- (1.) I. M. Quddusi, J. By means of the present writ petition the petitioner prayed For a writ of mandamus commanding the opposite parties to allow the petitioner to work as Safai Karamchari and to pay the salary after setting aside the termination order, if any and further to regularise the services of the petitioner on the post of Safai Karamchari with effect from the date of regularisation of his (sic) juniors i. e. 1981.
(2.) THE brief facts of the case are that the petitioner was initially appointed on the post of Safai Karamchari on daily wages basis in the year 1969, at District Jail Hardoi. Earlier the Superintendent District Jail Hardoi was within the Administrative con trol of Central Jail Fatehpur but at present it is under the administrative control of Su perintendent, Model Jail, Lucknow. Ac cording to the respondents she did not work continuously and she was disengaged on 24-9-1993 in pursuance of the order of the Inspector General (Prisons) dated 10-9-1993 by way it was ordered' that the daily wages employees should be disengaged. She was also appointed against a regular post in the month of February, 1981, April to July, 1981 but she was never given regular ap pointment. In the counter affidavit a chart has been filed showing the breaks but the same are shown during the months of May, 1975, February, 1978, April, 1979 and June, 1980 to August, 1980, November, 1980 to January, 1981, September, 1981, March 1982 to August, 1982 October, 1982 and November, 1982, February, 1983 to Decem ber, 1983, March, 1984, May 1984 to July 1984, September, 1984 to December, 1985, February 1986, March, 1986, May, 1986 to December, 1986, February, 1987 to May, 1987, August, 1987 to November, 1987, January 1988 to June 1988, August, 1988, September, 1988 and November, 1988 and so on till September, 1993. A perusal of the chart would show that there are small artifi cial breaks in the service of the petitioner. In the mater of State of Haryana and others etc. v. Piara Singh and others etc. the Hon'ble Supreme Court has held that if a casual labourer is continued for a fairly long spell of 2 or 3 years a presumption may arise that there is a regular need for his service and in such a situation it becomes obligatory for the concerned authority to examine the feasibility of his regularisation. The relevant gortion of the judgment of Hon'ble upreme Court is quoted below: "so far as the work-charged employees and casual labour are concerned, the effort must be to regularise them as far as possible and as early as possible subject to their fulfilling the qualifica tions, if any, prescribed for the post and subject also to availability of work. If a casual labourer is continued for a fairly long spell-say two or three years-a presumption may arise that there is regular need for his services. In such a situation, it becomes obligatory for the concerned authority to examine the feasibility of his regularisation. While doing so, the authorities ought to adopt a positive approach coupled with an empathy for the person. As has been repeatedly stressed by this Court, security of tenure is necessary for an employee to give his best to the job. In this behalf, we do command the orders of the Government of Haryana (contained in its letter dated 6-4-90 referred to hereinbefore) both in relation to work-charged employees as well as casual labour. We must also say that the orders issued by the Governments of Punjab and Haryana provid ing for regularisation of ad-hoc Aemporary employees who have put in two years/one year of service are quite generous and leave no room for any legitimate grievance by any one. " In the matter of Bhagwati Prasad v. Delhi State Mineral Development Corpora tion, (JT 1989 (4) S. C. 541), the Hon'ble Supreme Court has held that three years experience, ignoring artificial break in ser vice for short period/periods created by the respondent, in the circumstances, would be sufficient for confirmation. If there is a gap of more than three months between the period of termination and reappointment that period may be excluded in the computa tion of the three years period. Since the petitioners satisfied the requirement of three years' service as calculated above, a direction was issued that 40 of the seniormost workmen should be regularised with immediate effect and the remaining 188 petitioners should be regularised in a phased manner.
(3.) IT is the admitted case of the parties that the petitioner has been working since 1969 on daily wages basis and she was or dered to be disengaged in pursuance of the order dated 10-9-1993 passed by the Inspec tor General (Prison) to the effect that the daily wages employees should be dis engaged. This has not been mentioned in the counter affidavit as to whether while the Inspector General of Prison had knowledge that some persons or at least the petitioner is there who is working from 1969 on daily wages basis. On 22-11-1993 this Court while passing the interim order directed that if the facts stated in the writ petition that the petitioner is working from 1969 on daily wages is correct and the post is available, the petitioner may be permuted to continue to workandbepaidher wages regularly. This is not the case of the respondents that her services were not required by them. She was a Safai Karmachari and hence it cannot be said that the services of a Safai Karmachari is not required by the respondents.;