M.Y. Eqbal, J.@mdashSince common question of law and facts are involved in both the writ applications, they have been heard together and are disposed of by this common order.
2. The petitioner of WPS No. 2638/ 2002 was taken in service by the respondents in the year, 1981 and was absorbed in the work charged establishment in 1987. Petitioner of WPS No. 2732/2002 was appointed in the work charged establishment in the year 1990. They seek a direction for regularization of their services and for payment of salary which is due since December, 2000.
2. Petitioners'' case is that they have been working since June, 1981 on muster roll basis in the Rural Engineering Organization, Ramgarh Sub-Division on the post of Night Guard. In 1987, as per the Government order No. 55 dated 11.11.1987, the petitioners along with other persons were absorbed in the work charged establishment. The service book of the petitioners was opened and provident fund is being deducted for the last 14 years. It is alleged that although similarly situated persons juniors to the petitioners have been regularized but the case of the petitioners has not been considered.
3. Learned Advocate General assisted this Court and vehemently argued that even if the petitioners have been working for the last so many years in the work charged establishment, they are not entitled to be regularized in service. Learned counsel put heavy reliance on the decision of the Supreme Court in the case of
4. Before appreciating the contention made by the learned Advocate General I would first like to refer the averments made by the respondents in their counter affidavit. It has not been denied or disputed that the petitioner was taken in service on daily wages in 1981. The petitioner continuously worked on daily wages from 1981 to 1987 his services was taken under the work charged establishment as Roller Khalasi. It is, therefore, not disputed that the petitioners have been continuously working since 1981 and 1990 without break in service even for one day.
5. In Piara Singh''s case (supra) their lordships observed that merely because the work charge establishment employees worked for 4-5 years, no right is created for regularization of their services. In Purushottam''s case (supra) a question with regard to seniority came for consideration before the Supreme Court in respect of the employees under work charged establishment absorbed in regular cadre.
6. In the instant case admittedly the petitioners have been working for the last 21 and 13 years continuously without break in service even for one day, this means that the work being done by the petitioners is perennial in nature and is not for a fixed period under a particular scheme. In this context I would like to refer one passage of the judgment in Piyare Singh''s case where their lordships observed :
"So far as work charged employees and casual labour are concerned, the effort must be to regularise them as far as possible and as early as possible subject to their fulfilling the qualifications, if any, prescribed for the post and subject also to availability of work. If a casual labourer is continued for a fairly long spell, say two or three years, a presumption may arise that there is regular need for his services. In such a situation, it becomes obligatory for the concerned authority to examine the feasibility of his regularization. While doing so, the authorities ought to adopt a positive approach coupled with an empathy for the person. As has been repeatedly stressed by this Court, security of tenure is necessary for an employee to give his best to the job. In this behalf, we do commend the orders of the Government of Haryana (contained in its letter dated 6.4.1990 referred to hereinbefore) both in relation to work charged employees as well as casual labour."
7. Taking into consideration the settled proposition of law laid down by the Supreme Court in several decisions I am of the opinion that when the respondents are taking work from the petitioners continuously without any break even for one day for the last 22 years, they are bound to create and/or sanction post and regularize the services of the petitioners forthwith. It is worth to mention here that nowhere in the counter affidavit it is stated by the respondents that either the petitioners were engaged or continuing in service under a particular scheme which will expire in future nor the respondents have stated about any financial constraints in sanctioning the post and regularizing the services of the petitioners. In this view of the matter also the respondents are bound to absorb the petitioner in regular cadre.
8. For the aforesaid reasons these writ applications are allowed and the respondents are directed to consider the case of the petitioners and regularize their services by issuing appropriate order within a period of four weeks from the date of receipt of a copy of this order.
