JUDGMENT
S.K. Singh, J.
1. Display in this petition is the unfortunate departure of the petitioner in the year 2001 who claims himself to be associated with the respondent Bank having been engaged as daily wager (as a messenger in Class IV category), in the year 1981. Petitioner on the premises of his continuance for this long time laid a claim of regularisation. A decision has been taken by the respondent No. 1 pursuant to the direction of this Court dated 31.1.2002 as given in Writ Petition No. 2978 of 2001. By the impugned order dated 17.2.2001 petitioner’s claim for regularisation stood rejected and further as stated in the writ petition, to continue in any capacity his fate has been sealed. In view of the exchange of pleading between the parties, as prayed from both side the matter has been heard on merits and is taken up for final decision.
2. Sri R.C. Shukla, learned Advocate for the petitioner and Sri Navecn Sinha, learned Senior Advocate assisted by Sri Vipin Sinha appearing for the respondent Bank have been heard.
3. The fact as has been stated on behalf of the petitioner can be summarised thus :
Petitioner was engaged as messenger in Class IV category in the year 1981 as daily wage employee and was paid Rupees Ten per day. It is stated that pursuant to the advertisement dated 20th August, 1991 for making permanent appointment from amongst temporary employees, petitioner was interviewed on 18.11.91 in which he successfully qualified. Thereafter as several years intervened and the petitioner was not offered permanent post he represented upon which on 29.12.94, Respondent No. 2 responded by sending communication to the petitioner stating that regional office has informed that as and when in future vacancy will arise for regularising temporary employees petitioner will also be informed according to his seniority. As even thereafter petitioner could not get any result he kept on representing his claim upon which respondent No. 2 made a recommendation to the respondent No. 1 for considering petitioner’s claim sympathetically. When even thereafter nothing transpired petitioner came to this Court by filing Writ Petition No. 2978 of 2000 in which direction was given on 31.1.2001 for deciding petitioner’s claim and it is thereafter the impugned order dated 17.2.2001 came into existence which besides dislodging petitioner of his claim, as stated in Para 30 of the writ petition even restrained the petitioner from even entering the Bank premises and thus petitioner has been deprived of the small amount which he was receiving while working in the capacity of even allegedly as a Canteen Boy. Which is now being averred by the respondents in the counter affidavit.
4. Learned Counsel for the petitioner submits that the impugned decision as has been taken by the respondent No. 1 rejecting the petitioner’s claim is totally illegal, arbitrary, whimsical and is not at all warranted on the facts of the present case. Learned Counsel submits that petitioner was in fact engaged in the year 1981 itself as messenger in Class IV cadre as daily wage employee and subsequently he continued to work as such. Learned Counsel submits that as petitioner was working as daily wager even in the temporary capacity, pursuant to the advertisement dated 20th August, 1991, petitioner was permitted to appear in the interview in which he was found to have qualified/succeeded and therefore, respondents in repelling petitioner’s claim have acted in illegal manner. Learned Counsel submits that after such long years, respondents cannot be permitted to say’ go-bye to the petitioner on the own merits of the petitioner’s claim and also in view of continuance of Mahatma Misra and Gore Lal who were engaged by the respondents much after the petitioner to whom also respondents states that they happened to be Canteen Boy. Learned Counsel submits that petitioner is entitled to be regularised and to continue in service as Class IV employee. In support of the submission that after such a long time respondents cannot be permitted to deprive the petitioner of his rights, and they could not go back to their promises, reliance has been placed on the decisions reported in (1981) 2 SCC 673, Bhim Singh and Ors. v. State of Haryana; AIR 1992 SC 2130, State of Haryana v. Piyara Singh; (1995) 3 UPLBEC 1410, Satyadeo Misra v. Stale of U.P.; (1999) 2 UPLBEC 1136, Madhav Prasad Dubey v. Ex. Engineer.’PWD; (1999) 3 UPLBEC 2297 (Alld.), Bimal Chand Pandey and Ors. v. Eng. In Chief Standing Counsel, PWD and Ors.; (2000) 1 UPLBEC 129, Awadhesh Kumar Yadav v. Divisional Forest Officer, Mainpuri and Ors.; (2001) 2 UPLBEC 1435, B.C. Yadav (Dr.) v. The Director of Education Alld. and Ors. and (2000) 3 UPLBEC 2200 (SC), G.B. Pant University of Agriculture and Tech., Nainital v. State of U.P. and Ors.. Learned Counsel further refers to decision given in (2000) 3′ UPLBEC 2200 to submit that Hostel, Canteen Staff has a right of regulansation to the service.
5. In response to the aforesaid submission, learned Counsel for the respondents submits that in fact petitioner was never engaged by the Bank and he never happened to be an employee of the Bank in any capacity i.e. either daily wager-temporary or causal. It is pointed out that for the benefit of the staff members of the Bank at the Branch level and also at the administrative office, facility of canteen is provided. It is submitted that such canteens, as set up in the branch remains non-statutory and non-recognised canteen and the persons working therein are controlled by the Local Implementation Committee and they are neither employee of the Bank nor do they discharge duties under the control of the Bank. In view of the aforesaid it is submitted that the petitioner happened to be the staff of the canteen and if sometimes petitioner was entrusted any smaller work of the Bank like that of messenger etc. petitioner cannot take any advantage of that by laying claim of being the Bank employee in any capacity. Learned Counsel submits that petitioner on the facts has no claim for regularisation as he was engaged at the canteen run by the Local Implementation Committee. Learned Counsel in support of the submission that canteen employee has no right and claim against the Bank has referred decision given by the Apex Court in State Bank of India v. State Bank of India Canteen Employees Union, reported in AIR 2000 SC 1518. In support of the submission that inclusion of the name of any person in the panel confers no right to claim appointment, reliance has been placed on the decision given in (2001) 6 SCC 380, All India SC and ST Employees Association and Anr. v. A. Arthurjeen and Ors.; IT 1998 (6) SC 355, Rani Laxmibai Kshetriya v. Chand Behari Kapdor and Ors. etc.; (1998) 1 SCC 487, Government ofOrissa through Secretary, Commerce and Transport Department, Bhubaneshwar v. Haraprasad Das and Ors. and (1997) 6 SCC 584, Syndicate Bank and Ors. v. Shankar Paul and Ors..
6. In view of the aforesaid submission as has come from both sides, pleadings and the materials has been placed before this Court have been examined.
7. Submission of the learned Counsel for the respondent that petitioner being Canteen Boy his claim needs no attention as has been held by the Apex Court in case of State Bank of India (supra) requires less attention on the facts of the present case and for the reasons hereinafter as contained. On the facts it appears to be clear case in which it can be safely said that so far fact as stated in the counter affidavit and the submissions based thereupon appears to be not an honest exercise on the part of the respondent. The rejection of the petitioner’s claim by the impugned order contains no whisper about the petitioner being a Canteen Boy having been engaged by the Local Implementation Committee having no right as has been pleaded in the counter affidavit. Nothing prevented to the respondents from giving reason that petitioner happened to be Canteen Boy which could have been sufficient for rejecting the petitioner’s claim. Instead of giving that reason, respondent have mentioned in the impugned order that panel in which petitioner’s name was included in the year 1991 lapsed/expired on 31st March, 1997 and therefore Bank is not in a position to accept the petitioner’s request. This appears to be sole reason in the impugned order. It is in the background of the aforesaid reason in the impugned order, stand as has been taken in the counter affidavit on which the main emphasis has been given by the learned Counsel for the respondent is to be considered. Admittedly the advertisement was made in the daily newspaper on 20th August, 1991 by the respondent Bank inviting applications from the temporary employee of the Bank to get permanent appointment. The interview letter as has been issued to the petitioner dated 28th October, 2001 (Annexure-1 to the writ petition) confirms the participation of the petitioner in the interview before the committee on 18.11.1991. The interview letter referred above contained its heading-
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8. In view of the aforesaid it appears to be one of the circumstance to infer that the respondent have treated petitioner to be temporary staff of the Bank, It is also clear from the own document of the respondents which have been brought on record by the petitioner by way of rejoinder affidavit as RA-I and RAA-I by which it is clear that the canteen staff is not to be permitted to discharge any kind of even light work concerning to the Bank. Strict directions have been given in the orders issued by the competent authority in this respect. Voluminous documents filed by the petitioner alongwith writ petition (Annexure-5 to the writ petition) and also in the rejoinder affidavit clearly demonstrate that petitioner has been discharging the work concerning to the Bank from time to time almost on all the occasions which is attached to the post of a messenger as well as various other miscellaneous work. The action of the respondent of taking various kind of miscellaneous work attached to the Bank work which has been specially prohibited, also cast a serious doubt on the respondents version as has been taken in the counter affidavit. Petitioner has also demonstrated by filing the documents (Annexure-4 to the writ petition) the payment to the petitioner by cheques and also in cash continuously right from the year 1997 onwards. Petitioner has clearly stated in the writ petition that Mahatma Misra and Gore Lal are still continuing and have been absorbed in the service. Although the factum of observation has been denied by the respondents in Para 48 of the counter affidavit but it has not been specifically defied that they happened to be junior than the petitioner. During the course of the arguments and on the basis of the facts so stated in the supplementary counter affidavit itself, it is clear that in favour of Gore Lal Labour Court has given award for his re-instatement and although writ petition has been filed by the respondents before this Court but he is working. In view of this it will be clear that junior to the petitioner has been permitted to continue. Petitioner can get further strength in respect to his submission also from the letter of the respondent No. 2 which is based upon the communication from the regional office itself which states that as and when vacancy will come into existence petitioner will be informed according to his seniority. In the event petitioner has no concerned with the Bank working and he was not being treated at any point of time to be a Bank staff in any capacity there was no reason or any occasion for the respondent No. 2 to give that information to the petitioner and that too having a direction from the regional office. Similarly respondent No. 2 has again made recommendation in petitioner’s favour on 26.12.2000 for consideration of his claim. This also appears to be strange on the part of the respondents that respondent No. 2 is not aware about the legal position that the Canteen Boy is not be accommodated and therefore, making of recommendation by the respondent No. 2 coupled with the information dated 29.12.94 (Annexures-3 and 9 to the writ petition) can be added to the petitioner’s submission about his status in whatsoever capacity in the Bank. While rejecting the petitioner’s claim also respondent No. 1 clearly mentioned that petitioner’s name was included for placement, as a messenger in the panel of the messengers drawn up in the year 1991 which was admittedly prepared pursuant to the advertisement dated 20th August. 1991, which related to give permanent appointment to the temporary employees/staff of the Bank. In fact respondent No. 1 while passing the impugned order has assigned the sole reason of expiry of the life of the panel and thus the contention for rejection of the petitioner’s claim in the counter affidavit and in the arguments on the premises of petitioner being Canteen Boy, deserves rejection.
9. Respondents while filing detailed counter affidavit and supplementary counter affidavit has not been able to file any document to demonstrate that petitioner was engaged by Local Implementation Committee as Canteen Boy but for few cheques which appears with the seal of the President of Local Implementation Committee, this Court feels that few cheques having been annexed alongwith counter affidavit cannot override own conduct of Bank Officials, promises and specific recital in various letters sand recommendations. They are clearly bound by the fact as mentioned in the interview letter and other documents as referred in the aforesaid discussion. In view of the aforesaid, it is clear that petitioner has been permitted to discharge various kind of work attached to the Bank working from time to time in whatever capacity it can be argued from the side of the respondents. Petitioner remained associated with the Bank for last so many years. It is also clear that the petitioner was found successful in the interview which took place in the year 1991 which was for the purpose of giving permanent employment to the temporary employees/staff of the Bank. It is also clear that junior to the petitioner on the basis of the award of the Labour Court is continuing as has been stated in the rejoinder affidavit and it is also confirmed in view of the submission from the side of the respondents that against the award writ petition has filed. It is in this background that petitioner happened to be in continuous engagement with respondent for quite long time, the decision as has been referred by the learned Counsel for the petitioner fully applies to the petitioner’s claim.
10. So far submission of the learned Counsel for the respondents in respect to the fact that inclusion of the name of any person in the panel in the event of no vacancy gives no right to claim appointment deserves no quarrel as so far regularisation and giving permanent appointment is concerned that is certainly always subject to availability of vacancy but so far continuance of any employee who is working with any institution for such a long time he cannot be permitted to be totally uprooted even from the engagement as daily wager/casual/temporary and therefore, petitioner must be held to be entitled to get himself continued even in temporary capacity, to work as Class IV employee.
11. In view of the aforesaid discussion, rejection of petitioner’s claim by the impugned order dated 17.2.2001 (Annexure-14 to the writ petition) deserves disapproval of this Court, but at the same time regularisation as prayed by the petitioner and also for payment of regular salary of Class IV employee straightway also needs rejection. On the facts of the present case it appears to be just and proper to give direction to the respondents to permit the petitioner to work in the Bank as Class IV employee ensuring payment atleast minimum pay scale in that cadre, subject to consideration of his claim for absorption as and when vacancy arises, considering continuity of the petitioner’s service atleast from the year 1991 when pursuant to the advertisement, petitioner succeeded and figured in panel.
12. In view of the foregoing discussions writ petition succeeds in part in the light of the direction as contained in this judgment and the impugned order dated 17.2.2001, passed by the respondent No. 1 (Annexure-14 to the writ petition) stands Quashed.
