ORDER
N.G. Nandi, J.
1. In this writ petition under Article 226 of the Constitution of India, petitioner prays for the quashing of the office orders dated 20.12.1995 and 4.7.1996 (Annexures ‘B’ & ‘C-1’) whereby the petitioner’s claims for tempo-rary status as Peon and regularisation of his services in the post of Peon on regular basis as and when vacancy is available in the Secretariat of the National Commission for Minorities (hereinafter referred to as ‘the Commission’) which have been rejected And for direction to grant petitioner temporary status from the date of his initial appointment on regular basis on the post of peon with pay in accordance with law with arrears.
2. The say of the petitioner is that the petitioner was appointed on 7.7.1993 as a Peon on daily wage basis and since then the petitioner has been continuously working till today without any break; that the petitioner had completed 240 days in a year sometimes in March 1994 and according to the existing instructions of the Department of Personnel and the law laid down by the Supreme Court, petitioner is entitled to get temporary status on completion of 240 days; that the petitioner’s request for grant of temporary status was not only turned down but the respondent adopted unfair labour practice by issuing impugned order dated 20.12.1995 in colorable exercise of power to remove the petitioner from the service; that though the petitioner was appointed as a Peon on daily wage basis in the office order dated 20.12.1995, the petitioner has been described as a Peon on co-terminus basis with the term of the office of the Chairman of the Commission; that the petitioner has worked satisfactorily without any complaint against him; that the petitioner’s representations (Annexures ‘C’, ‘D’, ‘E’) have been illegally and malafidely turned down by the respondents.
3. The respondent vide counter-affidavit states that the Chairman and Members of the Commission have the prerogative to appoint their personal staff from any source of their choice as per the rule of procedure laid down by the Commission; that the term of such office is co-terminus with their tenure; that such a staff has no claim for regular appointment in the Commission, that under this prerogative, the Chairman initially engaged the petitioner on Daily Wage Basis w.e.f. 7.7.1993 against one of the Posts of Peon on co terminus basis in his office; that he was, however, formally appointed by the Chairman as a Peon on co-terminus basis from the date of his initial engagement w.e.f. 7.7.1993: that the applicant was also drawing his pay and allowances in the prescribed pay scale of the post of Peon on co-terminus basis; that consequently upon the Chairman demitting the office, the Chairman terminated the services of the petitioner w.e.f.
20.7.1996 (F.N.); that the petitioner was thus not engaged by the Government but by the Chairman of the Commission in his own capacity against one of the co-terminus vacancy in his office; that as the petitioner has been appointed by one of the member of the Commission on co-terminus basis as per his prerogative and, therefore, he is not entitled to any of the reliefs claimed in the petition.
4. It is submitted by Mr. B.K. Aggarwal, learned counsel for the petitioner that the petitioner was not appointed on co-terminus basis and therefore, his appointment cannot be terminated on the Chairman demitting the office; that the reason for treating the petitioner’s service as co-terminus with the tenure of the Chairman is because the petitioner requested for temporary status and absorption in service as a regular employee as he has completed 240 days in March 1994; that the respondent has been adopting unfair labour practice and the petitioner is entitled to temporary status and also regularisation of his service in the post of Peon on regular basis as and when the vacancy arises.
5. It is submitted by Mr. M.M. Sudan, learned counsel for the respondents that the Chairman of the Commission inducted this petitioner as Peon as his personal staff and the services of the petitioner is co-terminus with that of the Chairman and on Chairman demitting his office, the petitioner’s service is liable to be terminated.
6. In para 7 of the writ petition, it has been averred that the petitioner gave representations dated 10.10.1995, 26.12.1995 and 27.12.1995 (Annexures ‘C’, ‘D’, ‘E’ respectively). Perusal of Annexure ‘C’ suggests that the same is the representation dated 10.10.1995 by this petitioner to the Chairman of the Commission, inter alia stating that the petitioner has been working as a Daily Wage Peon w.e.f. 7.7.1993 and that the Petitioner be granted temporary status so that whenever any permanent vacancy arises in the office, he may get a chance of regularisation.
Annexure ‘D’ is the representation dated 26.12.1995 by the petitioner, addressed to the Secretary of the Commission stating that petitioner has been working as a Peon in the office of the Commission on daily wage basis since 7.7.1993 continuously and according to the instructions issued by the D.O.P., he is entitled to temporary status having completed 240 days in a year but the same has not been done. In this representation, the petitioner requested for grant of temporary status to him from the date he is entitled to the same in the post of Peon and make him regular employee so that he may have all the benefits emerging from the post on regularisation as well as temporary status.
Annexure ‘E’ is the copy of the representation dated 27.12.1995 by the petitioner, addressed to the Chairman of the Commission wherein the petitioner has also referred to his representation dated 10.10.1995 (Annexure ‘C’) and same request as in Annexure ‘C’ and ‘D’ has been repeated.
7. It is not in dispute that the petitioner has been working as a Peon on daily wage basis in the Commission at the residence of the Chairman.
8. Annexure ‘P’ is the photostat copy of the noting viz. extract from F.No. 32-6/93-GSS. The relevant portion reads:-
“What about Sh. Bhagwati Pd. How his payment is being regulated and what will be its implication?
Sd/-
Under Secretary
24.3.94″
“Though the guidelines specifically provide that person on daily wages should not be recruited for work of regular nature, this appointment of Shri Bhagwati Prasad seems to be special dispensation keeping in view the requirement and status of Hon’ble Chairman. However to ensure that he does not stake claim for temporary status after completion of one year i.e. rendering of a continuous of service of 206 days, he should perhaps be given a break in service. This aspect may be brought to the knowledge of P.S. to Chairman, if approved pl.”
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“Continued engagement of Sh. Bhagwati Pd. with payment of wage, with reference to minimum of the pay scale for corresponding regular Group `D’ employes may give rise to another court case on completion of 206 days continuous service. Incidentally it may be added that court does not take cognizance of short spell of break given to a daily wages.”
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“It is suggested that Sh. Bhagwati Pd. may either be appointed on co-terminus basis with the Chairman against the available vacancy so that he may be paid wages applicable to casual labour at the rates prescribed by Local Govt. which are less than the rates regular Daily Wager so that he may not be able to stake a claim of performing duties of regular Group `D’ employees.”
9. It may be seen from the above reproduced relevant portion from the extract F.No. 32-6/93-GSS that with a view to ensure that the petitioner does not stake his claim for temporary status after completion of one year i.e. rendering a continuous service of 206 days it was first thought that he should be given a break in service. It is also suggested from the above that the petitioner may either be appointed on co-terminus basis with the Chairman against the available vacancy or he may be paid wages as applicable to casual workers at the rate prescribed by local Government which is less than the rates of regular Daily wagers so that he may not be able to stake claim of performing duties as regular Group ‘D’ employee. It is also suggested that the petitioner was performing the duties of regular nature dispensing with the guide-lines providing that person on daily wages should not be recruited for work on regular nature keeping in view the requirement
and status of the Chairman. Thus, the proposed exercise disclosed in Annexure ‘P’ was with a view to ensure that the petitioner does not stake his claim for temporary status after completion of one year i.e. rendering continuous service of 206 days.
10. Admittedly, the petitioner has been working as a Daily Wager from 7.7.1993. The petitioner as suggested from representations Annexures ‘C’ ‘D’ & ‘E’ requested for conferment of temporary status in the post of Peon and absorption as a regular employee with all benefits. It was on 24.3.1994 after more than six months of the induction of the petitioner as a Peon on daily wage basis, the Under Secretary, raises the questions as suggested from Annexure ‘P’ reproduced above and thereafter various suggestions as pointed out above to ensure that the petitioner does not stake claim for temporary status after continuous service of 206 days.
11. It is in background of the facts emerging as pointed above, the impugned order dated 20.12.1995 (Annexure ‘B’) comes to be passed whereby the petitioner is stated not entitled to claim for permanent absorption in the Secretariat of the Commission. What has been stated in Annexure ‘B’ is that the appointment of the petitioner shall be co-terminus with the tenure of the office of the Chairman of the Commission. It is pertinent to note that for the first time vide office order dated 20.12.1995 (Annexure ‘B’) it comes to be communicated to the petitioner that his appointment shall be co-terminus with the tenure of the office of the Chairman of the Commission. It is not suggested from the record nor is the say of the respondent that on 7.7.1993 or soon thereafter, when the petitioner was inducted in the service of the Commission as Peon on daily wage basis it was communicated to the petitioner that his service is co-terminus with the tenure of the office of the Chairman. It may bare repetition to state that the petitioner stake his claim for conferment of temporary status as a peon vide representation Annexure ‘C’ dated 10.10.1995 though the noting in the photocopy of the extract F. No. 32-6/93/GSS starts from 24.3.1994 till 2.8.1994, the impugned office order dated 20.12.1995 (Annexure ‘B’) does not see the light of the day and it is vide Annexure ‘B’ that the claim of the petitioner for permanent absorption in the Secretariat of the Commission has been rejected. If the appointment of the petitioner was co-terminus with the tenure of the office of the Chairman of the Commission, then in that case, the appointment order issued to the petitioner as Peon on daily wage basis ought to indicate that the said appointment is co-terminus with the tenure of the office of the Chairman. No appointment order appointing the petitioner as a Peon on daily wage basis comes forth on the record. I am at a loss to understand as to how by the impugned order Annex-
ure ‘B’ dated 20.12.1995, the services of the petitioner can be treated co-terminus with the office of the Chairman after the petitioner has worked as a Peon on Daily Wage basis for almost two and half years since he is admittedly inducted as Peon on daily wage basis w.e.f. 7.7.1993. Even in spite of the noting till 2.8.1994, it does not occur to the respondent to pass office order treating the appointment of the petitioner as co-terminus with the office of the Chairman. It is obvious from the facts emerging as discussed above, it is only after 10.10.1995 when the petitioner claimed temporary status as a Peon Vide Annexure ‘C’ that occurred to the respondent to treat the appointment of the petitioner to be co-terminus with the tenure of the office of the Chairman of the Commission. In other words making appointment of the petitioner co-terminus with the office of the Chairman with retrospective effect in the sense that appointment would
become co-terminus with the term of the office of the Chairman from the initial date of induction of the petitioner in the office of the commission i.e. 7.7.1993.
12. In my opinion, the respondents cannot be allowed to treat the appointment of the petitioner co-terminus with the tenure of the office of the Chairman Vide impugned order dated 20.12.1995 (Annexure ‘B’) after the petitioner has worked as a Peon on daily wage basis for nearly two and half years. In the light of the facts as reproduced above, the impugned order smacks of mala fide passed not only with a view to deprive the petitioner of the benefits as Peon who has worked as daily wager continuously for a period of one year i.e. 206 days and the noting reproduced above and Annexure ‘C’ dated 10.10.95 clearly indicate the motive for passing the impugned order.
13. In the case of Kehar Singh Vs. Electronics Corp. of India & Ors., 43(1991) Delhi Law Times page 13, the Division Bench held that the employee working for 13 years as Helper with work and conduct satisfactory would be entitled to regularisation of his service and the insistence of registration from Employment Exchange held not proper.
14. In view of the facts as discussed above and the principle laid down in the case of Kehar Singh Vs. Electronics Corp. of India & Ors., (supra), the impugned order dated 20.12.1995 (Annexure ‘B’) and the office order (Annexure ‘C-1’) dated 4.7.1996 are liable to be quashed and the petitioner entitled to the relief claimed.
15. In the result, writ petition is granted. The impugned order dated 20.12.1995 (Annexure ‘B’) and impugned order dated 4.7.1996 (Annexure ‘C-1’) are hereby declared illegal and quashed. The respondent is hereby directed to grant to the petitioner temporary status as the Peon on his completing continuous service of 206 days. With a further direction to pay wages including arrears within three months from today. The respondent is also directed to regularise the services of the petitioner as Peon on regular basis as and when vacancy of regular Peon becomes available.
16. The respondent shall pay cost to the petitioner in this petition quantified at Rs. 5000/-.