Dilip Gupta, J. - (1.) THE Petitioner had earlier filed Writ Petition No. 20058 of 2003 which was disposed of by the judgment and order dated 25th November, 2005 with the following observations: Heard counsel for the parties. The Petitioner was engaged as a daily wage driver by the Chief Medical Officer, Gautambudh Nagar on 22.8.2000 and he continued to work as such till 19.4.2003. Though no regular selection was made and at least three posts of driver were still vacant in the establishment, he was not allowed to continue forcing him to file this Petitioner where an interim order was passed on 12.5.2003 that until regular selection is made, the Petitioner should be allowed to work as a driver and salary be also paid. In pursuance of the said order, the Petitioner was again given daily wage appointment on 25.6.2003. However, again he was ceased on 12.9.2003 on the ground that it has been decided to appoint the drivers on contract basis. The Petitioner filed a contempt petition wherein a stand was taken by the Chief Medical Officer that by mistake he had disengaged the Petitioner and he was again appointed vide order dated 17.11.2003 and since then he continued till 19.4.2004. In the counter affidavit, the stand taken is that the Petitioner was appointed on daily wage basis in different scheme and that he has no right to continue as such. Further, it is stated that since the date of birth given in the school certificate was found to be forged, therefore the Petitioner was disengaged. From the letter of the Chief Medical Officer addressed to the Joint Secretary dated 4.10.2001, it is apparent that after 31.7.2001 the Petitioner continued to work as a driver with the Chief Medical Officer himself, apart from that several letters including dated 1.9.2001, 24.7.2001, 4.6.2001 etc. that remained attached to the Chief Medical Officer. Therefore, the contention that he was appointed in a scheme does not appear to be correct. It is not denied anywhere that three posts of drivers are still vacant. Attempt was made during the pendency of the petition to replace the Petitioner by another daily wager, however, there is nothing on record to show that the Petitioner was not fit or competent to continue. The State is a model employer and adopting the principles of hire and fire cannot be adopted except for cogent reason. In case vacancies still exist, the Petitioner should be allowed on daily wage basis until regular selection is made. This continuance will not enable the Petitioner to claim regular appointment except through regular selection where relaxation in age may be given by the number of years he has worked in case he becomes over age. With the aforesaid observation, this petition is finally disposed off.
(2.) IT is stated that as the aforesaid order was not complied with, the Petitioner filed Contempt Petition No. 885 of 2006, which was disposed of with the following observations: Heard the learned Counsel for the parties. The applicant had filed the present contempt petition for non compliance of the order dated 25.11.2005 by the Chief Medical Officer. Notices were issued to Sri J.P. Sharma, the then CMO, who appeared and filed an affidavit seeking further time to comply with the order of the writ court. The learned Counsel for the opposite party submitted that thereafter he retired and consequently Sri Gajraj Singh was appointed as the Chief Medical Officer, who was impleaded as opposite party No. 2 by an order dated 27.02.2007. Learned Standing Counsel states that opposite party No. 2 has died and now Sri V.K. Kanaujia is presently holding the post of Chief Medical Officer. In view of the aforesaid, this contempt application is disposed of with a direction to the applicant to file a fresh certified copy of the order of the writ court dated 25.11.2005 as well as certified copy of this order before the Chief Medical Officer, Gautam Budh Nagar along with its representation. Upon receipt of the aforesaid order and representation, the Chief Medical Officer, Gautam Budh Nagar will consider and decide the matter on a priority basis and pass consequential order within four weeks from the date of the production of a certified copy of this order. However, as the said order was not complied with, the Petitioner filed another Contempt Petition No. 379 of 2008 in which notices were issued but subsequently an affidavit of compliance was filed by Dr. M.L. Mishra, Chief Medical Officer, Gautam Budh Nagar and paragraphs 3, 4 and 5 of the affidavit are as follows: 3. That the present contempt petition has been filed by the applicant/Petitioner for the alleged non -compliance of the order dated 25.11.2005 passed in Civil Misc. Writ Petition No. 20058 of 2003, by means of which, the writ petition was disposed of finally with the direction that in case vacancy will exist the Petitioner should be allowed on daily wage basis until regular selection is made. It was further directed in the said order that this continuance will not enable the Petitioner to claim regular appointment except through regular selection where the regularization in age may be given by the number of years he has worked in case he became overage. That by the order dated 02.12.2009, the Hon'ble Court has directed that whoever is working as Chief Medical Officer, Gautam Budh Nagar shall ensure compliance of the writ judgment forthwith or appear in person on the next date. The deponent received the copy of the said order through a fax letter dated 05.12.2009 on 07.12.2009, it is upon receiving the said fax letter, the deponent could come to know about the present matter. That in compliance of the orders passed by this Hon'ble Court, the deponent issued an order dated 19.12.2009 by which the Petitioner has been appointed. A copy of the order dated 19.12.2009 is annexed herewith and is marked as ANNEXURE -1 to this affidavit.
(3.) THE order dated 19th December, 2009 was modified by the order dated 26th August, 2010 to the extent that the Petitioner was engaged as daily wager w.e.f 25th November, 2005.;