High Court of Judicature at Allahabad
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Indra Pal v. Director Uddyan Evam Khadya - WRIT - A No. 39341 of 1993  RD-AH 896 (24 September 2004)
CIVIL MISC. WRIT PETITION NO. 39341 OF 1993
Indra Pal ............................................................Petitioner
Director Uddyan Evam Khadya Prasanskaran,
U.P.Uddyan Bhawan, Sapru Marg, Lucknow
and others. .....................................................Respondents.
Hon. Tarun Agarwala,J.
The petitioners have filed this petition praying that their services should be regularised on the post of Maalies. In paragraph 1 of the writ petition the petitioners have alleged that the petitioner No.1 had been working on daily wages as a Mali in the Circuit House, Allahabad since 1984 and that the petitioner No.2 had been working in the same capacity since 1987 and that the petitioner No.3 had been working since 1989 and that the petitioner No.4 had been working since 1991. In paragraph 4 the petitioners have alleged that their duties, timings and nature of work are one and the same as that of the regular employees and whereas the petitioners are being paid @ Rs.15/- per day, the regular employees were being paid on a pay scale of Rs.750-950 per month. In paragraph 5 of the writ petition, the petitioners have alleged that they are being paid for only 20 to 26 days in a month. In paragraph 6 of the writ petition the petitioners have contended that they are performing the same duties and functions as are performed by the regular Maalies. In paragraph 11 of the petition, the petitioners have alleged that there are 50% permanent vacancies existing on the post of Maalies. The petitioners have alleged that since the vacancies are existing there was no reason why the vacancies should not be filled from the list of daily wagers and that the continuation of the petitioners on daily wages was wholly illegal and arbitrary.
The respondents in their counter affidavit have admitted that the petitioners had been working continuously since their initial engagement. The respondents, however, contended that the petitioners were appointed on a daily wage basis and that their appointments started at the start of the day and came to an end at the end of the day, and therefore, their appointments was only casual or at best, seasonal. The respondents admitted that the payments were made for 26 days in a month on a consolidated pay and that they were not entitled to the wages which was being paid to the regular Maalies. The respondents, however, contended that the work performed by the petitioners was different from the regular Maalies. Whereas, the petitioners were doing the work of weeding, cleaning and hoeing, on the other hand, the regular Maalies are only doing the work of grafting and production of plants and saplings and, therefore, the principles of equal pay for equal work was not applicable. The respondents have denied that their existed 50 vacancies, but however, contended that the vacant posts would be filled up as per the Government Orders. The respondents also submitted that the vacant posts could not be filled up nor the cases for regularisation could be finalized on account of the pendency of various petitions of the daily wagers.
It may be stated here that this Hon'ble Court by an interim order dated 13.10.1993 issued an interim mandamus directing the respondents to pay the salary which was being paid to the regular employees. This order was not complied by the respondents, and therefore, by an order dated 3.8.2004, the respondents were directed to show cause why the earlier interim order was not complied with. The respondents have filed a supplementary counter affidavit stating that the services of petitioner no.2 has been regularised vide an order dated 22.3.2004 and that petitioner Nos.1, 3 and 4 have been granted minimum fixed pay vide an order dated 25.8.2004 and submitted that the interim order dated 13.10.1993 has been complied by the respondents.
Heard Sri Vikram Nath, the learned counsel for the petitioner and the learned Standing Counsel for the respondents.
It is clear from the counter affidavit that the petitioners have been working continuously on daily wages since 1984, 1987, 1989 and 1991, respectively. It is further clear that the petitioners are performing the same functions and duties which are being performed by the regular Maalies. The attempt made by the respondents that the petitioners are performing different kind of duties is wholly erroneous. A regular Maali also does the work of weeding, cleaning and hoeing and in addition to the aforesaid duty he also does the work of grafting and production of saplings. The work of grafting and production of saplings can also being done by the petitioners and which does not require any specialized training. The attempt made by the respondents that the petitioners are performing different kind of work is incorrect and cannot be believed.
It is also clear that there is a requirement of work of Maalies which is continuous in nature and is neither casual nor seasonal in nature. The fact that petitioner no.1 is working since 1984 continuously for the last 20 years is indicative of the fact that the work of a Maali is required on a permanent basis. Therefore, the engagement of the petitioners on daily wages without giving them job security and without paying them the wages equivalent to that paid to the regular employees is wholly arbitrary and unreasonable. The respondents being a "State" are required to act as model employers and cannot run their Department by hiring daily wagers. Such action is wholly arbitrary and violative of principles of Article 14 and 16 of the Constitution, which guarantees equality before law and equal protection of the laws.
From the counter affidavit it is clear that the posts are existing but the same are not being filled up for one reason or the other. It is also clear that that there is a permanent requirement of work. From the supplementary counter affidavit it is clear that the services of petitioner No.2 has been regularised. The petitioner No.2 was appointed in the year 1987 whereas the petitioner No.1 was appointed in the year 1984. It is not known as to why and in what circumstances the services of the petitioner No.2 was regularised without regularising the services of the petitioner No.2 when admittedly the petitioner No.1 is senior to petitioner No.2. In the absence of any explanation, it is clear that the respondents are adopting a policy of pick and choose and are regularising the services of those persons who are their favourites. The action of the respondents in this regard is clearly arbitrary. The respondents have also admitted that the vacancies could not be filled nor the cases for regularisation could be finalised on account of the pendency of the cases in the High Court. In my view, the filing of the cases in the High Court does not deprive the respondents from regularising the services of the petitioner. The counter affidavit of the respondents indicate that they have adopted a dilatory tactic for filling up the vacancies and for regularising the services on the ground that the petitioners have filed their case before the High Court. The conduct of the respondents in this regard is clearly arbitrary, discriminatory and deplorable being violative of Articles 14 and 16 of the Constitution of India.
The Supreme Court in State of Haryana vs. Piara Singh, A.I.R. 1992 SC 2130 case has held as under-
"Ordinarily speaking, the creation and abolition of a post is the prerogative of the Executive. It is the Executive again that lays down the conditions of service subject, of course, to a law made by the appropriate legislature. This power to prescribe the conditions of service can be exercised either by making Rules under the proviso to Art.309 of the Constitution or (in the absence of such Rules) by issuing Rules/instructions in exercise of its executive power. The court comes into the picture only to ensure observance of fundamental rights, statutory provisions, Rules and other instructions, if any, governing the conditions of service. The main concern of the court in such matters is to ensure the Rule of law and to see that the executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16. It also means that the State should not exploit its employees nor should it seek to take advantage of the helplessness and misery of either the unemployed persons or the employees, as the case may be. As is often said, the State must be a model employer. It is for this reason, it is held that equal pay must be given for equal work, which is indeed one of the directive principles of the Constitution. It is for this very reason it is held that a person should not be kept in a temporary or ad hoc status for long. Where a temporary or ad hoc appointment is continued for long the court presumes that there is need and warrant for a regular post and accordingly directs regularisation."
Based on the aforesaid, it is clear that the petitioners are working since long and are, therefore, entitled for regularisation. The action of the respondents in regularising the services of the petitioner No.2 alone is violative of Article 14 of the Constitution, and therefore, the remaining petitioners are also entitled for regularisation.
In view of the aforesaid, the writ petition is allowed and a mandamus is issued to the respondents to regularise the services of petitioner Nos.1, 3 and 4 within a period of three months from today. The respondents are directed to take steps for regularisation of the petitioners in the existing vacancies on the post of Maalies. In the event the posts are not existing, the respondents are directed to place the matter before the State Government within three weeks to enable the State Government to create the posts of Maalies. Upon the creation of the posts, the respondents shall pass consequential orders absorbing and regularising the services of the petitioner Nos.1, 3 and 4. It is made clear that the entire process shall be completed within a period of three months from the date of the production of the certified copy the judgment before the respondents. During the aforesaid period the petitioners would be entitled to salary as paid to a regular Maali.
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