Jharkhand High Court
Nand Kishore Rai vs State Of Jharkhand & Ors on 4 August, 2011
Writ Petition (S) No. 700 of 2009
In the Matter of an Application under Article 226 of the Constitution of
India.
Nand Kishore Rai ...... Petitioner
Versus
State of Jharkhand & others ...... Respondents
For the Petitioners : M/s Sujit Narayan Prasad, Abhishek, Advocates
For the State : Mr. Rabindra Prasad, J.C. to G.PIV
PRESENT: HON'BLE MR. JUSTICE D.N. PATEL
Dated: 4
th
August, 2011
1. The present petition has been preferred by the daily wage worker, engaged by the respondentState in Water Resources Department since 1980.
2. It is submitted by the counsel for the petitioner that the petitioner should be paid wages equal to the salary at the lowest grade of the employees of his cadre in the Water Resources Department in the Government of Jharkhand. The petitioner is serving since 1980 as daily wage worker sincerely, diligently and to the satisfaction of the respondents. For regularization of the services of the petitioner already another matter is pending, which is MJC No. 634 of 2000. Earlier also, a writ petitions bearing W.P.(S) No. 1035 of 2002 and W.P.(S) No. 5387 of 2002 were preferred, in which also, there was a direction to pay minimum pay scale to the present petitioner, but, the petitioner was not entitled to any other allowances. These facts have already been admitted by the respondents vide their letter dated 10th September, 2007 (Annexure6 to the memo of the present petition). Thereafter, the petitioner was paid till 21st January, 2009 (Annexure7 to the memo of the present petition).
3. Counsel for the petitioner further submitted that in the present writ petition, it is prayed that till the regularization of the petitioner in the services of the respondentState, the petitioner ought to be paid minimum pay scale, without paying any other allowances, as directed in paragraph55 of a decision rendered by the Hon'ble Supreme Court in the Case of Secretary, State of Karnataka and Others Vs. Umadevi (3) and others as reported in (2006) 4 SCC 1. The petitioner is not claiming 2. regularization in this writ petition, for which, another contempt application is already pending before this Court.
4. Counsel for the respondents submitted that the petitioner was not appointed in accordance with law and hence, the petitioner is not entitled to the prayer, as prayed for, in the memo of the writ petition. Moreover, as per the decision rendered by the Hon'ble Supreme Court on 30th October, 2000 in S.L.P. (Civil) No. 1678416820 of 2000, the petitioner is not entitled to get minimum of the pay scale. The said judgment is at AnnexureA to the counter affidavit, filed by the respondentsState 2 to 5. Moreover, the services of the petitioner have also not been regularized, for which, contempt application is already pending before this Court bearing MJC No. 634 of 2000.
In view of these facts, there is no legal vested right in the petitioner to get the minimum of the pay scale, as prayed for, in the memo of the petition.
5. Having heard counsel for both the sides and looking to the facts and circumstances of the case, it appears that:
(a) The petitioner is working with the respondents i.e. in the Water Resources Department of the State of Jharkhand since, 1980 as a daily wage workman.
(b) Previously, the workman preferred W.P.(S) No. 1035 of 2002 and W.P(S) No. 5387 of 2002 in which, a direction was given to make the payment of minimum of the pay scale in Water Resources Department, State of Jharkhand. These facts have been admitted by the State of Jharkhand vide their letter dated 10th September, 2007 at Annexure6 to the memo of the present petition and the petitioner was, in fact, paid minimum of pay scale up to 21st January, 2009, as per another order dated 21st January, 2009, which is at Annexure7 to the memo of the petition.
(c) one Contempt Application bearing MJC No. 634 of 2000 was instituted by the present petitioner before this Court and vide order dated 15th June, 2002, a direction was given that in pursuance of the scheme floated by the respondents in their Scheme dated 18th June, 1993, if the petitioner is satisfying all the conditions, his services may be regularized by the respondents.
3.The condition attached in that scheme is that if any daily rated workman is appointed prior to 1985 and if he worked for 240 days then he is entitled for regularization. The petitioner is working since 1980 and therefore, he is claiming that he has already completed 240 days. Despite this order, the petitioner has not been regularized and therefore, the contempt application, which is pending before this Court. Be that as it may, the fact remains that the petitioner is working as daily rated worker since 1980 and in this writ petition, is claiming minimum of the pay scale available in the Water Resources Department, State of Jharkhand.
(d) It has been decided by the Hon'ble Supreme Court in the case of Secretary, State of Karnataka and Others Vs. Umadevi (3) and others as reported in (2006) 4 SCC 1 especially in paragraph55 as under: "55. In cases relating to service in the Commercial Taxes Department, the High Court has directed that those engaged on daily wages, be paid wages equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively appointed. The objection taken was to the direction for payment from the dates of engagement. We find that the High Court had clearly gone wrong in directing that these employees be paid salary equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively engaged or appointed. It was not open to the High Court to impose such an obligation on the State when the very question before the High Court in the case was whether these employees were entitled to have equal pay for equal work so called and were entitled to any other benefit. They had also been engaged in the teeth of directions not to do so. We are, therefore, of the view that, at best, the Division Bench of the High Court should have directed that wages equal to the salary that is being paid to regular employees be paid to these dailywage employees with effect from the date of its judgment. Hence, that part of the direction of the Division Bench is modified and it is directed that these dailywage earners be paid wages equal to the salary at the lowest grade of employees of their cadre in the Commercial Taxes Department in government service, from the date of the judgment of the Division Bench of the High Court. Since, they are only daily wage earners, there would be no question of other allowances being paid to them. In view of our conclusion, that the courts are not expected to issue directions for making such persons permanent in service, we set aside that part of the direction of the High Court directing the Government to consider their cases for regularization. We also notice that the High Court has not adverted to the aspect as to whether it was regularization or it was giving permanency that was being directed by the High Court. In 4. such a situation, the direction in that regard will stand deleted and the appeals filed by the State would stand allowed to that extent. If sanctioned posts are vacant (they are said to be vacant) the State will take immediate steps for filling those posts by a regular process of selection. But when regular recruitment is undertaken, the respondents in CAs Nos. 3595612 and those in the Commercial Taxes Department similarly situated, will be allowed to compete, waiving the age restriction imposed for the recruitment and giving some weightage for their having been engaged for work in the Department for a significant period of time. That would be the extent of the exercise of power by this Court under Article 142 of the Constitution to do justice to them."
(Emphasis Supplied) In view of the aforesaid decision, the daily wage earner is entitled to wages equal to the salary, at the lowest grade of the employees of his cadre in Water Resources Department in the respondentState Government. The aforesaid decision has been rendered by a larger Bench of the Hon'ble Supreme Court.
(e) the petitioner is working since last 31 years i.e. more than three decades with the respondentsGovernment. The petitioner has already been paid as stated hereinabove, looking to the Annexure7, upto 21st January, 2009, the minimum of the lowest grade of the employees of this cadre.
6. As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, the respondents are hereby, directed to make the payment of the wages equal to the salary at the lowest grade of the employees of this cadre in the Water Resources Department, State of Jharkhand, within a period of twelve weeks from the date of receipt of a copy of an order of this Court.
7. The writ petition is allowed and disposed of.
(D.N. Patel, J.) Jharkhand High Court, Ranchi Dated: 4th August, 2011 VK/ N.A.F.R.