JUDGMENT
R.K. Patra, J.
1. In this writ petition the petitioner has prayed for issuance of an appropriate direction to the opposite parties to absorb him as helper or in any other suitable post.
2. It is not necessary to discuss the facts of the case in detail for disposal of the case. Suffice it to state that when the petitioner was disengaged as Helper-cum-Pump Driver in the Institute of Physics with effect from 31.1.1996, he filed a writ petition in this Court bearing OJC No. 5014 of 1997 in which he assailed his disengagement and prayed for regularisation in service. This Court by judgment dated 19.1.1999 disposed of the aforesaid writ petition by directing the opposite parties to employ him as soon as an employment is’ made available or the second Pump House is put to operation. The specific allegation of the petitioner in this writ petition is that soon after hearing of the aforesaid case was concluded, the Director, Institute of Physics (opposite party No. 1) published an advertisement for filling up various posts including three posts of helper (Waiter), one post of helper (Bus) and two posts of helper (sweeper) which indicates that vacancy in the post of helper was available and the petitioner could be appointed against any such posts but the opposite parties deliberately suppressed the facts to deprive him of his legitimate claim.
3. In paragraph-4 of the counter affidavit filed by the opposite parties it has been stated that there are at present 16 daily wage workers as per the list at Annexure-A/1 who are doing different types of work of “permanent nature” as per the requirement dating back from the years 1986, 1987, 1988 and so on. They have averred that the post indicated in the advertisement carries its qualifications and applications received in response to it will be considered if the applicants satisfy the prescribed requirement for the concerned post. The petitioner is at liberty to apply for the concerned post. The petitioner is at liberty to apply as per the advertisement and his case will be duly considered according to the established selection procedure.
4. On consideration of the averments made in the writ petiti6n and in the counter affidavit, it is evident that the petitioner has passed High School Certificate Examination. He was initially engaged as an NMR worker on daily wage basis in the Survey Work of the Institute campus from 25.12.1990 to 14.9.1991. Thereafter, he was employed as a casual labourer on daily wage-basis in the Painting work of the residential flats from 1.6.1992 till 25.4.1993. Thereafter, he was engaged for painting work in the hostel building of the Institute from 27.7.1993 till 21.8.1993. Subsequently he was employed on daily wage basis for doing menial nature of job from 22.8.1993 to 21.5.1 994 in a temporary scientific project (PHD Lab.). He again worked as a casual labourer on daily wage basis in the Pump House of the Institute from 15.6.1994 to 31.1.1996.
5. In the advertisement at Annexure-2 three posts of helper (waiter), one post of helper (bus) and two posts of helper (sweeper) have been mentioned for which applications have been invited. The said advertisement was made in January, 1999 (the opposite parties do not specifically state the exact date of publication of the advertisement) according to which the applications were to reach the concerned authority on or before 20.1.1999. The judgment of this Court in the earlier writ petition (OJC No. 5014 of 1997) was pronounced on 19.1.1999. The question that arises for consideration is whether the plea of the opposite parties taken in the earlier writ petition that there was no vacant post against which the petitioner could be absorbed was true or not. It is common knowledge that the appointing authority first assesses the vacancy position in respect of different posts and thereafter it issues advertisement seeking applications for filling up the posts. As indicated above, the advertisement (Annexure-A/2) was published in January, 1999. It is, therefore, reasonable to infer that the appointing authority undertook the exercise of ascertaining the vacancy position by that time when the earlier writ petition of the petitioner was pending consideration. The petitioner is definitely eligible to apply for any of the posts of helper as he had passed High School Certificate Examination and the qualification prescribed in the advertisement for helpers is only Class-VIII pass. In the circumstances, we are not inclined to hold that the opposite parties did not deliberately suppress the material fact regarding vacancy position in the counter affidavit filed in the earlier writ petition which led this Court to observe in para-5 of the judgment as follows :
“On the basis of the materials available on record, we have not been able to hold that there is any employment to re-engage the petitioner nor is there any vacancy for absorption.”
To reiterate, we may state that the posts of helper mentioned in the advertisement have been lying vacant and the opposite parties did not come to the Court in the earlier writ petition with clean hands. This view of ours gets strengthened from the statement made in para-4 of the counter affidavit filed in the present case wherein opposite parties have admitted that there are 16 daily wage workers doing different kinds of work of permanent nature dating back from 1986 onwards. The said statement goes to indicate that although there is perennial nature of work, the opposite parties instead of creating posts and filling up them have been engaging persons on daily wage basis for more than 14 years which is a clear case of exploitation of labour.
6. For the aforesaid reasons, we direct opposite party No. 1 to appoint the petitioner against any of the posts of helpers referred to in the advertisement. If those posts have already been filled up. the opposite party No. 1 is directed to create a suitable post for appointment of the petitioner. We have passed this order as the opposite parties, as already indicated, have in unequivocal terms stated in the counter affidavit that there are different kinds of work of “permanent nature” in the Institute. The opposite party No. 1 will pass appropriate order keeping in view the aforementioned abservations within one month of receipt of writ from this Court.
The writ petition is allowed with cost of Rs. 1000/- (Rupees one thousand).
P.K. Patra, J.
I agree.