Allahabad High Court
Rakesh Shukla vs Principal Secy. Forest And Others on 11 January, 2019
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 14.09.2018 Delivered on 11.01.2019 Court No. - 34 Case :- WRIT - A No. - 33864 of 2003 Petitioner :- Rakesh Shukla Respondent :- Principal Secretary Forest And Others Counsel for Petitioner :- Pankaj Srivastava Counsel for Respondent :- C.S.C. Hon'ble Sudhir Agarwal,J.
1. Sole petitioner-Rakesh Shukla has come to this Court by means of present writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding respondents to pay him minimum pay scale of Group 'D' post pursuant to Supreme Court's judgment in State of U.P. and others vs. Putti Lal, 2002(2) UPLBEC 1595 and also to regularise as Forest Guard.
2. Facts, in brief, as pleaded in writ petition are that petitioner, working since 01.01.1990 as daily wage Forest Guard and is entitled for regularization under U. P. Regularization of Daily Wages Appointments on Group 'D' Posts Rules, 2001 (hereinafter referred to as the "Rules, 2001") and also minimum in regular pay scale applicable to regularly appointed Forest Guards, in the light of Supreme Court's judgment in State of U.P. and others vs. Putti Lal (supra). It is also alleged that petitioner moved an application dated 16.04.2003 requesting for his regularisation but no action has been taken thereon.
3. Respondents have filed a counter affidavit sworn by Sri Arshad Jalil Khan, Range Officer, Nawab Ganj Range, Social Forestry Division, Bareilly, stating that petitioner was engaged as a casual daily labourer from time to time. However, it is denied that he was working as "Forest Guard" and instead it is said that he was discharging duties from time to time as assigned to him relating to watch and ward of departmental plantations. Petitioner cannot be considered for regularization since number of posts available in concerned Social Forestry Division are less than the number of daily wagers engaged. The date of engagement of petitioner stated in para 2 of writ petition, i.e., working since 01.01.1990 is not admitted and instead in paras 12 and 19 of counter affidavit it is said that petitioner has worked since 1996, therefore not eligible for regularization under Rules, 2001.
4. Copy of counter affidavit was served upon petitioner on 20.10.2003 but record shows that no rejoinder affidavit has been filed.
5. When writ petition was entertained on 07.08.2003 an interim order was passed to the following effect:
"In case, petitioner has not been considered for regularization and is still working, he shall be paid salary in the minimum of the pay scale without any benefit of the allowances."
6. During pendency of writ petition petitioner also filed a stay application in 2007 stating that certain advertisements have been published for making direct recruitment on the posts of Forest Guards and since petitioner and others are still to be considered for regularization, hence respondents should be restrained from filling of vacancies of Forest Guards, (Group D) posts, by direct recruitment pursuant to advertisements dated 17.07.2007, 29.08.2007, 21.09.2007 and 30.09.2007. In the affidavit accompanying stay application petitioner has reiterated that he has been working as daily wager on Group D post since 01.01.1990 and entitled to be considered against Group D post for regularization under Rules, 2001.
7. Neither alongwith writ petition nor affidavit accompanying stay application, we find any material or document to show that petitioner was employed on daily wage basis on 01.01.1990 and not in 1996 as stated by respondents in para 12 of counter affidavit.
8. Learned counsel for parties did not dispute that Supreme Court in State of U.P. and others vs. Putti Lal (supra) has said that since in State of U.P. statutory rules have been framed, neither there arose any question of framing scheme for regularization nor any daily wager can claim regularization outside Rules, 2001.
9. Before Apex Court learned counsel appearing for daily wage employees though raised some grievance in respect of some provisions of Rules, 2001 but it was negatived by Court and it held that such grievance is a fresh cause of action and should be assailed before appropriate forum by aggrieved party. Court also observed that so long as incumbents are not regularized under statutory rules, they will be given minimum of pay scale. Relevant paras 4 and 5 of judgement are reproduced as under:
"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)
10. Thus the above directions and observations of Apex Court in State of State of U.P. and others vs. Putti Lal (supra) make it clear that so far as regularization of daily wagers is concerned, same has to be strictly in accordance with Rules, 2001 but so long as they are employed as daily wager, they shall be paid salary at the minimum of pay scale applicable to regular employees, excluding allowances, and after regularization obviously they would be entitled for regular pay scale with all attending benefits as admissible to regular employees.
11. It may also be noted that Apex Court did not ask Government to continue to employ those daily wagers who are not regularized or not found eligible or suitable for regularization are to be considered for regularization under Rules, 2001, but if not found suitable or that Rules, 2001 are not found applicable to them, and there is no direction that such daily wagers would still be entitled to be continued by respondents.
12. Observations are also clear that so far as daily wagers are combined as such, they will be paid minimum of pay scale in Forest Department but there is no prohibition or check on the authority of respondents from discontinuing employment of daily wager if it is not required and incumbent either not found entitled to be regularized under Rules, 2001 or found unsuitable for regularization, if eligible under Rules, 2001.
13. Sri Pankaj Srivastava, learned counsel for petitioner, has stated that respondents misinformed Courts from time to time, played mischief in process of compliance of directions of Supreme Court in the matter of regularization and even against available vacancies of Group 'D', daily wagers were not regularized or those who have worked for lesser number of days or period, in an arbitrary manner for extraneous reasons, have been regularized and those who were senior having been worked for greater length of service, have not been regularized. He referred to various judgments which have been rendered in subsequent matters brought before this Court and Apex Court and claimed that he has not been considered correctly for regularization and petitioner has been discriminated in the matter for regularization under Rules, 2001.
14. I propose to consider those authorities to examine, whether present case can be covered by any of such authorities and directions given thereunder.
15. First of such judgments placed before this Court by Sri Srivastava, learned counsel for petitioner, is a decision of learned Single Judge (Hon'ble Sunil Ambwani, J., as His Lordship then was) in Sanjay Kumar Srivastava vs. Principal, Chief Conservator of Forest, U.P., Lucknow and others, 2005(3) UPLBEC 2527. Court decided a bunch of daily wage employees discharging duties of Group 'C' and 'D' post in Bundelkhand, Allahabad, Gorakhpur, Bareilly and Agra Forest Circles and 20 Forest Divisions in said Circles. Since Group 'C' employees were also petitioners, issue of their regularization was found governed by U.P. Regularization of Daily Wages Appointment on Group 'C' Posts (Outside the Purview of U.P. Public Service Commission) Rules, 1998 (hereinafter referred to as "Rules, 1998"). Complaint brought to this Court was that Selection Committee constituted under Rules, 1998 and Rules, 2001 for considering regularization acted arbitrarily, there was gross abuse and misuse of administrative discretion by authorities concerned. Court found that some persons were denied consideration for regularization on the ground that they could not prove continuity in their employment but this approach of authorities was contrary to Rules inasmuch as requirement under Rules was that the daily wage employment must have been before 29.06.1991 and incumbent must have continued to work on the date of commencement of Rules. In respect of Rules, 2001 date of commencement of Rules, 2001 is 21.12.2001. Therefore, those who satisfy these conditions could not have been denied right for consideration for regularization on the ground that they have not continued to work as daily wager. Respondents contended that a policy decision was taken that those who have not worked 240 days in calendar year shall not be considered to have worked continuously but this policy decision, pleaded by respondents, was found illegal by this Court. Second aspect considered was with regard to requirement of qualification to be possessed on the date of engagement as daily wager as prescribed for regular appointment. Court found that qualifications in Subordinate Forest Service were prescribed in Lower Subordinate Forests Service Rules, 1980 (hereinafter referred to as "Rules, 1980"). On this aspect Court said that Rules, 1980 provided educational and other qualifications for permanent and temporary appointments but that will not be applied while considering requirement of qualifications under Regularization Rules. Hence it held that, "where the employees have worked for decades altogether on the same post and have worked on such posts without any complaint, they should not be denied regularisation on the ground that they do not possess requisite minimum educational qualifications prescribed for regular appointment on that post on the day they are considered for regularization." Court also said that wherever required, State Government shall give relaxation to all such candidates who have been declared ineligible on the ground of minimum educational qualification and physical endurance test. The further prayer of petitioners therein that wherever incumbents are regularized under regularization Rules, such regularization shall be made from the date of initial appointment was rejected and writ petitions were partly allowed.
16. The above judgment in Sanjay Kumar Srivastava vs. Principal, Chief Conservator of Forest (supra) came up for consideration, in intra-Court appeals, before a Division Bench consisting of Hon'ble Dr. D.Y. Chandradhud, C.J. (as His Lordship then was) and Hon'ble Dilip Gupta, J. Appeals were decided vide judgment dated 24.09.2015, State of U.P. and others vs. Chhiddi and another, 2015(4) UPLBEC 3141. Division Bench held that under Rule 4(1)(a) of Rules, 2001 requirement for consideration for regularization are, (i) the person should have been directly appointed on daily wage basis on a Group 'D' post before 29.06.1991; (ii) he should be continuing in service as such on the date of commencement of Rules, 2001, i.e., 21.12.2001; and, (iii) such person should have possessed requisite qualification prescribed for regular appointment for Group 'D' post at the time of such appointment on daily wage basis under relevant service rules. The judgment of learned Single Judge in so far as it has dispensed with requirement of qualification for regularization, was assailed before Division Bench. Issue up for consideration before Division, as quoted in para 30 of judgment, reads as under:
"30. The main issue that arises for consideration in this Special Appeal is whether for consideration of the cases of daily wagers for regularization of their services, the condition set out in Rule 4 of the 2001 Rules requiring persons directly appointed prior to 29 June 1991 on daily wage basis on Group 'D' posts to have possessed the requisite qualifications prescribed for regular appointment for such post under the relevant service rules at the time of engagement can be relaxed by the Courts. "
17. To answer above question, Division Bench examined the concept of regularization. In the light of various authorities of Supreme Court including Constitution Bench judgment in Secretary, State of Karnataka and others Vs. Uma Devi and others, 2006(4) SCC 1, in para 40 of judgment this Court held that since one of the condition rendering a person eligible to be considered for regularization prescribed in Rule 4(1) of Rules, 20012 was regarding qualification, that could not have been ignored by learned Single Judge. The observation made by Division Bench read as under:
"40. Rule 4(1)(b) of the 2001 Rules, as noticed above, clearly mandates that a person, who was engaged on daily wage basis before 29 June 1991 and who possessed the requisite qualifications prescribed for regular appointment for that post at the time of such engagement under the relevant service rules, could be considered for regular appointment in a permanent or temporary vacancy on the basis of his record and suitability. The relevant service rules are the 1980 Rules. Rule 8 of the 1980 Service Rules deals with the academic qualifications and Rule 13 deals with the physical fitness. When a person is considered for appointment under the 1980 Rules, the two requirements set out in Rule 8 and Rule 13 have to be satisfied. The 2001 Rules also require that a person engaged on daily wage basis who is seeking regularisation should have possessed the requisite qualification prescribed under the relevant service rules at the time of such engagement. The Supreme Court has also time and again observed that the services of only such persons can be regularised who had the requisite qualification at the time of initial engagement as daily wagers. These two requirements cannot, therefore, be ignored while considering the cases for regularisation of daily wage employees." (emphasis added)
18. The Division Bench thus held, (i) a daily wage employee who seeks regularization of his services must satisfy the conditions enumerated in the Rules framed for regularization, since Rules, 2001 clearly require that a daily wage employee must possess requisite qualifications prescribed under Service Rules at the time he was initially engaged as a daily wager; (ii) the fact that the 1980 Service Rules do not provide for appointment on daily wage basis does not mean that the essential requirement set out in 1980 Service Rules for regular appointment can be ignored while considering the cases of daily wage employees for regularization under Rules, 2001.
19. Division Bench, therefore, expresses its dissent from the reasoning given by learned Single Judge that qualification prescribed in Rules, 1980 for appointment of a daily wager would not be applicable while considering a daily wager for regularization under Rules, 2001. It also held that mere fact that daily wagers were continuing for long would not be material for this purpose. Court could not be swayed by the fact that concerned persons have worked for a considerable length of time as it would create another mode of appointment which would be contrary to well established principle of equity in public employment enshrined under Constitution of India. Consequently, Court reversed the findings and directions of learned Single Judge to consider daily wagers without adhering to the qualifications prescribed in Rules, 1980 and in para 46 held as under:
"46. In this view of the matter, it is also not possible to sustain the direction issued by the learned Judge that the writ petitioners should be considered for regularisation under the 2001 Rules even if they did not possess the requisite minimum qualifications at the time of their initial engagement merely because they had worked as daily wagers for a considerable period of time." (emphasis added)
20. Another issue raised on behalf of State was direction given by learned Single Judge that till matter of regularization is reconsidered, daily wagers shall be given pay in minimum of pay scale application to regular employees. Referring to subsequent judgments, Division Bench held that such direction could not have been issued. Appeals, therefore, were partly allowed and operative part of judgment contained in para 75 reads as under:
"75. Thus, for all the reasons stated above, the directions issued by the learned Judge on 17.10.2005 to the State Government, while partly allowing the writ petitions, to reconsider the cases of the writ petitioners for regularisation of their services by ignoring the minimum educational qualifications or the physical endurance requirement prescribed in the service rules with a further direction that until then all the petitioners who were still working should be allowed to continue on a daily wage basis and be paid the minimum of the pay-scale, cannot be sustained and are, accordingly, set aside. The State Government shall consider the cases of the daily wagers in the light of the observations made above and by ignoring the artificial breaks in their engagement as daily wagers."
21. However, above Division Bench judgment in State of U.P. and others vs. Chhiddi (supra) will not obstruct the way of this Court for the reason that vide judgment dated 14.11.2018 Supreme Court in Civil Appeal No. 10956 of 2018 (Arising out of S.L.P. (Civil) No. 1045 of 2016), Sabha Shanker Dube vs. Divisional Forest Officer and others alongwith other connected appeals, arising from this Court's judgment dated 24.09.2015, while allowing appeals has set aside Division Bench judgment to the extent it has denied salary minimum of pay scale applicable to regular employees to daily wage employees of Forest Department. Paras 11, 12 and 13 of the judgment of Supreme Court reproduced as under:
"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."
22. The next judgment cited by learned counsel for petitioner is a judgment of learned Single Judge (Hon'ble Vikram Nath, J.) passed in Contempt Applications led by Hari Shanker vs. State of U.P. and others, 2010(3) UPLBEC 2097. The contempt applications were filed alleging non compliance of earlier Division Bench judgment dated 10.12.1997 in State of U.P. vs. Putti Lal (supra) and Supreme Court's judgment dated 21.02.2002 passed in same matter. Contempt applications were contested on behalf of State on the ground that applicants were not parties in the matters in Court and, therefore, there was no order in their favour; Secondly, that contempt applications were barred by limitation; Thirdly, that final order was issued by Supreme Court, therefore, Contempt Applications under Section 12 were not entertainable by this Court; and Fourthly, that applicants who were not found eligible or entitled for regularization cannot claim minimum of pay scale. Rejecting all technical objections raised by respondents, Court held that even if daily wagers were not found eligible or entitled for regularization still since they were continuing, they were entitled to minimum of pay scale and in denying such right, respondents-State of U.P. has committed a willful and deliberate disobedience of Court's order. This order is not a final order as some issues were decided and thereafter 12.07.2010 was fixed for further order. However, State authorities preferred a special appeal against judgment dated 01.07.2010 passed by learned Single Judge (Hon'ble Vikram Nath, J.) in Hari Shanker vs. State of U.P. (supra). That appeal was decided vide judgment dated 03.08.2010 in Chanchal Kumar Tiwari and others vs. Hari Shankar and others, 2010(3) UPLBEC 2556. The Division Bench confirmed order of learned Single Judge and dismissed all appeals on merits.
23. Undaunted by unsuccessful attempt before learned Single Judge and Division Bench, State authorities proceeded further by taking matter in appeal before Supreme Court in Deputy Director, Social Forestry Division and another vs. Lakshmi Chandra, 2016(4) SCC 721. Supreme Court disposed of all appeals in view of affidavits filed by Principal Chief Conservator of Forests that necessary instructions have been issued to all officer concerned with regard to payment of minimum of pay scale to daily wagers. Operative part of judgment of Supreme Court contained in paras 12 and 13, read as under:
"12. The learned counsel appearing for the appellants has submitted that during the pendency of these proceedings before the Court and the High Court, in all the 70 Divisions of the Forest Department, the eligibility and seniority list has been prepared and submitted before the High Court. Mr. Prashant Bhushan, learned counsel appearing for some of the workmen, has submitted that the lists which were submitted, were not prepared in accordance with the Rules and quite a few bogus names were also inserted in the list. We do not think it fit for us to go into all these aspects. Now that the lists have been prepared and presented before the Court, we request the High Court to take into consideration all the subsequent developments and proceed accordingly so as to reach a logical conclusion in terms of the orders passed by this Court and the High Court with regard to regularisation as well as the payment of minimum of pay-scale to the daily wagers.
13. The needful may be done expeditiously and at any rate within three months from today. The parties will appear before the High Court on 17.02.2016. Needless to say, the steps proposed in the impugned order for framing charges will be deferred and reconsidered."
24. I may also notice that a similar complaint of non-payment of minimum of pay scale to daily wager in a contempt matter was examined by a learned Single Judge (Hon'ble Manoj Misra, J.) in Lakshmi Chandra vs. Sri N.K. Janu, Dy. Director Social Forestry Division and another (Contempt Application (Civil) No. 1632 of 2009 wherein learned Single Judge, vide judgment dated 30.03.2016, took the view that authorities are violating directions of Court. Authorities preferred Special Appeal No. 261 of 2016, Shri N.K. Janu, Dy. Director Social Welfare and others vs. Lakshmi Chandra, which was disposed of vide order dated 07.04.2016 on the ground that order of learned Single Judge was consistent with Supreme Court's judgment in State of U.P. vs. Putti Lal (supra) and warrants no interference; and it is always open to State authorities to approach higher Court for clarification. Civil Appeal No. 879-883 of 2016 (Dy. Director, Social Forestry Division and another vs. Lakshmi Chandra) filed before Supreme Court was also decided vide order dated 11.01.2017 and the same was dismissed as withdrawn with liberty to authorities to approach High Court to establish that respondent-daily wager, Lakshmi Chandra was not continuously employed from 1992 to 2001.
25. One more matter need be noticed at this stage. A direction issued by learned Single Judge vide judgment dated 17.10.2005 came up for consideration in another Special Appeal (Defective) No. 380 of 2006 (State of U.P. and others vs. Purshottam Singh), decided on 25.10.2017. It was pointed out that against same judgment in State of U.P. and others vs. Chhiddi (supra) Court has taken a view that no direction of minimum of pay scale could have been issued by learned Single Judge while in Chanchal Kumar Tiwari vs. Hari Shankar (supra) Division Bench had taken a different view. An issue was raised that there is a conflict of judgment of two coordinate Benches and, therefore, matter should be referred to Larger Bench but no order was issued and case was adjourned.
26. Before this Court learned Standing Counsel could not dispute that in appeal preferred before Supreme Court against Division Bench judgment in Chanchal Kumar Tiwari vs. Hari Shankar (supra) Supreme Court had also taken a view that payment of salary to a daily wage employee should have been made at the minimum of pay scale and to that extent direction issued in State of U.P. and others vs. Putti Lal (supra) would be applicable, therefore, he did not dispute that so far this matter is concerned, said direction will have to be followed by State and there is no other way.
27. Now the only question up for consideration before this Court is regarding claim of petitioner for regularization. In this regard, I find that though petitioner claimed that he was engaged on daily wage basis on 01.01.1990 but respondents have specifically stated in para 12 of counter affidavit that petitioner was engaged in 1996. No rejoinder affidavit has been filed controverting the statement made by respondents in counter affidavit. That be so, apparently petitioner does not satisfy one of the requirement of Rule 4(1)(a) of Rules, 2001 that the daily wager should have been employed before 29.06.1991. That being so I do not find that any direction can be issued to respondents to consider petitioner for regularization under Rules, 2001 as the same apparently are not applicable.
28. So far as payment of wages at the minimum of pay scale is concerned, in view of the stand taken by respondents, I have no manner of doubt that so long as petitioner continues to be employed as daily wager, he will be entitled for payment of salary at the minimum of pay scale applicable to regular employees of corresponding status and if it is not being done respondents are directed to make payment accordingly without any further delay and arrears shall be paid within two months from the date of production of a certified copy of this order.
29. Writ petition is partly allowed in the manner as said above.
30. No costs.
Order Date :-11.01.2019 AK