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Judgment
With consent of the parties, the matter is heard finally at motion stage.
Petitioner has filed the present petition challenging the order dated 26.07.2011 passed by respondent no.5 thereby cancelling the order dated 08.04.2003 by which he was permanently classified.
The petitioner was initially appointed on 01.10.1989 in the Department of Public Health Engineering. As the petitioner has completed more than 240 days and therefore, the respondents vide order dated 08.04.2003 has permanently classified the petitioner. Thereafter, the respondent no.5 has passed the order dated 24.12.2010 thereby modified the order dated 08.04.2003 and directed to treat the petitioner as Daily Rated Labour. Subsequently, the respondent no.5 vide order dated 26.07.2011 has cancelled the order dated 08.04.2003 by which the petitioner has been permanently classified. Against the impugned order, the petitioner has filed the present petition.
Learned counsel appearing on behalf of the petitioner argues that the impugned order dated 26.07.2011 is illegal and arbitrary and also in violation of the principle of natural justice. He submits that no notice or any opportunity of hearing giving to the petitioner before passing the impugned order. It has further been submitted that after completion of 240 days, the respondents department itself permanently classified the services of the petitioner after completion of 8 years of service by the impugned order dated 8.04.2003 has been cancelled without giving any opportunity of hearing. He, therefore, prays that the impugned order be set aside.
The respondents have filed their reply and in the reply respondents have stated that in pursuance of the instructions issued by the State Government on 10.10.2001, 15.07.2011 and 19.07.2011, the impugned order has been passed. They have further stated that the petitioner was working as Daily Wager in the respondent department on the post of Instrument Mechanic since 1989 and, therefore, vide order dated 24.12.2010 they have given status of permanent employee with a specific condition that apart from classification they would not be provided any other benefit. They have further been stated that the petitioner has never been engaged against any sanctioned vacant post. They have further stated that as per the circular dated 8.02.2008 a daily rated employee can be considered to be regularized only when he was appointed against sanctioned vacant post. They have further stated that the petitioner was never appointed on the sanctioned vacant post and, therefore, order was issued for cancelling the order of classification. The case of the petitioner was considered in light of the circular and instructions issued by the State Government and it has been observed that the petitioner was not entitled to be classified as permanent employee and, therefore, by the impugned order the classification order was cancelled and there is no infirmity in the order passed by the Executive Engineer on 26.07.2011 because the petitioner was not engaged as a daily wagers against the sanctioned vacant post. In light of the aforesaid submissions, learned counsel for the respondents prays that the petition be dismissed.
I have heard learned counsel for the parties and perused the record. From perusal of the record, it reveals that the petitioner was appointed as daily wagers employee in the year 1989, thereafter, the respondents have passed the order dated 8.04.2003 thereby classifying the petitioner as a permanent employee as he had completed more than 240 days satisfactory services. The said order was cancelled by respondent no.5 vide order dated 26.7.2011 (Annxure P-3). It reveals that no notice or any opportunity of hearing was given to the petitioner before passing the impugned order and the returned filed by the respondent is also silent about this ground. In such circumstances, the impugned order dated 26.7.2011 deserves to be quashed.
Consequently, the petition is allowed and the impugned order dated 26.7.2011 is hereby quashed. However, the respondents are at liberty to pass afresh order after giving proper opportunity of hearing to the petitioner.
Certified copy as per rules.