Ram Naresh Vs State of U.P. and Others

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AFR

Reserved

Court No. - 75

Case :- WRIT - A No. - 6262 of 2008 Petitioner :- Ram Naresh Respondent :- State of U.P. and Others Counsel for Petitioner :- Pankaj Srivastava, S.M. Ali Counsel for Respondent :- C.S.C., Advocate General

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Hon'ble Shekhar Kumar Yadav,J.

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The instant writ petition under Article 226 of the Constitution has been filed, inter-alia, praying for the following reliefs:

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i) Issue writ order or direction in the nature of mandamus directing the respondents to strictly comply the judgement and order dated 21.02.2002 passed by Hon'ble Supreme Court in Civil Appeal No.3624 of 1998 (State of U.P. vs. Putti Lal) and extend the benefit of the same in the case of the petitioner;

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ii) Issue a writ order or direction for declaring Clause 4(1), 4(b), 4(3) of the U.P. Regularization of Daily Wages Appointment on Group D Post Rules, 2001 to be ultra virus and frame a scheme for the regularization of the employees who have rendered 10 years of service as per undertaking given before this Court in the case of State of U.P. vs. Putti Lal;

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iii) Issue a writ order or direction in the nature of mandamus directing the respondents to regularize the services of the petitioner on the post of Chaukidar and pay the minimum of regular pay scale pending writ petition on Group D Post;

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iv) Issue a writ order or direction in the nature of mandamus directing the respondents not to orally remove the petitioner and permit him to work on the post of Chaukidar pending writ petition.

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The facts, in brief, are that the petitioner is working in Rural Engineering Services Department, Sumerpur Store as a Chaukidar/Peon on 23.01.1995. The Rural Engineering Services Department (hereinafter referred to as the 'Department') is a permanent department having permanent officials, site, but still the petition is being paid the minimum daily wages of Rs.58 per day to be paid monthly. In the Department of Sumerpur Store, the petitioner and one Jai Ram are working as daily wager Chaukidar/Peon and there is no other permanent Chaukidar/Peon. Both are performing their duty day and night. They have completed more than 18 years of their services on 22.01.2013, but the respondent-department deliberately neither regularized their service nor provided the minimum wages as per Rules in spite of the order of this Court dated 19.03.2010.

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On 23.05.2008, this Court passed the interim order and directed that as an interim measure, the respondents are restrained from dispensing with the services of the petitioner and petitioner will also be permitted to continue in service and shall be paid his salary till the next date of listing.

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4. On 19.03.2010, this Court passed the following orders:

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Heard Sri Pankaj Srivastava, learned counsel for the petitioner and learned Standing Counsel.

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In an identical matter in writ petition no. 61128 of 2009 this court has passed interim order dated 19.11.2009 as under :-

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"Heard Sri Pankaj Srivastava, learned counsel for the petitioner and learned Standing counsel.

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The petitioners are Daily Wages Employees (Group - D) working in the Forest Department. Their services have not been regularised for want of vacancy. However, as they have completed ten years of continuous service as Daily Wagers they are entitle to minimum of the pay scale of 6th pay commission which is admissible to class - IV employees.

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It is submitted that in view of the decision of the Apex Court in State of U.P. and others Vs. Putti Lal (2002)2 UPLBEC 1597 this Court has disposed of various petitions directing the Forest Department to pay minimum of the pay scale admissible to Class - IV employees. Reliance has been placed upon a judgment and order dated 17.2.2009 passed in Civil Misc. Writ Petition No.63684 of 2005 (Sada Ali Vs. Division Forest Officer). It has further been submitted that a similar order was passed on 23.10.2008 in Civil Misc. Writ Petition No.43443 of 2004 (Lakshmi Chandra Vs. State of U.P. and others). When the said order was not complied with proceedings for contempt were initiated by means of Contempt Application (Civil) of 2009 (Lakshmi Chandra Vs. Sri N.K. Janu). In the said contempt petition on behalf of Forest Department an undertaking was given that the minimum of the pay scale admissible to Class - IV employees i.e. Rs.2550/- per month, which has now been increased to Rs.6050/- per month as per the report of the VI Pay Commission shall be paid to Class - IV employees who have completed 10 years service.

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In view of above facts and circumstances, an interim mandamus is issued to the respondents either to pay the petitioners monthly salary as per the minimum of the pay scale admissible to Class - IV employees in the pay band of Rs. 6050/- or show cause within a period of one month from today."

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Learned counsel for the petitioner has pointed out that the aforesaid order passed by this court has also been complied with by the respondents.

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In view of above facts and circumstances, an interim mandamus is issued to the respondents either to pay the petitioner's monthly salary as per the minimum of the pay scale admissible to Class - IV employees in the pay band of Rs. 6050/- or show cause within a period of one month from today.

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List after four weeks.

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The petitioner is getting salary on the basis of above said interim order dated 19.03.2010 passed by this Court.

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Learned counsel for the petitioner submits that petitioner is continuously working on the post of Chaukidar on daily wage basis w.e.f. 23.01.1995 and has completed 18 years of service on 22.1.2013. He further submits that neither any complaint nor any enquiry is pending against the petitioner, but the respondentdepartment deliberately neither regularized his services nor provided the minimum wages as per Rules in spite of the interim

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order of this Court dated 19.03.2010. Learned counsel for the petitioner further submits that in the forest department identically situated persons, who are working on daily wages in the department, the Division Bench of this Court directed to regularize their service and the order of this Court was affirmed by the Hon'ble Supreme Court in Civil Appeal No.3634 of 1998 (State of U.P. vs. Putti Lal) with slight modification and in the pending S.L.P. before the Hon'ble Supreme Court, the U.P. Regularization of Daily Wage Appointment on Group-D Post Rules, 2001, has been framed. Further submission is that these Rules are also applicable in all the Department of State of U.P. including the Rural Engineering Services Department. The Hon'ble Supreme Court has clearly observed that those candidates, who had rendered 10 years or more services, should be regularized and should be paid minimum of regular pay scale till they are regularized while interpreting the Rules, 2001. He further submits that on 11.01.2010, the respondent-Director Chief Engineer, Gramin Ahiyantram Sewa, U.P. Lucknow has prepared the seniority list of work charge/daily wager employees as per Rules in which the name of the petitioner was find place at Serial No.206A. Copy of Senior List has been annexed as Annexure No. RA-3 to the rejoinder affidavit.

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Learned counsel for the petitioner further submits that on 13.08.2015, G.O. has been issued by the State Government directing all the Government Department, Corporation as well as Local Bodies to regularize all the employees, whose cut-off-date is 31.03.1996, they have to be regularized, hence, the petitioner is entitled for regularization in the light of the interim order dated

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23.05.208 passed by this Court as well as G.O. dated 13.08.2015. He further submits that since the above said prayer no.ii has already been granted by the State vide G.O. dated 13.08.2015, therefore, the present writ petition may be decided in light of the G.O. dated 13.08.2015.

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Countering the above said submissions, on the other hand, learned Standing Counsel has vehemently opposed the writ petition and submitted that the petitioner was engaged on the basis of availability of work and he was never engaged prior to cut-off-date, therefore, the petitioner is not entitled for the benefit of regularization as claimed by him as he himself has stated that he is working since 23.01.1995 i.e. much after the prescribed cutoff-date i.e. 26.06.1991. He further submits that under the U.P. Regularization of Daily Wages Appointment on Group-D Post Rules, 2001 (hereinafter referred to as the 'Rules, 2001'), the prescribed cut-off-date is 29.06.1991 and further the employee, who is continuously in service on the date of commencement, is eligible to be considered for regularization. He further submits that the petitioner has never been engaged by due process of law after obtaining sanction post, therefore, the relief claimed by the petitioner cannot be granted by this Court, hence, this writ petition may be dismissed.

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I have heard the learned counsel for the petitioner, the learned Standing Counsel for the State and perused the material available on record. 10. Now the questions is whether the petitioner is entitled to regularize and get the benefit or not?

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This is an admitted fact that the petitioner is continuously working since 1995 in Rural Engineering Services Department, Sumerpur Store as daily wager on the post of Chaukidar/Peon and there is no other permanent Chaukidar/Peon except the petitioner and one another Jai Ram, who is also working in Sumerpur Store as daily wager.

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The Government order dated 13.08.2015 issued by State Government to all the Government Department, Corporation as well as Local Bodies to regularize all the employees, whose cut-offdate is 31.03.1996, they have to be regularized.

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It is true that at the time of filing of the present writ petition, Rules, 2001 fixed the cut-off-date as 29.06.1991 for regularization of daily wager, but during the pendency of the writ petition, subsequently, the Government order was amended vide G.O. dated 13.08.2015 fixing cut-off-date for regularization as 31.03.1996.

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Undisputedly, the petitioner was appointed and is continuously working since 23.01.1995 and getting salary on the basis of interim order dated 19.03.2010 passed by this Court, as such, apart from the G.O. dated 13.08.2015, the claim of the petitioner to regularize his services, be required to be taken in to consideration.

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In the case of Sheo Narain Nagar and others vs. State of U.P. and others in Civil Appeal No.18510 of 2017 decided on 13.11.2017, the Hon'ble Supreme Court while distinguishing the case of Secretary, State of Karnataka and others s. Umadevi and others,(2006) 4 SCC 1 , held as under:

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“8. When we consider the prevailing scenario, it is painful to note that the decision in Uma Devi (Supra) has not been properly understood and rather wrongly applied by various State Governments. We have called for the data in the instant case to ensure as to how many employees were working on contract basis or ad-hoc basis or daily-wage basis in different State departments. We can take judicial notice that widely aforesaid practice is being continued. Though this Court has emphasised that incumbents should be appointed on regular basis as per rules but new devise of making appointment on contract basis has been adopted, employment is offered on daily wage basis etc. in exploitative forms. This situation was not envisaged by Uma Devi (supra). The prime intendment of the decision was that the employment process should be by fair means and not by back door entry and in the available pay scale. That spirit of the Uma Devi (supra) has been ignored and conveniently over looked by various State Governments/ authorities. We regretfully make the observation that Uma Devi (supra) has not be implemented in its true spirit and has not been followed in its pith and substance. It is being used only as a tool for not regularizing the services of incumbents. They are being continued in service without payment of due salary for which they are entitled on the basis of Article 14, 16 read with Article 34 (1) (d) of the Constitution of India as if they have no constitutional protection as envisaged in D.S. Akara vs. Union of India, AIR 1983 SC 130 from cradle to grave. In heydays of life they are serving on exploitative terms with no guarantee of livelihood to be continued and in old age they are going to be destituted, there being no provision for pension, retiral benefits etc. There is clear contravention of constitutional provisions and aspiration of down trodden class. They do have equal rights and to make them equals they require protection and cannot be dealt with arbitrarily. The kind of treatment meted out is not only bad but equally unconstitutional and is denial of rights. We have to strike a balance to really implement the ideology of Uma Devi (supra). Thus, the time has come to stop the situation where Uma Devi (supra) can be permitted to be flouted, whereas, this Court has interdicted such employment way back in the year 2006. The employment cannot be on exploitative terms, whereas Uma Devi (supra) laid down that there should not be back door entry and every post should be filled by regular employment, but a new device has been adopted for making appointment on payment of paltry system on contract/adhoc basis or otherwise. This kind of action is not permissible, when we consider the pith and substance of true spirit in Uma Devi (supra).

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9. Coming to the facts of the instant case, there was a direction issued way back in the year 1999, to consider the regularization of the appellants. However, regularization was not done. The respondents chose to give minimum of the pay scale, which was available to the regular employees, way back in the year 2000 and by passing an order, the appellants were also conferred temporary

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status in the year 2006, with retrospective effect on 2.10.2002. As the respondents have themselves chosen to confer a temporary status to the employees, as such there was requirement at work and posts were also available at the particular point of time when order was passed. Thus, the submission raised by learned counsel for the respondent that posts were not available, is belied by their own action. Obviously, the order was passed considering the long period of services rendered by the appellants, which were taken on exploitative terms.

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10. The High Court dismissed the writ application relying on the decision in Uma Devi (supra). But the appellants were employed basically in the year 1993; they had rendered service for three years, when they were offered the service on contract basis; it was not the case of back door entry; and there were no Rules in place for offering such kind of appointment. Thus, the appointment could not be said to be illegal and in contravention of Rules, as there were no such Rules available at the relevant point of time, when their temporary status was conferred w.e.f. 2.10.2002. The appellants were required to be appointed on regular basis as a one-time measure, as laid down in paragraph 53 of Uma Devi (supra). Since the appellants had completed 10 years of service and temporary status had been given by the respondents with retrospective effect in the 2.10.2002, we direct that the services of the appellants be regularized from the said date i.e. 2.10.2002, consequential benefits and the arrears of pay also to be paid to the appellants within a period of three months from today.”

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In Yashwant Hari Katakkar v. Union of India and others, 1996 (7) SCC 113 , it was held that an employee who has served more than 20 years is entitled to pension and denial of retiring pension to the petitioner on the ground of not being permanent on any post clearly is violation of Clause (e) of Fundamental Rules, 56. The department cannot keep a person temporary or on daily wages indefinitely.

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In A.P. Srivastava v. Union of India and others, (1995) 3 UPLBEC 1842 (supplement) , the Supreme Court has clearly taken a view that in case of a temporary employee who has rendered 20 years of service is entitled to pension. In the expression 'substantive capacity' the emphasis imparted by the adjective 'substantive' is that a thing is substantive if it is essential part of

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the constituent or relating to what is essential. Therefore, when a post is vacant, however, designated in officilase, the capacity in which the person holds the post has to be ascertained by the State. The substantive capacity refers to capacity in which person holds the post and not necessarily to the nature and character of the post. Thus, a person is said to hold a post in a substantive capacity when he holds it for an indefinite period especially for a long duration in contradistinction to a person who holds it for a definite or a temporary period or holds it on probation subject to confirmation. (Refer:Ram Pratap V. State of U.P., 2006 (4) ADJ 709, Babu Singh V. State of U.P., 2006 (8) ADJ 371, Kedar Ram-I v. State of U.P., 2008 ILR (All) 659, Ram Sajiwan Maurya v. State of U.P. and others passed in W.P. No.30301 (S/S) of 2004 decided on 12.08.2009, Kanti Devi v. State of U.P., 2009 (10) ADJ 18, Kishan Singh v. State of U.P., 2009 (9) ADJ 516, Awadh Bihari Shukla v. State of U.P., 2015 (6) ADJ 186). 18. The Division Bench of this Court in State of U.P. and others v. Mahendra Chaubey, 2018 (9) ADJ 829 , allowed the claim of pension of a seasonal collection amin, whose temporary service was followed by substantive appointment despite the petitioner therein having not rendered 10 years substantive service after regularization.

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The principle, that emerges from the spectrum of the decisions, is that a temporary employee appointed on the regular establishment of the Government is entitled to pension under Fundamental Rule 56.

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A three Judge Bench of the Supreme Court in Prem Singh vs. State of Uttar Pradesh, 2019 LawSuit (SC) 1557, was

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considering the question, as to whether, Rule 3(8) of the U.P. Retirement Benefits Rules, 1961 and Regulation 370 of the Civil Services Regulation of Uttar Pradesh should be struck down having regard to the fact that the Supreme Court had upheld the pari materia provision enacted in the State of Punjab, which excluded computation of the period of work-charged services from qualifying service for pension.

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The appellant before the Supreme Court was a work-charged employee having put in more than three decades of service, pension was declined as the appellant had not put in 10 years of regular service after regularization. The question posed was whether after regularization employees are entitled to count their past service. The Court made the following observations:

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"29. We are not impressed by the aforesaid submissions. The appointment of the work-charged employee in question had been made on monthly salary and they were required to cross the efficiency bar also. How their services are qualitatively different from regular employees? No material indicating qualitative difference has been pointed out except making bald statement. The appointment was not made for a particular project which is the basic concept of the work charged employees. Rather, the very concept of work-charged employment has been misused by offering the employment on exploitative terms for the work which is regular and perennial in nature. Payment used to be made monthly but the appointment was made in the pay scale of Rs.200-320. Initially, he was appointed in the year 1978 on a fixed monthly salary of Rs.205 per month. They were allowed to cross efficiency bar also as the benefit of pay scale was granted to them during the period they served as work-charged employees they served for three to four decades and later on services have been regularized time to time by different orders. However, the services of some of the appellants in few petitions/ appeals have not been regularized even though they had served for several decades and ultimately reached the age of superannuation.

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30. In the aforesaid facts and circumstances, it was unfair on the part of the State Government and its officials to take work from the employees on the work-charged basis. They ought to have resorted to an appointment on regular basis. The taking of work on

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the work- charged basis for long amounts to adopting the exploitative device. Later on, though their services have been regularized. However, the period spent by them in the workcharged establishment has not been counted towards the qualifying service. Thus, they have not only been deprived of their due emoluments during the period they served on less salary in work charged establishment but have also been deprived of counting of the period for pensionary benefits as if no services had been rendered by them. The State has been benefitted by the services rendered by them in the heydays of their life on less salary in workcharged establishment.

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31. In view of the note appended to Rule 3(8) of the 1961 Rules, there is a provision to count service spent on work charged, contingencies or non pensionable service, in case, a person has rendered such service in a given between period of two temporary appointments in the pensionable establishment or has rendered such service in the interregnum two periods of temporary and permanent employment. The work-charged service can be counted as qualifying service for pension in the aforesaid exigencies.

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32. The question arises whether the imposition of rider that such service to be counted has to be rendered in-between two spells of temporary or temporary and permanent service is legal and proper. We find that once regularization had been made on vacant posts, though the employee had not served prior to that on temporary basis, considering the nature of appointment, though it was not a regular appointment it was made on monthly salary and thereafter in the pay scale of work-charged establishment the efficiency bar was permitted to be crossed. It would be highly discriminatory and irrational because of the rider contained in Note to Rule 3 (8) of 1961 Rules, not to count such service particularly, when it can be counted, in case such service is sandwiched between two temporary or in-between temporary and permanent services. There is no rhyme or reason not to count the service of work-charged period in case it has been rendered before regularisation. In our opinion, an impermissible classification has been made under Rule 3(8). It would be highly unjust, impermissible and irrational to deprive such employees benefit of the qualifying service. Service of work-charged period remains the same for all the employees, once it is to be counted for one class, it has to be counted for all to prevent discrimination. The classification cannot be done on the irrational basis and when respondents are themselves counting period spent in such service, it would be highly discriminatory not to count the service on the basis of flimsy classification. The rider put on that work-charged service should have preceded by temporary capacity is discriminatory and irrational and creates an impermissible classification.

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33. As it would be unjust, illegal and impermissible to make aforesaid classification to make the Rule 3(8) valid and non

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discriminatory, we have to read down the provisions of Rule 3(8) and hold that services rendered even prior to regularisation in the capacity of work-charged employees, contingency paid fund employees or non- pensionable establishment shall also be counted towards the qualifying service even if such service is not preceded by temporary or regular appointment in a pensionable establishment.

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34. In view of the note appended to Rule 3(8), which we have read down, the provision contained in Regulation 370 of the Civil Services Regulations has to be struck down as also the instructions contained in Para 669 of the Financial Handbook.

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35. There are some of the employees who have not been regularized in spite of having rendered the services for 30-40 or more years whereas they have been superannuated. As they have worked in the work-charged establishment, not against any particular project, their services ought to have been regularized under the Government instructions and even as per the decision of this Court in Secretary, State of Karnataka and others vs. Uma Devi, 2006 (4) SCC 1. This Court in the said decision has laid down that in case services have been rendered for more than ten years without the cover of the Court's order, as one time measure, the services be regularized of such employees. In the facts of the case, those employees who have worked for ten years or more should have been regularized. It would not be proper to relegate them for consideration of regularisation as others have been regularised, we direct that their services be treated as a regular one. However, it is made clear that they shall not be entitled to claiming any dues of difference in wages had they been continued in service regularly before attaining the age of superannuation. They shall be entitled to receive the pension as if they have retired from the regular establishment and the services rendered by them right from the day they entered the work-charged establishment shall be counted as qualifying service for purpose of pension.

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36. In view of reading down Rule 3(8) of the U.P. Retirement Benefits Rules, 1961, we hold that services rendered in the workcharged establishment shall be treated as qualifying service under the aforesaid rule for grant of pension. The arrears of pension shall be confined to three years only before the date of the order. Let the admissible benefits be paid accordingly within three months. Resultantly, the appeals filed by the employees are allowed and filed by the State are dismissed."

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In view of the aforesaid discussions, in my opinion, the G.O. dated 13.08.2015 as well as decisions of the Apex Court, the petitioner is entitled to get regularization of his service from the date of issuance of G.O. dated 13.08.2015 wherein the cut-off-date

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for regularization is mentioned as 31.01.1996.

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In view thereof, the writ petition succeeds and the same is allowed. Since the petitioner has completed 20 years of his service and comes under the G.O. dated 13.08.2015, this Court directed that the service of the petitioner be regularized from the date i.e. 13.08.2015 and the consequential benefits as well as arrears of pay also to be paid to the petitioner within a period of two months from today. The petitioner is also entitled to get seniority and pension, if he has been retired from his service.

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It is made clear that petitioner shall not be entitled to differences of arrears prior to the period of his regularization. The petitioner's services would be counted as qualified service for grant of retiral benefits including pension.

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No order as to cost.

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Order Date :- 09.12.2020 Ajeet

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(Shekhar Kumar Yadav, J.)

Ram Naresh v. State of U.P. and Others

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Ram Naresh v. State of U.P. and Others

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