleaded that the petitioners were appointed on daily wage basis in addition to the sanctioned strength of the Committee; that the services of the petitioners were terminated after adopting a resolution by the committee on 20.7.1991 primarily on the ground that the financial position of the Town Area Committee was not sound and the services of the petitioners were no longer required. It has also been asserted that as against petitioner No. 1 Ram Raj Pandey, and petitioner No. 3 Vijai Bahadur Patel, there were complaints of negligence and carelessness in the performance of their duties. As regards petitioner No. 2 Rajendra Prasad Pandey and petitioner No. 4 Amar Bahadur Yadav, it has been asserted that they were appointed after the water supply scheme was transferee from Jal Nigam to the Town Area Committee. Petitioner No. 4 was appointed for preparing the bills of water tax while petitioner No. 2 was detailed for duty to realise the amount of water tax. Subsequently, water tax came to be realised with other taxes of the Committee and consequently, the services of the petitioner Nos. 2 and 4 were no longer required.
4. Sri S.K. Chaubey, learned Counsel for the petitioners urged that the termination of the services of the petitioners abruptly is in violation of the provisions of the U.P. Industrial Disputes Act, 1947 (hereinafter referred to as 'the U.P. Act'), particularly Section 6-N of the U.P. Act and since no compensation has been paid and the provisions of the U.P. Act have not been followed, the termination order in respect of all the four petitioners is illegal. It was also urged that the petitioners have worked for more than 240 days in the preceding years, and therefore, in the light of various Government Orders, the status of the petitioners was that of permanent employees. Learned Counsel further placed reliance on the two Government Orders issued by the Secretary, Nagar Vikas, Annexures R.A. 1 and R.A. 2 to the rejoinder affidavit, in which directions have been issued to regularise the services of the employees who have completed three years service. Certain additional posts were also sanctioned for the purpose. Two posts of Class III employees and three posts in Class IV cadre for Town Area Khamariya were sanctioned. It was also directed that those persons, who have completed three years service and do not fulfil the conditions of serving 240 days in every calendar year, may be adjusted against the future vacancies but their services shall not be terminated. To fortify his submission, the learned Counsel for the petitioner further placed reliance on the decisions of this Court (Lucknow Bench) reported in 1993 (3) U.P.L.B.E.C. 1612, Shyam Narain and Ors. v. State of U.P. and Ors., and 1997 (1) U.P.L.B.E.C. 372, U.P. State Electricity Board v. Presiding Officer, Labour Court, Meerut and Anr. Having gone through the aforesaid rulings, I find that it is true that the employees cannot treat their employees as serfs or subject them to feudalistic opression and tyranny by denying them regularization of their services and keeping the sword of democles over their heads for a number of years. In Shyam Narain's case (supra), a direction was made that the daily rated employees who were working in U.P. Public Works Department for the last more than 13 years shall be considered by the Department for purposes of regularization of their services. It was found that the posts were available and enough work of repair and constructions, which is undertaken by the Department, will be available to engage the workers. In the other case of U.P. State Electricity Board (supra), the termination order was tested with reference to the provisions of Section 6-N of the U.P. Act. It was held that by reasons of Section 6-N (b) of the U.P. Act, it is incumbent upon the employer to pay compensation at the rate of 15 days average pay for each completed year of service and since the order of termination was not in conformity with the provisions of Section 6-N of the U.P. Act, it was bad in law. On behalf of the respondents, the various allegations made on behalf of the petitioners were repelled. It was urged that merely on the ground that the employees have completed 240 days work in every year would not attribute them the status of regular employees. It was also urged that if there is no post in existence, the question of reinstatement in service or regularization of the services would not arise. A reference was made to the following observations of the Supreme Court in the case of Madhyamik Siksha Parishad v. Anil Kumar Misra and Ors., 1994 A.L.J. 339 :-
"We are unable to uphold the order of the High Court. There were no sanctioned posts in existence to which they could be said to have been appointed. The assignment was an ad hoc one which anticipatedly spent itself out. It is difficult to envisage for them the status of workmen on the analogy of the provisions of Industrial Disputes Act, 1947, importing the incidents of completion of 240 days' work. The legal consequence that flow from work for that duration under the Industrial Disputes Act, 1947 are entirely different from what, by way of implication, is attributed to the present situation by way of analogy. The completion of 240 days' work does not, under that law import the right to regularization. It merely imposes certain obligations on the employer at the time of termination of the service. It is not appropriate to import and apply that analogy in an extended or enlarged form here."
5. It is admitted fact that all the four petitioners were engaged on daily wage basis. Their appointments were not made against regular posts. The appointment of the regular employees of the Town Area Committee is governed by the statutory provisions contained in Sections 9, 10, 11 and 12 of the U.P. Town Area Act. The sanctioned strength of the Town Area Committee, Khamariya is seven employees. There are five Safai Karmacharis, one peon and one Clerk. All these seven posts were already manned when the petitioners came to be appointed. It is, thus, clear that the engagement of the petitioners by the Town Area Committee was not against any sanctioned post. As such, the petitioners were not holding any post in the Town Area Committee. A person engaged on daily wage basis and holding no post is not entitled to relief of re-instatement of regularization of service. In this connection, a reference may be made to a decision of the Supreme Court in State of Himachal Pradesh v. Suresh Kumar Varma, A.I.R. 1996 SC 1565, wherein it has been laid down that appointment on daily wage basis is not an appointment on a post. A person appointed to a post can be directed to be reinstated in service by the Court, if the order terminating his services is set aside; but, when the person does not hold any post, the question of his reinstatement in service does not arise. In an earlier case, Director Institute of Management Development, U.P. v. Smt. Pushpa Srivastava, 1992 (65) FLR 571 (S.C.), if has been ruled by the Supreme Court that where the appointment is contractual and by a efflux of time, if comes to an end, then the appointee can have no right to continue in the post. In answer to the question as to whether the continuance of service of such an appointee from time to time on ad hoc basis for more than a year entitles him to claim regularization, the Supreme Court held that since the appointment was purely on ad hoc and contractual basis for a limited period, therefore, by expiry of the stipulated period the right to remain in the post came to an end. In a series of cases, it has been held that mere fact that the workman had put in more than 240 days as daily rate employee does not entitle him for regularization in his employment. F.R. Jesu Ratnam v. Union of India, 1981 (43) F.L.R. 264 (SC), U.P. Rajya Sahkari Krishi Evam Gramya Vikas Ltd. v. Labour Court, Allahabad and Ors., 1994 (68) F.L.R. 1195 and U.P. State Cooperative Land Development Bank v. Taj Mullick Ansari, being S.LP. (C) 7592 of 1993 are some of the authorities on the point. It is not necessary to make a reference to other authorises as it would amount to tautology.
6. In the backgroup of the law discussed above, it is clear that the petitioners who were engaged on daily wage basis, did not hold any post and, therefore, they cannot claim regular appointment. Regular appointment of the casual or ad hoc employees is not automatic on the completion of three years continuous services or 240 days engagement in every proceeding three years. There are various imponderables which the employer has to take into consideration before regularising the service of the ad hoc/casual employees. These considerations are availability of post, eligibility and satisfactory performance of duties by the ad hoc/casual employees, their need for retention, according the requirement of the work and the financial capacity of the employer. The Town Area Committee has taken a specific decision that it was no longer possible to continue with the engagement of the petitioners as the financial condition of the Committee was deplorable. It was with great difficulties that the petitioners as well as other employees were paid salaries upto the period July, 1991. On account of financial crisis, which the Committee was facing, the petitioners could not be retained in service and their ad hoc appointment was ceased by issuing termination orders, which are Annexures C.A. 5 to C.A.R. passed in pursuance of the decision of the Committee dated 20.7.1991.
7. At least two Government orders have been brought on record, which are Annexures R.A. 1 and R.A. 2 to the rejoinder affidavit. These orders were passed in January and February, 1992, i.e., after the petitioners ceased to work in the month of July, 1991. Additional posts have been sanctioned for Town Area Khamariya. The employees who satisfy the various conditions mentioned in the Government Orders were to be considered for regular appointment against newly created posts. It was also contemplated that those ad hoc employees who have not completed three years continuous service or worked for less than 240 days in a year, shall not be dispensed with and that they will be adjusted in the furture vacancies. The case of the petitioners may, however, be considered by the competent authority in the light of the Government Orders, which are contained in Annexures R.A. 1 and R.A. 2 to the rejoinder affidavit and which may be read with the earlier Government Orders on the point.
8. In the result, I find that the writ petition fails on merits and is accordingly dismissed. It is, however, directed that the respondent Nos. 2 and 3 shall consider the case of the petitioners according to law for appointment/regularization in the light of the Govt. Orders, which have been brought on record as Annexures R.A. 1 and R.A. 2 to the rejoinder affidavit and other allied Government Orders on the point provided the vacancies are available and otherwise, the petitioners are found suitable for the posts.