1. Heard Mr. Mishra, learned advocate for the petitioner.
2. The petitioner has prayed for below mentioned relief:
"(A) Your Lordships may be pleased to hold and declare that the petitioner is entitled to minimum of time scale salary with other allowances as per the principle enunciated by this Hon'ble Court.
(B) Your Lordships may be pleased to quash and set aside the order dated 11.11.2011, at Annexure-'A', declaring that the application of Government Resolution dated 1.5.2007 is erroneous and the application of which is only to part-timers and be pleased to hold and declare that the petitioner is daily wagers, presently he is paid wages at the rate of Rs.157/- per day, therefore, Your Lordships may be pleased to direct the respondent authorities to place the petitioner in the minimal of time scale salary with other usual allowances as may be applicable.
(C) Your Lordships may be pleased to quash and set aside the order dated 1.12.2011, at Annexure-'C', passed by the respondent Principal, Government Polytechnic, Palanpur to be illegal, arbitrary by holding that cleaning work alone has been done by the petitioner, by employing himself for more than 8 hours in a day, therefore, the said order is used as a device mark to the petitioner as a part-timer, therefore, the same mayt be declared to be illegal, arbitrary and requires to be set aside."
3. Learned advocate Mr. Mishra for the petitioner has submitted that the petitioner is not part time employee but he is working as daily wage employee and is being paid Rs.157/- per day as daily wage employee. He also submitted that the petitioner asked for regular benefits and made representation which has been rejected vide communication dated 11/11/2011.
4. The said communication dated 11/11/2011 is under challenge in present petition.
5. In the said communication dated 11/11/2011 whereby the petitioner's representation has been rejected, it is observed that request of the petitioner cannot be considered and accepted in light of the government resolution dated 01/05/2007 and in absence of any other policy or scheme.
6. Mr.
Mishra learned advocate for the petitioner has submitted that the said government resolution dated 01/05/2007 is not applicable in case of daily wage employees inasmuch as said resolution dated 01/05/2007 is applicable only in case of part time employees who are working for six hours a day whereas the petitioner is not a part time employee but is daily wage employee and that therefore the decision which is based on resolution dated 01/05/2007 is erroneous and is required to be set aside.
7. On perusal of the entire petition, it emerges that the petitioner has not placed on record any material to demonstrate that the petitioner herein has been working during past years for eight hours or more than eight hours. The material which is placed on record including the certificate said to have been issued by the principal of the institute i.e. certificate dated 24/08/2001 (Annexure-B at page-18) also refers to the petitioner only as daily wage employee and it does not mention that the petitioner is working for eight hours or more or more.
8. On the other hand the decision dated 11/11/2011 expressly mentions that the petitioner has not been working for six hours since 22/06/1996 and the nature of work is not such which would last for six hours or more. Any material opposing the said observations and factual aspects recorded in the order dated 11/11/2011 is not available on record.
9. The competent authority has also recorded that the petitioner had not completed minimum ten years of service on relevant date which is also one of the requirement under the resolution dated 01/05/2007. The competent authority, therefore, did not consider the petitioner's case as eligible for regularisation and other benefits prayed for by the petitioner.
10. The claim of the petitioner that he has been working for eight hours or more than eight hours per day is not supported any material on record.
11. Actually any specific averment to the said effect is also not to be found in the petition. The petitioner, in the vague manner, in para-11 of the petition, only stated that petitioner has never been part time employee.
12. Be that as it may, the claim of the petitioner and the findings recorded by the authority in the communication dated 11/11/2011 to bring out the fact that the issues are disputed questions of facts which can be decided only after considering the documentary and oral evidence including cross examination and that therefore said process can be undertaken before the Tribunal after appropriate adjudication. In absence of any material to support the claim of the petitioner, it is not possible for the Court to interfere or assume that the resolution dated 01/05/2007 is not applicable to the petitioner.
13. In absence of any material to justify the request under the petition, it is not possible for the Court to accept the request made by the petitioner in present petition. The petition therefore fails and accordingly rejected. Present petition stands disposed of accordingly.
14. It is, however, clarified that present order will not stand in way of the petitioner if the petitioner initiates any action before appropriate forum for agitating his grievance.
(K.M.THAKER, J.) (ila) Top