- (1.) HEARD Sri Ashok Khare, learned senior counsel assisted by Sri Siddharth Khare, counsel for the petitioners and Sri Ashok Kumar Pandey, learned Additional Advocate General assisted by Sri J.N.Maurya, learned Additional Chief Standing Counsel for state respondents and Sri Jai Bahadur Singh for respondents no.3 and 4. Other learned counsels for the petitioners appearing in different writ petitions have adopted the arguments advanced by Sri Khare. Sri Naval Singh, learned counsel appears for the petitioner in Writ Petition No. 42526 of 2012, Sri Ashok Kumar Pandey, learned counsel appears for the petitioner in Writ Petitions No. 40433 of 2012, 45634 of 2012 and 45638 of 2012, Sri S.S. Srivastav, learned counsel appears for petitioner in Writ Petition No. 20930 of 2013. Sri Rastrapati Khare appears for the petitioner in Writ Petition No.61026 of 2012 and Sri Satya Prakash Mishra appears for petitioner in Writ Petition No. 47937 of 2012.
(2.) SRI Ashok Khare submits as under : (i)All the local bodies in the State of U.P. are self - independent . Hence, unless power is specially conferred by the relevant statute, the impugned Government Order dated 23.7.2012 could not have been issued. Provisions of Sub -section (1 -B) and Sub -section 4 of Section 34 of the Municipalities Act, 1916 do not empower the State Government to issue a general Order dated 23.7.2012 to dispense with the services of the petitioners. (ii)Section 34 is not applicable with respect to completed acts. Therefore, once the appointments of the petitioners on contractual basis were made several years ago, the same amounts to completed act. In the circumstances the impugned general order dated 23.7.2012 was wholly outside the purview of Section 34 of the Act. (iii) Even if for arguments it is assumed that Section 34 (1 -B) of the Act has any application on the facts and circumstances of the case, it requires application of mind with respect to each individual or at least with respect to each local bodies, which has not been done in the present case. (iv) The impugned general order, which is alleged by the respondents to be a Government Order does not comply with the mandatory requirement of Article 166 of the Constitution of India as it has not been issued in the name of the Governor and also it does not communicate the decision of the State Government. Reliance in this regard is placed on the Division bench judgment of this Court in the case of Rajeev Sharma and others vs. State of U.P. and others, 1990 (1) UPLBEC 732 (paras 8 to 11). (v) The impugned general order dated 23.7.2012 is vague and does not record any reason. (vi) The classification made under the impugned order dated 23.7.2012 for exclusion of certain categories of employees of local bodies is not on the basis of appointment but on the basis of funding by the Central Government and orders of High Court. The contractual employees have not been excluded from the operation of the impugned Government Order because of alleged financial burden, which is not a valid classification and thus hit by Article 14 of the Constitution of India. Safai karmies, even though, appointed in the manner as petitioner were appointed, have been excluded from the operation of the impugned order while the petitioners have not been excluded which is discriminatory. (vii) The petitioners of Writ Petition No. 40236 of 2012 were regularized by an order dated 25.10.2011 i.e. prior to the issuance of impugned Government Order dated 23.7.2012 and as such dispensing with their services under the impugned Government Order without affording opportunity is not only illegal but also violates principles of natural justice. (viii)Some similarly situated persons have been permitted to continue and thus, the petitioners cannot be discriminated. (ix) After termination of services of the petitioners, the respondents have taken services by outsourcing through contractors on higher payments. This shows the need of hands on one and on the other hand arbitrary approach of the respondents to oust the petitioners from service. Reliance is placed on the judgment of Hon'ble Supreme Court in the case of Kumari Shrilekha Vidyarthi and others Vs. State of U.P., (1991) 1 SCC 212 (paras 18, 19 and 20). (x)The appointments of employees is the sole discretion of Chairman under Section 70 and 71 of the Act of 1916 and, therefore, the State Government has exceeded its power to issue the impugned Government Order dated 23.7.2012. (xi) The Government Orders relied by the respondents cannot be enforced merely against the petitioners while leaving others. (xii) The government order dated 16.6.1999 filed as annexure no. 1 to the supplementary rejoinder affidavit dated 6.5.2014 provides that no new post be created during the financial year 1999 -2000 and wherever necessary the work be taken on contract basis. Thus prohibition of non engagement of dailywagers / contract employee was lifted by the said government order dated 16.12.1991 became in operative.
(3.) SRI Rashtrapati Khare, submits that the petitioners are daily wagers engaged on contract basis and they have been serving since long and therefore, they cannot be ousted in one stroke without any prior intimation and opportunity. He relied upon the judgment of Hon'ble Supreme Court in the case of H.S. Rajashekhara Vs. State of Mysore, JT (2011) 13 SC 325, judgment of this Court in the case of State of U.P. and others Vs. Kamlesh Kumsar Tripathi and another (2012) 4 UPLBEC 3245 and judgment of High Court of Jammu and Kashmir in the case of Tayub Leharwal Vs. State of Jammu and Kashmir, (2007) 1 LLJ 199. Sri Satyaprakash Mishra, and other learned counsels appearing in different writ petitions have adopted the arguments of Sri Ashok Khare.;