Allahabad High Court
Arvind Kumar vs State Of U.P. And 4 Others on 17 July, 2019
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 38 Case :- WRIT - A No. - 5382 of 2019 Petitioner :- Arvind Kumar Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Deepti Srivastava,Ajal Krishna Counsel for Respondent :- C.S.C. Hon'ble Ashwani Kumar Mishra,J.
This writ petition is directed against an order dated 20th March, 2019 passed by the Divisional Forest Officer, Hathras Forest Division, Hathras, terminating the services of petitioner.
Facts in brief giving rise to filing of the present writ petition are that petitioner was initially appointed on daily wage basis in the Forest Department of the State on 1.5.1991. He continued to work as such in different divisions and ultimately an order was passed by the Divisional Forest Officer, Mahamayanagar on 17.5.2003 sanctioning equal pay for equal work to the petitioner. Alongwith petitioner 20 other employees were also allowed wages of Rs.2,550/- in the pay scale of Rs.2550-3200/-. Name of petitioner finds mention in the aforesaid order at serial no.10. Services of petitioner were later regularized on 27.1.2016. It is asserted that petitioner since 5th December, 2005 has been working in Social Forestry Division, Aligarh and the appointing authority of the petitioner who holds Group 'D' post is the Divisional Director, Social Forestry Division, Aligarh. It is stated that after three years of petitioner's regularization and more than 26 years of working in the Forest Department, all of a sudden the services of petitioner have been terminated by Divisional Forest Officer, Hathras Forest Division, Hathras. It is stated that petitioner has not worked in the Hathras Forest Division after 2005, and that his placement is in Aligarh Division as well as the order of regularization has been passed by the Aligarh Division. Submission is that in such circumstances, order of termination passed by the Divisional Forest Officer, Hathras Forest Division, Hathras is wholly without jurisdiction. It is noticed that a only show cause notice was issued to the petitioner for adducing evidence in support of petitioner's working and after observing that no material has been placed by the petitioner, his services have been terminated. It is urged on behalf of petitioner that all relevant records of petitioner's working are available in the concern office but the respondents without adverting to their own records have terminated the petitioner from service.
The writ petition was entertained and time was granted to learned Standing Counsel to file a counter affidavit on 9th April, 2019. The matter was again adjourned on 20th May, 2019 whiling granting three weeks' time to the learned Standing Counsel to file a counter affidavit. Despite grant of repeated opportunities, the respondents have not filed any counter affidavit so.
Learned counsel for the petitioner submits that there was an issue raised by respondents questioning the entitlement of employees such as petitioner to be granted minimum of pay scale or their services to be regularized. The respondents took a stand that such persons are not entitled to minimum of pay scale. The issue came before this Court in a bunch of writ petitions with leading Writ Petition No.11964 of 2018 (Mohan Swaroop and others Vs. State of U.P.), decided on 17.11.2018. The writ petition has already been disposed of vide following observations:-
"The issue, as to whether such persons are entitled to payment of salary in minimum of pay scale or not, has been examined by the Apex Court in a recent judgment dated 14.11.2018 delivered in Civil Appeal No. 10956 of 2018 (Sabha Shanker Dube Vs. Divisional Forest Officer and Others); wherein, following observations have been made by the Apex Court:-
"9. On a comprehensive consideration of the entire law on the subject of parity of pay scales on the principle of equal pay for equal work, this Court in Jagjit Singh (supra) held as follows:
?58. In our considered view, it is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work cannot be paid less than another who performs the same duties and responsibilities. Certainly not, in a welfare State. Such an action besides being demeaning, strikes at the very foundation of human dignity. Anyone, who is compelled to work at a lesser wage does not do so voluntarily. He does so to provide food and shelter to his family, at the cost of his selfrespect and dignity, at the cost of his self-worth, and at the cost of his integrity. For he knows that his dependants would suffer immensely, if he does not accept the lesser wage. Any act of paying less wages as compared to others similarly situate constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation.?
10. 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.
11. 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 sales. 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.
12. 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.
13. For the aforementioned reasons, we allow these Appeals and set aside the judgments of the High Court holding that the Appellants are entitled to be paid the minimum of the pay scales applicable to regular employees working on the same posts. The State of Uttar Pradesh is directed to make payment of the minimum of pay scales to the Appellants with effect from 1st December, 2018."
The principles laid down by the Apex Court in State of U.P. & Others Vs. Putti Lal reported in 2006 (9) SCC 337 and State of Punjab and Others Vs. Jagjit Singh and Others reported in 2017 (1) SCC 148 have been specifically reiterated and re-enforced.
In that view of the matter, denial of minimum of pay scale to the petitioner, pursuant to the order impugned dated 08.03.2018, cannot be sustained. The writ petition, consequently, succeeds and is allowed. The Government Order dated 08.03.2018 stands quashed in so far as it relates to the petitioners in the present bunch of petitions are concerned.
The petitioners, who were granted benefit of minimum of pay scale under 6th Pay Commission, would be entitled to benefit of minimum of pay scale, as is presently enforced after introduction of 7th Pay Commission report. They will also be entitled to arrears, which would be computed and paid to them within a period of three months from the date of presentation of a certified copy of this order; however, without any allowances."
It is submitted that once the issue has been settled by the Apex Court in a series of orders and has been followed by this Court in the case of Mohan Swaroop (supra), the authorities would not be justified in terminating petitioner's services on the pretext that necessary records in support of petitioner's working are not available.
As despite grant of sufficient opportunity, learned Standing Counsel has not been able to file a counter affidavit and the petitioner has otherwise been deprived of his rights to continue despite the order of regularization passed in the year 2016, it would not be expedient to defer the matter any further. The writ petition is thus taken up for consideration.
Petitioner is admittedly a Class-IV employee and has been working in Social Forestry Division, Aligarh. This Court finds that the order impugned has been passed in ignorance of the fact that petitioner has been shifted to Aligarh Division and he has been working since 2005 in the Aligarh Division. The Divisional Forest Officer, Hathras Forest Division, Hathras, therefore, had no jurisdiction to pass the order impugned, inasmuch as petitioner was working in a different division. The Aligarh division and Hathras division are otherwise distinct and the Divisional Forest Officer, Hathras exercises no jurisdiction in respect of the employees working in the Aligarh division.The order dated 27.1.2016, contained in Annexure-6 to the writ petition has otherwise been brought on record, as per which petitioner has been regularized by the Divisional Director, Social Forestry Division, Aligarh. This order clearly records that petitioner has been continuing in Social Forestry Division, Aligarh since long. Once petitioner has been found to be working in Aligarh Division and the order of regularization has been passed by the Divisional Director, Social Forestry Division, Aligarh, it would not be open for the Divisional Forest Officer, Hathras Forest Division, Hathras to cancel the order of regularization and to terminate the services of petitioner. Since this crucial aspect of the matter has not been taken note of, this writ petition is liable to succeed on this short question alone. Even otherwise the issue relating to right of such persons has been considered by this Court in Mohan Swarup (supra), which has not been noticed.
In view of the aforesaid discussions, this writ petition succeeds and is allowed. Order dated 20th March, 2019 passed by the Divisional Forest Officer, Hathras Forest Division, Hathras, contained in Annexure-1 to the writ petition, stands quashed. Petitioner would be entitled to continue in light of the order of regularization passed on 27th January, 2016, with all consequential benefits including salary etc. It will be open for the respondents to pass a fresh order, keeping in view the observations made above as also the law laid down in Mohan Swaroop (supra).
Order Date :- 17.7.2019 Anil