Allowed

Smt. Anita Devi v. State of U.P. and 4 Others

Allahabad HC17 Nov 2020WRIA/1321/2019

Case brief

AI extract

What is this about?

This High Court held that the petitioner, employed as a daily wager sweeper since 1991, is entitled to regularization under UP rules. The Court found the 'part-time' nomenclature unlawful and directed the State to create a supernumerary post within a month and complete regularization within six months.

What did the court decide?

Directions to create a supernumerary post within one month and complete regularization within six months; stop recovery of holiday wages.

Smt. Anita Devi Vs State of U.P. and 4… — Pension and Retirement Benefits | Allahabad HC (2020)

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Court No. - 83

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Case :- WRIT - A No. - 1321 of 2019

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Petitioner :- Smt. Anita Devi Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Samar Bahadur Saroj,Raj Kumar Mishra Counsel for Respondent :- C.S.C.

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Hon'ble Ajay Bhanot,J.

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Heard Sri Raj Kumar Mishra, learned counsel for the petitioner and the learned standing counsel for the State.

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The claim of the petitioner for regularisation as a sweeper in the respondent department has been invalidated by the impugned order dated 16.11.2018.

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The undisputed facts necessary for an adjudication of this case can be prised out from the impugned order. The impugned order records that the petitioner was appointed as a "part time sweeper" on 15.5.1991. The petitioner has been working for more than 28 years. Various documents of the department record that the petitioner is working as a "part time sweeper". The petitioner was paid daily wages applicable to the daily wage rate specified for a daily wager. This according to the impugned order is a financial impropriety. The impugned order records that the petitioner had worked on holidays and was paid wages for working on the aforesaid days. The aforesaid wages are liable to be recovered from the petitioner. The post of sweeper has not sanctioned in district Sonbhadra.

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Lastly the impugned order finds that U.P. Regularisation of Persons Working on daily wages or on work charge or on contract in Government department on Group-C and Group-D posts (outside the purview of U.P. Public Service Commission) Rules 2016 are not applicable to the petitioner. The said Rules of 2016 are applicable only to persons employed as daily wagers or on contractual basis or on work charge in various Government department. In the wake of this reasoning the case of regularization of petitioner under the Rules of 2016 was rejected by the impugned order.

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The petitioner has specifically asserted that she was appointed as sweeper

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(Group-D Post) in the office of respondent no. 4 - Assistant Commissioner (Administration), Commercial Tax, Sonbhadra w.e.f. 15.5.1991. A letter issued by the department on 1.7.1997 appended as Annexure - 1, clearly recites that there is no post of a "part time daily wager". The petitioner is entitled to the wages of a daily wager. This fact has not been refuted in the counter affidavit.

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In the light of the pleadings, the findings recorded in the impugned order and the established principles of service jurisprudence, this Court finds that the petitioner was appointed as sweeper w.e.f. 15.5.1991 on daily wager. The nomenclature of a "part time" does not take away the fact that the petitioner was discharging her duties daily wages. The nomenclature has been created to defeat the rights of the petitioner. This is an unfair employee practice. The State Government being a model employer cannot be permitted to engage in such unfair practices simply to defeat the rights of the lowest class of employees.

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The continuity of service of the petitioner from the date of her appointment has not been disputed in the impugned order. The pleadings in regard to continuity of service from the date of appointment in 1991 till date have not been traversed or refuted in the counter affidavit-I. Further nothing has been pointed out to the contrary from the record.

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The petitioner has admittedly worked on holidays, for which she was paid her wages. It is surprising that the respondents deemed it appropriate to direct recovery of wages paid for working on holidays. Needless to add the aforesaid directions are arbitrary and illegal.

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The Constitution has set its face against denial of wages for work.

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Article 23 deals with Begari and is extracted hereunder:-

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"Prohibition of traffic in human beings and forced labour:-(1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.

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(2) Nothing in this article shall prevent the Stuntilate from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only to religion, race, caste or class or any of them."

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The impugned order records that the order dated 1.7.1997 directing payment of daily wages as per the daily wage rates is an act of financial impropriety. It is the obligation of the employer and the appointing authorities to ensure that full daily wages are paid to the employees for the period of work. The said finding is illegal and perverse.

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The right of regularization of the petitioner has to be considered in light of the U.P. Regularisation of Persons Working on daily wages or on Work Charge or on Contract in Government Department on Group-C and Group-D posts (outside the purview of U.P. Public Service Commission) 2016 Rules (herein after referred to as the Rules).

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The petitioner is employed as a daily wager. The petitioner has been working continuously as sweeper on daily wages with effect from 1991. The work and conduct of the petitioner is unblemished. The petitioner satisfies all the prerequisites for regularization under the aforesaid Rules of 2016. The petitioner is fully entitled for regularization under the aforesaid Rules. The regularization of the petitioner cannot be delayed any further.

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In these facts, the denial of the benefit of regularization is an act of exploitation of the lowest class of employees.

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The fact that the post of the sweeper has not been sanctioned in district - Sonbhadra is also surprising which reflects more of indifferent attitudes than any other thing. The work of a sweeper is perennial in nature and of indispensable character for any organisation. If other posts are sanctioned for running of the concerned establishment, the post of sweeper also has to be sanctioned as per law. Undisputedly in the office of the respondent no. 4 there was a requirement of the post of a sweeper. The petitioner was appointed to meet the aforesaid

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requirement.

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However, since a regular post is not available in the office of the respondent no. 4, as per the recitals in the impugned order, this Court finds that this is a fit case for exercise of powers vested in the competent authority under Rule 5 of the U.P. Regularisation of Persons Working on daily wages or on Work Charge or on Contract in Government Department on Group-C and Group-D posts (outside the purview of U.P. Public Service Commission) Rules 2016, the rule 5 is extracted hereunder:-

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"Regularisation to be made on available vacant post.-Subject to the provisions of Rule 2, regularisation under these rules shall be done on available vacant post in a Government Department:

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Provided that if vacant post is not available then, as and when required, a supernumerary post may be created with the approval of the Government."

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Matter is remitted back to the respondent nos. 1 & 4.

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A writ in the nature of mandamus is issued commanding the respective respondents to execute the following directions:-

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(i) A supernumerary post of a sweeper shall be created in the office of the respondent where the petitioner is working, within one month as per law and in light of the observations in the judgment, in accordance with provisions of Rule 5 of the Rules of 2016. The petitioner shall be permitted to work on the said post, till a regular post is sanctioned.

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(ii) The case of petitioner for regularisation of her services shall be processed as per law and the observations made in the judgment and an order in that regard shall be passed by the competent authority in the time frame provided in this order.

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Both the above directions (i) & (ii) shall be executed within three months from the date of production of a computer generated copy of this order, downloaded from the official website of the High Court Allahabad.

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The computer generated copy of such order be self attested by the petitioners (party concerned) along with a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked. The Authority / Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

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(iii) The respondent no. 1 shall thereafter ensure that the case of sanction of post of a sweeper is processed expeditiously in light of the findings made in this judgment and as per law.

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(iv) After the regular post of sweeper is duly sanctioned, an order shall also be passed by the respondent no. 4 - Assistant Commissioner (Administration), Commercial Tax, Sonbhadra, to continue the petitioner on that post.

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(v) Respondent nos. 1 & 4 shall ensure that the aforesaid exercise is completed within a period of six months from the date of receipt a copy of this order.

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The respondent no. 1 shall take confirmation from the respondent no. 4 regarding compliance of this order and file her affidavit before the Registrar General immediately after the expiry of the period of three months. The respondents shall also ensure that the petitioner shall not be harassed or her services are not illegally discontinued. It is open for the petitioner to make an application after her regularisation for any other consequential benefit.

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The writ petition is allowed to the extent indicates above.

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Order Date :- 17.11.2020

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Arif

Smt. Anita Devi v. State of U.P. and 4 Others

Case brief

What is this about?

What did the court decide?

Smt. Anita Devi v. State of U.P. and 4 Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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