M. Katju and Umeshwar Pandey, JJ.
1. This writ petition has been filed against the impugned order of the U.P. Public Service Tribunal dated 3.3.1993 (Annexure-6 to the writ petition).
2. Heard learned counsel for the parties.
3. The respondent No. 1 had worked on purely temporary and ad hoc basis as routine grade clerk in the District Election Office. Ballia from 10.3.1980 to 30.6.1980 and thereafter he again worked in short term arrangement as routine grade clerk from 21.8.1981 to 31.8.1981, and then from 3.9.1981 to 30.9.1981, The respondent No. 1 worked during this period on a purely ad hoc, casual and temporary basis and not after any regular selection. Thereafter the respondent No. 1 worked from 4.3.1982 to 31.10.1982 on purely temporary basis and again from 6.2.1985 to 31.3.1985. All these appointments were on short term, ad hoc basis for the purpose of elections which were held from time to time.
4. As stated in paragraph 5 of the respondent's own claim petition before the U.P. Public Service Tribunal, copy of which is Annexure-1 to the writ petition, the respondent No. 1 worked a total of one year 11 months and 10 days, and that too not for a continuous period but from time to time as per the exigencies of election work.
5. In paragraph 6 of his claim petition respondent No. 1 has mentioned that being a retrenched employee of the District Election Office, Ballia he was again given chance to work on the post of routine grade clerk from 27.1.1988 to 30.6.1988 and again from 2.11.1988 to 15.12.1988. Thus, the respondent No. 1 has rendered altogether one year 11 months and 10 days service in District Election Office, Ballia.
6. The respondent No. 1 has claimed the benefit of the G.O. dated 27.8. 1984 and claimed absorption in Government service. The respondent No. 1 filed a claim petition before the Tribunal which has been allowed by the impugned order dated 3.3.1993 vide Annexure-6 to the writ petition. It is that order which has been challenged in this petition.
7. Respondent No. 1 has alleged in paras 4 and 5 of his, claim petition, (copy of which is Anriexure-1 to the writ petition) that a select list was prepared by the S.D.M. Ballia on the order of the District Election Officer, Ballia to man the temporary posts of clerks in the Election Office at Ballia in connection with the Panchayat Election and General Election to be held in 1982. It is alleged that the claimant was in that select list and he was appointed on short term vacancies of clerk in the District Election Office. He has worked a total of one year, 11 months and 10 days and he is a retrenched employee of the District Election Office, Ballia. It is alleged that some persons were allowed to work on short term posts but the petitioner was not allowed to work.
8. The respondent No. 1 has relied on a G.O. dated 27.8.1984 vide Annexure-2 to the writ petition which states that when temporary post is created in the District Election Office 50% of the appointments shall be from among the retrenched employees. That letter also states that for revision of the voters list and for other work connected with the elections from time to time extra staff is required and hence temporary posts are created. Service of the persons appointed on these temporary posts are terminated after the election work is over. Hence the aforesaid G.O. was issued.
9. The District Magistrate filed a written statement before the Tribunal (vide Annexure 3 to the writ petition) and in paragraph 4 it was denied that any such list as mentioned in para 4 of the claim petition was ordered to be prepared for appointment of routine grade clerk as no permanent vacancy existed in 1982.
10. In para 5 it is stated that those candidates who worked as routine grade clerks in short term vacancies were given preference in the short term vacancy likely to be created in the forthcoming elections. It was denied that the petitioner worked in a short term vacancy, and hence it was alleged that he does not come within the definition of retrenched employee at all. It is further stated that the G.O. dated 27.8.1984 was effective up to 22.5.1987 only (as stated in the said G.O. itself). The petitioner was appointed on purely temporary basis and that too with repeated breaks and interruption in service, and hence the petitioner was not entitled to be appointed in preference to other claimants who have rendered service for greater periods.
11. In para 8 of the written statement filed before the Tribunal (vide Annexure-3), it is alleged that the list mentioned in para 8 of the claim petition was not on the basis of seniority but it was a tentative list mentioning the names of the persons who have worked on short term arrangement. It was denied that the petitioner was senior to others and was entitled to absorption. The petitioner's name was at serial No. 2 of that list because the list was tentative and was not prepared on the basis of length of service. It is not a seniority list. It is denied that the petitioner was senior in service to Shri Shabbir Ahmad or Arvind Kumar Rai or was more meritorious than them. Sri Shabbir Ahmad is continuously working from 5.3.1982 and is still continuing. He has rendered service of 3 years, 4 months and 9 days. Arvind Kumar Rai has rendered service for 2 years, 4 months and 29 days. The details are given in para 11 of the written statement filed before the Tribunal. The service of Arvind Kumar Rai was terminated on 31.5.1990 while the service of Shabbir Ahmad was regularized by District Election Officer in pursuance of G.O. dated 27.8.1984 and subsequent G.O. dated 13/18.3.1986, copies of which were filed with the written statement before the Tribunal. As regards Brijesh Kumar Rai and Sri Suresh Narain Mishra, they worked on temporary basis on short term vacancy and they are no longer in employment.
12. In para 15 it is denied that the petitioner is senior most retrenched employee.
13. From the facts of the case it is evident that the respondent No. 1 had worked only for a total of 1 year, 11 months and 10 days on short term vacancy on purely temporary basis, and even this service was not continuous but with breaks. The G.O. dated 21.7.1984 itself states that the benefit of the G.O. Is only from 23.5.1984 to 22.5.1987. The petitioner filed the claim petition before the Tribunal in 1990, that is three years after the life of that G.O. was over. Hence, he can obviously not get the benefit of that G.O. In our opinion, therefore, the Tribunal wrongly allowed the claim petition of the respondent No. 1. ft is well settled that a temporary employee has no right to the post vide State of U. P. v. Kaushat Kishore Shukla, 1991 (1) AWC 651 (SC) : 1991 (1) SCC 691 ; Triveni Shankar Saxena v. State of U, P. AIR 1992 SC 496 etc. In Secretary Ministry of Works v. Mohinder Singh Jagdev, JT 1996 (8) SC 46, the Supreme Court observed that until the temporary service unto a permanent one the employee has no right to the post (see also 1995 (1) SCC 638 para 5).
14. A person who has worked only for 1 year, 11 months and 10 days cannot claim any right to be absorbed. In Triveni Shanker Saxena's case (supra), the petitioner was a temporary employee who had put in 18 years service, but yet it was held that since he was a temporary employee he had no right to the post.
15. Moreover the G.O. dated 27.8.1984 is not a statutory rule under Article 309 of the Constitution and hence the petitioner cannot claim any benefit on the strength of that G.O. When the posts themselves are temporary in nature we do not see how the petitioner can claim absorption. It is only during election time that extra hands are required. Hence they cannot claim to be made permanent employees as they have no work except at election time.
16. In view of the above we are of the opinion that the impugned order of the Tribunal is arbitrary and Illegal and cannot be sustained. The petition is allowed. Impugned order dated 3.3.1993 is quashed.