Shaik Hussain Saheb vs Women and Child Welfare Officer, Service Home, Nelore and others

Questioning the termination of the services of the petitioner as Night Watchman by the first respondent in Memo No.54/Esst-AI/95 dated 17-4-1995, this writ petition was filed. This Court while admitting the writ petition on 19-6-1995 directed the maintenance of status quo with regard to the services of Night Watchman in the office of the first respondent pending further orders on the petition. Subsequently, the then incumbent filed a counter on 29-11-1995 wherein she categorically stated that the petitioner was appointed in clear vacancy of Night watchman out of the candidates sponsored by the Employment Exchange pursuant to her requisition dated 19-10-1993. She also stated that she obtained necessary permission of the second respondent i.e., Commissioner before making the appointment and the matter was brought to the notice of the Commissioner, who in turn addressed a letter to the Government dated 26-10-1995 to ratify the action of the first respondent. But, unfortunately the Principal Secretary, instead of approving the orders issued, terminated the services of the petitioner and sought explanation for the irregular appointment made by her.

Though the petitioner was continuing in service by virtue of the interim orders of this Court, the respondents seemed to be not paying salary due to him. In these circumstances, petitioner filed WPMP : 1708 of 1998 seeking direction to the respondents to pay the salary due to him and the interim direction as prayed for was granted by this Court on 26-2-1998. On 15-7-1999 i.e., nearly after 5 years of admission of writ petition and 1 1/2 years after the interim direction to pay the salary was given the successor-in-office of the first respondent filed vacate stay petition by filing a separate counter and taking a different stand from that of predecessor in office. In the counter, she stated that the petitioner was never appointed in a regular vacancy and the appointment of the petitioner is contrary to Act 2 of 1994. Stating so, she sought vacation of the interim orders granted by this Court. As the incumbent has taken contrary stand, by order dated 6-8-1999 I directed the present incumbent to appear in the Court alongwith the file relating to the appointment of Night Watchman. From the file produced by the first respondent, it is now seen that from time to time, the Government was issuing orders for continuance of temporary employees appointed in the office of the Commissioner and other offices of women Development and Child Welfare and one such order G.O. Rt. No.171, dated 29-5-1995 is available in the file and the post of Watchman was shown in the Annexure. But, the first respondent tried to substantiate her statement that while pay-scales were given for other posts, as far as the post of watchman is concerned, she simply stated that he has to be appointed from the local market. I do not know what is meant by ''local market'' and it is as if the people are available for purchase on the street. Pursuant to the sanction of the post, the then incumbent sent a requisition to Employment Exchange to sponsor the names of eligible candidates for appointment as watchman on daily wages as per the Rules and the petitioner was appointed after the selection process was over. From this it is seen that the petitioner was appointed in a clear vacancy of Night Watchman though on daily wages and this Court time and again deprecated the practice of appointing the staff on daily wages. In a Welfare State, the State is expected to be a model employer to others. Hence, the contention of respondents that the petitioner was appointed not in a regular vacancy has no legs to stand and accordingly, it is rejected.

Coming to the second contention that the appointment of petitioner is contrary to Act 2 of 1994, I have no hesitation to hold that Act 2 of 1994 applies to cases where appointments have taken place when there is no sanctioned post. But, in this case, admittedly the Government sanctioned the post of Night Watchman from the time of inception of first respondent''s office. Hence, the respondents cannot press Act 2 of 1994 in support of their illegal actions. Both contentions are accordingly rejected.

It is now on record that the petitioner is working on daily wages at Rs.30/-much less than the wages fixed by the benign Government under the Minimum Wages Act. The officers of the Government think that the said notification won''t apply to them and they can hire and fire the employees exploiting the prevailing unemployment in the country. Hence, a direction is given to the respondents to regularise the services of the petitioner as Night Watchman forthwith and pay the time scale attached to the post. The respondents are given eight week''s time from the date of receipt of this order to implement the orders of this Court. Any deviation will be viewed seriously. The writ petition is accordingly allowed. No costs.

That Rule Nisi has been made absolute as above.