Shobha Dikshit, J. - (1.) Being aggrieved by the termination of services through an oral order the petitioner has approached this Court under Article 226 of the Constitution of India with a prayer to issue a writ of mandamus commanding the opposite parties not to give effect to the said impugned order dated 25-7-1991 and to treat him in service continuously and pay salary along with all other allowances etc., to which he is entitled as such.
(2.) The brief facts of the case are that the petitioner a Diploma Holder in Civil Engineering, was appointed and posted as Surveyor (Junior Engineer) with effect from 20-12-1985 by an order passed by opposite party No. 5 and since then he is continuing to perform and discharge his duties to the entire satisfaction of the opposite parties. A copy of the certificate issued by the concerned Assistant Engineer, Provincial Divisien P. W. , Sultanpur dated 29-3-1989, certifying that the petitioner is continuously working with effect from 20-12-1985 on daily wages of Rs.18/- per day, as also another work order dated 24-5-1989 has been annexed as annexures 1 and 7 to the writ petition. Petitioner has also annexed a list of employees on daily wages of different categories who were also working in the concerned division fer more than three years as on 1-4-1989 wherein the name of the petitioner finds place as Surveyor and his date of appointment has been mentioned as December, 1985. It has further been averred that while the petitioner was working as such a letter/circular dated 4-4-1989 was issued from the office of the Engineer-in-Chief in respect of appointment of daily wage employees. By this letter all the concerned Chief Engineers, Superintending Engineers and Executive Engineers were directed to prepare a list of all such employees appointed prior to 1-1-1989. It was further clarified that it was not the intent of the letter dated 16-1-1989 that the services of such employees be terminated. Since there appeared some misunderstanding in this regard in some of the Divisions therefore, it was clarified that no such employee who has completed three years continuous service as on 1-4 1989, shall be removed and be absorbed against other work, and in case by mistake any such person has been removed he be recalled. Pursuant to the said circular, petitioner, vide his application dated 24-10 1990, applied for absorption/regularisation of his services along with some other similarly situated employees. The concerned Executive Engineer made an endorsement on this application also certifying that the petitioner had completed three years of continuous service as daily wager. The Chief Engineer, vide letter dated 15-11-1990 instructed the Superintending Engineer to permit the petitioner, Diploma Holder, to continue to work in supervisory capacity till the requirement from other Division is not received. The Executive Engineer of the concerned Division at Sultanpur, vide his letter dated 23rd November, 1990 informed the Chief Engineer that the petitioner Pankaj Kumar along with two others has been working with effect from December, 1985, as Surveyor in the Division but since the work of Survey has been completed in the area, therefore, necessary directions be issued as to whether they could be transferred to any other Division or be permitted to continue here, in.that event payment of salary/wages 'be paid' from this Division itself. While this correspondence was going on opposite parties stopped the payment of salary/wages to the petitioner with effect from January, 1991, without waiting for the reply in this regard. In the aforesaid circumstances the petitioner and some other similarly situated persons made another representation before opposite party No. 5 dated 7-2-1991 that they have not received salary/ wages inspite of assurance in this regard hence they are facing lot of financial difficulty. They requested for release of their salary. When, inspite of the aforesaid request, neither the salary of the petitioner was released nor orders for regularisation of his services were passed, the petitioner approached this court by filing the instant writ petition with the grievance that inspite of Circular dated 4-4-1989 the services of the petitioner are not being regularised and he is not being paid salary in the most arbitrary and illegal manner. This Court vide its interim order dated 1-8-1991 directed the opposite parties that the services of the petitioner shall not be treated to have discontinued on the basis of any oral orders passed by them and the petitioner shall be allowed by them to continue to work and pay him salary regularly every month.
(3.) The opposite parties did not permit the petitioner to work and filed a short counter affidavit dated 11-9-1991 taking the stand that the services of the petitioner were purely on daily wages and he had not worked continuously as claimed by him. He was provided work of Surveyor as and when the same was available. Since the work of Surveyor was no more available, therefore, his services were not engaged after February, 1991. It has however been admitted that petitioner worked with opposite parties with effect from 20-12-1985 to 28-2-1991 but not continuously. A chart has been annexed giving the details of his engagement and disengagement A perusal of the same shows that the petitioner worked continuously practically fer whole of the year in 1986, 1987, 1988 and 1989 except short breaks In 1990 he worked from January, 1990 to 31st March and then from June to 31st December, 1990 i. e., more than 240 days.;