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SHAUKAT ALI AND OTHERS versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Shaukat Ali And Others v. State Of U.P. And Others - WRIT - A No. 13774 of 2004 [2006] RD-AH 2741 (6 February 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

Hon'ble Rakesh Tiwari,

          Heard counsel for the parties and perused the record.

The petitioners, namely, S/Sri Shaukat Ali, Satish Chandra Srivastava and Rafey are working as class IV employees, on daily wages, in the Nagar Palika Parishad Padrauna.  Petitioner no. 1 was engaged on 1.10.1989 and the petitioner nos. 2 and 3 on 1.1.1989.  

By means of the instant writ petition, the petitioners have prayed for the following reliefs:-

"(1) issue a writ, order or direction in the nature of mandamus directing the respondents to grant minimum pay scale as contained in the judgment of Hon'ble Supreme Court (State of U.P. v. Putti Lal);

(2) issue, a writ order or direction in the nature of mandamus directing the respondents to regularize the services of the petitioners w.e.f.  the date of initial appointment ini the department on the posts as they are holding now a days;

(3) issue any other writ order or direction in favour of the petitioners, as this Hon'ble Court deems fit and proper in the present facts and circumstance of the case, so as to secure the ends of justice or else the petitioners shall suffer irreparably.

(4) award costs of the writ petition to the petitioners."

Counsel for the petitioners submits that the petitioners have put in more than 10 years of continuous service, as such, they are entitled to be regularized in accordance with the provisions of Regularization of Class IV Employees (Daily Wage) Outside the Purview of Public Service Commission Rules. He further submits that daily rated casual labourers who are working for more than last 8 years performing similar work that a regular workers of the department performs, are entitled to minimum pay in the pay scale of their counterpart on regular service including dearness and other allowances. In support of this contention, the counsel for the petitioners placed implicit reliance on a decisions of Hon'ble the Supreme Court in (i) Delhi Municipal Karamchari Ekta Union V. P.L.Singh and others-1988 (Supp) SCC-95;(ii) Daily Rated Casual Labour Employed under P&T Department through Bhartiya Kak Tar Mazdoor Manch V. Union of India and others-(1988)1 SCC-122;(iii)  State of U.P. and others V. Putti Lal- (2003) 11SCC-776 and (iv) State of Haryana and others Vs. Charanjit Singhand others-2005(8) SCALE-482.

Counsel for the petitioner further placed reliance on the following excerpt of the judgment rendered by a Division Bench of this Court in Special Appeal against the judgment of Single Bench dated 5.8.1999, appended as Annexure 4 to the writ petition :-

  "3. In our opinion, the Department cannot keep a person as temporary or on daily wage basis indefinitely.  It is, indeed, unfortunate that some employees are often kept on daily wage basis for years. No doubt, ordinarily confirmation of a temporary employee is the prerogative of the employer, but the employer cannot act arbitrarily in this regard.  As held by the Supreme Court in Maneka Gandhi V. Union of India - A.I.R. 1978 SC-597, arbitrariness violates Article 14 of the Constitution.  Hence, the authorities must act in a non-arbitrary manner.  In our opinion, in this case the respondents have acted in an arbitrary manner by keeping the petitioners on daily wage basis for such a long period. The appellant no. 1 was appointed in 1985 and he appellant no. 2 in 1988 and  hence they have been in service for 14 and 11 years respectively.

4. In our opinion, when a person is appointed on daily wage or on temporary basis then the authority concerned must make up its mind within two or three years of the appointment whether to confirm the said employee or to terminate his service if he is incompetent but keeping a person on temporary or daily wage basis for a long period is arbitrary and not justifiable. Admittedly, the appellants are doing the same work as regular employees. Hence, in our opinion, they are entitled to get the same salary as regular employees on the principle of equal pay for equal work and they are also entitled to be regularized. Moreover, there is discrimination against the petitioners since similarly placed persons have been regularized and hence Article 14 of the Constitution being violated."

He further contended that the judgment rendered by a Single Bench of this Court in Jag Lal Vs. Director, Horticulture, U.P., Lucknow (Civil Misc. Writ No. 10882 of 2003), following guidelines for regularization of daily wagers have been formulated:-

" (1) The appointing authority shall prepare an eligibility list of all the 22 candidates and arrange their seniority from the date of order of their appointment on daily wage basis in the Horticulture Department, irrespective of the fact that they were working at any other place in the Department prior to the establishment of the Centre. Their seniority shall be determined on the basis of the date of order of appointment on daily wages with effect from the year they were appointed and not on the basis of the number of days they have worked on daily wages.                                                                                                                                                

  (2) The Selection Committee shall consider all the candidates for regularization who were appointed and working before June 29,1991 and were continuing in service on the date of commencement of the Rules, i.e. 21st December, 2001. Any break in service, in between or after which they were allowed to work shall be ignored. Since it is admitted by the respondents that all the petitioners were in service as daily wagers before 29th June 1991 and were continuing in service on 21st December, 2001, all of them irrespective of any break of breaks in service shall be considered for regularization and their seniority will be determined from the date of initial appointment as directed above.

            (3) The aforesaid process of preparation of eligibility list in order of seniority shall be completed within a period of 8 weeks and the regularization made on the twelve vacant posts subject to Rules of Reservation, within next four weeks.

            (4) All the remaining petitioners whose services are not regularized shall be allowed to continue on the minimum of the pay scale along with all allowances subject to availability of work.

            (5)  All the petitioners shall be paid minimum of the pay scale and all allowances in the pay scale of Rs.2250/- with effect from 17.2.2001. The entire arrears shall be paid within next eight weeks.

            (6)  There shall be no order as to costs."

The counsel for the petitioners then relied upon the following interim order issued by a Division Bench judgment of this Court in Special Appeal No. 1399 of 2004 passed on 22.3.2005-Jai Ram Singh V. Divisional Forest Officer, Social Forestry Division, Muzaffarnagar and another  :-

  "Hon'ble S. Rafat Alam,J

Hon'ble Vikram Nath, J      

"In compliance to our order dated 22.2.2005 the learned Chief Standing Counsel informs that 5819 daily wagers against Group-C and D posts are still working in the Forest Department within the State of U.P. It is also informed that out of about 5819 daily wagers, 586 employees belonging to Group-C and 1827 of Group-D, who were working on 29.6.1991, have been regularized. It is also stated that the employees belong to Group-D are to be regularized in accordance with the Rules of 2001 and Group-C in accordance with the Rules of 1998. It is also stated that the chart of the aforesaid 5819 employees giving details about their initial date of engagement and date of working year-wise and also break in service year-wise have been prepared which is in about 15 Volumes running into thousands of pages and, therefore, it is submitted that the learned counsel for the petitioners inspect those volumes and if there is any mistake, the same may be pointed out so that it could be checked and verified and, if necessary, it would be corrected accordingly. However, the chart in respect of approximately 225 appellants, who are before this Court has not separately been prepared for which  he prays for some time.                               Learned counsel for the appellants submitted that the petitioners-are working from much before the cut off date, i.e., 29.6.1991 but their services have not been regularized rather terminated under Rule-8 of the Rules of 2001 on the ground that there were breaks in their services although the Apex Court and a Division Bench of this Court had directed in the case of Putti Lal reported in 1998(1)UPLBEC 313 (HC,DB); 2002(2)UPLBEC 1595 (SC) to consider regularization of all the daily wage employees working in the Forest Department in terms of the Scheme and the Rules framed pursuant to the order of the Court.  It is also stated that several daily wage employees who were engaged much after the engagement of these appellants and have worked for lesser period than these appellants have wrongly been regularized by the Selection Committee constituted by the State Government under the Rules. It is further alleged that some persons who did not even worked for a single day prior to the cut off date even then they have been included by wrongly showing that they were working and have been regularized. Since the allegations pertain to factual aspects, it would be appropriate that the same may be investigated by the higher authorities of the Forest Department. We have been informed that the Principal Conservator of Forests has already issued instructions vide letter dated 23.6.2004 to all its subordinate officers not to make any fresh engagement as daily wager. These instructions need to be strictly followed by the concerned officers.

In view of the controversy involved and also in view of the fact that these appellants were allowed to continue for a substantial long period as daily wagers and their services were dispensed with only on the ground of break in their services and the learned Single Judge while dismissing the writ petition has directed to regularized their service ignoring the artificial breaks of not more than three months and also in view of the fact that by virtue of interim order in the writ petition they were allowed to continue as daily wagers till the date of judgment of the learned Single Judge, i.e. 29.5.2004( Vijay Singh V. State of U.P. and others) by another Division Bench arising from the same judgment of the learned Single Judge and also in view of the other facts brought on record, we issue the following interim directions :-

(i) All those appellants who were working as daily wagers till 28.5.2004 shall be allowed to continue as daily wager.

(ii) They shall be paid minimum of pay scale which is applicable to their regular counterparts but without any benefit of allowances but shall not be entitled to claim wages for the period they have not worked.

(iii) In the meanwhile, the respondents shall also examine the cases of the appellants separately for their absorption in accordance with rules and in the event they are not found eligible for being regularized, they shall indicate reasons, which will be subject to the ultimate result of these appeals.

(iv) While considering the claim of regularization the respondents shall not reject their claims only on the ground of artificial breaks in a particular year if they have worked regularly from year to year for substantial number of days before cut off date.

(v) The instruction dated 23.6.2004 issued  by the Principal Conservator of Forests should be strictly adhered to and there should be no deviation from the same. However, in the event of any exigency if the Department requires engaging some workmen, preference will be given to only those employees who were earlier engaged by the Forest Department on daily wage basis and have worked for substantial period but subsequently disengaged.

  As requested by the learned counsel for the parties, let this matter appear after six weeks for further arguments. In the meanwhile, the State shall furnish the required information, as indicated above, and the parties will have an opportunity to inspect the records giving details of the daily wagers in the office of the Chief Standing Counsel on any working day.

                                          Sd/- S.Rafat Alam, J

    Sd/ Vikram Nath, J "

Counsel for the petitioners lastly urged that in the Service Jurisprudence, temporary connotes certain limited period and when a person holds a post for a number of years continuously, the post cannot be termed to be a temporary one.  Retaining the post for a number of years automatically converts its character from temporary to permanent.  He submits that the petitioners, in the instant case, have already put in more than a decade's service as daily wagers, as such, their status cannot remain as ''daily wagers' and they are entitled for regularization.

Counsel for the respondents submits that the Octroy Department was abolished in 1990 by an  order of the then Chairman dated 1.8..1999. As a consequence of the aforesaid order, all the daily wage employees, including the petitioners, were disengaged in order to adjust the surplus regular/permanent staff.  

The counsel for the respondents brought to the notice of the Court the averments made in the counter affidavit and submits that not only the petitioners have deliberately concealed material facts of filing writ petitions earlier for the same reliefs and have not come with clean hands, but they have also made incorrect averments deliberately in the writ petition to mislead the Court in granting them the relief sought by them.

Elaborating the point, it is submitted by the counsel for the respondents that petitioner no. 1 in this writ petition has claimed that he was appointed on daily wages in place of one Brahma Devi vide order dated August 1997 whereas he was actually engaged as daily wage Safai Karmachari in 1989 as is evident from his appointment letter contained in Annexure C.A. 1 to the counter affidavit.  

Aggrieved by discontinuance of his engagement, petitioner no. 1- Sri Shaukat Ali who was a daily wage employee filed Civil Misc. Writ No. 39501 of 1992 with the following prayers:-

" (A) issue a writ, order or direction in the nature of mandamus directing the respondents to treat the petitioner in continuous service and direct them to pay his salary regularly including the arrears;

(B) issue a writ, order or direction in the nature of writ of mandamus not to terminate the services of the petitioner and to regularize his services at the first opportunity as per the policy and decisions of the Government disclosed in the G.O. dated 8.2.1992 ( Annexure 2 to the writ petition).

(C) issue any other writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the present writ petition filed before this Hon'ble Court;

(D) to award costs of the petition to the petitioner."

No interim relief was granted in the aforesaid writ petition no. 39501 of 1992 filed by Sri Shaukat Ali, petitioner no. 1 and was dismissed as in fructuous vide judgment and order dated 30.11.1998, appended as Annexure C.A.-3 to the Counter Affidavit.

As regards petitioner no. 2 is concerned, it is submitted by the counsel for the respondents that claim by Sri Satish Chandra Srivastava that he was appointed on 1.1.1989 is false as he was actually engaged on daily wage basis on 1.12.1990 which is also evident from his appointment letter contained in Annexure C.A-4 to the Counter Affidavit.  He was also disengaged by order dated 1.8.1999 as such petitioner no. 2 filed Civil Misc. Writ Petition No. nil of 1992 challenging his discontinuance in service with the following prayers:-

" (i) issue a writ, order or direction in the nature of mandamus directing the respondents to allow the petitioner to continue in service and also to pay his salary since 1.12.90 uptodate and continue to pay regular monthly salary to the petitioner as and when it falls due;

             (ii) issue a writ, order or direction in the nature of writ of mandamus commanding the respondents to consider the claim of the petitioner of regularization on the post held by him in view of the relevant Government order issued in this regard from time to time;

  (iii) issue any other appropriate writ, order or direction in any nature as this Hon'ble Court may deem fit and proper under the circumstances of the case;

                               (iv)  award cost to the petitioner of the present writ petition."

 The aforementioned writ petition was also disposed of vide judgment and order dated 17.8.1992, appended as Annexure C.A.5 to the writ petition with a direction to the Executive Officer, Nagar Palika Parishad Padrauna to decide the representation of the petitioner,

Sri Satish Chandra Srivastava, petitioner no. 2 thereafter again instituted another writ petition no. 3663 of 1997 for a writ of mandamus to the respondents to regularize him as class III employee in which counter affidavit has been filed by the respondents but no rejoinder affidavit has been filed by the petitioners and they are avoiding hearing of the case.

As regards Rafey- petitioner no. 3 is concerned, he was also disengaged w.e.f. 1.8.1990 and filed writ petition No. nil of 1993 against his disengagement as other petitioners, The writ petition was  disposed of by the Court vide judgment and order dated 10.12.1993 (appended as Annexure C.A. 7 to the counter affidavit) with the direction to the Chairman of Nagar Palika Parishad, Padrauna to decide the representation of the petitioner dated 16.11.1993.

On basis of the above decisions in the writ petitions filed by the petitioners, the counsel for the respondents contended that since the petitioners have not approached this Court with clean hands and have concealed material facts, the instant writ petition is liable to be dismissed with cost.  In support of his contention, reliance on the Division Bench decisions of this Court in (i) M/S. Shyam Stone Co. V. the District Magistrate Sonbhadra and another- 1999 All C.J-1253; (ii) Babu Ram Sharma Vs. The D.I.O.S. Muzaffarnagar and others -1987 A.C.J -538 ;(iii) M/S Nagina Palace Cinema Hall Jaminia Ghazipur and another Vs. State of U.P. and others -2002(2) Bank VLR-534 (All) .and a Single Bench decision in (iv) Bhola Nath Jaiswal V. The District Judge Mirzapur -1986 A,C,J-261 has been placed.

The claim of the petitioners that they possess requisite qualifications and are continuously working in Nagar Palika Parishad Padrauna as class IV employee on daily wages is also vehemently denied by the respondents.

According to the counsel for the respondents, the petitioners are not working against any sanctioned and vacant post as such, they cannot be regularized  unless the State Government accords sanction for creation of post. He submits that, in fact, there is no material on record from which it could be established that the petitioners are working continuously and are discharging same duties and function that is performed by a regular/permanent employee ho is their counterpart in the service of Nagar Palika Parishad.

In rebuttal, counsel for the petitioner has placed reliance on paragraphs 13 and 15 of the counter affidavit filed by the respondents. They are as under :-

"13. That the contents of paragraph no. 13 of the writ petition are not correct as stated, hence denied.  It is further stated that the representations filed by the petitioners are under consideration and their names have been sent to the State Government and as soon as the sanction of post comes from the State Government adequate action will be taken by the answering respondents.

14.....

15. That the contents of paragraphs no. 15 and 16 of the writ petition are factually incorrect, false and misleading, hence denied. It is further stated that since the petitioners have not come up with clean hands before this Hon'ble Court, hence they are not entitled to get any relief under its extraordinary jurisdiction. Moreover, it is stated that their representations are already under consideration and their names have already been sent to the State Government by the answering respondents for further action and the rest is to depend on the fate of decision of State Government in this regard.Thus, the present writ petition may kindly be dismissed with costs."

                                                 (emphasis supplied)

It is evident from the above-quoted paragraphs that though the writ petitions were filed by the petitioners, they were dismissed either having become infructuous or with the direction to the respondents to decide the representations. The representations filed by the petitioners were forwarded by the Nagar Palika Parishad, Padrauna. The names of the petitioners had also been recommended to the State Government by it for further action.  The fate of the petitioners thus depended upon the decision of the State Government.

          In the case of Daily Rated Casual Labour Employed under P&T Department through Bhartiya Dak Tar Mazdoor Manch (supra), there was classification of casual labourers into three categories- (i) those who had not completed 720 days of service; (ii) those who had completed 720 days of service and not completed 1200 days of service and (iii) those who had completed more than 1200 days of service for the purpose of payment of different rates of wages. Hon'ble the Supreme Court,  on the facts and in the circumstances of that case held that the classification of employees into regularly recruited employees and casual employees for the purpose of paying less than the minimum pay payable to employees in the corresponding regular cadres particularly in the lowest rungs of the department where the pay scales are the lowest is not tenable. The wage structure of the country is such that a worker is always paid less than what he produces. Therefore, Hon'ble the Supreme Court directed the respondents to prepare a scheme on rational basis for absorbing as far as possible the casual labourers who had been continuously working for more than one year in the Posts and Telegraphs Department.

From a bare perusal of the aforesaid decision, it is evident that there was a demand of casual daily rated employees in the Posts and Telegraphs Department. This fact was admitted to the Department and the judgment in the case was confined to the peculiar facts and circumstances of that case as such, the aforesaid judgment does not apply to the facts and circumstances of the case at hand and is clearly distinguishable.

The case of State of Haryana and others V. Charanjit Singh and others (supra) was a case where doctrine for ''equal pay for equal work' to daily wagers appointed as ledger clerks, ledger keepers, pump operators etc., was applied. The Hon'ble Supreme Court admonished the High Court for blindly proceeding on basis that the doctrine of ''equal pay for equal work' applies without examining any relevant factors.  Hon'ble Supreme Court considered whether direction of High Court to pay the minimum wage in the scale payable to a class IV employee was required to be interfered with or not and held that:

" 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 or equal value. The principle of ''equal pay for equal work' has no mechanical application in every case. Article 14 permits reasonable classification based on quality 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 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 had 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 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 craftsman is not enough to come to a 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 regard. In any event the party who claims ''equal pay for equal work' has to make necessary averments and prove that all things are equal. Thus, before any direction can be issued by a Court, the Court must first see that there are necessary averments and there is a proof. If the High Court, is on basis of material placed before it, convinced that there was equal work of equal quality and all other relevant factors are fulfilled, it may direct payment of equal pay from the date of the filing of the respective Writ Petition.  In all these case, we find that the High Court had blindly proceeded on the basis that the doctrine of ''equal pay for equal work' applies without examining any relevant factors."

In the instant case also the petitioners have sought mandamus directing the respondents to grant minimum pay scale as commanded in Putti Lal's case (supra) and also a direction for regularization of their services.  .  Putti Lal's case (supra) has been distinguished in State of Haryana and others  v. Charanjit Singh and others (supra). In view of decisions rendered in State of Haryana v. Jasmer Singh (1996)11SCC-77;State of Haryana V. Tilak Raj- (2003)6 SCC-123  Orissa University of Agriculture & Technology v. Manoj K. Mohanty-(2003)5 SCC-188 Government of West Bengal Vs. Tarun K. Roy -(2004)1 SCC-347 ;State of Haryana V. Surinder Kumar and others  -(1997)3 SCC-633 and Union of India and others V. K.V. Baby and anr.-(1998)9 SCC-252, Hon'ble Supreme Court remitted back the appeals to High Court for examining each case for decision as to whether everything is identical and equal. Thus, Putti Lal's case which has been distinguished in the aforesaid cases is not applicable to the facts and circumstances of the instant case. Moreover, in Putti Lal's case (supra) Hon'ble Apex Court had applied the principle of ''equal pay for equal work' and had held that if a daily wager is discharging similar duties as that of a regular employee in Government service, he would at least be entitled to receive minimum of the pay scale though he may not be entitled to increments or any other allowance as permissible to the counterpart.

In the case of Delhi Municipal Karmachari Ekta Union (supra), the Court had directed that daily wagers of Municipal Corporation who had put in long span of service should be considered for regularization and direction for preparation of scheme for absorption was issued.

In the instant case, prayer of the petitioners is for regularization and for payment of minimum pay scale and not for minimum of the pay scale without any increment or any other allowances which is permissible to their counterparts in the Government service. There is no evidence, whatsoever, that the petitioners are discharging the same duties and shouldering the same responsibilities which is being shouldered by regular employees.  It is not admitted by the respondents that the petitioners are discharging the duties identical to the regular employees. Regularization of service and payment of minimum pay scale connote permanent appointment against a post.  Even otherwise, it implies demand of ''equal pay for equal work'

The order in Jag Lal's case (supra) relied upon by the petitioners is only an interim order and not a judgment.  No law has been laid down therein and it has no binding effect. Moreover, the controversy involved in that case was different.  

As regards judgment in Special Appeal filed against judgment of learned Single Bench dated 5.8.1999 (Annexure 4 to the writ petition) is concerned, it was admitted in that writ petition that the appellants were doing the same work as was being done by the regular employees  which is not in the instant case as such, the judgment in Special Appeal appended as Annexure 4 to the writ petition is of no help to the petitioner.

The petitioners have been working under various orders obtained by them in the writ petitions filed by them from time to time.  They have no legal right of their own by working under the interim orders of High Court. Counsel for the petitioners has neither been able to bring any material on record nor could show any rule or law to establish that the petitioners are holding posts continuously, without any break, for a number of years.  They were only daily wagers and were permitted to work by the respondents in compliance of interim orders of this Court and they have not held any post for a number of years by virtue of their self legal right. Counsel for the petitioners also could not produced any  rule for regularization from which it can be inferred that working for a number of years automatically converts the character of engagement/appointment from temporary to permanent.

It is evident from record that the petitioners have not approached this Court with clean hands as they had filed earlier writ petitions seeking substantially the same reliefs for regularization and minimum pay scale as has been claimed in this writ petition. If the prayer for regularization and payment of minimum pay scale in the earlier writ petitions had become infructuous it cannot be re-alive in subsequent writ petition. Law is well settled that if a party does no come with clean hands he is not entitled to any relief in the equity jurisdiction under Article 226 of the Constitution of India.

Reference may be made to two recent judgments in State of U.P. Vs. Neeraj Awasthi and others- (2006)1 SCC-667 and State of Karnataka and others Vs. KGSD Canteen Employees Welfare Association and others-(2006)1 SCC-567, the Hon'ble Supreme Court had the occasion to consider the nature, scope and entitlement for framing of schemes for regularization by judicial fiat in the absence of legal right on part of persons concerned to continue in employment.

In State of U.P. Vs. Neeraj Awasthi and others (Supra), the Hon'ble Apex Court considered the power of the High Court in writ jurisdiction  to direct framing of scheme/policy for regularizing services of ad hoc or daily wage employees not having been appointed under the extant rules but to meet the exigencies of situation.  It was reiterated that law has now firmly laid down that any irregular or illegal appointment cannot be regularized and neither temporary nor permanent status can be conferred by regularization. Any attempt to induct an employee without following the procedure would be a back-door appointment and that Such back door appointments have been deprecated by Hon'ble Supreme Court times without number.

It was further held that mere description of "illegal" appointments as "irregular" does not mean that they are not illegal. Therefore, by illegal or irregular appointments, the petitioners do not derive any legal right to continue in service. Hence, High Court should not have issued writ in the nature of mandamus directing the respondents to frame policy for regularization of services of the writ petitioners.

Hon'ble Supreme Court also considered the question of interference by High Courts under Article 226 of the Constitution in service and labour matters held that illegal appointments cannot be regularized and neither temporary nor permanent status can be conferred by regularization.  The employers not having had the power to appoint ad hoc or daily wage employees under the statutory provisions, rules and regulations, no legal relationship of employer and employee comes into being between them.

In State of Karnataka and others Vs. KGSD Canteen Employees Welfare Association and others (supra), after noticing the judgments in catena of cases, in paragraph 44 of the judgment Hon'ble Supreme Court held as under :-

"       44. The question which now arises for consideration is as to whether the High Court was justified in directing regularization of the services of the respondents.  It was evidently not.  In a large number of decisions, this Court has categorically held that it is not open to a High court to exercise its discretion under Article 226 of the Constitution either to frame a scheme by itself or to direct the State to frame a scheme for regularizing the services of ad hoc employees or daily wage employees who had not been appointed in terms of the extant service rules, framed either under a statute or under the proviso to Article 309 of the Constitution. Such a scheme, even if framed by the State would not meet the requirements of law as the executive order made under Article 162 of the Constitution cannot prevail over a statute or statutory rules framed under the proviso to Article 309 thereof.  The State is obligated to make appointments only in fulfillment of its constitutional obligation as laid down in Articles 14,15 and 16 of the Constitution and not by way of any regularization scheme. In our constitutional scheme, all eligible persons similarly situated must be given opportunity to apply for and receive considerations for appointments at the hands of the authorities of the State.  Denial of such a claim by some officers of the State time and again had been deprecated by this Court.  In any view, in our democratic polity, an authority, howsoever high it may be cannot act in breach of an existing statute or the rules which hold the field.

Relying upon the decision in Mahendra L. Jain V. Indore Development Authority-(2005)1SCC-639, Hon'ble Apex Court further held:-

"46. 19. The question, therefore, which arises for consideration is as to whether they could lay a valid claim for regularization of their services. The answer thereto must be rendered in the nagative.  Regularization cannot be claimed as a matter of right.  An illegal appointment cannot be legalized by taking recourse to regularization. What can be regularized is an irregularity and not an illegality. The constitutional scheme which the country has adopted does not contemplate any back-door appointment.  A State before offering public service to a person must comply with the constitutional requirements of Articles 14 and 16 of the Constitution. All actions of the State must conform to the constitutional requirements.  A daily wager in the absence of a statutory provision in this behalf would not be entitled to regularization. (see State of U.P. v. Ajay Kumar-(1997)4SCC-88 and Jawaharlal Nehru Krishi Vishwa Vidyalaya V. Bal Krishan Soni (1997)5SCC-86.

Thereafter, the Court considered the question of parity and scales of pay. After noting the contention of the petitioner that at least for the period when they had worked, they are entitled to regular pay scale as that of Government employees, held that it cannot be accepted for more than one reasons, namely, that they did not hold any post as no post  was sanctioned by the State Government.  According to the State, they were not its employees.  Salary on a regular scale of pay, it is trite, is payable to an employee only when he holds a status (refer Mahendra L. Jain's case (supra).)

For the reasons stated above, the writ petition is dismissed. However, as it appears from the averments made in the counter affidavit that the petitioners are still continuing in service and admittedly, their case is under consideration before the State Government, the State Government, respondent no. 1 is, therefore, directed to decide the representations of the petitioners by a reasoned and speaking order, in accordance with law, expeditiously, preferably within two months from the date of submission of a certified copy of this judgment and order.  No order as to costs.

Dated 6th February,2006

Kkb

Hon'ble Rakesh Tiwari,

          Heard counsel for the parties and perused the record.

The petitioners, namely, S/Sri Shaukat Ali, Satish Chandra Srivastava and Rafey are working as class IV employees, on daily wages, in the Nagar Palika Parishad Padrauna.  Petitioner no. 1 was engaged on 1.10.1989 and the petitioner nos. 2 and 3 on 1.1.1989.  

By means of the instant writ petition, the petitioners have prayed for the following reliefs:-

"(1) issue a writ, order or direction in the nature of mandamus directing the respondents to grant minimum pay scale as contained in the judgment of Hon'ble Supreme Court (State of U.P. v. Putti Lal);

(2) issue, a writ order or direction in the nature of mandamus directing the respondents to regularize the services of the petitioners w.e.f.  the date of initial appointment ini the department on the posts as they are holding now a days;

(3) issue any other writ order or direction in favour of the petitioners, as this Hon'ble Court deems fit and proper in the present facts and circumstance of the case, so as to secure the ends of justice or else the petitioners shall suffer irreparably.

(4) award costs of the writ petition to the petitioners."

Counsel for the petitioners submits that the petitioners have put in more than 10 years of continuous service, as such, they are entitled to be regularized in accordance with the provisions of Regularization of Class IV Employees (Daily Wage) Outside the Purview of Public Service Commission Rules. He further submits that daily rated casual labourers who are working for more than last 8 years performing similar work that a regular workers of the department performs, are entitled to minimum pay in the pay scale of their counterpart on regular service including dearness and other allowances. In support of this contention, the counsel for the petitioners placed implicit reliance on a decisions of Hon'ble the Supreme Court in (i) Delhi Municipal Karamchari Ekta Union V. P.L.Singh and others-1988 (Supp) SCC-95;(ii) Daily Rated Casual Labour Employed under P&T Department through Bhartiya Kak Tar Mazdoor Manch V. Union of India and others-(1988)1 SCC-122;(iii)  State of U.P. and others V. Putti Lal- (2003) 11SCC-776 and (iv) State of Haryana and others Vs. Charanjit Singhand others-2005(8) SCALE-482.

Counsel for the petitioner further placed reliance on the following excerpt of the judgment rendered by a Division Bench of this Court in Special Appeal against the judgment of Single Bench dated 5.8.1999, appended as Annexure 4 to the writ petition :-

  "3. In our opinion, the Department cannot keep a person as temporary or on daily wage basis indefinitely.  It is, indeed, unfortunate that some employees are often kept on daily wage basis for years. No doubt, ordinarily confirmation of a temporary employee is the prerogative of the employer, but the employer cannot act arbitrarily in this regard.  As held by the Supreme Court in Maneka Gandhi V. Union of India - A.I.R. 1978 SC-597, arbitrariness violates Article 14 of the Constitution.  Hence, the authorities must act in a non-arbitrary manner.  In our opinion, in this case the respondents have acted in an arbitrary manner by keeping the petitioners on daily wage basis for such a long period. The appellant no. 1 was appointed in 1985 and he appellant no. 2 in 1988 and  hence they have been in service for 14 and 11 years respectively.

4. In our opinion, when a person is appointed on daily wage or on temporary basis then the authority concerned must make up its mind within two or three years of the appointment whether to confirm the said employee or to terminate his service if he is incompetent but keeping a person on temporary or daily wage basis for a long period is arbitrary and not justifiable. Admittedly, the appellants are doing the same work as regular employees. Hence, in our opinion, they are entitled to get the same salary as regular employees on the principle of equal pay for equal work and they are also entitled to be regularized. Moreover, there is discrimination against the petitioners since similarly placed persons have been regularized and hence Article 14 of the Constitution being violated."

He further contended that the judgment rendered by a Single Bench of this Court in Jag Lal Vs. Director, Horticulture, U.P., Lucknow (Civil Misc. Writ No. 10882 of 2003), following guidelines for regularization of daily wagers have been formulated:-

" (1) The appointing authority shall prepare an eligibility list of all the 22 candidates and arrange their seniority from the date of order of their appointment on daily wage basis in the Horticulture Department, irrespective of the fact that they were working at any other place in the Department prior to the establishment of the Centre. Their seniority shall be determined on the basis of the date of order of appointment on daily wages with effect from the year they were appointed and not on the basis of the number of days they have worked on daily wages.                                                                                                                                                

  (2) The Selection Committee shall consider all the candidates for regularization who were appointed and working before June 29,1991 and were continuing in service on the date of commencement of the Rules, i.e. 21st December, 2001. Any break in service, in between or after which they were allowed to work shall be ignored. Since it is admitted by the respondents that all the petitioners were in service as daily wagers before 29th June 1991 and were continuing in service on 21st December, 2001, all of them irrespective of any break of breaks in service shall be considered for regularization and their seniority will be determined from the date of initial appointment as directed above.

            (3) The aforesaid process of preparation of eligibility list in order of seniority shall be completed within a period of 8 weeks and the regularization made on the twelve vacant posts subject to Rules of Reservation, within next four weeks.

            (4) All the remaining petitioners whose services are not regularized shall be allowed to continue on the minimum of the pay scale along with all allowances subject to availability of work.

            (5)  All the petitioners shall be paid minimum of the pay scale and all allowances in the pay scale of Rs.2250/- with effect from 17.2.2001. The entire arrears shall be paid within next eight weeks.

            (6)  There shall be no order as to costs."

The counsel for the petitioners then relied upon the following interim order issued by a Division Bench judgment of this Court in Special Appeal No. 1399 of 2004 passed on 22.3.2005-Jai Ram Singh V. Divisional Forest Officer, Social Forestry Division, Muzaffarnagar and another  :-

  "Hon'ble S. Rafat Alam,J

Hon'ble Vikram Nath, J      

"In compliance to our order dated 22.2.2005 the learned Chief Standing Counsel informs that 5819 daily wagers against Group-C and D posts are still working in the Forest Department within the State of U.P. It is also informed that out of about 5819 daily wagers, 586 employees belonging to Group-C and 1827 of Group-D, who were working on 29.6.1991, have been regularized. It is also stated that the employees belong to Group-D are to be regularized in accordance with the Rules of 2001 and Group-C in accordance with the Rules of 1998. It is also stated that the chart of the aforesaid 5819 employees giving details about their initial date of engagement and date of working year-wise and also break in service year-wise have been prepared which is in about 15 Volumes running into thousands of pages and, therefore, it is submitted that the learned counsel for the petitioners inspect those volumes and if there is any mistake, the same may be pointed out so that it could be checked and verified and, if necessary, it would be corrected accordingly. However, the chart in respect of approximately 225 appellants, who are before this Court has not separately been prepared for which  he prays for some time.                               Learned counsel for the appellants submitted that the petitioners-are working from much before the cut off date, i.e., 29.6.1991 but their services have not been regularized rather terminated under Rule-8 of the Rules of 2001 on the ground that there were breaks in their services although the Apex Court and a Division Bench of this Court had directed in the case of Putti Lal reported in 1998(1)UPLBEC 313 (HC,DB); 2002(2)UPLBEC 1595 (SC) to consider regularization of all the daily wage employees working in the Forest Department in terms of the Scheme and the Rules framed pursuant to the order of the Court.  It is also stated that several daily wage employees who were engaged much after the engagement of these appellants and have worked for lesser period than these appellants have wrongly been regularized by the Selection Committee constituted by the State Government under the Rules. It is further alleged that some persons who did not even worked for a single day prior to the cut off date even then they have been included by wrongly showing that they were working and have been regularized. Since the allegations pertain to factual aspects, it would be appropriate that the same may be investigated by the higher authorities of the Forest Department. We have been informed that the Principal Conservator of Forests has already issued instructions vide letter dated 23.6.2004 to all its subordinate officers not to make any fresh engagement as daily wager. These instructions need to be strictly followed by the concerned officers.

In view of the controversy involved and also in view of the fact that these appellants were allowed to continue for a substantial long period as daily wagers and their services were dispensed with only on the ground of break in their services and the learned Single Judge while dismissing the writ petition has directed to regularized their service ignoring the artificial breaks of not more than three months and also in view of the fact that by virtue of interim order in the writ petition they were allowed to continue as daily wagers till the date of judgment of the learned Single Judge, i.e. 29.5.2004( Vijay Singh V. State of U.P. and others) by another Division Bench arising from the same judgment of the learned Single Judge and also in view of the other facts brought on record, we issue the following interim directions :-

(i) All those appellants who were working as daily wagers till 28.5.2004 shall be allowed to continue as daily wager.

(ii) They shall be paid minimum of pay scale which is applicable to their regular counterparts but without any benefit of allowances but shall not be entitled to claim wages for the period they have not worked.

(iii) In the meanwhile, the respondents shall also examine the cases of the appellants separately for their absorption in accordance with rules and in the event they are not found eligible for being regularized, they shall indicate reasons, which will be subject to the ultimate result of these appeals.

(iv) While considering the claim of regularization the respondents shall not reject their claims only on the ground of artificial breaks in a particular year if they have worked regularly from year to year for substantial number of days before cut off date.

(v) The instruction dated 23.6.2004 issued  by the Principal Conservator of Forests should be strictly adhered to and there should be no deviation from the same. However, in the event of any exigency if the Department requires engaging some workmen, preference will be given to only those employees who were earlier engaged by the Forest Department on daily wage basis and have worked for substantial period but subsequently disengaged.

  As requested by the learned counsel for the parties, let this matter appear after six weeks for further arguments. In the meanwhile, the State shall furnish the required information, as indicated above, and the parties will have an opportunity to inspect the records giving details of the daily wagers in the office of the Chief Standing Counsel on any working day.

                                          Sd/- S.Rafat Alam, J

    Sd/ Vikram Nath, J "

Counsel for the petitioners lastly urged that in the Service Jurisprudence, temporary connotes certain limited period and when a person holds a post for a number of years continuously, the post cannot be termed to be a temporary one.  Retaining the post for a number of years automatically converts its character from temporary to permanent.  He submits that the petitioners, in the instant case, have already put in more than a decade's service as daily wagers, as such, their status cannot remain as ''daily wagers' and they are entitled for regularization.

Counsel for the respondents submits that the Octroy Department was abolished in 1990 by an  order of the then Chairman dated 1.8..1999. As a consequence of the aforesaid order, all the daily wage employees, including the petitioners, were disengaged in order to adjust the surplus regular/permanent staff.  

The counsel for the respondents brought to the notice of the Court the averments made in the counter affidavit and submits that not only the petitioners have deliberately concealed material facts of filing writ petitions earlier for the same reliefs and have not come with clean hands, but they have also made incorrect averments deliberately in the writ petition to mislead the Court in granting them the relief sought by them.

Elaborating the point, it is submitted by the counsel for the respondents that petitioner no. 1 in this writ petition has claimed that he was appointed on daily wages in place of one Brahma Devi vide order dated August 1997 whereas he was actually engaged as daily wage Safai Karmachari in 1989 as is evident from his appointment letter contained in Annexure C.A. 1 to the counter affidavit.  

Aggrieved by discontinuance of his engagement, petitioner no. 1- Sri Shaukat Ali who was a daily wage employee filed Civil Misc. Writ No. 39501 of 1992 with the following prayers:-

" (A) issue a writ, order or direction in the nature of mandamus directing the respondents to treat the petitioner in continuous service and direct them to pay his salary regularly including the arrears;

(B) issue a writ, order or direction in the nature of writ of mandamus not to terminate the services of the petitioner and to regularize his services at the first opportunity as per the policy and decisions of the Government disclosed in the G.O. dated 8.2.1992 ( Annexure 2 to the writ petition).

(C) issue any other writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the present writ petition filed before this Hon'ble Court;

(D) to award costs of the petition to the petitioner."

No interim relief was granted in the aforesaid writ petition no. 39501 of 1992 filed by Sri Shaukat Ali, petitioner no. 1 and was dismissed as in fructuous vide judgment and order dated 30.11.1998, appended as Annexure C.A.-3 to the Counter Affidavit.

As regards petitioner no. 2 is concerned, it is submitted by the counsel for the respondents that claim by Sri Satish Chandra Srivastava that he was appointed on 1.1.1989 is false as he was actually engaged on daily wage basis on 1.12.1990 which is also evident from his appointment letter contained in Annexure C.A-4 to the Counter Affidavit.  He was also disengaged by order dated 1.8.1999 as such petitioner no. 2 filed Civil Misc. Writ Petition No. nil of 1992 challenging his discontinuance in service with the following prayers:-

" (i) issue a writ, order or direction in the nature of mandamus directing the respondents to allow the petitioner to continue in service and also to pay his salary since 1.12.90 uptodate and continue to pay regular monthly salary to the petitioner as and when it falls due;

             (ii) issue a writ, order or direction in the nature of writ of mandamus commanding the respondents to consider the claim of the petitioner of regularization on the post held by him in view of the relevant Government order issued in this regard from time to time;

  (iii) issue any other appropriate writ, order or direction in any nature as this Hon'ble Court may deem fit and proper under the circumstances of the case;

                               (iv)  award cost to the petitioner of the present writ petition."

 The aforementioned writ petition was also disposed of vide judgment and order dated 17.8.1992, appended as Annexure C.A.5 to the writ petition with a direction to the Executive Officer, Nagar Palika Parishad Padrauna to decide the representation of the petitioner,

Sri Satish Chandra Srivastava, petitioner no. 2 thereafter again instituted another writ petition no. 3663 of 1997 for a writ of mandamus to the respondents to regularize him as class III employee in which counter affidavit has been filed by the respondents but no rejoinder affidavit has been filed by the petitioners and they are avoiding hearing of the case.

As regards Rafey- petitioner no. 3 is concerned, he was also disengaged w.e.f. 1.8.1990 and filed writ petition No. nil of 1993 against his disengagement as other petitioners, The writ petition was  disposed of by the Court vide judgment and order dated 10.12.1993 (appended as Annexure C.A. 7 to the counter affidavit) with the direction to the Chairman of Nagar Palika Parishad, Padrauna to decide the representation of the petitioner dated 16.11.1993.

On basis of the above decisions in the writ petitions filed by the petitioners, the counsel for the respondents contended that since the petitioners have not approached this Court with clean hands and have concealed material facts, the instant writ petition is liable to be dismissed with cost.  In support of his contention, reliance on the Division Bench decisions of this Court in (i) M/S. Shyam Stone Co. V. the District Magistrate Sonbhadra and another- 1999 All C.J-1253; (ii) Babu Ram Sharma Vs. The D.I.O.S. Muzaffarnagar and others -1987 A.C.J -538 ;(iii) M/S Nagina Palace Cinema Hall Jaminia Ghazipur and another Vs. State of U.P. and others -2002(2) Bank VLR-534 (All) .and a Single Bench decision in (iv) Bhola Nath Jaiswal V. The District Judge Mirzapur -1986 A,C,J-261 has been placed.

The claim of the petitioners that they possess requisite qualifications and are continuously working in Nagar Palika Parishad Padrauna as class IV employee on daily wages is also vehemently denied by the respondents.

According to the counsel for the respondents, the petitioners are not working against any sanctioned and vacant post as such, they cannot be regularized  unless the State Government accords sanction for creation of post. He submits that, in fact, there is no material on record from which it could be established that the petitioners are working continuously and are discharging same duties and function that is performed by a regular/permanent employee ho is their counterpart in the service of Nagar Palika Parishad.

In rebuttal, counsel for the petitioner has placed reliance on paragraphs 13 and 15 of the counter affidavit filed by the respondents. They are as under :-

"13. That the contents of paragraph no. 13 of the writ petition are not correct as stated, hence denied.  It is further stated that the representations filed by the petitioners are under consideration and their names have been sent to the State Government and as soon as the sanction of post comes from the State Government adequate action will be taken by the answering respondents.

14.....

15. That the contents of paragraphs no. 15 and 16 of the writ petition are factually incorrect, false and misleading, hence denied. It is further stated that since the petitioners have not come up with clean hands before this Hon'ble Court, hence they are not entitled to get any relief under its extraordinary jurisdiction. Moreover, it is stated that their representations are already under consideration and their names have already been sent to the State Government by the answering respondents for further action and the rest is to depend on the fate of decision of State Government in this regard.Thus, the present writ petition may kindly be dismissed with costs."

                                                 (emphasis supplied)

It is evident from the above-quoted paragraphs that though the writ petitions were filed by the petitioners, they were dismissed either having become infructuous or with the direction to the respondents to decide the representations. The representations filed by the petitioners were forwarded by the Nagar Palika Parishad, Padrauna. The names of the petitioners had also been recommended to the State Government by it for further action.  The fate of the petitioners thus depended upon the decision of the State Government.

          In the case of Daily Rated Casual Labour Employed under P&T Department through Bhartiya Dak Tar Mazdoor Manch (supra), there was classification of casual labourers into three categories- (i) those who had not completed 720 days of service; (ii) those who had completed 720 days of service and not completed 1200 days of service and (iii) those who had completed more than 1200 days of service for the purpose of payment of different rates of wages. Hon'ble the Supreme Court,  on the facts and in the circumstances of that case held that the classification of employees into regularly recruited employees and casual employees for the purpose of paying less than the minimum pay payable to employees in the corresponding regular cadres particularly in the lowest rungs of the department where the pay scales are the lowest is not tenable. The wage structure of the country is such that a worker is always paid less than what he produces. Therefore, Hon'ble the Supreme Court directed the respondents to prepare a scheme on rational basis for absorbing as far as possible the casual labourers who had been continuously working for more than one year in the Posts and Telegraphs Department.

From a bare perusal of the aforesaid decision, it is evident that there was a demand of casual daily rated employees in the Posts and Telegraphs Department. This fact was admitted to the Department and the judgment in the case was confined to the peculiar facts and circumstances of that case as such, the aforesaid judgment does not apply to the facts and circumstances of the case at hand and is clearly distinguishable.

The case of State of Haryana and others V. Charanjit Singh and others (supra) was a case where doctrine for ''equal pay for equal work' to daily wagers appointed as ledger clerks, ledger keepers, pump operators etc., was applied. The Hon'ble Supreme Court admonished the High Court for blindly proceeding on basis that the doctrine of ''equal pay for equal work' applies without examining any relevant factors.  Hon'ble Supreme Court considered whether direction of High Court to pay the minimum wage in the scale payable to a class IV employee was required to be interfered with or not and held that:

" 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 or equal value. The principle of ''equal pay for equal work' has no mechanical application in every case. Article 14 permits reasonable classification based on quality 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 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 had 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 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 craftsman is not enough to come to a 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 regard. In any event the party who claims ''equal pay for equal work' has to make necessary averments and prove that all things are equal. Thus, before any direction can be issued by a Court, the Court must first see that there are necessary averments and there is a proof. If the High Court, is on basis of material placed before it, convinced that there was equal work of equal quality and all other relevant factors are fulfilled, it may direct payment of equal pay from the date of the filing of the respective Writ Petition.  In all these case, we find that the High Court had blindly proceeded on the basis that the doctrine of ''equal pay for equal work' applies without examining any relevant factors."

In the instant case also the petitioners have sought mandamus directing the respondents to grant minimum pay scale as commanded in Putti Lal's case (supra) and also a direction for regularization of their services.  .  Putti Lal's case (supra) has been distinguished in State of Haryana and others  v. Charanjit Singh and others (supra). In view of decisions rendered in State of Haryana v. Jasmer Singh (1996)11SCC-77;State of Haryana V. Tilak Raj- (2003)6 SCC-123  Orissa University of Agriculture & Technology v. Manoj K. Mohanty-(2003)5 SCC-188 Government of West Bengal Vs. Tarun K. Roy -(2004)1 SCC-347 ;State of Haryana V. Surinder Kumar and others  -(1997)3 SCC-633 and Union of India and others V. K.V. Baby and anr.-(1998)9 SCC-252, Hon'ble Supreme Court remitted back the appeals to High Court for examining each case for decision as to whether everything is identical and equal. Thus, Putti Lal's case which has been distinguished in the aforesaid cases is not applicable to the facts and circumstances of the instant case. Moreover, in Putti Lal's case (supra) Hon'ble Apex Court had applied the principle of ''equal pay for equal work' and had held that if a daily wager is discharging similar duties as that of a regular employee in Government service, he would at least be entitled to receive minimum of the pay scale though he may not be entitled to increments or any other allowance as permissible to the counterpart.

In the case of Delhi Municipal Karmachari Ekta Union (supra), the Court had directed that daily wagers of Municipal Corporation who had put in long span of service should be considered for regularization and direction for preparation of scheme for absorption was issued.

In the instant case, prayer of the petitioners is for regularization and for payment of minimum pay scale and not for minimum of the pay scale without any increment or any other allowances which is permissible to their counterparts in the Government service. There is no evidence, whatsoever, that the petitioners are discharging the same duties and shouldering the same responsibilities which is being shouldered by regular employees.  It is not admitted by the respondents that the petitioners are discharging the duties identical to the regular employees. Regularization of service and payment of minimum pay scale connote permanent appointment against a post.  Even otherwise, it implies demand of ''equal pay for equal work'

The order in Jag Lal's case (supra) relied upon by the petitioners is only an interim order and not a judgment.  No law has been laid down therein and it has no binding effect. Moreover, the controversy involved in that case was different.  

As regards judgment in Special Appeal filed against judgment of learned Single Bench dated 5.8.1999 (Annexure 4 to the writ petition) is concerned, it was admitted in that writ petition that the appellants were doing the same work as was being done by the regular employees  which is not in the instant case as such, the judgment in Special Appeal appended as Annexure 4 to the writ petition is of no help to the petitioner.

The petitioners have been working under various orders obtained by them in the writ petitions filed by them from time to time.  They have no legal right of their own by working under the interim orders of High Court. Counsel for the petitioners has neither been able to bring any material on record nor could show any rule or law to establish that the petitioners are holding posts continuously, without any break, for a number of years.  They were only daily wagers and were permitted to work by the respondents in compliance of interim orders of this Court and they have not held any post for a number of years by virtue of their self legal right. Counsel for the petitioners also could not produced any  rule for regularization from which it can be inferred that working for a number of years automatically converts the character of engagement/appointment from temporary to permanent.

It is evident from record that the petitioners have not approached this Court with clean hands as they had filed earlier writ petitions seeking substantially the same reliefs for regularization and minimum pay scale as has been claimed in this writ petition. If the prayer for regularization and payment of minimum pay scale in the earlier writ petitions had become infructuous it cannot be re-alive in subsequent writ petition. Law is well settled that if a party does no come with clean hands he is not entitled to any relief in the equity jurisdiction under Article 226 of the Constitution of India.

Reference may be made to two recent judgments in State of U.P. Vs. Neeraj Awasthi and others- (2006)1 SCC-667 and State of Karnataka and others Vs. KGSD Canteen Employees Welfare Association and others-(2006)1 SCC-567, the Hon'ble Supreme Court had the occasion to consider the nature, scope and entitlement for framing of schemes for regularization by judicial fiat in the absence of legal right on part of persons concerned to continue in employment.

In State of U.P. Vs. Neeraj Awasthi and others (Supra), the Hon'ble Apex Court considered the power of the High Court in writ jurisdiction  to direct framing of scheme/policy for regularizing services of ad hoc or daily wage employees not having been appointed under the extant rules but to meet the exigencies of situation.  It was reiterated that law has now firmly laid down that any irregular or illegal appointment cannot be regularized and neither temporary nor permanent status can be conferred by regularization. Any attempt to induct an employee without following the procedure would be a back-door appointment and that Such back door appointments have been deprecated by Hon'ble Supreme Court times without number.

It was further held that mere description of "illegal" appointments as "irregular" does not mean that they are not illegal. Therefore, by illegal or irregular appointments, the petitioners do not derive any legal right to continue in service. Hence, High Court should not have issued writ in the nature of mandamus directing the respondents to frame policy for regularization of services of the writ petitioners.

Hon'ble Supreme Court also considered the question of interference by High Courts under Article 226 of the Constitution in service and labour matters held that illegal appointments cannot be regularized and neither temporary nor permanent status can be conferred by regularization.  The employers not having had the power to appoint ad hoc or daily wage employees under the statutory provisions, rules and regulations, no legal relationship of employer and employee comes into being between them.

In State of Karnataka and others Vs. KGSD Canteen Employees Welfare Association and others (supra), after noticing the judgments in catena of cases, in paragraph 44 of the judgment Hon'ble Supreme Court held as under :-

"       44. The question which now arises for consideration is as to whether the High Court was justified in directing regularization of the services of the respondents.  It was evidently not.  In a large number of decisions, this Court has categorically held that it is not open to a High court to exercise its discretion under Article 226 of the Constitution either to frame a scheme by itself or to direct the State to frame a scheme for regularizing the services of ad hoc employees or daily wage employees who had not been appointed in terms of the extant service rules, framed either under a statute or under the proviso to Article 309 of the Constitution. Such a scheme, even if framed by the State would not meet the requirements of law as the executive order made under Article 162 of the Constitution cannot prevail over a statute or statutory rules framed under the proviso to Article 309 thereof.  The State is obligated to make appointments only in fulfillment of its constitutional obligation as laid down in Articles 14,15 and 16 of the Constitution and not by way of any regularization scheme. In our constitutional scheme, all eligible persons similarly situated must be given opportunity to apply for and receive considerations for appointments at the hands of the authorities of the State.  Denial of such a claim by some officers of the State time and again had been deprecated by this Court.  In any view, in our democratic polity, an authority, howsoever high it may be cannot act in breach of an existing statute or the rules which hold the field.

Relying upon the decision in Mahendra L. Jain V. Indore Development Authority-(2005)1SCC-639, Hon'ble Apex Court further held:-

"46. 19. The question, therefore, which arises for consideration is as to whether they could lay a valid claim for regularization of their services. The answer thereto must be rendered in the nagative.  Regularization cannot be claimed as a matter of right.  An illegal appointment cannot be legalized by taking recourse to regularization. What can be regularized is an irregularity and not an illegality. The constitutional scheme which the country has adopted does not contemplate any back-door appointment.  A State before offering public service to a person must comply with the constitutional requirements of Articles 14 and 16 of the Constitution. All actions of the State must conform to the constitutional requirements.  A daily wager in the absence of a statutory provision in this behalf would not be entitled to regularization. (see State of U.P. v. Ajay Kumar-(1997)4SCC-88 and Jawaharlal Nehru Krishi Vishwa Vidyalaya V. Bal Krishan Soni (1997)5SCC-86.

Thereafter, the Court considered the question of parity and scales of pay. After noting the contention of the petitioner that at least for the period when they had worked, they are entitled to regular pay scale as that of Government employees, held that it cannot be accepted for more than one reasons, namely, that they did not hold any post as no post  was sanctioned by the State Government.  According to the State, they were not its employees.  Salary on a regular scale of pay, it is trite, is payable to an employee only when he holds a status (refer Mahendra L. Jain's case (supra).)

For the reasons stated above, the writ petition is dismissed. However, as it appears from the averments made in the counter affidavit that the petitioners are still continuing in service and admittedly, their case is under consideration before the State Government, the State Government, respondent no. 1 is, therefore, directed to decide the representations of the petitioners by a reasoned and speaking order, in accordance with law, expeditiously, preferably within two months from the date of submission of a certified copy of this judgment and order.  No order as to costs.

Dated 6th February,2006

Kkb

Hon'ble Rakesh Tiwari,

          Heard counsel for the parties and perused the record.

The petitioners, namely, S/Sri Shaukat Ali, Satish Chandra Srivastava and Rafey are working as class IV employees, on daily wages, in the Nagar Palika Parishad Padrauna.  Petitioner no. 1 was engaged on 1.10.1989 and the petitioner nos. 2 and 3 on 1.1.1989.  

By means of the instant writ petition, the petitioners have prayed for the following reliefs:-

"(1) issue a writ, order or direction in the nature of mandamus directing the respondents to grant minimum pay scale as contained in the judgment of Hon'ble Supreme Court (State of U.P. v. Putti Lal);

(2) issue, a writ order or direction in the nature of mandamus directing the respondents to regularize the services of the petitioners w.e.f.  the date of initial appointment ini the department on the posts as they are holding now a days;

(3) issue any other writ order or direction in favour of the petitioners, as this Hon'ble Court deems fit and proper in the present facts and circumstance of the case, so as to secure the ends of justice or else the petitioners shall suffer irreparably.

(4) award costs of the writ petition to the petitioners."

Counsel for the petitioners submits that the petitioners have put in more than 10 years of continuous service, as such, they are entitled to be regularized in accordance with the provisions of Regularization of Class IV Employees (Daily Wage) Outside the Purview of Public Service Commission Rules. He further submits that daily rated casual labourers who are working for more than last 8 years performing similar work that a regular workers of the department performs, are entitled to minimum pay in the pay scale of their counterpart on regular service including dearness and other allowances. In support of this contention, the counsel for the petitioners placed implicit reliance on a decisions of Hon'ble the Supreme Court in (i) Delhi Municipal Karamchari Ekta Union V. P.L.Singh and others-1988 (Supp) SCC-95;(ii) Daily Rated Casual Labour Employed under P&T Department through Bhartiya Kak Tar Mazdoor Manch V. Union of India and others-(1988)1 SCC-122;(iii)  State of U.P. and others V. Putti Lal- (2003) 11SCC-776 and (iv) State of Haryana and others Vs. Charanjit Singhand others-2005(8) SCALE-482.

Counsel for the petitioner further placed reliance on the following excerpt of the judgment rendered by a Division Bench of this Court in Special Appeal against the judgment of Single Bench dated 5.8.1999, appended as Annexure 4 to the writ petition :-

  "3. In our opinion, the Department cannot keep a person as temporary or on daily wage basis indefinitely.  It is, indeed, unfortunate that some employees are often kept on daily wage basis for years. No doubt, ordinarily confirmation of a temporary employee is the prerogative of the employer, but the employer cannot act arbitrarily in this regard.  As held by the Supreme Court in Maneka Gandhi V. Union of India - A.I.R. 1978 SC-597, arbitrariness violates Article 14 of the Constitution.  Hence, the authorities must act in a non-arbitrary manner.  In our opinion, in this case the respondents have acted in an arbitrary manner by keeping the petitioners on daily wage basis for such a long period. The appellant no. 1 was appointed in 1985 and he appellant no. 2 in 1988 and  hence they have been in service for 14 and 11 years respectively.

4. In our opinion, when a person is appointed on daily wage or on temporary basis then the authority concerned must make up its mind within two or three years of the appointment whether to confirm the said employee or to terminate his service if he is incompetent but keeping a person on temporary or daily wage basis for a long period is arbitrary and not justifiable. Admittedly, the appellants are doing the same work as regular employees. Hence, in our opinion, they are entitled to get the same salary as regular employees on the principle of equal pay for equal work and they are also entitled to be regularized. Moreover, there is discrimination against the petitioners since similarly placed persons have been regularized and hence Article 14 of the Constitution being violated."

He further contended that the judgment rendered by a Single Bench of this Court in Jag Lal Vs. Director, Horticulture, U.P., Lucknow (Civil Misc. Writ No. 10882 of 2003), following guidelines for regularization of daily wagers have been formulated:-

" (1) The appointing authority shall prepare an eligibility list of all the 22 candidates and arrange their seniority from the date of order of their appointment on daily wage basis in the Horticulture Department, irrespective of the fact that they were working at any other place in the Department prior to the establishment of the Centre. Their seniority shall be determined on the basis of the date of order of appointment on daily wages with effect from the year they were appointed and not on the basis of the number of days they have worked on daily wages.                                                                                                                                                

  (2) The Selection Committee shall consider all the candidates for regularization who were appointed and working before June 29,1991 and were continuing in service on the date of commencement of the Rules, i.e. 21st December, 2001. Any break in service, in between or after which they were allowed to work shall be ignored. Since it is admitted by the respondents that all the petitioners were in service as daily wagers before 29th June 1991 and were continuing in service on 21st December, 2001, all of them irrespective of any break of breaks in service shall be considered for regularization and their seniority will be determined from the date of initial appointment as directed above.

            (3) The aforesaid process of preparation of eligibility list in order of seniority shall be completed within a period of 8 weeks and the regularization made on the twelve vacant posts subject to Rules of Reservation, within next four weeks.

            (4) All the remaining petitioners whose services are not regularized shall be allowed to continue on the minimum of the pay scale along with all allowances subject to availability of work.

            (5)  All the petitioners shall be paid minimum of the pay scale and all allowances in the pay scale of Rs.2250/- with effect from 17.2.2001. The entire arrears shall be paid within next eight weeks.

            (6)  There shall be no order as to costs."

The counsel for the petitioners then relied upon the following interim order issued by a Division Bench judgment of this Court in Special Appeal No. 1399 of 2004 passed on 22.3.2005-Jai Ram Singh V. Divisional Forest Officer, Social Forestry Division, Muzaffarnagar and another  :-

  "Hon'ble S. Rafat Alam,J

Hon'ble Vikram Nath, J      

"In compliance to our order dated 22.2.2005 the learned Chief Standing Counsel informs that 5819 daily wagers against Group-C and D posts are still working in the Forest Department within the State of U.P. It is also informed that out of about 5819 daily wagers, 586 employees belonging to Group-C and 1827 of Group-D, who were working on 29.6.1991, have been regularized. It is also stated that the employees belong to Group-D are to be regularized in accordance with the Rules of 2001 and Group-C in accordance with the Rules of 1998. It is also stated that the chart of the aforesaid 5819 employees giving details about their initial date of engagement and date of working year-wise and also break in service year-wise have been prepared which is in about 15 Volumes running into thousands of pages and, therefore, it is submitted that the learned counsel for the petitioners inspect those volumes and if there is any mistake, the same may be pointed out so that it could be checked and verified and, if necessary, it would be corrected accordingly. However, the chart in respect of approximately 225 appellants, who are before this Court has not separately been prepared for which  he prays for some time.                               Learned counsel for the appellants submitted that the petitioners-are working from much before the cut off date, i.e., 29.6.1991 but their services have not been regularized rather terminated under Rule-8 of the Rules of 2001 on the ground that there were breaks in their services although the Apex Court and a Division Bench of this Court had directed in the case of Putti Lal reported in 1998(1)UPLBEC 313 (HC,DB); 2002(2)UPLBEC 1595 (SC) to consider regularization of all the daily wage employees working in the Forest Department in terms of the Scheme and the Rules framed pursuant to the order of the Court.  It is also stated that several daily wage employees who were engaged much after the engagement of these appellants and have worked for lesser period than these appellants have wrongly been regularized by the Selection Committee constituted by the State Government under the Rules. It is further alleged that some persons who did not even worked for a single day prior to the cut off date even then they have been included by wrongly showing that they were working and have been regularized. Since the allegations pertain to factual aspects, it would be appropriate that the same may be investigated by the higher authorities of the Forest Department. We have been informed that the Principal Conservator of Forests has already issued instructions vide letter dated 23.6.2004 to all its subordinate officers not to make any fresh engagement as daily wager. These instructions need to be strictly followed by the concerned officers.

In view of the controversy involved and also in view of the fact that these appellants were allowed to continue for a substantial long period as daily wagers and their services were dispensed with only on the ground of break in their services and the learned Single Judge while dismissing the writ petition has directed to regularized their service ignoring the artificial breaks of not more than three months and also in view of the fact that by virtue of interim order in the writ petition they were allowed to continue as daily wagers till the date of judgment of the learned Single Judge, i.e. 29.5.2004( Vijay Singh V. State of U.P. and others) by another Division Bench arising from the same judgment of the learned Single Judge and also in view of the other facts brought on record, we issue the following interim directions :-

(i) All those appellants who were working as daily wagers till 28.5.2004 shall be allowed to continue as daily wager.

(ii) They shall be paid minimum of pay scale which is applicable to their regular counterparts but without any benefit of allowances but shall not be entitled to claim wages for the period they have not worked.

(iii) In the meanwhile, the respondents shall also examine the cases of the appellants separately for their absorption in accordance with rules and in the event they are not found eligible for being regularized, they shall indicate reasons, which will be subject to the ultimate result of these appeals.

(iv) While considering the claim of regularization the respondents shall not reject their claims only on the ground of artificial breaks in a particular year if they have worked regularly from year to year for substantial number of days before cut off date.

(v) The instruction dated 23.6.2004 issued  by the Principal Conservator of Forests should be strictly adhered to and there should be no deviation from the same. However, in the event of any exigency if the Department requires engaging some workmen, preference will be given to only those employees who were earlier engaged by the Forest Department on daily wage basis and have worked for substantial period but subsequently disengaged.

  As requested by the learned counsel for the parties, let this matter appear after six weeks for further arguments. In the meanwhile, the State shall furnish the required information, as indicated above, and the parties will have an opportunity to inspect the records giving details of the daily wagers in the office of the Chief Standing Counsel on any working day.

                                          Sd/- S.Rafat Alam, J

    Sd/ Vikram Nath, J "

Counsel for the petitioners lastly urged that in the Service Jurisprudence, temporary connotes certain limited period and when a person holds a post for a number of years continuously, the post cannot be termed to be a temporary one.  Retaining the post for a number of years automatically converts its character from temporary to permanent.  He submits that the petitioners, in the instant case, have already put in more than a decade's service as daily wagers, as such, their status cannot remain as ''daily wagers' and they are entitled for regularization.

Counsel for the respondents submits that the Octroy Department was abolished in 1990 by an  order of the then Chairman dated 1.8..1999. As a consequence of the aforesaid order, all the daily wage employees, including the petitioners, were disengaged in order to adjust the surplus regular/permanent staff.  

The counsel for the respondents brought to the notice of the Court the averments made in the counter affidavit and submits that not only the petitioners have deliberately concealed material facts of filing writ petitions earlier for the same reliefs and have not come with clean hands, but they have also made incorrect averments deliberately in the writ petition to mislead the Court in granting them the relief sought by them.

Elaborating the point, it is submitted by the counsel for the respondents that petitioner no. 1 in this writ petition has claimed that he was appointed on daily wages in place of one Brahma Devi vide order dated August 1997 whereas he was actually engaged as daily wage Safai Karmachari in 1989 as is evident from his appointment letter contained in Annexure C.A. 1 to the counter affidavit.  

Aggrieved by discontinuance of his engagement, petitioner no. 1- Sri Shaukat Ali who was a daily wage employee filed Civil Misc. Writ No. 39501 of 1992 with the following prayers:-

" (A) issue a writ, order or direction in the nature of mandamus directing the respondents to treat the petitioner in continuous service and direct them to pay his salary regularly including the arrears;

(B) issue a writ, order or direction in the nature of writ of mandamus not to terminate the services of the petitioner and to regularize his services at the first opportunity as per the policy and decisions of the Government disclosed in the G.O. dated 8.2.1992 ( Annexure 2 to the writ petition).

(C) issue any other writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the present writ petition filed before this Hon'ble Court;

(D) to award costs of the petition to the petitioner."

No interim relief was granted in the aforesaid writ petition no. 39501 of 1992 filed by Sri Shaukat Ali, petitioner no. 1 and was dismissed as in fructuous vide judgment and order dated 30.11.1998, appended as Annexure C.A.-3 to the Counter Affidavit.

As regards petitioner no. 2 is concerned, it is submitted by the counsel for the respondents that claim by Sri Satish Chandra Srivastava that he was appointed on 1.1.1989 is false as he was actually engaged on daily wage basis on 1.12.1990 which is also evident from his appointment letter contained in Annexure C.A-4 to the Counter Affidavit.  He was also disengaged by order dated 1.8.1999 as such petitioner no. 2 filed Civil Misc. Writ Petition No. nil of 1992 challenging his discontinuance in service with the following prayers:-

" (i) issue a writ, order or direction in the nature of mandamus directing the respondents to allow the petitioner to continue in service and also to pay his salary since 1.12.90 uptodate and continue to pay regular monthly salary to the petitioner as and when it falls due;

             (ii) issue a writ, order or direction in the nature of writ of mandamus commanding the respondents to consider the claim of the petitioner of regularization on the post held by him in view of the relevant Government order issued in this regard from time to time;

  (iii) issue any other appropriate writ, order or direction in any nature as this Hon'ble Court may deem fit and proper under the circumstances of the case;

                               (iv)  award cost to the petitioner of the present writ petition."

 The aforementioned writ petition was also disposed of vide judgment and order dated 17.8.1992, appended as Annexure C.A.5 to the writ petition with a direction to the Executive Officer, Nagar Palika Parishad Padrauna to decide the representation of the petitioner,

Sri Satish Chandra Srivastava, petitioner no. 2 thereafter again instituted another writ petition no. 3663 of 1997 for a writ of mandamus to the respondents to regularize him as class III employee in which counter affidavit has been filed by the respondents but no rejoinder affidavit has been filed by the petitioners and they are avoiding hearing of the case.

As regards Rafey- petitioner no. 3 is concerned, he was also disengaged w.e.f. 1.8.1990 and filed writ petition No. nil of 1993 against his disengagement as other petitioners, The writ petition was  disposed of by the Court vide judgment and order dated 10.12.1993 (appended as Annexure C.A. 7 to the counter affidavit) with the direction to the Chairman of Nagar Palika Parishad, Padrauna to decide the representation of the petitioner dated 16.11.1993.

On basis of the above decisions in the writ petitions filed by the petitioners, the counsel for the respondents contended that since the petitioners have not approached this Court with clean hands and have concealed material facts, the instant writ petition is liable to be dismissed with cost.  In support of his contention, reliance on the Division Bench decisions of this Court in (i) M/S. Shyam Stone Co. V. the District Magistrate Sonbhadra and another- 1999 All C.J-1253; (ii) Babu Ram Sharma Vs. The D.I.O.S. Muzaffarnagar and others -1987 A.C.J -538 ;(iii) M/S Nagina Palace Cinema Hall Jaminia Ghazipur and another Vs. State of U.P. and others -2002(2) Bank VLR-534 (All) .and a Single Bench decision in (iv) Bhola Nath Jaiswal V. The District Judge Mirzapur -1986 A,C,J-261 has been placed.

The claim of the petitioners that they possess requisite qualifications and are continuously working in Nagar Palika Parishad Padrauna as class IV employee on daily wages is also vehemently denied by the respondents.

According to the counsel for the respondents, the petitioners are not working against any sanctioned and vacant post as such, they cannot be regularized  unless the State Government accords sanction for creation of post. He submits that, in fact, there is no material on record from which it could be established that the petitioners are working continuously and are discharging same duties and function that is performed by a regular/permanent employee ho is their counterpart in the service of Nagar Palika Parishad.

In rebuttal, counsel for the petitioner has placed reliance on paragraphs 13 and 15 of the counter affidavit filed by the respondents. They are as under :-

"13. That the contents of paragraph no. 13 of the writ petition are not correct as stated, hence denied.  It is further stated that the representations filed by the petitioners are under consideration and their names have been sent to the State Government and as soon as the sanction of post comes from the State Government adequate action will be taken by the answering respondents.

14.....

15. That the contents of paragraphs no. 15 and 16 of the writ petition are factually incorrect, false and misleading, hence denied. It is further stated that since the petitioners have not come up with clean hands before this Hon'ble Court, hence they are not entitled to get any relief under its extraordinary jurisdiction. Moreover, it is stated that their representations are already under consideration and their names have already been sent to the State Government by the answering respondents for further action and the rest is to depend on the fate of decision of State Government in this regard.Thus, the present writ petition may kindly be dismissed with costs."

                                                 (emphasis supplied)

It is evident from the above-quoted paragraphs that though the writ petitions were filed by the petitioners, they were dismissed either having become infructuous or with the direction to the respondents to decide the representations. The representations filed by the petitioners were forwarded by the Nagar Palika Parishad, Padrauna. The names of the petitioners had also been recommended to the State Government by it for further action.  The fate of the petitioners thus depended upon the decision of the State Government.

          In the case of Daily Rated Casual Labour Employed under P&T Department through Bhartiya Dak Tar Mazdoor Manch (supra), there was classification of casual labourers into three categories- (i) those who had not completed 720 days of service; (ii) those who had completed 720 days of service and not completed 1200 days of service and (iii) those who had completed more than 1200 days of service for the purpose of payment of different rates of wages. Hon'ble the Supreme Court,  on the facts and in the circumstances of that case held that the classification of employees into regularly recruited employees and casual employees for the purpose of paying less than the minimum pay payable to employees in the corresponding regular cadres particularly in the lowest rungs of the department where the pay scales are the lowest is not tenable. The wage structure of the country is such that a worker is always paid less than what he produces. Therefore, Hon'ble the Supreme Court directed the respondents to prepare a scheme on rational basis for absorbing as far as possible the casual labourers who had been continuously working for more than one year in the Posts and Telegraphs Department.

From a bare perusal of the aforesaid decision, it is evident that there was a demand of casual daily rated employees in the Posts and Telegraphs Department. This fact was admitted to the Department and the judgment in the case was confined to the peculiar facts and circumstances of that case as such, the aforesaid judgment does not apply to the facts and circumstances of the case at hand and is clearly distinguishable.

The case of State of Haryana and others V. Charanjit Singh and others (supra) was a case where doctrine for ''equal pay for equal work' to daily wagers appointed as ledger clerks, ledger keepers, pump operators etc., was applied. The Hon'ble Supreme Court admonished the High Court for blindly proceeding on basis that the doctrine of ''equal pay for equal work' applies without examining any relevant factors.  Hon'ble Supreme Court considered whether direction of High Court to pay the minimum wage in the scale payable to a class IV employee was required to be interfered with or not and held that:

" 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 or equal value. The principle of ''equal pay for equal work' has no mechanical application in every case. Article 14 permits reasonable classification based on quality 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 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 had 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 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 craftsman is not enough to come to a 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 regard. In any event the party who claims ''equal pay for equal work' has to make necessary averments and prove that all things are equal. Thus, before any direction can be issued by a Court, the Court must first see that there are necessary averments and there is a proof. If the High Court, is on basis of material placed before it, convinced that there was equal work of equal quality and all other relevant factors are fulfilled, it may direct payment of equal pay from the date of the filing of the respective Writ Petition.  In all these case, we find that the High Court had blindly proceeded on the basis that the doctrine of ''equal pay for equal work' applies without examining any relevant factors."

In the instant case also the petitioners have sought mandamus directing the respondents to grant minimum pay scale as commanded in Putti Lal's case (supra) and also a direction for regularization of their services.  .  Putti Lal's case (supra) has been distinguished in State of Haryana and others  v. Charanjit Singh and others (supra). In view of decisions rendered in State of Haryana v. Jasmer Singh (1996)11SCC-77;State of Haryana V. Tilak Raj- (2003)6 SCC-123  Orissa University of Agriculture & Technology v. Manoj K. Mohanty-(2003)5 SCC-188 Government of West Bengal Vs. Tarun K. Roy -(2004)1 SCC-347 ;State of Haryana V. Surinder Kumar and others  -(1997)3 SCC-633 and Union of India and others V. K.V. Baby and anr.-(1998)9 SCC-252, Hon'ble Supreme Court remitted back the appeals to High Court for examining each case for decision as to whether everything is identical and equal. Thus, Putti Lal's case which has been distinguished in the aforesaid cases is not applicable to the facts and circumstances of the instant case. Moreover, in Putti Lal's case (supra) Hon'ble Apex Court had applied the principle of ''equal pay for equal work' and had held that if a daily wager is discharging similar duties as that of a regular employee in Government service, he would at least be entitled to receive minimum of the pay scale though he may not be entitled to increments or any other allowance as permissible to the counterpart.

In the case of Delhi Municipal Karmachari Ekta Union (supra), the Court had directed that daily wagers of Municipal Corporation who had put in long span of service should be considered for regularization and direction for preparation of scheme for absorption was issued.

In the instant case, prayer of the petitioners is for regularization and for payment of minimum pay scale and not for minimum of the pay scale without any increment or any other allowances which is permissible to their counterparts in the Government service. There is no evidence, whatsoever, that the petitioners are discharging the same duties and shouldering the same responsibilities which is being shouldered by regular employees.  It is not admitted by the respondents that the petitioners are discharging the duties identical to the regular employees. Regularization of service and payment of minimum pay scale connote permanent appointment against a post.  Even otherwise, it implies demand of ''equal pay for equal work'

The order in Jag Lal's case (supra) relied upon by the petitioners is only an interim order and not a judgment.  No law has been laid down therein and it has no binding effect. Moreover, the controversy involved in that case was different.  

As regards judgment in Special Appeal filed against judgment of learned Single Bench dated 5.8.1999 (Annexure 4 to the writ petition) is concerned, it was admitted in that writ petition that the appellants were doing the same work as was being done by the regular employees  which is not in the instant case as such, the judgment in Special Appeal appended as Annexure 4 to the writ petition is of no help to the petitioner.

The petitioners have been working under various orders obtained by them in the writ petitions filed by them from time to time.  They have no legal right of their own by working under the interim orders of High Court. Counsel for the petitioners has neither been able to bring any material on record nor could show any rule or law to establish that the petitioners are holding posts continuously, without any break, for a number of years.  They were only daily wagers and were permitted to work by the respondents in compliance of interim orders of this Court and they have not held any post for a number of years by virtue of their self legal right. Counsel for the petitioners also could not produced any  rule for regularization from which it can be inferred that working for a number of years automatically converts the character of engagement/appointment from temporary to permanent.

It is evident from record that the petitioners have not approached this Court with clean hands as they had filed earlier writ petitions seeking substantially the same reliefs for regularization and minimum pay scale as has been claimed in this writ petition. If the prayer for regularization and payment of minimum pay scale in the earlier writ petitions had become infructuous it cannot be re-alive in subsequent writ petition. Law is well settled that if a party does no come with clean hands he is not entitled to any relief in the equity jurisdiction under Article 226 of the Constitution of India.

Reference may be made to two recent judgments in State of U.P. Vs. Neeraj Awasthi and others- (2006)1 SCC-667 and State of Karnataka and others Vs. KGSD Canteen Employees Welfare Association and others-(2006)1 SCC-567, the Hon'ble Supreme Court had the occasion to consider the nature, scope and entitlement for framing of schemes for regularization by judicial fiat in the absence of legal right on part of persons concerned to continue in employment.

In State of U.P. Vs. Neeraj Awasthi and others (Supra), the Hon'ble Apex Court considered the power of the High Court in writ jurisdiction  to direct framing of scheme/policy for regularizing services of ad hoc or daily wage employees not having been appointed under the extant rules but to meet the exigencies of situation.  It was reiterated that law has now firmly laid down that any irregular or illegal appointment cannot be regularized and neither temporary nor permanent status can be conferred by regularization. Any attempt to induct an employee without following the procedure would be a back-door appointment and that Such back door appointments have been deprecated by Hon'ble Supreme Court times without number.

It was further held that mere description of "illegal" appointments as "irregular" does not mean that they are not illegal. Therefore, by illegal or irregular appointments, the petitioners do not derive any legal right to continue in service. Hence, High Court should not have issued writ in the nature of mandamus directing the respondents to frame policy for regularization of services of the writ petitioners.

Hon'ble Supreme Court also considered the question of interference by High Courts under Article 226 of the Constitution in service and labour matters held that illegal appointments cannot be regularized and neither temporary nor permanent status can be conferred by regularization.  The employers not having had the power to appoint ad hoc or daily wage employees under the statutory provisions, rules and regulations, no legal relationship of employer and employee comes into being between them.

In State of Karnataka and others Vs. KGSD Canteen Employees Welfare Association and others (supra), after noticing the judgments in catena of cases, in paragraph 44 of the judgment Hon'ble Supreme Court held as under :-

"       44. The question which now arises for consideration is as to whether the High Court was justified in directing regularization of the services of the respondents.  It was evidently not.  In a large number of decisions, this Court has categorically held that it is not open to a High court to exercise its discretion under Article 226 of the Constitution either to frame a scheme by itself or to direct the State to frame a scheme for regularizing the services of ad hoc employees or daily wage employees who had not been appointed in terms of the extant service rules, framed either under a statute or under the proviso to Article 309 of the Constitution. Such a scheme, even if framed by the State would not meet the requirements of law as the executive order made under Article 162 of the Constitution cannot prevail over a statute or statutory rules framed under the proviso to Article 309 thereof.  The State is obligated to make appointments only in fulfillment of its constitutional obligation as laid down in Articles 14,15 and 16 of the Constitution and not by way of any regularization scheme. In our constitutional scheme, all eligible persons similarly situated must be given opportunity to apply for and receive considerations for appointments at the hands of the authorities of the State.  Denial of such a claim by some officers of the State time and again had been deprecated by this Court.  In any view, in our democratic polity, an authority, howsoever high it may be cannot act in breach of an existing statute or the rules which hold the field.

Relying upon the decision in Mahendra L. Jain V. Indore Development Authority-(2005)1SCC-639, Hon'ble Apex Court further held:-

"46. 19. The question, therefore, which arises for consideration is as to whether they could lay a valid claim for regularization of their services. The answer thereto must be rendered in the nagative.  Regularization cannot be claimed as a matter of right.  An illegal appointment cannot be legalized by taking recourse to regularization. What can be regularized is an irregularity and not an illegality. The constitutional scheme which the country has adopted does not contemplate any back-door appointment.  A State before offering public service to a person must comply with the constitutional requirements of Articles 14 and 16 of the Constitution. All actions of the State must conform to the constitutional requirements.  A daily wager in the absence of a statutory provision in this behalf would not be entitled to regularization. (see State of U.P. v. Ajay Kumar-(1997)4SCC-88 and Jawaharlal Nehru Krishi Vishwa Vidyalaya V. Bal Krishan Soni (1997)5SCC-86.

Thereafter, the Court considered the question of parity and scales of pay. After noting the contention of the petitioner that at least for the period when they had worked, they are entitled to regular pay scale as that of Government employees, held that it cannot be accepted for more than one reasons, namely, that they did not hold any post as no post  was sanctioned by the State Government.  According to the State, they were not its employees.  Salary on a regular scale of pay, it is trite, is payable to an employee only when he holds a status (refer Mahendra L. Jain's case (supra).)

For the reasons stated above, the writ petition is dismissed. However, as it appears from the averments made in the counter affidavit that the petitioners are still continuing in service and admittedly, their case is under consideration before the State Government, the State Government, respondent no. 1 is, therefore, directed to decide the representations of the petitioners by a reasoned and speaking order, in accordance with law, expeditiously, preferably within two months from the date of submission of a certified copy of this judgment and order.  No order as to costs.

Dated 6th February,2006

Kkb


Copyright

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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