JUDGMENT D.K. Seth, J.
1. The petitioners allege that they have been working as daily wager in the Sports Stadium, Meerut for about 7-8 years namely from 1982. Therefore, they claim that on account of their continuous work they should be given regular appointment.
2. Learned counsel for the petitioner Shri Ajai Bhanot Shri S. D. Kautilya contends that in similar circumstances this court had directed regularisation of service in same organisation at other region.
3. Learned Additional Chief Standing Counsel on the other hand contends that the petitioners have acquired any legal right for being absorbed. According to him, the petitioners are only daily wagers therefore they can not claim any right in their favour.
4. From the pleading of the writ petition it appears that the petitioners were working from time to time which is certified by a certificate dated 29-4-1983 being Annexure-1 to the writ petition. By another certificate dated 9-3-1990, Deputy Director Meerut had certified that the petitioners had been continuously working for about 10 years on daily wage basis. In a list of employees prepared on 12-6-1989 the names of the petitioners were also appearing at Sl. Nos. 10 and 12. By an order dated 20-11-1987 which is Annexure-5 to the writ petition, the pay of the daily wager employee were increased from Rs. 15 to Rs. 20/-. By an order dated 1-11-1990 which is Annexure-6 to the writ petition bonus was allowed to these employees including the petitioner No. 1 on account of his working for over 3 years continuously. Thus it appears that the petitioners had been working continuously for a long time in the same organisation The said fact had sought to be denied in the counter affidavit but no specific averment has been made in order to specifically deny the case made out in the writ petition. But it was admitted that the petitioners were being engaged on daily wage basis from time to time. In paragraph No. 12 of the counter affidavit it has been pointed out that the petitioners were working on daily wage basis but no assurance was given to them that they will be regularised or absorbed.
5. Learned counsel for the petitioners had relied on the decision in the case of Bhullar Nath Yadav and Ors. v. Mayo Hall Sports Complex, Allahabad and Ors., 1990 (1) FLR 68 where in the petitioners in the said case who were similarly situated with the petitioners of the present writ petition, were allowed to be absorbed in the serive and regularised.
6. Learned Additional Chief Standing Counsel produces an order passed in Civil Appeal No. 5570 of 1993 arising out of S.L.P. (Civil) No. 12422 of 1993 State of U.P. and Ors. v. Ram Sumendar and Ors. and contends that in a similar case the appeal was preferred and the said order has been passed therein In the said order it was observed that since already a scheme is prepared for regularising the employees concerned, the authority, as and when it decides to fill in the vacancies for the respective cadres, they would consider the petitioner's case accordingly. In the S3id order it has been provided that respondents should give preference to those who are on panel under the Scheme.
7. Learned counsel for the petitioners on the other hand relies on another judgment of this Hon'ble Court given in the case of Prem Chandra and Ors. v. Regional Sports Officer and Ors. in writ petition No. 3599 of 1991 disposed of on 12-8-1997, The said judgment has relied on the decision in the case of Bhullar Nath Yadav (supra) as well as in the case of Zakir Hussain v. Engineer-in Chief Irrigation reported in (1993) 1 UPLBEC 15 which also had placed reliance on the decision in the case of Bhullar Nath Yadav (supra).
8. So far as the order passed in Civil Appeal No. 5578 of 1993 is concerned, the ratio decided in the case of Bhullar Nath Yadav (supra) has not been referred to and tested. The order passed thereon cannot be said to have been overruled the decision in the case of Bhullar Nath Yadav (supra). The said order of the Apex Court has not laid down any ratio which could be treated as precedent having the overruling effect of the ratio decided in the case of Bhullar Nath Yadav (supra). Unless a ratio is laid down upon consideration of the question raised It cannot be said to have any effect of overruling the decision even by implication.
9. The case of Bhullar Nath Yadav and others (supra) has relied on the decision in the case of the Dharwad District P.W.D. Literate Daily Wage Employees Association and Ors. v. State of Karnataka and Anr. 1990 (6) FLR 576 (SC) and it had laid down a proposition. Pursuant to which the said order for absorption was passed The same has been followed by this Court in the case of Zakir Hussain (supra) as well as in the case of Prem Chandra (supra). The fact that appearing from the pleadings that the petitioner had been granted bonus, itself indicate that they were treated to be temporary employee working for long period of time. Nothing has been forthcoming from the learned Additional Chief Standing Counsel that any such panel has been prepared by the authority concerned and whether the names of the petitioner had been included in the said panel as mentioned in the order of the Apex Court referred to by the learned Additional Chief Standing Counsel. Nothing so has been indicated in the counrer affidavit. In that view of the matter, it is not possible to leave the case at the hands of the respondents to decide the case on the basis of the scheme in the absence of any material as to whether the name of the petitioners are included in the panel or not In case, the petitioners have not already been regularised or absorbed or their names have not bean included in the panel for regularisation/absorption, in that event, the respondents shall consider the question of absorption of the petitioners in the light of the decision in the case of Bhullar Nath Yadav (supra) as early as possible preferably within a period of six months from the date a certified copy of this order produced before the concerned respondent or as soon as the vacancies are available after determining the position of the petitioners on the basis of seniority on account of such work from the respective date of initial entry.
10. With the aforesaid observation, this writ petition is finally disposed of.
11. There will, however, be no order as to cost.