Allahabad High Court
Jai Narayan Chauhan vs State Of U.P. And Others on 26 August, 2022
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 18.08.2022 Delivered on 26.08.2022 Court No. - 82 Case :- WRIT - A No. - 13071 of 2012 Petitioner :- Jai Narayan Chauhan Respondent :- State of U.P. and Others Counsel for Petitioner :- Pankaj Srivastava Counsel for Respondent :- C.S.C. Hon'ble Saurabh Shyam Shamshery,J.
1. In this writ petition although ten prayers are raised, however, Sri Pankaj Srivastava, learned counsel for petitioner, on instruction and on the basis of subsequent events, is pressing only prayers no. 3 and 4, which are reproduced as under:
"(3) To pay minimum of regular pay as directed to be paid by the State Government vide G.O. dated 7.9.2002 (Anneure No. 3) adopting the Hon'ble Supreme Court decision dated 20.2.2002 in State of U.P. vs. Putti Lal and the Government Order dated 11.3.2010 (Annexure No. 13) from the date their juniors were granted.
(4) Direct the respondents to regularize the services of the petitioner on Group D (Mali) post pursuant to the directions of the Hon'ble Supreme Court."
2. Learned counsel for petitioner submitted that before filing of this petition as well as during pendency of this writ petition, on both above referred issues, matter was traveled upto the Supreme Court and on law decided in favour of similarly situated persons. He relied on paras 4 and 5 of the judgment passed by Supreme Court in State of U.P. and others vs. Putti Lal, (2002) 2 UPLBEC 1595, which are reproduced hereinafter:
"4. Mr. Bahuguna, learned senior counsel appearing for the employees, made a grievance with regard to some of the provisions of the aforesaid rules but we are not inclined to entertain that grievance and issue any direction in this case inasmuch as grievance, if any, emanating from the aforesaid statutory rules would be on a fresh cause of action which could be assailed before an appropriate forum by the aggrieved party. Mr. Bahuguna, however, contended that so far as the entitlement of these daily-wagers until they are regularised in accordance with the statutory rule to get minimum of the pay-scale, should be granted by this Court which is not being given because of the interim order of stay that had been passed by this Court and the dismissal of the LA. filed by the employees. According to him, a judgment of a learned single Judge in respect of the forest employees unequivocally held that the daily-wagers should be paid in the minimum of the pay-scale as is available to a regularly employed worker in the corresponding cadre.
5. In several cases, this Court, applying the principle of equal pay for equal work has held that a daily-wager, if he is discharging the similar duties as those in the regular employment of the Government, should at least be entitled to receive the minimum of the pay-scale though he might not be entitled to any increment or any other allowance that is permissible to his counterpart in the Government. In our opinion, that would be the correct position and we, therefore, direct that these daily-wagers would be entitled to draw at the minimum of the pay-scale being received by their counter-part in the Government and would not be entitled to any other allowances or increment so long as they continue as daily-wager. The question of their regular absorption will obviously be dealt with in accordance with the statutory rule already referred to."
(Emphasis added)
3. Learned counsel also relied on another judgment of Supreme Court passed in Sabha Shanker Dube vs. Divisional Forest Officer and others, (2019) 12 SCC 297, paras 11, 12 and 13, which are reproduced as under:
"11. The issue that was considered by this Court in Jagjit Singh (supra) is whether temporary employees (daily wage employees, ad hoc appointees, employees appointed on casual basis, contractual employees and likewise) are entitled to the minimum of the regular pay scales on account of their performing the same duties which are discharged by those engaged on regular basis against the sanctioned posts. After considering several judgments including the judgments of this Court in Tilak Raj (supra) and Surjit Singh (supra), this Court held that temporary employees are entitled to draw wages at the minimum of the pay scales which are applicable to the regular employees holding the same post.
12. In view of the judgment in Jagjit Singh (supra), we are unable to uphold the view of the High Court that the Appellants-herein are not entitled to be paid the minimum of the pay scales. We are not called upon to adjudicate on the rights of the Appellants relating to the regularization of their services. We are concerned only with the principle laid down by this Court initially in Putti Lal (supra) relating to persons who are similarly situated to the Appellants and later affirmed in Jagjit Singh (supra) that temporary employees are entitled to minimum of the pay scales as long as they continue in service.
13. We express no opinion on the contention of the State Government that the Appellants are not entitled to the reliefs as they are not working on Group 'D' posts and that some of them worked for short periods in projects." (Emphasis added)
4. Per contra, Sri V.B. Yadav, learned Standing Counsel appearing for State-Respondents, has relied on paras 4, 6, 8, 15 and 28 of the counter affidavit, which are mentioned hereinafter:
"4. That the petitioner was working in the Forest Department on daily wage basis as casual labour on the availability of work and budget for this purpose. The petitioner was never engaged or appointed against any post. From the report submitted by the Circle Range Officer, Barachawar it is clear that the petitioner was not working continuously from the cut off date of 29th June 1991 to 21st December 2001 as per the requirement of rule 4(1) of the U.P. Regularization of Daily Wages Appointment on Group D posts Rules, 2001 (hereinafter referred to as "Regularization Rules, 2001"). It is further submitted that the present petitioner is not working in the range since February 2007. In accordance with rule 4(1) (a) and (b) of the Regularization Rules, 2001 the primary requirement is that the daily wage employee should be in continuous service from the cut off date 29th June 1991 upto the date of issue of Regularization Rules, 2001 i.e. 21.12.2001 which is not the case of the present petitioner. It is because of this that the petitioner could not get the benefit of regularization under the Regularization Rules, 2001. The petitioner could not fulfill the conditions laid down under the aforesaid Regularization Rules, 2001."
"6. That deponent would like to raise a preliminary objection on the present case with respect to the latches in filing the present writ petition. The petitioner, who is daily wager, is seeking regularisation under the U.P. Regularization of Daily Wages Appointment on Group D posts Rules, 2001 (hereinafter referred to as "Regularization Rules, 2001"). From the annxures annexed in the writ petition it is clear that the petitioner has worked only upto February 2007. The process of regularisation was undertaken by the respondent authorities in the year 2002-03. The petitioner never placed his claim earlier before the respondent authorities. For the first time, the petitioner has come up with his case for regularisation before the Hon'ble Court by filing the present writ petition after a delay of almost 10 years. The petitioner has also not taken any pain to explain the delay caused in filing the present writ petition. As such in view of the facts stated above, the writ petition is liable to be dismissed on the ground of latches alone."
"8. That the contents of paragraph 3 of the writ petition are incorrect and misleading hence vehemently denied. It is submitted that the petitioner does not fulfill the eligibility criteria of the Regularization Rules, 2001 as his name was not considered for inclusion in eligibility list prepared by the appointing authority under section 4 of the above Regularization Rules, 2001 or in the seniority list in the year 2002-03 by the selection committee constituted for this purpose under section 3 of the Regularization Rules, 2001. It is further submitted that as per the official records the petitioner started working as casual labour in Barachawar Range in month 4/1998 to 11/1998, 4/1999 to 12/1999, 1/2000 to 7/2007 and 11/2000 to 1/2002, 1/2003 to 11/2004, 1/2005 to 6/2005, 8/2005 to 11/2005, 3/2006 to 5/2006, 7/2006 to 2/2007. Copy of report of Range Officer, Barachawar dated 21.04.2012 is being filed herewith as marked as Annexure No. CA-1 to this counter affidavit."
"15. That the contents of paragraph 12 of the writ petition are also incorrect hence denied. No person, who was junior to the petitioner and ineligible, has been regularized. The petitioner himself is not eligible as per the requirement of rule 4(1)(a) and (b) of the Regularization Rules, 2001. Only those persons have been regularized who had fulfilled all the criteria laid down under the Regularization Rules, 2001. The list of names given by the petitioner was of eligible candidates and therefore they were regularized but it is wrong to say that they were junior to the petitioner."
"28. That the contents of paragraph 60 of the writ petition are incorrect and misleading hence denied. As already stated above, the petitioner is not at all eligible to be regularized under the Regularization Rules, 2001. He does not fulfill the criteria laid therein. It is also submitted that the process of appointment was done in 2002-03 by the selection committee. Had the petitioner been eligible, he would have presented his case immediately but he never did so and he has filed this writ petition after delay of almost 10 years. It is further submitted that the Hon'ble High Court, Allahabad has passed the order in a bunch of writ petitions, leading one is Writ Petition No. 949/2003 (Raj Kumar Ram and others vs. State of U.P. and others). The relevant portion of the order is reproduced below:
"It is also submitted that in case of Puttilal (supra) no principle of law has been laid down and in any case the matter regarding ''equal pay for equal work' has been settled by three Judges bench of the Apex Court in 2004 (101) 512 (State of Punjab vs. Sarvinderjeet Kaur).
It is further submitted that these daily wagers have not been appointed by the Appointing Authority directly as laid down in rule 4 of the regularisation rule 2001 read with the UP Lower Subordinate Forest Service Rules 1980. It is also submitted that the petitioners cannot be regularized on mass being very large in number as this would entail heavy financial burden on the state exchequer."
Copy of the judgment dated 28.05.2004 is being filed herewith and marked as Annexure No. CA 2 to this counter affidavit."
(Emphasis added)
5. Learned Standing Counsel submitted that case of petitioner was considered only in the light of U.P. Regularization of Daily Wages Appointment on Group D posts Rules, 2001 (hereinafter referred to as "Regularization Rules, 2001"). He was not found eligible for payment of minimum pay scale as well as for regularization. He further submitted that subsequent judgments of this Court have held that case of petitioner could not be considered in contravention of Regularization Rules, 2001.
6. In rejoinder learned counsel for petitioner has pointed out that subsequently after filing of above referred counter affidavit name of the petitioner alongwith others were put in the list employees found fit for regularization, still the claim of petitioner was not considered. He further submitted that breaks, if any, are artificial which could be condoned in view of a judgment passed by this Court in Visheshwar vs. Principal Secretary, Forest Anubhag-3 and others (Writ Petition No. 47568 of 2002), decided on 29.11.2004 as well as Jaglal and others vs. Director of Horticulture, U.P. Government, Lucknow, 2003(3) ESC 1745, which are followed in Sanjay Kumar Srivastava vs. Principal, Chief Conservator of Forest, U.P., Lucknow and others, (2005) 3 UPLBEC 2527, that:
"12. So far as the artificial breaks between the cut of dates in both set of Rules is concerned I have already held in Jaglal and Ors. v. Director of Horticulture. U.P. Government, Lucknow, Writ Petition No. 16842 of 2003, decided on 21.5.2003, and in Visheshwar v. Principal Secretary, Forest Anubhag-3, and Ors., Writ Petition No. 47568 of 2002, decided on 29.11.2004, that the word 'continuing in service' in Rule 4(1) (a) of the Rules of 2001 must ignore the artificial breaks. The relevant portion of the judgment is quoted as below;
The object and purpose of the above quoted Rules of 2001 is to obtain regularisation of the of the appointees, directly appointed on daily wages basis on a Group 'D' post in the Government service before June 29, 1991 and is continuing in service as such on the date of commencement of the Rules. The Hindi version of the Rules uses the words "Is Niyamawali Ke Prarambh Ke Dinaink Ko Is Roop Me Niranter Sevarat Ho" in Rule 4(1) (a) where as English gazette notification mentions the words "continuing in service as such on the date of commencement of these Rules" in the same Rules in Rule 4(1) (a). There is apparently a difference in the expression. Whereas "Nirantar Sevarat Ho" means that such appointee has been in continuous employment on the date of commencements of the rules, the English version means that he is continuing in service as such on the date of commencement of the Rules. Article 348(3) of the Constitution of India provides that the translation of the order, Rule, Regulation or bye law of the same in English language, published under the authority of the Governor of the State in the official Gazette of the State shall be deemed to be the authoritative text thereof. In Nityanand Sharma v. State of Bihar [1996]2SCR1 and in Vinay Prakash v. State of Bihar [1997]2SCR97 , the Supreme Court relied upon notification in English to be authoritative text where there was ambiguity in such text with the text of the language of the State.
The principles of purposive construction of interpretation of statutes also supports the language used in English text. Daily wage appointees have no right or control over their appointments. They are hired and fired at will. Many a times their engagements are ceased, to allow other favoured persons to be accommodated and on other occasions they are not allowed to work either on account of temporary cessation of work, displeasure of the appointing authority, or due to some delay or gap in receiving the financial grants for payment of salaries. In the present case as we have seen above the daily wage services of some of the petitioners were ceased by the appointing authority as soon as they filed contempt petitions to enforce the order passed by this Court on 12.12.95. They were subsequently taken back in daily wage service. The nature of their casual engagement did not give them any permanency in service. The English Text thus rightly uses the words continuing in service as such on the date of commencement of the Rules, as an essential condition for consideration for regularisation. The rules obviously ignore any artificial breaks in service, or daily wages appointees, beyond their control. At this place it may be clarified that this Court is not considering any such case where an employee may have voluntarily given up employment or had taken employment of permanent nature some where else. There is nothing on the record to show that the petitioners were not willing to work or that they had given up or abandoned their daily waged employment. All the petitioners were appointed on daily wage basis before 29 June, 1991, and were continuing in service on the date of commencement of the Rules i.e. On 21 at December, 2001. In the circumstances I find that the respondents were not justified and have acted illegally and arbitrarily in ignoring the claims of these daily waged petitioners who were not allowed to work for different periods. The Selection Committee erred in law in ignoring their claims."
7. I have heard learned counsel for parties and perused the material available on record as well as case laws cited by parties.
8. Before entering into rival submission on law, it would be relevant to have clarity of facts brought on record. Petitioner has claimed to start working with respondent department from year 1991 i.e. before 29.06.1991 and for that he has placed reliance upon a document issued by Divisional Forest Officer, which indicates that he has worked as casual labour from December, 1990-May, 1992, 1993, 1994, 1995 and again for some days in the year 1998, 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006 and 2007 and for that he was paid also. The State had admitted that petitioner worked with gaps from April, 1998 to February, 2007. There are no averment on record that petitioner had worked after 2007. According to an undated and unsigned (Annexure-1 to supplementary rejoinder affidavit) petitioner is shown to work from 1990 to the date of preparation of chart with gaps and recommended that his case be considered on sympathetic manner, without taking note of earlier report of Divisional Forest Officer. Therefore, there is a serious dispute with regard to regular working of petitioner with the respondent-department.
9. According to Rule 4(1)(a) and (b) of Rules, 2001 primary requirement for consideration for regularisation is that a daily wage employee should be in continuous service from the cut off date, i.e., 29th June, 1991 upto the date of issue of Rules, 2001, i.e., 21.12.2001, however, genuine artificial break, if any, can be ignored.
10. The report of Divisional Forest Officer dated 21.04.2012 would be relevant. There are serious dispute regarding regular working of petitioner between 1991 to 2001 and thereafter. The report could not be disputed, therefore, petitioner had worked with breaks, which could not be considered to be artificial specifically in absence of any averment or document or material submitted by the petitioner in this regard. Petitioner has failed to fulfill the terms and conditions. So far as documents annexed alongwith supplementary rejoinder affidavit is concerned, it only indicates that though petitioner has not fulfilled twin conditions but his case may be considered with sympathy, therefore, it could not create a right in favour of petitioner. Therefore, the prayer sought for regularization cannot be granted.
11. I also found merit in the argument of counsel for respondents that process for regularization was undertaken in the year 2002-03, however, petitioner has approached this Court after a decade to claim relief. Delay remained absolutely unexplained.
12. Petitioner has also failed to place on record that he, being a daily wager or casual labour, had discharged similar duties as those of regular employees, either by way of averment supported by any documents or during oral argument. The principle of "equal pay for equal work" would not be applicable, therefore, prayer for payment of minimum pay scale is also not sustainable.
13. The writ petition is accordingly dismissed. Interim order, if any, stands vacated.
Order Date :- 26.08.2022 AK