- (1.) R. B. Misra, J. Heard Sri Vikash Budhwar, learned counsel for the petitioner, and learned Standing Counsel for the State respondents. In this petition prayer has been made for issuance of writ of certiorari for quashing the order dated 15- 11-1998 (Annexure-1 to the writ petition) passed by the Chief Engineer, Public Works Department (in short called "p. W. D. "), Varanasi Kshetra, Varanasi, whereby the representation of the petitioner was considered, however, she was not regularised and an indication was given that the petitioner's candidature may be considered in accordance with law while making recruitment against future vacancies to the post of Stenographer. Further prayer has been made for issuance of the direction to the respondents to ensure the regularisation of the petitioner to the post of Stenographer and to pay her regular salary as admissible under the law and to quash the advertisement No. 6/98 dated 10-8-1998 (Annexure-2 to the writ petition), whereby the appointment to the post of Lower Division Clerk/junior Clerk, Stenographer and Store Incharge were to made.
(2.) ACCORDING to the petitioner, she is Intermediate and had obtained diploma certificate in Stenography from Rajkiya Mahila Polytechnic, Lucknow on 12-2-1992 and has also completed apprenticeship training as Stenographer from the office of Chief Engineer (East), Public Works Department, Varanasi for a period of one year (9-7-92 to 8-7-1993 ). The petitioner after being appointed as Stenographer on daily wage basis on 1-9-93 had submitted representations dated 3-10-96 and 17-10-96 for regularisation and when no heed was taken by the respondents, she preferred writ petition No. 36268 of 1996, which was disposed of on 25-3-1998 with a direction to consider the representation of the petitioner. In compliance thereto the representation of the petitioner was considered and rejected on 15-11-1998 by the Chief Engineer, against which the petitioner has preferred the present writ petition. According to the petitioner on seeking clarification whether the petitioner had worked in Ircon International Ltd. the Deputy General Manager of Ircon International Ltd. , clarified on 21-8-1999 that the petitioner had not worked in Ircon International Ltd. . According to the petitioner without passing the regularisation order, the advertisement No. 6/98 dated 10-8-1998 was issued for making recruitment to the post of Stenographer in P. W. D. . According to the petitioner the impugned order dated 15-11-1998 is illegal, arbitrary, discriminatory and has been passed on non-existent ground inasmuch as vide Annexure-8 the letter issued by the Deputy General Manager Ircon International Ltd. on 21-2-1998, the petitioner had not worked in their organisation then no scope available to the respondents but to admit and held that the petitioner had been continuously discharging his duties in Public Works Department. A letter dated 16-6-1997 (Annexure-9 to the writ petition) indicates that the petitioner had been working continuously w. e. f. 1-9-1993, thus the petitioner is entitled to be regularised to the post of Stenographer.
(3.) THE finding in the order dated 15-11-1998 that the petitioner had been absent from June, 1995 is misconceived. According to the letter dated 16-6-1997 the petitioner had been working w. e. f. 1-9-1993 as narrated in para 18 of the writ petition, where the petitioner had specifically stated that the petitioner was continuously working from 1-9-1993 as is apparent from the letter dated 16-6-1997, which are admitted in para 18 of the counter affidavit, quoted as below: - "18. That in case petitioner's working in the department continuously w. e. f. 1993 is required to be establish a letter dated 16-6-1997 of the respondent No. 4 advertised to the respondent No. 2 which shows that the petitioner has been working continuously in the department without any break. A true copy of the letter dated 16-6-1997 is being filed herewith and the same is marked as Annexure No. 9 to this writ petition. 18. That the contents of Para 18 and 19 of the writ petition as stated are not admitted. THE reply has already been given in the preceding paras. However, after 16-11-98, the petitioner is not serving the PWD in any capacity neither on muster-roll of PWD nor as contractor's labourers supplied to PWD ). " According to the petitioner, she is also entitled to protection under Article 311 (2) of the Constitution being a daily wager, also inasmuch as, first of all, allegation has been levelled to the effect that the petitioner has been unauthorisedly absent from duty. This Court in the case of Ashok Kumar Sharma v. Regional Manager, Garhwal Region, 1996 Vol. (IV) U. P. L. B. E. C. , Page-2301 in Para 32 to 34 has observed as is being quoted below:- "32. Before parting with, this Court would like to refer a Division Bench judgment of Calcutta High Court in the case of termination of appointment of a Public Prosecutor. In Satyabroto Mahapatra v. State of West Bengal, 1981 (2) Calcutta High Court Notes 20, a Division Bench of Calcutta High Court, let by Hon'ble Mr. Justice P. K. Banerjee (as His Lordship then was, and, later became the Chief Justice of Rajasthan High Court) held that a probationer has right to invoke provisions or Article 311 (2) of the Constitution in the event of termination of service from the post of Public Prosecutor. 33. Aforesaid view was followed by me sitting in Division Bench in Devdas Ganguli v. Director, Zoological Garden, 1991 (2) Calcutta Law Times 353. In the aforesaid case, Calcutta High Court interfered with the order of termination of petitioner, who was a Darban in the Calcutta Zoo. 34. In the light of foregoing discussion, this Court is of the view that though the petitioners were reasonable employee, working on daily wages, their services could not be terminated in the manner it has been done. Further there was no justification for passing the impugned order since the alleged strike from 7-12-1992 never took place. ";