M.Katju - (1.) THE petitioner no. 1 was appointed as daily wage employee in the service of the respondent no. 1 on 6-9-87 while the petitioner no. 2 was appointed on 21-3-88 It is alleged that the petitioner no. 1 worked as daily wage employee continuously from 6-9-87 to 24-5-88 and he worked from 25-5-88 to 15-10-90 continuously as daily wage typist. Petitioner no. 2 worked as daily wage employee from 21-3-88 to 15-8-89.
(2.) ON 13-7-89 an office order was issued in which it was mentioned that adhoc appointment should be made for the vacant posts of typists and for that purpose a panel would be prepared after holding a typing test. True copy of the said office order dated 13-7-89 is Annexure-2 in the writ petition. The petitioners appeared in the typing test, and a panel was prepared in which 17 persons were declared successful. These 17 persons were given appointment vide appointment letter dated 14-8-1989. The petitioner no. 2 was at SI. No. 2 and petitioner no 1 was at SI. no. 14 in the said panel of 17 persons. True copy of the order dated 14-8-1989 is Annexure-3 to the writ petition. The petitioner's services were extended from time to time but in the last extension order dated 10-110-1990 it was mentioned that from 16-10-90 the petitioners would not be allowed to work as daily wage typist. True copy of the order dated 10-10-90 Aanexure-14 to the writ petition. The petitioners have alleged in para 15 and 16 of the writ petition that they have been discriminated against by the impugned order. They have stated in para 16 of the writ petition that the services were terminated malafide which is evident from the fact that by an order dated 15-10-1990 ten persons were appointed as typists on the post on which the petitioners were working. In para 17 of the writ petition, it is alleged that one Brijkrishan Sahu was appointed as daily wage typist later on. It is alleged that these eleven persons were junior to the petitioners since: the petitioners were working from 1987 and 1988 respectively as typists, where as these junior persons were given appointment on the post of daily wage typist for the first time w.e.f. 16-8-89. It has been alleged in para 17 that no appointment letter was issued to the petitioners with regard to the work as daily wage typist from 25-5-88 to 15-8-89, but from the personal file maintained in the department, it is evident that the petitioner was working from 25-5-88. The petitioner has filed a certificate of the Section Officer Bhola Dutt Pant dated 28-2-89 in support of his contention that he has worked from 24-6-88 on wards. In para 19 of the writ petition, it has been alleged that the order dated 14-8-89 (Annexure-3) shows that the petitioner are senior to the junior persons who have been retained and given fresh appointment as typist on daily wage basis It has further been alleged that one Deen Dayal Gupta was given appointment much after the appointment of the petitioner but be has been retained. Thus it is alleged that there is discrimination against the petitioners. A counter affidavit has been Bled on behalf of the respondent no. 1. I have perused the same. The allegation in paras 16 and 17 and 19 of the writ petition to the effect that the juniors to the petitioners are still working has not been denied. Instead the reply to this allegation in the writ petition (which are contained in paras 6 and 7 of the counter affidavit) is that there is no question of seniority or juniority and that as soon as the work for which the petitioners were enaged was completed their services could be dispensed with. Hence it is contended by the counsel for the respondent that there is no question of violation of Articles 14 and 16 of the Constitution. In my opinion the principle of last come first go applies in the case of daily wage employees also. It is not disputed that juniors to the petitioners have been retained. This was clearly in violation of Articles J4and 16 of the Constitution vide O. P. Goel v. H. p. Taurism Development Corporation, 1991 Vol. 3 JT 6. No doubt the service of a senior temporary employee can be dispensed with if he is unsuitable for the post while retaining his junior. In such a case there is no violation of Article 16 vide State of U. P. v. Kaushal Kishore, 1991 (1) SCC 691. However, in the present case, it is not the case of the respondent that tie work of the petitioner was unsatisfactory. There is no allegation in the counter affidavit that the petitioner did not work properly. Rather, the case of the respondent is that the work for which the petitioners had been employed and come to an end. In my opinion the work of typing is not such a specialized work that a particular typist alone can do the job of typing Where there are a large number of daily wage typists and the department wishes to dispense with the service of them for the reason that the work in the department has decreased then the services of the junior most daily wage typist should be dismissed with first, and thereafter the service of the second junior most should be dispensed with, and so on. The department cannot pick and choose and act arbitrarily by dispensing with the service of any daily wage typist, but must abide by the principle of last come first go.
(3.) COUNSEL for the respondent Sri Vinod Misra placed before me three judgments. The first judgment is of Hon B M. Lal J, dated 22-7-91 in Writ Petition no. nil of 1991 Rahul Dixit v. U. P. Public Service Commission and other. In this case it has been held that since there was no post on which the petitioner could have been retained hence the petitioner, being a adhoc appointee, had no right to continue. This decision is clearly distinguishable as the question whether there was violation of Art. 16 if juniors have been retained has not been considered in the decision. The next decision is of Honourable . Om Prakash J. dated 23-9-91 in Writ No. Nil of 1991 Jyoti Prakash Shukla v. U. P. Public Service Commission, and another. This decision in fact supports the contention of the petitioner that the principle of last come first got has to be followed.;