Allahabad High Court
Ram Kishore And Ors. ... vs State Of U.P.Through Its Secy. ... on 11 April, 2013
Bench: Uma Nath Singh, Satish Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
AFR
Reserved
Case :- SPECIAL APPEAL No. - 304 of 2012
Petitioner :- Ram Kishore And Ors. 1500(S/S)2009
Respondent :- State Of U.P.Through Its Secy. Trade Tax Deptt.Lko & Ors.
Petitioner Counsel :- Bulbul Godiyal,Madhumita Bose
Respondent Counsel :- C.S.C.
Along with
Case :- SPECIAL APPEAL No. - 168 of 2004
Petitioner :- State Of U.P.Through Secy Estate Dept.In Re W.P.No. 7387
Respondent :- Suresh Chandra Misra
Petitioner Counsel :- C.S.C.
Respondent Counsel :- Nakul Dubey
Along with
Case :- SPECIAL APPEAL No. - 316 of 2004
Petitioner :- State Of U.P.Through Secy Estate Dept.And 2 Ors
Respondent :- Sri Ram Shankar
Petitioner Counsel :- C.S.C
Respondent Counsel :- M. Tauseef
Along with
Case :- SPECIAL APPEAL No. - 251 of 2004
Petitioner :- State Of U.P.Through Secy Estate Dept.
Respondent :- Sri Sant Ram
Petitioner Counsel :- C.S.C.
Respondent Counsel :- A.R.Khan
Along with
Case :- SPECIAL APPEAL No. - 425 of 2004
Petitioner :- State Of U.P.Through Secy Eastate Devp And 2 Ors
Respondent :- Sanwale Prasad
Petitioner Counsel :- C.S.C.
Respondent Counsel :- Mubin Ahmad
Along with
Case :- SPECIAL APPEAL No. - 420 of 2004
Petitioner :- State Of U.P.Through Secy Esate Dept And 2 Ors
Respondent :- Sri Awadhesh Kumar Yadav
Petitioner Counsel :- C.S.C.
Respondent Counsel :- Sumpurananad
Along with
Case :- SPECIAL APPEAL No. - 456 of 2004
Petitioner :- State Of U.P.Through Secy. Estate Deptt. Lko.And 2 Ors.
Respondent :- Sri Ram Bhawan And 12 Ors.
Petitioner Counsel :- C.S.C
Respondent Counsel :- M.Beg,M. Tausif
Along with
Case :- SPECIAL APPEAL No. - 460 of 2004
Petitioner :- State Of U.P.Through Secy. Estate Dett. And 2ors. Inre S/S
Respondent :- Laxmi Narain
Petitioner Counsel :- C.S.S.
Respondent Counsel :- M.Tauseef
Along with
Case :- SPECIAL APPEAL No. - 230 of 2006
Petitioner :- State Of U.P.Through Secy Rajya Sampati Re W.P.No. Sers
Respondent :- Dhaman Singh
Petitioner Counsel :- C.S.C
Respondent Counsel :- Abhnav N Trivedi
Along with
Case :- SPECIAL APPEAL No. - 229 of 2006
Petitioner :- State Of U.P.Through Secy Rajya Sampati Re W.P.No. Sers
Respondent :- Som Nath
Petitioner Counsel :- C.S.C
Respondent Counsel :- M Tauseef
Along with
Case :- SPECIAL APPEAL No. - 54 of 2006
Petitioner :- State Of U.P.Through Secy P.W.D
Respondent :- Rakesh Pandey
Petitioner Counsel :- C.S.C
Respondent Counsel :- Arvind Kumar Vishwakarma
Along with
Case :- SPECIAL APPEAL No. - 586 of 2006
Petitioner :- State Of U.P. Thru Secy. Rajya Sampatti & Anr.
Respondent :- Awadhesh Bahadur Singh ( S/S 144/2006 )
Petitioner Counsel :- Standing Counsel
Respondent Counsel :- M. Tauseef
Along with
Case :- SPECIAL APPEAL No. - 648 of 2006
Petitioner :- State Of U.P. Thru Secy. Rajya Sampatti & Anr.
Respondent :- Suraj Lal ( S/S 1720/2006 )
Petitioner Counsel :- Standing Counsel
Respondent Counsel :- Jai Singh
Along with
Case :- SPECIAL APPEAL No. - 345 of 2006
Petitioner :- State Of U.P.Secy Home Inre W.P.No.8102 S/S Of 2005
Respondent :- Ram Saran Yadav
Petitioner Counsel :- C.S.C
Along with
Case :- SPECIAL APPEAL No. - 346 of 2006
Petitioner :- State Of U.P.Through Secy Estate Inre W.P.No.8101 S/S 05
Respondent :- Bandhu Ram
Petitioner Counsel :- C.S.C
Respondent Counsel :- Mohd.Tauseef
Along with
Case :- SPECIAL APPEAL No. - 410 of 2006
Petitioner :- State Of U.P. Thru Secy. Estate & Anr. ( S/S 8171/2005 )
Respondent :- Yashwant Lal & 7 Ors.
Petitioner Counsel :- Standing Counsel
Respondent Counsel :- Illigible
Along with
Case :- SPECIAL APPEAL No. - 415 of 2006
Petitioner :- State Of U.P. Thru Secy. Estate & Anr.
Respondent :- Ram Lakshan Ram & 6 Ors.
Petitioner Counsel :- Standing Counsel
Respondent Counsel :- M. Tauseef
Along with
Case :- SPECIAL APPEAL No. - 428 of 2006
Petitioner :- State Of U.P.Thr.Estate Dept. Inre W.P.8172 S/S Of 2005
Respondent :- Subhash Kumar
Petitioner Counsel :- C.S.C
Respondent Counsel :- Illigible
Along with
Case :- SPECIAL APPEAL No. - 453 of 2006
Petitioner :- State Of U.P. Thru Secy. Estate & Anr. (S/S 7851/2005)
Respondent :- Sarvajeet & 4 Ors.
Petitioner Counsel :- C.Sc..
Respondent Counsel :- A.Pande
Along with
Case :- SPECIAL APPEAL No. - 649 of 2006
Petitioner :- State Of U.P. Thru Secy. Estate & 2 Ors.
Respondent :- Vimlesh Kumar Pandey ( S/S 7564/2005 )
Petitioner Counsel :- Standing Counsel
Respondent Counsel :- Manish Mathur
Along with
Case :- SPECIAL APPEAL No. - 36 of 2007
Petitioner :- State Of U.P. Thru Secy. Rajya Sampati Vibhag & Anr.
Respondent :- Baldev Prasad ( S/S 147/2006 )
Petitioner Counsel :- Standing Counsel
Respondent Counsel :- Shree Chandra Mishra
Along with
Case :- SPECIAL APPEAL No. - 37 of 2007
Petitioner :- State Of U.P. Thru Secy. Rajya Sampati Vibhag & Anr.
Respondent :- Pradeep Kumar ( S/S 173/2006 )
Petitioner Counsel :- Standing Counsel
Respondent Counsel :- M. Tauseef
Along with
Case :- SPECIAL APPEAL DEFECTIVE No. - 17 of 2009
Petitioner :- State Of U.P. Thru Secy. Rajya Sampati ( S/S 1605/2006 )
Respondent :- Rakesh Pandey S/O Trilok Nath Pandey & Others
Petitioner Counsel :- Standing Counsel
Respondent Counsel :- M. Tauseef,Rakesh Pandey
Along with
Case :- SPECIAL APPEAL DEFECTIVE No. - 18 of 2009
Petitioner :- State Of U.P. Thru Secy. Rajya Sampati ( S/S 6805/2006 )
Respondent :- Ramesh Chandra S/O Sunder Lal & Others
Petitioner Counsel :- Standing Counsel
Respondent Counsel :- M. Tauseef
Along with
Case :- SPECIAL APPEAL DEFECTIVE No. - 190 of 2010
Petitioner :- State Of U.P. Thru Secretary Raj Sampatti Vibhag
Respondent :- Awadhesh Kumar Yadav S/O Hanuman Prasad
Petitioner Counsel :- Standing Counsel
Respondent Counsel :- Sampurnanand Shukla
* * * * *
Hon'ble Uma Nath Singh,J.
Hon'ble Dr. Satish Chandra, J.
(Per Dr. Satish Chandra)
Except the Special Appeal No.304 of 2012, all the special appeals have been filed by the State-appellant against the various orders passed by the learned Single Judge. But the facts, circumstances and prayers are identical in all the special appeals, hence, all the special appeals are disposed of by this consolidated order for the sake of breviate.
The brief facts of the cases are that all the private opposite parties-petitioners are working as daily wagers in the Estate Department and Trade Tax Department of the State-appellant. They filed various writ petitions, where the learned Single Judge has granted the minimum of the pay scale to them. Further, dearness allowance was also awarded on the minimum of the pay scale. Being aggrieved the State-appellant has filed the present special appeals. In Special Appeal No.304 of 2012, appellant could not get the said order from the learned Single Judge. So, he is also before this Court.
With this background, Sri Shobhit Mohan Shukla, learned Standing Counsel submits that on 11.12.2012, this Hon'ble Court in Special Appeal No.304 of 2012, has passed the following order. The said order is reproduced as under:-
"As the appellants have been admittedly granted minimum pay scale under a final order dated 02.02.2006 passed in Writ Petition No.1534 (S/S) of 2002, which was not called in question in higher forum and has thus attained finality, prima facie it appears that the appellants would also be entitled to get other allowances including the dearness allowance as admissible to other similarly situated candidates in other services. Dearness allowance is not relatable to the employee but to the scale he is drawing."
Further, for the purpose of facts, learned Standing Counsel reads out the order passed by the learned Single Judge in Writ Petition No.1500 (S/S) of 2009 dated 03.05.2011. The same on reproduction reads as under:-
"Heard Mrs. Bulbul Godiyal, learned counsel for petitioners as well as learned Standing Counsel.
The writ petition has been filed seeking direction to the opposite parties to include dearness allowance in the minimum pay scale paid to the petitioners.
Learned counsel for petitioners submits that the petitioners were appointed on daily wages during the period 1994 to 2000 and since then they have been continuing.
The petitioners had filed Writ Petition No. 1534 (SS) of 2002 for regularization of their services wherein the Court vide order dated 2.2.2006 had directed the opposite parties to pay minimum of the pay scale to the petitioners considering the fact that the petitioners have worked for more than ten and half years. On the basis of the said order the petitioners are getting the minimum of the regular pay scale i.e. Rs.2550/- per month.
It is submitted that under similar facts and circumstances several persons, in whose favour the Court had issued directions for payment of minimum pay scale, have been given dearness allowance and as such the petitioners have been put to hostile discrimination.
Learned Standing Counsel on the other hand submitted that the petitioners have no right to get the dearness allowance. They are getting the minimum of the regular pay scale in compliance of the Court's order.
It is also submitted that there is no rule, regulation, or the Government Order for payment of regular pay scale to the daily wages employees. The petitioners are not covered under the ambit of U.P. Regularization of Daily Wages Appointments on Group 'D' Post Rules, 2001. The writ petition is therefore misconceived.
I have considered the submissions made by the parties counsel.
It is admitted fact that the petitioners have been engaged on daily wages during the period 1994 to 2000 and they are not covered under Rules of 2001, as such, they have no right to be considered for regularization.
So far as the contention of learned counsel for petitioners that they shall be given dearness allowance as they are getting the minimum of the regular pay scale is concerned, there is nothing on record to indicate that there is any provision with regard to payment of minimum of the regular pay scale to the daily wages employees. The petitioners are getting the minimum of the regular pay scale on the strength of the order dated 2.2.2006 passed in Writ Petition No. 1534 (SS) of 2002.
As such, I am of the considered opinion that no such direction for payment of dearness allowance can be issued in the facts and circumstances of the present case.
The writ petition being devoid of merit is hereby dismissed."
Learned counsel also submits that regarding the daily wager's appointment on Group-D posts,on 21.12.2001, the State Government notified the 'Uttar Pradesh Regularization of Daily Wages Appointment on Group-D Post, Rules, 2001 in exercise of power bestowed on it by the Proviso-2 Article-309 of the Constitution of India. As per Rule-4(1)(i) the persons who were directly appointed on daily wages basis on a Group-D post in Government service before 29.06.1991 and are continuing in service as such on the commencement of the said Rules are subject to other conditions enumerated in sub-rule 4(1)(ii) and Rule-4(2) are, eligible for consideration for regular appointment against permanent or temporary vacancy, as may be available in Group-D post.
It is also a submission of the learned Standing Counsel that by issuing the Government Order dated 08.09.2010, the State Government directed for consideration of cases of all the daily wager appointees who are covered under the cut off date of 29.06.1991 working either in the Government service or in Local Bodies, Development Authorities or Corporations etc., have been given opportunity for regularization by creation of supernumerary post. It may be clarified that the appellant of special appeal no. 304 of 2012 and most of the respondents in connected appeals are not covered under the cut off date and other respondents do not fulfill other conditions as prescribed under Rule-4 of the Regularization Rules.
Another submission of the State Government is that the daily wages employees/workers are not entitled to the salary and allowances admissible to the regular employees of the State Government and such class of employees are not entitled to the minimum of the regular pay scale.
For this purpose, he relied on the ratio laid down in the following cases:-
1. State of Haryana vs. Jasmer Singh, reported in (1996) 11, SCC 77;
2. State of Haryana & another vs. Tilak Raj & others reported in (2003), 6 SCC 123; and
3. State of Haryana vs. Charanjeet Singh, reported in (2006) SCC (L&S) 1804.
In the aforesaid cases, it was observed by the Hon'ble Apex Court that the daily wagers are not entitled for the minimum of the pay scale, but they are entitled for payment of minimum daily wages only prescribed for such daily wages worker and admittedly they are getting so.
Learned counsel also submits that the respondents and other daily wagers are materially and quantitatively different from the employees working in a regular establishment and from two separate classes, which are distinct, therefore, claim for the parity and all benefits in view of the Article 14 and 16 of the Constitution of India are not justified in view of the law laid down by the Hon'ble Supreme Court (supra). If the wages are equated with the minimum of pay scale it does not mean that such employee becomes entitled for payment of pay and addition of pay i.e. compensatory allowances.
Lastly, learned counsel submits that the opposite-parties are not entitled to get the dearness allowances. So, the various impugned orders to this effect, passed by the learned Single Judge may kindly be set aside.
On the other hand, learned counsel including Miss Madhumita Bose, for private-opposite parties relied on the orders passed by the learned Single Judge.They made a request to allow dearness allowance to the daily wager.
After hearing all the parties and on perusal of the record, it appears that the private-opposite parties are working as daily wagers in the Trade Tax Department and Estate Department since long. The learned Single Judge by passing various orders have allowed the minimum of the pay scale to all the petitioners, who are working more than a decade and thus have a long service tenure.
Needless to mention that as per Fundamental Rule 21 of the Uttar Pradesh Fundamental Rules defines the word " pay" which is as under:-
"21. Pay-Pay means amount drawn monthly by Government servant as-
(i) the pay, other than special pay or pay granting in view of his personal qualifications, which has been sanctioned for a post held by him substantively or in an officiating capacity, or to which he is entitled by reason of his position in a cadre; and
(ii) overseas pay, technical pay, special pay and personal pay; and
(iii) any other emoluments which may be specially classed as pay by the Governor."
In view of above, it is clear that the pay means amount drawn monthly by a Government servant which includes overseas pay, technical pay; special pay; personal pay and any other emoluments. Though the word "dearness allowance" is not mentioned, nonetheless it covers under the word of "other emoluments" which may be specially payable to the employees. The dearness allowance is to meet the rising cost due inflation.
It may be mentioned that inflation is consisting in the general level of prices of goods and services in the economy over a period of time. When the general price level rise, each unit of currency buys fewer goods and services. Consequently, inflation also reflects an erosion in the purchasing power of money a loss of real value in the internal medium of exchange and unit of account within economy. A chief measure of price inflation is the inflation rate, annualized percentage change in a general price index over time neutralize the price index dearness allowance is paid to the employees.
In the case of Vishwanath and others Vs. State of U.P. and others, 1986 UPLBEC 313, this Hon'ble Court observed that:
"....the petitioners are no doubt daily wage workers and have no security of tenure of their service but since they are performing the same duties and functions as are being carried out by regular class IV employees of the High Court, they are entitled to the same salary and allowances which are being paid to class IV employees..."
In the case of State of U.P. & others vs. Puttilal, 2006 SCC (L & S) 1819, Hon'ble Supreme Court observed that:
"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.
The Hon'ble Apex Court further direct that these daily-wagers would be entitled to draw at the minimum of the pay scale being received by their counterparts by the Government and would not be entitled to any other allowances or increment so long as they continue as daily-wagers.
Needless to mention that the dearness allowance is applicable to the minimum of the pay scale for which the daily-wager are entitled, of course, they are not entitled for the other allowances like washing, medical etc. as mentioned by the Apex Court (supra). The purpose of paying dearness allowance is to meet the inflation. So, the dearness allowance is to be determined as per price index from time to time. Everybody is suffering with the inflation.
It may be mentioned that in India, the Dearness Allowance has a history dating back of World War II. At that time, many of the lower-paid employees received Dearness Allowance Based on their wages or salaries. Many changes to Dearness Allowance and its computations have occurred over the last so many years, according to both private and government studies. For example, now a days, to calculate the D.A., 12 months average of pay and a set index level is considered to get the percentage increase in price/cost of living. Dearness Allowance is paid on a range of base-pay levels. At the time of revision of the pay scale, the Pay Commission always merged D.A. with the new pay band. Thus, the rising cost affects the daily wager too. So, we are of the view that the daily-wagers, who are getting the minimum pay scale, are also entitled for getting the dearness allowances only. Except it, no other allowance or increment is allowable to them as observed by Hon'ble Apex Court (supra).
In view of above, to meet the inflation, dearness allowance is admissible to daily wagers who are getting minimum of the pay scale admissible to them. To this effect, the order passed by the learned Single Judge in Writ Petition No.1500 (S/S) of 2009 is modified to this extent. In other special appeals, orders passed by the learned Single Judge are hereby sustained along with the reasons mentioned therein and the special appeals filed by the State are hereby dismissed.
April 11,2013
ank/-
