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THE M.D./CHIEF ENGINEER, U.P. JAL NIGAM & OTHERS versus SRI NATH SINGH Ϧ OTHERS

High Court of Judicature at Allahabad

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The M.D./Chief Engineer, U.P. Jal Nigam & Others v. Sri Nath Singh Ϧ Others - SPECIAL APPEAL No. 1317 of 2003 [2006] RD-AH 21686 (22 December 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R.

Court No. 32

             Reserved on 10.11.2006

Delivered on 22.12.2006

Special Appeal No. 1317 of 2003

M.D./Chief Engineer U.P. Jal Nigam & others

Vs.

Sri Nath Singh & others

&

Special Appeal No. 694 of 2003

M.D. U.P. Jal Nigam & others

Vs.

Heera Singh & others

&

Special Appeal No. 708 of 20030

M.D. U.P. Jal Nigam & others

Vs.

Mritunjay Tiwari & others

&

Special Appeal No. 721 of 2003

M.D. U.P. Jal Nigam & others

Vs.

Ajit Kumar

&

Special Appeal No. 744 of 2003

M.D. U.P. Jal Nigam & others

Vs.

Muni Ram & others

&

Special Appeal No. 747 of 2003

M.D. U.P. Jal Nigam & others

Vs.

Bijendra Singh & others

&

Special Appeal No. 693 of 2003

M.D. U.P. Jal Nigam & others

Vs.

Mahesh Chandra Gupta & others

&

Special Appeal No. 695 of 2003

M.D. U.P. Jal Nigam & others

Vs.

Zakir Hussain & others

&

Special Appeal No. 696 of 2003

Engineer In Chief (Karmik) U.P. Jal Nigam & others

Vs.

Mahendra Prasad Pandey & others

&

Special Appeal No. 709 of 2003

M.D. U.P. Jal Nigam & others

Vs.

Smt. Vijai Bala Tiwari

&

Special Appeal No. 711 of 2003

Chief Engineer (Personnel) U.P. Jal Nigam & others

Vs.

Mithai Lal & others

&

Special Appeal No. 712 of 2003

Engineer-In-Chief (Karmik) U.P. Jal Nigam & others

Vs.

Ramesh Chandra Pandey

&

Special Appeal No. 713 of 2003

Engineer-In Chief (Karmik) U.P. Jal Nigam & others

Vs.

Bankey Bihari Dubey & others

&

Special Appeal No. 710 of 2003

M.D. U.P. Jal Nigam & others

Vs.

Brij Kishore Gautam

&

Special Appeal No. 774 of 2003

M.D. U.P. Jal Nigam & others

Vs.

Pooran Bahadur & others

&

Special Appeal No. 787 of 2003

U.P. Jal Nigam though its M.D. & others

Vs.

Ganesh Prasad & others

&

Special Appeal No. 788 of 2003

Chief Engineer (Karmik) U.P. Jal Nigam & others

Vs.

Mahesh Chandra Soni

&

Special Appeal No. 789 of 2003

Chief Engineer (Personnel) U.P. Jal Nigam & others

Vs.

Sanjai Kumar Singh & others

&

Special Appeal No. 790 of 2003

U.P. Jal Nigam though its M.D. & others

Vs.

Rajeshwar Prasad & others

&

Special Appeal No. 793 of 2003

M.D. U.P. Jal Nigam & others

Vs.

Vijay Singh & others

&

Special Appeal No. 850 of 2003

U.P. Jal Nigam through its M.D.  & others

Vs.

Anil Kumar & others

&

Special Appeal No. 851 of 2003

U.P. Jal Nigam through its M.D.  & others

Vs.

Samant Singh & others

&

Special Appeal No. 852 of 2003

M.D./Chief Engineer & others

Vs.

Deep Chand & others

&

Special Appeal No. 692 of 2003

M.D./Chief Engineer & others

Vs.

Ram Dulare Shukla

&

Special Appeal No. 745 of 2003

Chairman U.P. Jal Nigam & others

Vs.

Jagat Pal & others

&

Special Appeal No. 746 of 2003

M.D. U.P. Jal Nigam & others

Vs.

Deena nath Pandey & others

&

Special Appeal No. 748 of 2003

U.P. Jal Nigam through its Chairman & others

Vs.

Man Singh & others

&

Special Appeal No. 758 of 2003

Chief Engineer (Personnel) & others

Vs.

Kapil Singh & others

&

Special Appeal No. 759 of 2003

Chief Engineer (Personnel) & others

Vs.

Ram Dular Yadav & others

&

Special Appeal No. 760 of 2003

U.P. Jal Nigam through its M. D. & others

Vs.

Dayaram & others

&

Special Appeal No. 761 of 2003

Chief Engineer (Personnel) & others

Vs.

Ram Briksha Yadav & others

&

Special Appeal No. 849 of 2003

U.P. Jal Nigam through its M.D. & others

Vs.

Chhedi Lal

&

Special Appeal No. 881 of 2003

Engineer-In-Chief (karmik) U.P. Jal Nigam & others

Vs.

Shiv Kumar Yadav & others

&

Special Appeal No. 1356 of 2003

M.D. U.P. Jal Nigam/Chief Engineer (Karmik) & others

Vs.

Dev Prakash Pathak & others

&

Special Appeal No. 757 of 2003

Chief Engineer (Personnel) & others

Vs.

Harbansh Pandey & others

&

Special Appeal No. 1636 of 2006

Ram Chandra & others

Vs.

Engineer-In-Chief (Karmik) & others

&

Special Appeal No. 1637 of 2006

Ramayan Singh Yadav & others

Vs.

Engineer-In-Chief (Karmik) & others

Hon'ble S. Rafat Alam, J.

Hon'ble Sudhir Agarwal, J.

(Delivered by Hon'ble Sudhir Agarwal, J.)

In all these Special Appeals, the facts and issues involved are common and, therefore, have been heard together and are being decided by this common judgment.

All the Special Appeals, except Special Appeal Nos. 1317of 2003, 1356 of 2003, 1636 of 2006 and 1637 of 2006 arise out of the judgment dated 18.7.2003 passed by his Lordship (Hon'ble S.N. Srivastava, J.) issuing certain directions to the appellants for creation of posts, payment of salary at the minimum of the regular pay scale applicable to regular employees, and regularization. The other four Special Appeals arise out of the judgment dated 12.11.2003 (of Hon'ble Sunil Ambwani, J.) following judgment dated 18.7.2003 (supra) and granting almost similar benefits with minor variations.

We have heard Sri A.K. Saxena, learned counsel appearing in all these appeals on behalf of the appellant, Sri M.M. Sahai in Special Appeal No. 881 of 2003, Sri Indra Raj Singh in Special Appeal No. 758 of 2003, 761 of 2003, 757 of 2003, 789 of 2003, 759 of 2003, Sri Pankaj Kuamr Srivastava in Special Appeal Nos. 693 of 2003, 694 of 2003, 695 of 2003, 721 of 2003, 744 of 2003 and 755 of 2003, Sri Asim Kumar Rai in 1317 of 2003, Sri H.C. Shukla in 692 of 2003 and 852 of 2003, Sri Sanjay Kumar Srivastava in 710 of 2003, 709 of 2003, 760 of 203, 851 of 2003 and Sri A.K. Ojha in 851 of 2003 for the petitioner-respondents (hereinafter referred to as ''Respondents'). Other learned counsels have not advanced their separate arguments but have adopted the submissions already advanced.

All the writ petitions giving rise to these appeals were filed assailing the order dated 22.8.2002 issued by Uttar Pradesh Jal Nigam (in short ''UPJN') and also against the consequential recovery pursuant to the said order. However, in some of the writ petition, a further relief of mandamus for regularization was also sought.

In order to appreciate the controversy, the brief necessary facts, which are undisputed, may be described as under.

For the purpose of regulating and managing drinking water supply in the State, the "U.P. Water Supply and Sewerage Act, 1975" (hereinafter referred to as ''Act') was enacted which provided for establishment of statutory authority for development and maintenance of water supply and sewerage services. In exercise of power under Section 3 of the Act, UPJN was constituted by the Government of Uttar Pradesh (hereinafter referred to as ''GOUP'). Section 8 confers power upon UPJN for appointment of employees for efficient performance and discharge of its functions under the Act. It appears that in order to complete various projects handed over to UPJN for effective water supply in the state, it employed a large number of daily wage muster roll employees in these projects. Most of the time, after completion of one project, for retaining experience of the person, who have already worked with UPJN, experienced staff was engaged on other projects resulting in continuance of service of large number of daily wage muster roll employees for years together and it continued for decades. In order to provide better terms and conditions and security of tenure to the employees, the GOUP issued various orders , from time to time prior to 1973  providing that such daily wage employees, who have worked continuously for more than 3 years and whose continuance may be necessary for maintenance of work, may be brought on the regular and temporary establishment, but for the said purpose, posts may be created in accordance with the norms laid down for creation of posts from time to time. One of such is Government Order No. A-2/3180-10-dus/54/1 dated 5.1.1973. The aforesaid Government Order (in short G.O.) was applicable to Public Works Department, Irrigation Department and the Local Self Engineering Department. Before creation of UPJN, all the work of drinking water supply was being looked after by the Local Self Engineering Department which was transferred to UPJN on its creation. Consequently, taking clue from the aforesaid G.O., UPJN sent a proposal vide D.O. Letter No. 5759/9-3-84-296SA/80 dated 29.9.1984 that such daily wage workcharge establishment employees, who have continuously worked for more than 5 years as on 1.4.1984 may be regularized with effect from 1.4.1984 and be allowed revised pay scales from the said date. The said proposal was accepted by the Urban Development Department of GOUP vide G. O. dated 29.9.1984, but it was provided that before regularization required number of posts shall be created by UPJN. Consequently, vide officer order dated 8.2.1985, 2163 posts were created and the employees, who fulfilled the aforesaid requirements were regularized. This exercise however could not work to the satisfaction of all since, the number of persons entitled for regularization as per the aforesaid scheme was much more than the number of posts created. Consequently, in the Board's meeting dated 3.12.1988, a resolution for creation of 2500 more posts was passed and vide office order dated 9.2.1989, the aforesaid posts were created. Similarly 5980 more posts were created pursuant to resolution dated 18.7.1989 and office order dated 9.8.1989. However, subsequent resolution dated 18.7.1989 provided for regularization of such employees, who have completed 5 years of service on 31.3.1989 and were to be regularized with effect from 1.4.1989. It is also not disputed that pursuant to the aforesaid resolution, 9642 employees were regularized. Since all the employees, who fulfilled the requirement and conditions necessary for regularization under the resolution of UPJN were only 9642 and, therefore, all such employees were regularized and rest of the employees lacking eligibility were not regularized. We are also informed that out of the total 10581 posts, which were created, the break up of the posts in different pay-scales is as under :

Sl.No. Pay-scale Number of posts

1- 750-940     6525

2- 775-1067     4027

3- 625-1200        29

The aforesaid pay scales were revised further with effect from 1.1.1996 pursuant to the G.O. dated 15.2.2000 as follows :

Sl.No.      Pay-scale before     Revised pay scales

                      1.1.1996 since 1.1.1996

  1-   750-940   2550-55-2660-60-3200      

  2-              775-1067          2610-60-3150-65-3730

  3-    625-1200           2750-70-3000-75-4400

The G. O. dated 15.2.2000, revising pay scales from 1.1.1996 provided that the employees who were regularized shall be allowed revised pay scales provided they fulfill the requirement of educational qualification and other eligibility condition as applicable to regular employees. Further, number of employees regularized was to be freezed and as and when the existing regular employees retire, his post shall cease, meaning thereby gradually aforesaid created posts were to face out. UPJN was further required to maintain only minimum regular establishment as per the approved norms and standards and not beyond that.

Subsequently, with the recession of work, it found that continuance of employees on muster roll workcharge establishment causing colossal losses to UPJN and, consequently, vide office order dated 28th May 1991, it informed all the filed officers to retrench workcharge daily muster roll employees, who were employed after 31.8.1989 subject to judicial orders, if any, passed by the Court. It also directed that while retrenching the surplus employees, provisions of U.P. Industrial Dispute Act, 1947 shall be observed.

It appears that, some of the employees, at this stage  approached this Court at Lucknow as well as Allahabad claiming salary at par with the regular employees or at least at minimum of the regular pay scale and also regularization., were passed in some of the cases and it would be useful Interim orders to refer one of such order passed in Writ Petition no. 49066 of 2000:

"Issue notice to the respondents by R.P./A.D. fixing a date in the week commencing 29th January 2001. As according to the statement made by the learned counsel for the petitioner Sri Sabhajeet Yadav who is standing counsel of U.P. Jal Nigam has declined to accept notice. Steps to be taken within one week. The respondents may file their counter affidavit within one month. Rejoinder affidavit, if any, may be filed on or before the date fixed. List alongwith writ petition no. 36894 of 2000 in the week commencing 29th January, 2001.

Without prejudice to the rights and contentions of the respondent it is ordered that the respondents shall pay the minimum salary as a class IV employee to the petitioner as is being paid to similarly situated regular class IV employees of U.P. Jal Nigam from this month onwards. No coercive steps be taken to disengage the petitioner without leave of the Court."

The benefit of pay scale causing huge financial implication could not have been granted by the UPJN without the approval of the State Government and, therefore, the interim order passed by this Court could not be complied with. The petitioner-employees in writ petition no. 49066 of 2000, it appears, preferred contempt petition no. 2168 of 2001 where notice was issued on 9.8.2001 whereafter the Chief Engineer (Karmik) UPJN Lucknow issued office order dated 12.10.2001 granting salary to the workcharge daily wage employees at the minimum of the regular pay scale and allowances as applicable to regular employees. The said order was not confined to those persons, in whose favour interim orders, were passed, but applied to all daily wage muster roll workcharge employees directing for payment with effect from 1.10.2001. However, the said order was subject to final decision to be taken by the Court in pending writ petitions. The aforesaid order was communicated to all the Field Officers, pursuant whereto, payments were made to all daily wage muster roll workcharge employees at the minimum of the regular pay scale with allowances as applicable to the regular employees. Apparently, payment pursuant to the aforesaid order caused very heavy financial liability on UPJN and when the financial sanction came up for consideration, noticing that the order dated 12.10.2001 was issued without obtaining approval either from the State Government or from competent authority of UPJN, the State Government issued order dated 12.8.2002 directing UPJN to cancel order dated 12.10.2001 pursuant whereto, under the approval of the Managing Director, UPJN, vide order dated 22.8.2002, the order dated 12.10.2001 was cancelled. The Field Officers were also required to inform the Head Office about the total amount paid to the daily wage employees pursuant to the order dated 12.10.2001, so that orders , for recovery may be issued. Aggrieved, various writ petitions were preferred before this Court wherein operation of the order dated 22.8.2001 was stayed. These writ petitions have been decided by Hon'ble Single Judge giving rise to these appeals. A chart showing details of the various writ petitions, bio-data (date of engagement of the petitioners) and relief sought is as under:

W.P.No. Petitioners Prayer in W.P. Period of employment of the petitioners

483 of 2003 Heera Singh &  17 others For regularization of service and for quashing the order dated 22.8.2002 (!) 1.4.1988(2) 1.9.1988(3) 1.1.1989(4) 1.7.1989(5) 18.10.1988(6) 1.1.1988(7) 19.9.1988(8) 16.9.1996(9) 1.11.1987(10)1.12.1986(11)1.12.1988(12)16.1.1989(13)1.12.1986(14)1.3.1987(15)1.2.1989(16)1.10.1986(17)8.8.1989(18)1.2.1989.

21086 of 2003 Ajit Kuamr For quashing the order dated 22.8.2002 and regularization of service About 14-15 years back

51239 of 2002 Mani Ram Verma & 11 others For quashing the order dated 22.8.2002 and regularization of service (!) 1.1.1989(2) 1.7.1989(3) 1.9.1987(4) 1.9.1987(5) 1.9.1987(6) 1.3.1989(7) 1.3.1989(8) 1.11.1988(9) 1.10.1988(10)1.9.1987(11)1.8.1989(12)1.6.1987

50080 of 2002 Brijendra Singh & 11 others For quashing the order dated 22.8.2002 and regularization of service (!) 1.4.1986(2) 1.3.1989(3) 1.1.1988(4) 1.8.1989(5) 12.2.1988(6) 22.1.1989(7) 1.10.1989(8) 1.1.1986(9) 5.5.1989(10)1.12.1988(11)1.4.1989(12)1.4.1989

51273 of 2002 Mahesh Chandra Gupta & 19 others For quashing of the order dated 22.8.2002 and regularization of service (!) 19.7.1987(2) 1.6.1987(3) 1.11.1988(4) 1.1.1989(5) 1.4.1989(6) 1.5.1989(7) 1.6.1989(8) 1.8.1989(9) 1.8.1989(10)1.8.1989(11)1.7.1989(12)1.12.1987(13)1.3.1985(14)1.6.1989(15)1.8.1989(16)1.4.1989(17)1.3.1988(18)11.4.1989(19)11.4.1989(20)21.12.1988

50085 of 2002 Zakir Hussain & 16 others For quashing the order dated 22.8.2002 and regularization of service (!) 1.12.1988(2) 1.2.1987(3) 1.2.1987(4) 1.4.1988(5) 2.2.1989(6) 1.4.1988(7) 1.7.1989(8) 1.2.1988(9) 22.7.1986(10)1.11.1987(11)1.8.1996(12)1.8.1996(13)10.8.1989(14)1.11.1986(15)1.7.1988(16)1.1.1989(17)1.4.1989

402 of 2003 Smt. Vijay Bala For quashing the order dated 22.8.2002 and regularization of service Since 1989

21550 of 2003 Ramesh Chandra Pandey For quashing of the order dated 22.8.2002 and regularization of service 1.2.1988

50271 of 2002 Bankey Bihari Dubey & 8 others For regularization of service (!) 17.6.1989(2) 22.9.1988(3) 1.7.1989(4) 10.6.1989(5) 1.6.1989(6) 1.3.1989(7) 3.1.1987(8) 1.1.1987(9) 1.6.1988

52318 pf 2002 Brij Kishore Gautam & 13 others For quashing of the order dated 22.8.2002 and regularization of service Full particular not given

51154 of 2002 Pooran Bahadur & 14 others For quashing of the order dated 22.8.2002 and regularization of service (!) before 1989(2) before 1989(3) before 1989(4) before 1989(5) before 1989(6) before 1989(7) before 1989(8) before 1989(9) before 1989(10)8.8.1996(11)3.1.2000(12)27.7.1996(13) before 198(14) before 1989(15) before 1989

572 of 2003 Sanjai Kuamr & another For quashing of the order dated 22.8.2002 and regularization of service (1) 1.7.1989(2) 14.1.1989

609 of 2003 Rajendra Prasad & 5 others For quashing of the order dated 22.8.2002 and regularization of service (!) 1.4.1989(2) 1.8.1988(3) 1.1.1988(4) 1.6.1989(5) 1.6.1989(6) 1.12.1987

46503 of 2002 Vijay Singh & 27 others For quashing of the order dated 22.8.2002 and regularization of service Before August 1988

48040 of 2002 Sumant Singh & 34 others For quashing of the order dated 22.8.2002 and regularization of service Full particulars not given

48322 of 2002 Jagat Pal & 18 others For quashing of the order dated 22.8.2002 and regularization of service (!) 1.4.1989(2) 22.2.1988(3) ............(4) 1.12.1987(5) 2.11.1988(6) 1.8.1987(7) 1.4.1989(8) 1.11.1985(9) 1.4.1986(10)1.4.1989(11)1.11.1986(12)2.11.1988(13)1.6.1986(14)1.1.1989(15)1.7.1989(16)2.7.1987(17)1.7.1987(18)1.4.1987(19)4.10.1988

51396 of 2002 Ram Dular Yadav & 7 others For quashing of the order dated 22.8.2002 and regularization of service (!) 6.6.1989(2) 3.9.1998(3) 2.9.1987(4) 1.2.1989(5) 15.3.1989(6) 1.9.1988(7) 1.1.1989(8) 1.1.1989

52777 of 2002 Daya Ram & 8 others For quashing of the order dated 27.8.2002 and 22.8.2002 and regularization of service (!) 1.1.1987(2) 1.7.1988(3) 1.1.1987(4) 1.1.1987(5) 1.4.1987(6) 1.4.1988(7) 1.4.1988(8) 15.4.1988(9) 26.5.1989

15617 of 2003 Chhedi Lal For quashing of the order dated 22.8.2002 and regularization of service 1.4.1989

54676 of 2002 Shiv Kuamr Yadav &  15 others For quashing of the order dated 22.8.2002 and regularization of service (!) 15.10.1988(2) 15.5.1988(3) 1.6.1988(4) 15.10.1988(5) 1.7.1988(6) 11.11.1988(7) 1.6.1988(8) 4.5.1989(9) 21.1.1989(10)1.9.1988(11)14.10.1988(12)1.9.1988(13)1.1.1988(14)1.6.1989(15)1.6.1988(16)1.6.1989

52225 of 2002 Harbansh Pandey & 4 others For quashing of the order dated 22.8.2002 and regularization of service (!) 21.4.1989(2) 1.7.1987(3) 1.12.1988(4) 25.7.1989(5) 26.5.1998

47885 of 2002 Mritunjay Tiwari & 14 others For quashing of the order dated 22.8.2002 (!) 3.6.1989(2) 1.6.1989(3) 1.2.1989(4) 21.12.1988(5) 1.1.1989(6) 1.12.1988(7) 10.2.1988(8) 1.5.1987(9) 23.9.1987(10)3.10.1988(11)3.11.2002(12)............(13) ............(14)3.6.1989(15)1.1.1989

45762 of 2002 Mahendra Prasad Pandey & 9 others For quashing of the order dated 22.8.2002 (!) 1.3.1988(2) 1.6.1988(3) 1.8.1989(4) 1.8.1989(5) 1.4.1988(6) 17.11.1988(7) 1.1.1989(8) 24.4.1989(9) 1.4.1989(10)1.4.1988

47640 of 2002 Mithai Lal & 4 others For quashing of the order dated 22.8.2002 (!) 1.11.1987(2) 1.2.1988(3) 25.7.1988(4) 29.9.1988(5) 25.10.1988

23043(S/S) of 2003 Ganesh Prasad & 3 others For quashing of the order dated 22.8.2002 (!) 1.9.1986(2) 1.7.1987(3) 1.1.1989(4) 20.1.1987

54850 of 2002 Mahesh Chand For quashing of the order dated 22.8.2002 1.6.1984

50345 of 2002 Anil Kumar & 6 others For quashing of the order dated 22.8.2002 (!) 1.9.1988(2) 1.4.1988(3) 22.8.1986(4) 1.8.1986(5) 1.5.1986(6) 1.6.1987(7) 1.10.1987

51394 of 2002 Deep Chand & 2 others For quashing of the order dated 22.8.2002 (!) 1.3.1989(2) 1.5.1989(3) 1.5.1989

47316 of 2002 Ram Dular Shukla For quashing of the order dated 22.8.2002 1.4.1989

50523 of 2002 Deena Nath Pandey & 11 others For quashing of the order dated 22.8.2002 (!) 1.8.1986(2) 25.7.1989(3) 3.9.1987(4) 1.1.1989(5) 8.5.1989(6) 1.4.1988(7) 1.3.1988(8) 12.6.1988(9) 16.3.1989(10)1.4.1988(11)24.12.1986(12)1.6.1989

23417 of 2002 Man Sing & 4 others For quashing of the order dated 22.8.2002 Particular not given

48607 of 2002 Kapil Singh For quashing of the order dated 22.8.2002 1.12.1988

50911 of 2002 Ram Briksha Yadav & another For quashing of the order dated 22.8.2002 (1) 1.1.1988(2) 6.8.1989

44424 of 2002 Sri Nath Singh & 2 others For quashing of the order dated 22.8.2002 (1) 17.12.1988(2) 7.6.1989(3) 1.11.1988

3373 of 2003 Deo Prakash Pathak & 43 others For quashing of the order dated 22.8.2002 and regularization of service Prior to 1979

The appellants while assailing the judgments under appeal mainly contended:

(1) Creation of posts is within the domain of he employer and the Court should not issue a direction to the appellants to create additional posts for regularization of work charged daily wage employees, who have completed more than five years of service particularly when the appellants have specifically pleaded that due to substantial reduction in work, non availability of fresh work orders, and completion of most of the projects, the requirement of the staff has substantially reduced and there was no need to continue all the muster roll engagements due to absence of work. The appellant neither required extra hands nor had sufficient work for such extra hands, who were continuing either for one or the other reasons including the juridical orders, passed from time to time.

(2) Directions to frame a scheme for regularization of workcharge daily wage employees who have completed five years of service is neither justified on the facts and circumstances of the case nor even otherwise is legal, particularly in view of the law laid down by the Constitution Bench of the Apex Court in Secretary, State of Karnataka Vs. Uma Devi 2006(4) SCC 1.

(3) After retirement of the employees working on the regular establishment, law require that the vacancies should be filled up consistent with the constitutional scheme enshrined under Article 14 and 16, namely, after giving due opportunity and right of consideration to all eligible persons but the Hon'ble Court vide judgments under appeal, has restrained UPJN from making any fresh recruitment till the persons under the proposed scheme are regularized. This direction is in the teeth of the constitutional mandate under Article 16 of the Constitution.

(4) The order dated 12.10.2001 was passed by the Chief Engineer (Karmik) on his own without approval of the State Government or the competent authority of UPJN, and for the aforesaid reason and against the said unauthorized action, disciplinary proceeding has also been initiated against him. The order dated 12.10.2000, therefore, issued illegally lacked jurisdiction and may be a result of collusion of the employees concerned. Therefore, recovery, if any, from the employees, who are beneficiaries under the said illegal order is neither unjustified nor illegal.

(5) The petitioner-respondents were neither recruited in accordance with the provisions as are applicable to the regular employees nor fulfill other conditions namely qualification etc. as are applicable to the regular employees nor even otherwise, the principle of equal pay for equal work could have been applied in such case. Therefore, the Hon'ble Single Judge has erred in law by directing to pay minimum of the pay scale plus dearness allowance to all the petitioner-respondents pending regularization.

Opposing these appeals and justifying the orders , under appeal, the learned counsels for the petitioner-respondents have mainly submitted :

(1) They are working as daily wage muster roll employees for more than a decade and since in past the employees who have worked for 3 or 4 years have been regularized, they are also entitled for similar treatment.

(2) The petitioner respondents are discharging same duties and responsibilities as by the regular employees and, therefore, they are entitled for the salary and wages at par with regular employees.Relying on Dhirendra Chamoli & another Vs. State of U.P. 1986 (1) UPLBEC 254, State of West Bengal & others Vs. Pantha Chatterjee & others 2003(2) UPLBEC 1835, it is urged that the principle of equal pay for equal work has rightly been applied.

(3) They were paid salary in regular pay scale with allowances pursuant to the order dated 12.10.2001 issued by UPJN but before cancelling the same vide order dated 22.8.2002, neither any opportunity was afforded to the petitioner-respondents nor any show cause notice was issued nor the respondent-appellants possess any power to review order dated 12.10.2001 conferring a civil right upon the petitioner-respondents and, therefore, the order dated 22.8.2002 has rightly been quashed, being in violation of principle natural justice and without jurisdiction for want of power of review.

(4) The respondent-appellants have not framed any rules for recruitment of Class-III and class-IV employees in UPJN, therefore, it cannot be said that initial recruitment of the petitioner-respondents was illegal or inconsistent with the statutory procedure applicable to the regular employees. Thus the law laid down in Uma Devi (supra) would have no application.

(5) The petitioner-respondents having worked for more than 10 years and their appointment is not wholly illegal and at the best is only irregular, they are entitled for regularization as held in para-44 of Uma Devi (supra).

(6) The Government order dated 22.8.2002 has been issued alleging that in Putti Lal, the Apex Court has held that regular pay scale is not available and payable to the daily wage muster roll employees, though a perusal of the aforesaid judgment does not support the said inference. Further, the judgment in Putti Lal was in respect of Forest Department of the State of U.P. and was not applicable to UPJN. In the circumstances, the very foundation of the order dated 22.8.2002 being non est., the said order has rightly been quashed by Hon'ble Single Judge.

Before entering into merits of the rival submissions, it would be appropriate to reproduce the directions issued by the Hon'ble Single Judge in the leading judgment dated 18th July 2003:

1. The U.P. Jal Nigam shall frame requisite scheme consistent with its policy as done in the past, for regularisation of Daily Wage/Muster Roll work charge employees who have already completed five years of service in the department for regularisation. For this purpose, they will also create additional posts in addition to the 939 vacant posts created earlier according to their requirements and submit such scheme within two months. The State Government shall pass appropriate orders , in accordance with law and communicate its decision within two months from the date of receipt of Scheme from the Jal Nigam.

2. No recovery of any amount paid as salary under the orders , of the Opp. Parties shall be made from the petitioners in view of what has been observed above in the body of this judgment.

3. No fresh appointment shall be made in U.P. Jal Nigam in class 4 category till all the persons entitled under the scheme mentioned above, are considered for regularisation.

4. In view of the assertions that all the petitioners are discharging functions at par with similarly situated regular employees, the authorities shall go into the matter and shall pay minimum of the pay scale plus dearness allowances pending regularisation. They shall not be paid any other allowances.

5. There shall be no order as to costs.

The Court, it appears guided itself and set itself in motion by the facts that the petitioner-respondents are working as muster roll employees for a very long period, i.e. to say 10-20 years and, therefore, issued directions for framing a scheme for their regularization, creation of posts till regularization is completed and not to make fresh recruitment, till then, and, also to pay salary at the minimum of the pay scale plus dearness allowance. Whether such an approach is permissible in law and in particular, jettisoning of the public employment by ignoring the Constitutional scheme, is the moot question to be answered. Regularization has never been held to be a valid mode of recruitment ordinarily. In the past, sometimes on account of large scale engagements continued for long period has been taken as relevant consideration by the authorities enacting statutory provisions for regularization of the persons engaged without following statutory procedure for recruitment. Besides, the statutory provisions, sometimes the Courts have also issued directions to the authorities to regularize such appointees depending upon the facts and circumstances of the individual cases. However, time and again on judicial review, the Courts have largely deprecated practice of engagement of some persons without following the recruitment procedure and, thereafter, continue them for considerable length of time and then confer permanence upon them by way of regularization since it has generated a different kind of litigation and a regular channel of such appointees. Fortunately, the diversion expressed in various judicial pronouncements drew attention of the Apex Court and the issue came to be considered before a Constitution Bench recently in Uma Devi (supra). The Court reviewed the entire law on the aspect and after discussing the issue at great length, overruling all the earlier judgments taking a different view, has held that a sovereign government or its instrumentality, considering economic situation in the Country and the work got to be done is not precluded from making temporary appointments or engaging workers on daily wages, but whenever a regular vacancy occur, it has to be filled in as per Constitutional scheme by giving equal opportunity of employment to all concerned persons. The Court has rejected the approach of taking a lenient view and term it as a misplaced equity and sympathy to the handful people, who have approached the Court with a claim of equity ignoring the equity of teeming millions of the country seeking employment and a fair opportunity for competing for employment. The Court, categorically held that adherence to Article 14 and 16 of the Constitution is a must in the process of public employment and also stressed that adherence to the rule of equality in public employment is a basic feature of our constitution. It held :

43.  Thus it is clear that adherence to the rule of equality in public employment is a basic feature of our constitution and since the rule of law is the core of our constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. ...................."

It further held that the High Courts, acting under Article 226 of the Constitution should not ordinarily issue directions for absorption/regularization or permanence unless the recruitment itself was made in a regular manner consistent with the Constitutional scheme. The Apex Court very categorically held-"The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularization or permanent continuance unless the recruitment itself was made regularly and in terms of the Constitutional Scheme."

The Apex Court also cautioned the Courts that they must be careful in ensuring that they do not interfere unduly with the economic arrangement of the affairs of the State or its instrumentalities or lend themselves on instrument to facilitate the bypassing of the constitutional and statutory mandates.  

Following Uma Devi (supra), in Surinder Prasad Tiwari Vs. U.P. Rajya Krishi Utpadan Mandi Parishad & others, 2006 (7) SCC 684, in para-35, 37 and 38, it was held :

"35. Equal opportunity is the basic feature of our Constitution. Public employment is repository of the State power. Certain status and powers emanate from public employment.

37. Our constitutional scheme clearly envisages equality of opportunity in public employment. The Founding Fathers of the Constitution intended that no one should be denied opportunity of being considered for public employment on the ground of sex, caste, place of birth, residence and religion. This part of the constitutional scheme clearly reflects strong desire and constitutional philosophy to implement the principle of equality in the true sense in the matter of public employment.

38. In view of the clear and unambiguous constitutional scheme, the courts cannot countenance appointments to public office which have been made against the constitutional scheme. In the backdrop of constitutional philosophy. It would be improper for the courts to give directions for regularisation of services of the person who is working either as daily-wager, ad employee, probationer, temporary or contractual employee, not appointed following the procedure laid down under Articles 14, 16 and 309 of the Constitution. In our constitutional scheme, there is no room for back door entry in the matter of public employment."

Elaborating the procedure of regular appointment, in Union Public Service Commission Vs. Girish Jayanti Lal Vaghela 2006 (2) SCC 482, the Court observed that regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner, which would include inviting of applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution. This view has been referred and approved in Uma Devi (supra)  and reiterated in National Fertilizers Ltd. Vs. Somvir Singh 2006 (5) SCC 493 observing that the "State" within the meaning of Article 12 of the Constitution is bound to comply with the constitutional mandate under Article 14 and 16.

Again a question cropped up as to whether by issuing executive orders , or certain guidelines, a regularization is permissible where recruitment is not consistent with Article 16, and, replying in Accounts Officer (A&I) APSRTC and others Vs. P Chandra Sekhara Rao & others 2006(7) SCC 488, it was held that no regularization is permissible even in exercise of powers conferred under Article 162 of the Constitution if the appointment has been made in contravention of the statutory rules or Article 16 of the Constitution. Earlier even in State of Haryana and others Vs. Piara Singh & others AIR 1992 SC 2130, the Apex Court declining to accept the contention that general directions can be issued by the Court for regularization observed as under :

"The court cannot obviously help those who cannot get regularized under these orders , for their failure to satisfy the conditions prescribed therein. Issuing general declaration of indulgence is no part of our jurisdiction. In case of such persons we can only observe that it is for the respective Governments to consider the feasibility of giving them appropriate relief, particularly in cases where persons have been continuing over a long number of years, and were eligible and qualified on the date of their ad hoc appointment and further whose record of service is satisfactory."

In view of the above discussed authoritative pronouncements, it is too late in the day to uphold the general direction of framing a scheme for regularization and to regularize the employees engaged on daily basis or on contract or temporary but without complying the requirement of Article 16 of the Constitution and the procedure for regular appointment.

At this stage, some of the learned counsels for the petitioner-respondents contended that they have pleaded in the writ petition that their initial entry in service on daily wage basis was after  selection and in accordance with law. However, on deeper scrutiny, we find that in most of the writ petitions, no such averment has been made at all, but in some, a vague assertion has been made. The relevant paragraph of one of such writ petitions, being writ petition no. 44424 of 2002 (Special Appeal No. 1317 of 2003), may be quoted as under :

2. That, the petitioner No. 1 Sri Nath Singh was appointed on 17.12.1988, petitioner No. 2 Pradeep Kuamr Sharma was appointed on 07.06.1989 and Shive Purari Prasad was appointed on 01.11.1988 as muster roll employee on the post of Pump Attendant in the concerned branch of the Uttar Pradesh JalNigam, Varanasi.

3. That, the respondents are taking the work from the petitioners as Pump Operator from the first date of their appointment, but the petitioners are being treated as Pump Attendant by the respondent. Thus, the inconsistently and contradictory conduct and behaviour involving a question of law warrants the indulgence of this Hon'ble Court.

4. That, the petitioners are working on the post of Pump Operators incessantly in the U.P. Jal Nigam, Varanasi without any break for more than 14 years.

5. That, the petitioners are discharging the similar duties of the Pump Operators as is being discharged by the regular employees of the Pump Operators of U.P. Jal Nigam, Varanasi.

The appellants, on the contrary, have not only denied such averments, but have specifically pleaded that daily wage engagements were made to meet the exigency of the job and after completion of project, their service automatically terminated. However, since the work in other projects was available, the incumbents were engaged in those projects on humanitarian ground and now on account of substantial reduction of work, UPJN is neither in a position to continue with all such extra hands nor needs them on regular basis nor they are entitled for salary at par with the regular employees at the minimum of the regular pay scale. The averments denying initial engagement of the petitioner-respondents not made as per law or by selection as contained in para 29 and 35 of the counter affidavit may be reproduced as under :

"29. That, the contents of para no. 3, 4 and 5 of the writ petition are not admitted in the manner stated. The petitioner's are all daily wage muster roll employees who are engaged for specified work and have no right to any post/pay-scale/regularisation. It is moreover, specifically denied that the petitioner's have been appointed against any post or that the petitioner's are performing work of a regular employee. Considering the nature of petitioner's engagement no assessment of their work, etc. is maintained being a daily wages persons and as such it is difficult to comment on the working of the petitioner, nor any employee-employer relationship has come into existence between the petitioner's and the Nigam."

33. ..........The petitioners are working on the particular projects running under the U.P. Jal Nigam in the workcharge establishment and their services shall come to an end automatically after completion of the projects. The wages of muster roll employees like the petitioners are paid from the funds allocated for the particular project on which they are working. Their work is not a permanent nature. However, they are engaged on the other projects on humanitarian grounds subject to the availability of work on the rate prevalent in the locality.  

The petitioners are not entitled to get the benefits equal to their regular employees of the Jal Nigam as neither they were required to possess the qualification prescribed for regular work nor they have to fulfil the requirement relating to the age at the time of retirement. The petitioners have not been selected and the requirement for their selection were not rigorous. In case, the petitioner are allowed the regular pay-scale the projects/work running under the U.P. Jal Nigam shall be adversely affected."

(emphasis added.)

During the course of arguments, we ourselves gave full opportunity to the petitioner-respondents to place any material on record showing that their initial appointment was after advertisement of the vacancies and after complying with the Constitutional Scheme under Article 14 and 16 of the Constitution, but the petitioner-respondents neither availed such opportunity nor placed any material to fortify the aforesaid contention. In the absence of any material the vague assertions which have been denied by the appellant cannot be accepted.

Even otherwise, the facts as discussed above make it apparently clear that at the time the petitioner-respondents were engaged as daily wagers, even sanctioned posts were not available. That being so, the question of advertisement of vacancies and regular selection would not arise at all. There is nothing on record to show that any of the petitioner-respondents was engaged against any sanctioned post available and after its due advertisement and giving opportunity of employment to all persons at large complying the requirement of Article 16 of the Constitution. Therefore, on facts also we are not satisfied that the petitioner-respondents were initially engaged after due advertisement of the vacancies and selection as stated by some of them.

No doubt, a perusal of the chart (supra) shows that petitioner-respondents (except some) are working continuously for a decade or two. However, from the pleadings of the respondent-appellants, it appears that the initial engagement of the petitioner-respondents on daily wage muster roll was at the specific project and after completion thereof, the petitioner-respondents were permitted to continue engagement at other projects, which were in the hands of UPJN. The respondent-appellants have specifically pleaded engagement of the petitioners projectwise in the counter affidavit and we do not find any averment in the rejoinder disputing this fact. Therefore, so far as length of engagement is concerned, though the petitioner-respondents have continued to work for a long time, but the fact remains that their continuance is on account of exigency that after completion of project, they were allowed a preferential right of engagement on other ongoing projects and this continuance has resulted in the continuous engagement of the petitioner-respondents on different projects, but the fact remains that the engagement has been on project to project basis. Whether such an engagement even if it has continued for a long time, would be sufficient to infer that continuous engagement for long time prima facie shows permanent need of such employees warranting regularization. The answer would be no. We find that a similar issue came for consideration before Apex Court in Principal Mehar Chand Polytechnic & another Vs. Anu Lamba & others JT 2006 (7) SC 322 where also the direction was issued by the High Court to consider regularization of the workers since they have continued for long time i.e. ten years and more. In the appeal preferred by the employer, the employees argued that long period of engagement itself was sufficient to warrant a direction for regularization of service.. Negativing the said contention, the Apex Court held that in the absence of any legal right such direction cannot be issued. The petitioner-respondents have not placed anything before us to show that any of them has continued at same place or at the same project for decades and only in order to deny the benefits available to regular employees or by adopting unfair labour practice, they have been allowed to continue as daily wage muster roll employees and have not been regularized. Neither any factual foundation has been laid for the said purpose nor we find sufficient material supporting it. On the contrary, bonafide on the part of the appellants to regularize the employees whenever found necessary is writ large from the fact that more than 10,000 posts were created and more than 9000 employees working on muster roll daily wage basis were regularized. Besides, we are informed that a number of benefits, which are normally not available to daily wage muster roll employees, have been extended to these persons by the appellants. Sri M.M. Sahai, learned counsel for the petitioner-respondents in some appeals has filed written submission annexing certain documents showing following benefits extended to the daily wage muster roll employees of UPJN:

1. Appointment on compassionate basis to one of the dependents of a deceased work charge muster roll employee (vide UPJN ''s office memorandum dated 19.7.1996.) However, the said employment would be in the same capacity, namely, work charge or muster roll as deceased employee was working.

2. 14 days casual leave. (Vide order dated 24.5.1988.)

3. Medical reimbursement in case of any injury sustained during discharge of duties. (vide officer memorandum dated 12.11.1989.)

4. Age of retirement as 58 years has been prescribed beyond which daily wage muster roll employees are not entitled to continue. Besides, for every completion of six months' service, the employees acquire a right of 15 days salary under the provisions of Industrial Dispute Act and the benefit of gratuity etc. as are admissible under other various Labour laws.

At this stage one more aspect needs consideration. The learned counsel for the petitioner-respondents argued that there were/are no statutory rules in violation whereof it can be said that the petitioner-respondents were recruited and, therefore, it cannot be said that their initial engagement was contrary to the statutory rules and hence illegal. In other words, it is contended that the petitioner-respondents' appointment was not illegal since inception as it was not contrary to any statutory provision and, therefore, the law laid down by the Apex Court in Uma Devi (supra) would have no application and petitioner-respondents thus, are entitled for regularization on account of the fact that they have continued for decades showing need of the petitioner-respondents' employment with UPJN is regular and permanent. The argument though attractive but untenable. It is apparently fallacious and lacks substance. It is not disputed that UPJN being an autonomous statutory body answers the description of "State"  under Article 12 of the Constitution and, therefore, bound to observe various fundamental rights enshrined under Constitution of India. Article 16 confers a fundamental right upon every citizen of equal opportunity in public employment. Even when there is no rule or regulation specifically framed, whenever a recruitment is to be made to a public office, observance to the requirement of Article 16 is obligatory and must. An opportunity of consideration has to be afforded to all the eligible intending persons as and when recruitment to a public office is to be made. Therefore, even when no statutory rules and regulations are available, Article 16 is there on the statute book warranting its observance in words and spirit. Besides, the Parliament has also enacted "Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959", which obliges an employer under the aforesaid Act to notify a vacancy to the employment exchange. This is another statutory requirement supporting publication of a vacancy in public office to all eligible citizens guaranteeing right of equal consideration for employment.

Moreover, in the written arguments submitted by the petitioner-respondents in Special Appeal No. 696 of 2003, a copy of the UPJN Board's meeting dated 12.1.1986 has been placed on record, which shows that in respect to certain category of posts, qualifications and mode of recruitment was prescribed as would be apparent from the following. :

8. 'kSf{kd ;ksX;rk;sa  fofHkUu inksa ds fy, 'kSf{kd ;ksX;rk,a o vuqHko fuEukuqlkj laLrqr fd, tkrs gSaA bUMfVª;y Vªsfuax bULVhV~;wV }kjk Lohd`r vgZrk;sa o muds ikB~;dze dks vk/kkj ekurs gq, ;g fu/kkZfjr fd;k x;k gSA

laLrqfr inksa ds fo:) osrueku rFkk lh/kh HkrhZ gsrq ;ksX;rk ,oa inksUufr gsrq ekin.M vkxs nh tk jgh rkfydk esa fn, tk jgs gSA inksUufr dk mPpre osrueku fu/kkZfjr le;kof/k ds vk/kkj ij ;ksX;rk,a ik, tkus ds ckn dh tk ldsxhA

8.1 fofHkUu inksa ij fu;qfDr gsrq vgZrk,a ,oa inksUufr gsrq ;ksX;rk,a ,oa ekina< %

Lkfefr }kjk laLrqr in Oksrueku lh/kh HkrhZ gsrq vgZrk IknksUufr }kjk Hkrhz gsrq vgZrk ¼p;uk/kkj ij½

1. csynkj 200-320 lacaf/kr dk;Z esa fuiq.k o fgUnh i<~us fy[kus esa ;ksX; &

2. iEi vVsaMsV de ds;j Vsdj 230-305  ,oa 10 o"kZ lsok iw.kz gksus ij p;uk/kkj ij 265-400 o iqu% nl o"kZ iw.kZ gksus p;uk/kkj ij 320-460 ok;j eSu VªsM esa vkbZ0 Vh0 vkbZ0 csynkj ds in ls lacaf/kr dk;Z dk 10 o"kZ dk vuqHko

3. fQYVj vVsaMsaV &rnSo& csynkj VªsM esa vkbZ0 Vh0 vkbZ0 RknSo&

4. iEi vkijsVj de ds;j Vsdj 265-400 ,oa nl o"kZ lsok iw.kZ gksus ij p;uk/kkj ij 320-460 lh/kh HkrhZ ugha IkEi vVsaMsV de ds;j Vsdj ds in ij 10 o"kZ dk vuqHko

5. eSdsfud 230-305 ,oa nl o"kZ lsok iw.kZ gksus ij p;uk/kkj ij 265-400 ,oa iqu% nl o"kZ  iw.kZ gksus ij p;uk/kkj ij 320-460 EkSdsfud VªsM esa vkbZ0 Vh0 vkbZ0 csynkj ds in ij lacaf/kr dk;Z dk 10 o"kZ dk vuqHko

6. bysDVªhf'k;u 265-400  ,oa nl o"kZ lsok iw.kZ gksus ij 320-460 bysDVªhf'k;u VªsM esa vkbZ0 Vh0 vkbZ0 IkEi vVsaMsV de ds;j Vsdj ds in ij 10 o"kZ dk vuqHko

7. IyEcj 230-385 ,oa nl o"kZ lsok iw.kZ gksus ij p;uk/kkj ij 265-400 o iqu% nl o"kZ lsok iw.kZ gksus ij p;uk/kkj ij 320-460 IyEcj VªsM esa vkbZ0 Vh0 vkbZ0 csynkj ds in ij lacaf/kr dk;Z dk 10 o"kZ dk vuqHko

8. lsEiy dysDVj 320-460 gkbZ Ldwy lkbal ds fo"k; ds lkFk &

9. fcy DydZ 320-460 naVjehfM,V ikl o Vad.k esa n{krk &

10. dsfeLV 380-550 Lh0,l0lh0 ¼dsfeLVªh fo"k; ds lkFk &

11. ekyh va'kdkyhu :0 50/- izfrekg

12. Lohij &rnSo&

It cannot be disputed that in the absence of statutory provision, it is always open to the employer to provide conditions of recruitment by executive orders , or administrative orders , which will have force of law. The aforesaid resolution passed by UPJN prescribing qualification and conditions for recruitment etc thus would have force of law.

In Union Public Service Commission Vs. Girish Jayanti Lal Vaghela & others (supra), considering distinction between the employment made by a private employer and the "State" under Article 12 of the Constitution, it was held that appointment to a post in public employment can only be made after a proper advertisement made, inviting applications from eligible candidates and holding a selection by a body of experts of a selection committee whose members are fair and impartial, through written examination or interview or some other reasonable criteria for judging the inter se merit of the candidates who have applied in response to the advertisement made. The Court further held that any appointment made without regular advertisement and inviting application from eligible candidates would violate the guarantee enshrined under Article 16 of the Constitution. On the contrary, a private employer in India enjoys almost a complete freedom to select and appoint employees of his own choice and there is no statutory provision mandating that for any post, selection be made strictly on merit or on the basis of competitive examination or after a due advertisement of the vacancy. A private employer is absolutely at liberty to appoint a less meritorious person. Except those who are covered by the provisions of Industrial Disputes Act or any such other law, an employee working in a private establishment normally does not enjoy any statutory protection regarding his tenure of service. Mere absence of statutory rule would not deflect  from the fact that the petitioner-respondents at any point of time were not engaged by observing constitutional scheme i.e. Article 16 and, therefore, as is held by the Constitution Bench in Uma Devi (supra), the initial engagement being illegal cannot confer any benefit for the purpose of regularization. In this view of the matter, we have no hesitation in holding that direction to the respondent-appellants to regularize the petitioner-respondents is unsustainable.

Even the question as to whether the High Court can itself make scheme for regularization or direct the authorities to frame a scheme for regularization has been deprecated recently by the Apex Court in State of U.P. Vs. Neeraj Awasthi, 2006(1) SCC 667 and the Hon'ble Court held that the High Court has no jurisdiction to frame a scheme by itself or direct for framing a scheme for regularization and the said view was reiterated in State of Karnataka & others Vs.  KGSD Kanteen Employees Welfare Association 2006 (1) SCC 567 and State of Gujarat and another Vs. Karshanbhai K. Rabari & others 2006 (6) SCC 21. Therefore, in view of the aforesaid authoritative pronouncements and exposition of law, the direction issued by the Hon'ble Single Judge commanding the appellant to frame scheme for regularization of the petitioner-respondents cannot sustain.  

Now coming to the second aspect as to whether the petitioner-respondents are entitled to claim salary at the minimum of the pay scale with dearness allowance as applicable to regular employees, we find that in the absence of a finding that in all respects, the petitioner-respondents stand at par with the regular employees, such direction cannot sustain. The issue has recently been considered by a three Judges Bench of the Apex Court in State of Haryana Vs. Chiranjit Singh JT (12) SC 475=AIR 2006 SC 161 and the Court held that the principle ''equal pay for equal work' has no mechanical application in every case. A classification based on factors relating to the service would justify difference in the pay scale. The Court held :

"Having considered the authorities and the submissions we are of the view that the authorities in the cases of Jasmer Singh, Tilak Raj, Orissa University of Agriculture & Technology and Tarun K. Roy lay down the correct law. Undoubtedly, the doctrine of "equal pay for equal work" is not an abstract doctrine and is capable of being enforced in a Court of law. But equal pay must be for equal work of equal value. The principle of "equal pay for equal work" has no mechanical application in every case. Article 14 permits reasonable classification based on qualities or characteristics of persons recruited and grouped together, as against those who were left out. Of course, the qualities or characteristics must have a reasonable relation to the object sought to be achieved. In service matters, merit or experience can be a proper basis for classification for the purposes of pay in order to promote efficiency in administration. A higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues is also an acceptable reason for pay differentiation. The very fact that the person has not gone through the process of recruitment may itself, in certain cases, make a difference. If the educational qualifications are different, then also the doctrine may have no application. Even though persons may do the same work, their quality of work may differ. Where persons are selected by a Selection Committee on the basis of merit with due regard to seniority a higher pay scale granted to such persons who are evaluated by competent authority cannot be challenged. A classification based on difference in educational qualifications justifies a difference in pay scales. A mere nomenclature designating a person as say a carpenter or a craftsman is not enough to come to the conclusion that he is doing the same work as another carpenter or craftsman in regular service. The quality of work which is produced may be different and even the nature of work assigned may be different. It is not just a comparison of physical activity. The application of the principle of "equal pay for equal work" requires consideration of various dimensions of a given job. The accuracy required and the dexterity that the job may entail may differ from job to job. It cannot be judged by the mere volume of work. There may be qualitative difference as regards  reliability and responsibility. Functions may be the same but the responsibilities made a difference. Thus normally the applicability of this principle must be left to be evaluated and determined by an expert body. These are not matters where a writ court can lightly interfere. Normally a party claiming equal pay for equal work should be required to raise a dispute in this regards." (Para 17)(emphasis added).

A Division Bench of this Court in which one of us (Sudhir Agarwal, J.) was member in Writ Petition No. 3369 of 2004 Ranveer Singh Mahle and others Vs. State of U.P. & others decided on 24th May 2006 has dealt with the entire earlier case law on the subject and has held that difference in pay on the basis of source of recruitment, method of recruitment, eligibility, qualification, status of hierarchy and similar other relevant factors justify the difference.  

Even in Uma Devi (supra), the Court in respect to parity on wages observed-"The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed."

The right to be treated equally with other employees cannot be extended to claim equal treatment in respect to wages with those who were regularly employed. It is true that some of the petitioner-respondents have made a bare assertion that they are discharging same duties as are being discharged by the regular employees but the same has not only been denied by the appellant, but, in para-33 of counter affidavit, it has been specifically pleaded that petitioner-respondents are working on particular projects of workcharge establishment and are being paid from funds allocated for such projects, which are not permanent in nature. They are engaged on other projects on humanitarian ground subject to availability of work on the rates prevailed in the locality. The petitioner-respondent have not placed any material on record to show that they are identically placed with the regular employees and, therefore, entitled for salary at the minimum of the regular pay scale with allowance as admissible to regular employees. On the contrary, it is not disputed that minimum wages, as determined by the State Government under the Minimum Wages Act, are being paid to the petitioner-respondents and various other benefits as are admissible to such daily wage muster roll employees under various labour legislations have also been extended to these persons. The petitioner-respondents are not being terminated and at present are not facing any immediate apprehension of loosing their job. However, as and when any such exigency would arise, appellant themselves have stated and undertaken that the provisions of the U.P. Industrial Disputes Act, 1947 shall be observed and various compensations and other dues as admissible shall be paid. In the circumstances, we are not able to persuade  ourselves to sustain the judgments under appeal directing the appellants to pay salary to the petitioner-respondents at the minimum of the pay scale and allowances.

Coming to the direction regarding creation of vacancies, we find that such a direction ought not to have been issued. It has consistently been held whether a post should be created or not is within the jurisdiction of the employer and it is not for the Court to direct the employer to create a post and, thereby incur financial obligation and burden.

In Union of India Vs. Tejram Parashramji Bombhate and others AIR 1992 SC 570, the Apex Court seriously deprecated a direction issued by the Central Administrative Tribunal  directing the Central Government to sanction sufficient number of posts in a Secondary School running at Ordnance Factory. The Court held:

"It is a policy matter involving financial burden. No Court or the Tribunal could compel the Government to change its policy involving expenditures. The Tribunal, therefore, could not have issued the direction as it did to compel the Central government to assess the needs of the School and create necessary posts without support of law."

This has been followed in Gyan Prakash Vs. Union of India JT 1997 (8) SC 440  and after referring to Tejram (supra), the Apex Court upholding the judgment of the High Court agreed with the view taken therein that a direction to create posts cannot be given. A similar view has been taken in The Commissioner, Corporation of Madras Vs. Madras Corporation  Teachers' Mandram and others AIR 1997 SC 2131 where the Court held:

:"It is well settled legal position that it is the legal or executive policy of the Government to create a post or to prescribe the qualifications for the post. The Court or Tribunal is devoid of power to give such direction. The impugned direction, therefore, is clearly illegal."

Moreover, in the case in hand, the number of sanctioned posts in excess to the number of employees already regularized are already available with the appellants. The question would be as to how and in what manner, such posts are to be filled in. Whether after making regular appointment against the already available posts the respondent-appellant would need some more posts or not is a matter to be looked into by them. We do not find any justification at this stage even otherwise for issuing such direction as has been issued by the Hon'ble Single Judge and, therefore, we are unable to uphold the judgments under appeal giving direction to the respondent-appellants for creation of posts.  

The petitioner-respondents further contended that in total 10581 posts were created but as per the resolutions of 1985 and 1989, only 9642 persons were regularized leaving rest of the sanctioned posts unfilled and, therefore, the petitioner-respondents should be considered for regularization against the available posts in the same manner as has been done earlier in the cases of others. We are afraid, now, after the Apex Court verdict in Uma Devi (Supra), it is not permissible and possible to issue any such direction. If a regular selection on sanctioned post is to be made on regular basis, the same has to be advertised. The appellant answers "State" under article 12 of the Constitution and, therefore, public employment cannot be made without observing constitutional scheme under Article 16 of the Constitution. However, considering the length of the service of the petitioner-respondents, we find it appropriate to observe that in case, the appellants makes any regular selection against sanctioned post, the petitioner-respondents may also be considered if they are otherwise eligible by giving necessary relaxation in the matter of age to the extent they have rendered service with the appellant. We also provide that all other things being equal in the process of recruitment the petitioner-respondents may be given preference for regular recruitment.

Now we come to the last question raised in all the writ petition i.e. the validity of the order dated 22.8.2002. Admittedly, a circular was issued under the signature of the Chief Engineer (Karmik), UPJN, posted at its Head Office, i.e. Lucknow, on 12.10.2001, directing payment of salary at the minimum of the pay scale as admissible to the regular employees to all daily wage muster roll employees. The learned counsel for the respondent-appellate sought to rely on Section 27 of the Act, but a bare perusal thereof would show that the same is applicable only to Jal Sansthans and not to Jal Nigam. A Jal Nigam is established under Section 3 of the Act, which is a body corporate and is deemed to be a Local Authority for all purposes having its head office at Lucknow. It is a body created at the State Level and there can be only one Jal Nigam, namely, UPJN. However, a Sansthan is established under Section 18 having jurisdiction over a local area of operation depending upon the local conditions and its area of operation may be at the level of town area, Nagar Palika, Nagar Nigam etc. In respect to any rural area State Government by  notification under Section 19 of the Act may provide that the Jal Nigam shall be Jal Sansthan in exercise of powers. Therefore, a Jal Nigam when notified under Section 19 of the Act in respect to such area would be Jal Sansthan but not vice versa, namely, a Jal Sansthan cannot be a Jal Nigam. The power of appointment of employees in UPJN has been provided under Section 8 of the Act which reads as under :

"8. Appointment of employees.- (1) Subject to the provision of sub-section (2), the Nigam may appoint such employees as it considers necessary on such terms and conditions as it thinks fit for the efficient performance of its functions:

Provided that the appointment of such employees as the State Government may, by general or special order specify, shall be made in their terms and conditions shall be determined with the approval of the State Government.

(2) The Nigam may, with the previous approval of the State Government, appoint a servant of the Central government or the State Government as an employee of the Nigam on such terms and conditions as it thinks fit."

Section 9 of the Act provides power of supervision and control over the employees, vested generally in the Chairman and subject to his general control, with the Managing Director of the UPJN. Section 10 provides the mode and manner of Authentication of orders , and other instruments of the UPJN. Sections 9 and 10 of the Act for better appreciation are reproduced as under :

"9. Supervision and control over employees.- Subject to the superintendence of the Nigam, the Chairman shall have the general control and direction over, and subject thereto, the Managing Director shall have control over, all other employees of the Nigam.

10. Authentication of orders , and other instruments of the Nigam.-(1) All proceedings of the Nigam shall be authenticated by the signature of the Chairman and all orders , and other instruments of the Nigam shall be authenticated by the signature of the Managing Director or such other officer of the Nigam as may be authorized in this behalf by regulations.

(2) The Nigam may invite any person to attend a meeting of the Nigam for the purpose of assisting or advising it on any matter, and the person so invited may take part in any proceedings of the Nigam but shall have no right to vote."

The power of appointment, therefore, is vested in UPJN which may be delegated by it to Chairman or Managing Director or to such officers of UPJN as provided under Section 11 which reads as under :

"11. Delegation of powers.- Subject to the provisions of this Act, the Nigam may by general or special order, delegate, either unconditionally or subject to such conditions, including the condition of review by itself, as may be specified in the order, to any committee appointed by it or to the Chairman or the Managing Director or any other officer of the Nigam such of its powers and duties under this Act as it deems fit, not being its powers and duties under Section 46, 49 and 50."

Thus, the policy decision involving heavy financial burden unless shown otherwise, could have been taken by UPJN. It is a categorical case of the respondent-appellants that no such decision was taken by UPJN and the Chief Engineer (Karmik) issued order dated 12.10.2001 unauthorizedly and illegally without approval of the competent authority. Even if the objection of the respondent-appellant that the approval of the State Government was not obtained is not supported under any provision of the Act, yet the order could have been issued by UPJN or the competent authority to whom the power is delegated. Besides, Section 89 of the Act, makes UPJN under obligation to be guided itself by such directions on questions of policy as may be given to it by the State Government. When UPJN took a positive stand that the order dated 12.10.2001 was not issued by the competent authority, the question of estoppel or its binding nature on UPJN would not arise since in our view doctrine of ultra vires will come into play. Where the officers are agents of a statutory corporation or Government, acting outside the scope of their authority, the Government or such statutory corporation cannot be held bound by such unauthorized act of their officers. The fact as discussed above are self speaking.  

The UPJN in its counter affidavit, has categorically said that the order dated 12.10.2001 was issued by the Chief Engineer (Karmik) without approval of the State Government and without obtaining approval of the competent authority in a wholly illegal manner on account whereof, disciplinary proceeding has also been initiated against him. Para-26, 27 and 33 of the counter affidavit are reproduced as under :

"26. That, the letter dt. 12.10.2001 has been unauthorizedly and illegally issued by the then Chief Engineer (Karmik) without approval of the State Government and without obtaining approval of the competent authority. Disciplinary proceedings have also been initiated against the Officer who has issued the order dt. 12.10.2001 and enquiry Officer has also been appointed by the Nigam for illegally issuing the order dt. 12.10.2001.

27. That, it is further mentioned that the State Government has issued the letter dt. 12.8.2002 to the Jal Nigam for the cancellation of the said letter dt. 12.10.2001. The letter dt. 12.8.2002 issued by the State Government is being filed herewith and is marked as Annexure No.10 to this counter affidavit.

33...............Since, the order dt. 12.10.2001 was passed without obtaining approval of the competent authority, therefore, the same has rightly been cancelled after obtaining permission of the competent authority, i.e., the Managing Director, U.P. Jal Nigam. Since, the order dt. 12.10.2001 was void ab-initio therefore, its cancellation under the facts of the present case is absolutely just, legal and valid. The respondents are applying for vacation of the interim order passed in other matters on the basis of ex-party averments contained in the writ  petition. The action of the Corporation is in accordance with law.

In the order dated 22.8.2002 also, the same facts have been reiterated as is reproduced hereunder :

"blds fuxZeu gsrq fu;ekuqlkj visfZ{kr 'kklu dh iwoZ Lohd`fr rFkk l{ke izkf/kdkjh dk vuqeksnu Hkh izkIr ugh gSA vr% vijksDr fLFkfr esa mDr fnukad 12.10.2001 dk dk;kZy; Kki fof/kor izkf/kd`r ugh gS rFkk fu;ekuqdwy ,oa fof/klEer Hkh ugh gSA

 vr% mijksDr ds ifjizs{; esa 'kklu Lrj ij lE;d~ fopkjksijkUr ;g fu.kZ; fy;k x;k gS fd mijksDr dk;kZy; Kki la[;k 1024/v-4-2/fu;qfDr lqfo/kk,a fnukad 12.10.2001 dks fujLr dj fn;k tk;sA

vr% izcU/k funs'kd] ty fuxe dh Lohd`fr ls ,rn~ }kjk bl dk;kZy; dk dk;kZy; Kki la[;k 1024/v-4-2/fylqfDr lqfo/kk,a fnukad 12.10.2001 rRdkyhu izHkko ls fujLr fd;k tkrk gSA""

The petitioner-respondents have not placed anything on record to contradict the aforesaid facts. Even the Hon'ble Single Judge has observed in the order under appeal the aforesaid facts but thereafter has proceeded on the assumption that since payments were made by the Field Officer, and such huge amount could not have been possible without the approval of the competent authority, therefore it has disbelieved the appellants stand. We, with great respect to the Hon'ble Judge, cannot countenance to this approach. Where the statute requires something to be done in a particular manner, in the absence of any material, the facts stated and pleaded by the authorities who possesses first hand information of those facts should not have been disbelieved unless finds otherwise. The UPJN has taken a categorical stand that neither the approval of the State Government nor of competent authority in UPJN was obtained and the Chief Engineer issued the order illegally. The funds are available in the Field Office and pursuant to the order issued by an officer working at Head Quarter, the payments were made at the field level. Such payment by itself cannot be treated to be an indication that the approval must have been granted by the competent authority in the absence of any further evidence. The finding thus is based on no evidence and cannot be accepted. However, it cannot be disputed where payments are made not on account of any fraud or misrepresentation of the employees concerned, recovery of the amount already paid would not be permissible unless it is found that the order for payment was issued in collusion with such employees. A careful reading of the order dated 22.8.2002 shows that the appellants have not issued any order for recovery of the amount, but Field Officers are directed to communicate the quantum of financial disbursement made to the employees whereafter the order of recovery shall be issued. No order of recovery in presenti has been issued. Therefore, at this stage, it would be appropriate to direct that the appellants shall make an appropriate enquiry in the matter as to whether in the issuance of the order dated 12.10.2001 by the Chief Engineer (Karmik), there was any collusion of the employees including the petitioner-respondents and if it is found that the order was issued in collusion, only then, a recovery may be made but not otherwise.  

In the matter of recovery, we may remind to the authorities that  now it is well settled if certain payment has been made to the employee on account of any fault of the employer, and for which the employee is not responsible, namely, not guilty of fraud or misrepresentation, in such a case, the amount which has already been received by the employee and he has spent, should not be recovered. (See B.N. Singh Vs. State of U.P. and another 1979 ALJ 1184, Shyam Babu Verma & another Vs. Union of India & others, 1994 (2) SCC 521, Gabriel Saver Fernandes & others. Vs. State of Karnataka & others 1995 Suppl. (1) SCC 149, Mahmood Hasan Vs. State of U.P. JT 1997 (1) SC 353, State of Karnataka & another Vs. Mangalore University Non-Teaching Employees' Association & others 2002 (3) SCC 302, Surya Deo Mishra Vs. State of U.P. 2006 (1) UPLBEC 399, Purushottam Lal Das & others Vs. State of Bihar and others 2006(10) SCALE 1999.)

However, as the respondent-appellants have said that enquiry in the circumstances causing issuance of order dated 12.10.2001 against the officer concerned is pending, we are leaving this matter at this stage without any further expression of opinion except that  in case it is found that the petitioner-respondents were not guilty of any fraud or misrepresentation or collusion for issuance of the order dated 12.10.2001, no recovery of the amount already paid pursuant to the order dated 12.10.2001 shall be made.

Now we may consider a few additional aspects which have been raised individually in the written arguments submitted by some of the petitioner-respondents. In Special Appeal No. 692 of 2003, the learned counsel for petitioner-respondents has relied upon the U.P. (the Post outside the Purview of Public Service Commissioner) (Regularization of Daily Wage Employees on Group ''C' Posts) Rules 1998 and it is contended that the State Government vide G.O. dated 20.81998 has extended the aforesaid Rule to the local bodies and, therefore, the petitioner-respondents are entitled to be considered for regularization under the aforesaid Rules. We find that the aforesaid rules provide that employees, who were engaged on daily wage basis on or before 29.6.1991 on Group ''C' posts and continued on the date of promulgation of the said rules, if fulfill the requisite qualifications, may be considered for regularization by a departmental selection committee prescribed in the said Rules. All the petitioner-respondents before us do not claim to have been appointed on any post under Group ''C' category but statement was made at the bar by all the learned counsels for the parties that all the petitioner-respondents were engaged on daily wage basis to work as Class-IV i.e. Group ''D' and, therefore, the said rules have no application to the case in hand. However, learned counsel for the petitioner-respondents also brought to the notice of this Court that similar rules have also been framed by the State Government in respect to Group ''D' employees published on 20.12.2001 but despite our repeated query, he could not place anything to show that Rules framed by the Government for providing regularization for Group ''D' employees in respect to the government departments are also extended to local bodies. Therefore, it cannot be said that any rules have been framed or applicable to Group ''D' employees of UPJN for regularization.

Further, relying on order dated 6.12.2003 whereby some daily wage tube-well operators were regularized, pursuant to regularization rules, some of the petitioner-respondents seeks parity. We are informed that tube-well operators constitute Group ''C' posts. Moreover, the said order has been issued by Nagar Ayukta, Nagar Nigam, Meerut and we fail to understand how the employees of UPJN could have been regularized by Nagar Nigam Meerut. However, we are not expressing any final opinion on the said order since the relevant facts have not been pleaded in the writ petition and, therefore, the respondent-appellant have no occasion to place relevant material before the Court replying the same.

In some of the written arguments, the petitioner-respondents have said that individually some of the persons here and there have been regularized by certain Field Officers of UPJN and, therefore, similar benefit should be extended to the petitioner-respondents also. In this regard, we are of the opinion that in the absence of any provision entitling petitioner-respondents to claim regularization, and in view of the exposition of law as discussed above, a direction to consider the petitioner-respondents for regularization is not permissible in law. If in some cases, some individuals have been regularized, without any support of law, that would not entitle the petitioner-respondents to claim a similar benefit for the reason that two wrong will not make one right. Article 14 does not confer right of equality for illegal act. We don't propose to burden this judgment on this aspect except of referring a few recent decisions of the Apex Court holding that such a direction is not permissible in the law. (See M/s Anand Buttons Ltd. etc. Vs. State of Haryana   and others,  AIR  2005  SC   565  (Para-12)   and   Kastha Niwarak G.S.S. Maryadit, Indore Vs. President, Indore Development Authority, AIR 2006 SC 1142 (Para-8)

The Special Appeal Nos. 1636 of 2006 and 1637 of 2006 filed by the petitioner-appellants are against the judgment dated 15.12.2003 disposing of their writ petitions on the terms and directions contained in the judgment dated 18.7.2003 in writ petition No. 51806 of 2002 with the request that the petitioner-appellants are entitled for regularization, but no direction has been issued by the Hon'ble Single Judge for the said purpose. Since, we have already held that the petitioners are not entitled to seek a mandamus commanding UPJN to regularize them and, therefore, the relief sought in this appeal cannot be granted to the petitioner-appellants. Therefore, both these appeals would fail. However, the judgment of the Hon'ble Single Judge in respect to other directions has also been challenged by UPJN in other special Appeals. To that extent we have already considered the matter separately and to that extent both the judgments will be covered by our findings recorded separately in the appeals filed by UPJN.

In the result, all the Special Appeals except Special Appeal Nos. 1636 of 2006 and 1637 of 2006 are allowed. Special Appeal Nos. 1636 of 2006 and 1637 of 2006 are dismissed. Subject to the directions/observations made above, the judgments under appeals are set aside and the writ petitions shall stand dismissed. No costs.

Dt. 22.12.2006

PS-1317/03


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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