Rajendra Singh And Ors. vs State Of U.P.Thru Principal ...
2017 Latest Caselaw 4060 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R. 
 
RESERVED ON 17.07.2017 
 
  DELIVERED ON 07.09.2017 
 

 
Case :- WRIT - A No. - 18082 of 2013
 

 
Petitioner :- Rajendra Singh And Ors.
 
Respondent :- State Of U.P.Thru Principal Secretary & Ors.
 
Counsel for Petitioner :- Manu Saxena
 
Counsel for Respondent :- C.S.C.,Anupam Kulshreshtha,Prem Chandra,Swati Agarwal,Swati Agrawal
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

1. This writ petition has been filed by the petitioners, nine in number, challenging the order dated 15.02.2013 passed by the Executive Officer, Nagar Palika Parishad, Gulaothi, District Bulandshahar and praying for a direction to the Respondents to pay the difference in arrears of salary to the petitioners w.e.f. July, 2008 till date and also to pay the arrears of salary to the petitioners for the months of August, 1990, September, 1990 and November, 1990 to February, 1993 along with interest, besides praying for grant of exemplary costs against Nagar Palika Parishad, Gulaothi, District Bulandshahar.

2. It is the petitioners' case that they joined their services in Chungi (Octroi) Department of Nagar Palika Parishad, Gulaothi in 1986. In pursuance of a government order issued by the State Government on 31st of July, 1990; the Octroi Department of Nagar Palika Parishad was abolished.

3. Being aggrieved by the termination of their services the writ petitioners filed writ petition No. 19069 of 1990 along with five other persons. The writ petition was allowed on 09.10.1990 by this Court holding that since the petitioners had already worked for more than 240 days continuously for the past three years, their services shall be deemed to have been regularised and therefore, they were entitled for accommodation in other departments of Nagar Palika Parishad even though Octroi Department was abolished. A direction was issued to the State Government to sanction posts on which the petitioners were ordered to be absorbed by the Nagar Palika Parishad and for grant of additional funds for payment of staff which had become surplus on account of abolition of Octroi. The Respondents were directed to pay salary to the petitioners for the current month (October, 1990) and about arrears of salary, the Nagar Palika Parishad was directed to take steps and arrange payment within four months from the date of passing of the order i.e. by February, 1991.

4. The Nagar Palika Parishad filed a Special Leave Petition No. 5980 of 1991 before the Supreme Court in which initially an interim order was granted. During the pendency of the said SLP, however, the State Government sanctioned the posts on 3rd of February, 1992. The Government Order No. 1076/9-1-95, dated 3rd of February, 1992 has been filed as Annexure No. 5 to the writ petition. It has been issued by the Urban Development Department and is addressed to all Commissioners and District Magistrates of the State along with the Director, Local Bodies and Mukhya Nagar Adhikari.

5. The said Government Order states that in accordance with Appendix attached to the said Government Order, 651 posts of Class-III Category and 8022 posts of Class-IV were being created for regularization of those persons working on daily wage basis since 11th of October, 1989 and who had completed more than three years of service working, for 240 days in a year, in the past. The Government Order provided therein that for Class-IV category posts the persons working already shall not be required to possess any educational qualification. However, for absorption in Class-III category posts, only those daily wagers shall be regularised, who possessed the prescribed minimum educational qualification for the posts. The regularization of such employees was to be done on the minimum of the Pay Scale admissible for Class-IV posts i.e. Rs. 750 - 940/- and for Class-III posts on Rs.950-1500/-. The initial pay fixation was to be as Rs.750/- per month and Rs.950/- per month for Class-IV and Class-III category employees respectively. For the purpose of this regularization the Mukhya Nagar Adhikari as well as the Chief Executive Officers or the Presidents of Local Bodies were to be responsible.

6. The Appendix to the said Government Order dated 3rd of February, 1992 has not been filed. But it has come on record that in pursuance of the said Government Order, 20 pots of Class-IV employees and 3 posts of Class-III were created in Nagar Palika Parishad, Gulaothi.

7. It is the case of the petitioners that after the said Government Order, the petitioners were absorbed in service of Nagar Palika Parishad in 1993 and the Special Leave Petition was dismissed as withdrawn on 11.10.1993. Some of the petitioners of earlier writ petition, namely, Wahid Khan, Niranjan Pal Singh and Matloob Khan were absorbed as Clerks and given arrears of their salary also w.e.f. 1986 (from the initial date of their engagement), but the petitioners were not paid their arrears. The Nagar Palika Parishad sent a letter to the Secretary, Urban Development requesting for release of Rs.10,91,554/- for payment of arrears of salary of the petitioners but such arrears were not given even though reminders were sent in 2001. One Naresh Kumar - petitioner No. 7 of the writ petition No. 19069 of 1990 was also given the benefit of Class-III post w.e.f. 1996.

8. The Executive officer, Nagar Palika Parishad sent a letter dated 23.01.2008 to the Director, Local Bodies alleging therein that for Nagar Palika Parishad, Gulaothi, 32 posts of peons had been sanctioned. All these 32 posts were filled up by regular appointees. Ten surplus employees from the Octroi Department who had been initially engaged as peons on daily wage basis were still to be accommodated in terms of the judgment and order dated 09.10.1990. Although the Government had sanctioned additional posts of Class-IV employees by the Government Order dated 3rd of February, 1992 and 20 Class-IV posts were created for absorption of these employees, but absorption of petitioners was not possible as only two posts of Muharrir/Clerks had been sanctioned. On the existing 11 posts of regular Clerks and two posts of Operators regulararly appointed persons are working. There was one post of Fitter and one post of Meter Reader which were also filled up because of the judgment passed by the High Court in earlier writ petitions filed by the surplus employees. The petitioners had been given the salary of Kar Evam Rajaswa Muharrir/Tax and Revenue Clerk in the Pay Scale of Rs.800-Rs.1150/- w.e.f. the date of their initial engagement, but due to lack of sanction of clerical posts, these employees were still surplus. A chart was annexed along with this letter showing number of employees in Class-III and Class-IV posts in Nagar Palika Parishad, Gulaothi, District Bulandshahar and the date of their initial engagement and that they were being given salary of Muharrir although their regularization was done on Class-IV posts.

9. Against this letter dated 23.01.2008 the petitioners filed another writ petition No. 36793 of 2008 praying for sanction of 10 posts of Kar Evam Rajaswa Muharrir in Nagar Palika Parishad, Gulaothi and for a writ of mandamus to be issued to the Authorities to treat the petitioners as regular and confirmed Kar Evam Rajaswa Muharrir w.e.f. April, 1996, and for a direction to make payment of salary to them for the month of August and September, 1990 and November, 1992 to February, 1993 for the posts of Kar Evam Rajaswa Muharrir along with interest. This writ petition was disposed of on 05.11.2012.

10. It is evident from a bare perusal of the judgment and order dated 05.11.2012 that this Court while considering in detail the submissions made by the petitioners did not grant the petitioners arrears of salary as prayed for by them. This Court considered the earlier judgment and order dated 9th of October, 1990 and the Government Order creating 20 posts of peons for Nagar Palika Parishad and the contents of letter dated 23rd of January, 2008 along with the chart annexed thereto, and this Court observed that in so far as the chart to the letter dated 23.01.2008 is concerned, the same was liable to be ignored and the petitioners be treated as regular Muharrirs in the terms of judgment and order dated 9th of October, 1990. It was observed that the petitioners would continue to work on the respective posts in terms of their regularization and absorption and they would continue to receive salary without being prejudiced by the entries made in the Chart annexed to the letter dated 23.01.2008. With regard to the payment of arrears of salary this Court observed thus:-

"As regards the payment of their salaries of four months which has been alleged in paragraph no. 20 and 28 of the writ petition, the ends of justice would be served if the petitioners make a representation to the respondents for payment of the wages/salaries, if any. If such representation is made within two weeks from the date of obtaining the certified copy of this order, the respondents shall consider the said representation and pass an appropriate order within six weeks from the date of communication of this order."

11. In pursuance of the directions issued by this Court, the Executive Officer decided the representation of the petitioners on 15.02.2013, which has been impugned in this writ petition.

12. It is the case of the petitioners that the impugned order dated 15.02.2013 relies upon the chart annexed to the letter dated 23.01.2008 which was challenged in the writ petition No. 36793 of 2008 and this Court has specifically observed that mere a mention in the Chart of the petitioners working as Muharrir on surplus posts shall not determine their rights but the observations of the Court in its judgment and order dated 9th of October, 1990 in writ petition No. 19069 of 1990 shall be treated as final.

13. At the time of argument, the learned counsel for the petitioners, Shri Manu Saxena, stated that after dismissal of the SLP No. 5980 of 1991 the judgment and order dated 9.10.1990 had attained finality. In the said judgment and order there was a specific direction that the petitioners shall be deemed to have been regularised as they were working for the past three years continuously in the Octroi Department and hence on the abolition of the said Department, they were entitled to be absorbed in other Departments of Nagar Palika Parishad and the Nagar Palika Parishad had been directed to ask the Government to sanction additional posts for these surplus employees. Regarding the arrears of salary also there was a specific direction. The arrears of salary, however, was not paid w.e.f. 1986 i.e. from their initial date of engagement but only from the date when they were absorbed as Class-IV employees in 1993.

14. The counsel for the petitioners also placed reliance on the Government Order dated 3rd of February, 1992 by means of which the posts were created. Hence it was argued that it was not open for the Executive Officer, Nagar Palika Parishad, Gulaothi, Bulandshahar to now take up a plea that the petitioners were only entitled for salary w.e.f. 1993 as Class - IV employees and since only two posts of Muharrir/Clerk had been created alongwith 20 Class-IV posts, it was not possible for the petitioners to be given salary of Muharrir. Any payment made to the petitioners in the Pay Scale of Muharrir i.e. Rs.800-Rs.1150/- has been illegally done.

15. The learned counsel for the petitioners has shown the entries made in the Service Books, copies of which have been filed along with the writ petition that the petitioners were regularised as Muharrir and Naib Muharrir and therefore, they were entitled for salary of these clerical posts.

16. The counsel for the Respondent Nos. 3 and 4, Shri Anupam Kulshreshtha, has referred to the counter affidavit filed by Nagar Palika Parishad, Gulaothi wherein it has been specifically mentioned that even though a request was made to the Government for creation of Class-III posts only two Class-III posts were made available and 20 Class-IV posts were sanctioned and therefore, the petitioners were regularised on Class-IV posts, since this Court has not given any clear direction with regard to the posts on which the petitioners were to be regularised and there was no mention in the judgment and order dated 09.10.1990 of the posts on which the petitioners were working.

17. As per the record of Nagar Palika Parishad the petitioners were initially engaged on daily wage basis in Class-IV posts only, hence the petitioners were entitled to salary of Class-IV only. The mention in the Service Books of their being regularised as Muharrir and Naib Muharrir was incorrectly done.

18. It was also argued that more or less similar prayers as has been made in this writ petition were made in the earlier writ petition No. 36793 of 2008 challenging the order dated 23.01.2008. The letter dated 23.01.2008 sent by the Executive Officer, Nagar Palika Parishad, Gulaothi to the Director of Local Bodies was for information to the Authorities regarding the number of posts sanctioned and the number of employees working against such sanctioned posts. In the Chart annexed to the said letter it was specifically mentioned that the petitioners of Writ Petition No. 19069 of 1990 were reqularised on Class-IV posts. But they were getting salary of Class-III posts of Muharrir in terms of the judgment and order dated 9th of October, 1990.

19. Having considered the rival submissions, the question before this Court is whether the petitioners are entitled to be regularised on Class-III posts or on Class-IV posts. If the writ petitioners are held entitled to be regularised on Class-III posts, then, they would also be entitled to arrears of salary of the said post.

20. The next question for this Court to consider is whether the petitioners would be entitled to arrears of salary of the posts on which they are entitled to be regularised w.e.f. the date of their initial engagement or w.e.f. some other date.

21. I have carefully perused the judgment and order dated 09.10.1990 passed by this Court in the Writ Petition No. 19069 of 1990 filed by 14 persons. These 14 persons had worked on daily wage basis for the past three years. This Court gave them the benefits of continuous working for the past three years and held that they were deemed to be regularised. This Court, however, did not mention the posts on which these 14 petitioners were working on daily wage basis.

22. It is settled law as held by the Hon'ble Supreme Court in the case of State of Orissa Vs. Balaram Sahu:2003 (1) SCC 250 that daily wagers hold no posts. No Pay Scale can be said to be attached to such working of daily wagers. Therefore, Nagar Palika Parishad should have determined as to on which posts the petitioners were entitled for being regularised for having worked for more than three years on the basis of the daily wages these employees were getting at the time of initial engagement in 1986 - 1987. If these petitioners were not getting daily wages commensurate to the wages of Class-III employees, then, they were entitled to be regularized on Class-IV posts as directed by this Court in its judgment and order dated 09.10.1990.

23. However, this Court had also observed that since the petitioners were working for more than three years, therefore, they shall be deemed to be regularised. The deeming provision would come into operation not with effect from the date of their initial engagement, but from the date when they completed three years of working continuously.

24. For coming to this conclusion, the settled position of law with regard to regularization as observed by this Court and the Hon'ble Supreme Court has been relied upon by the petitioners. Deemed regularization on a post of a daily wager is to be undertaken only after three years, so in this case the petitioners would be deemed to be regularised only with effect from 1989-1990 having been initially engaged in the year 1986-1987.

25. This Court in its judgment and order dated 09.10.1990 had directed the Nagar Palika Parishad to absorb the petitioners in other Departments by asking for creation of posts from the Government. The Government created 20 posts of Class-IV employees and two posts of Class - III employees as per the Appendix attached to the Government Order dated 3rd of February, 1990 for Nagar Palika Parishad, Gulaothi. A further direction of the Government was that regularization on Class-III posts would only be on the basis of the possession of essential educational qualifications. The Nagar Palika Parishad did not determine the educational qualifications of the petitioners for their entitlement for regularization on Class-III posts at any point of time, nor did it determine the wages drawn by such employees to classify them correctly.

26. This Court in its judgment and order dated 09.10.1990 and thereafter in its judgment and order dated 05.11.2012 did not give any clear direction with regard to the entitlement of the petitioners for regularization on Class-III posts. This Court in its judgment dated 05.11.2012 merely observed that the mention made in the Chart appended to the letter dated 23.01.2008, that the petitioners were surplus employees, would not make them surplus employees, as this Court had observed in its judgment and order dated 09.10.1990 that they shall be deemed to be regularised.

27. Moreover, the Chart appended to the said letter dated 23.01.2008 clearly mentioned that all 20 persons working as daily wagers in the Octroi Department have been regularised against 20 newly sanctioned posts of Class-IV employees. It was, therefore, open for Nagar Palika Parishad to determine on the basis of remuneration the petitioners were getting as daily wagers before the judgment and order dated 19.10.1990, as to on which posts they were entitled to be regularised.

28. In the impugned order dated 15.02.2013 the Executive Officer, Nagar Palika Parishad, Gulaothi has merely mentioned that since 20 posts of Class-IV employees had been created by the Government Order dated 03.02.1990, the petitioners were regularised on Class-IV posts. But they were getting salary of Muharrir i.e. Rs.800 - Rs.1150/- on the basis of a mistake in interpreting the judgment and order dated 09.10.1990.

29. This Court after weighing the documentary evidence produced by the petitioners is of the opinion that the petitioners were working as Muharrir on daily wage basis and they were entitled to be regularised as Muharrir. The Government did not create enough posts of Muharrir. Some of the original petitioners of Writ Petition No. 19069 of 1990 were indeed regularised as Muharrir, for example; Wahid Khan, Nirajan Pal Singh, Matloob Khan and Naresh Kumar. The petitioners, however, of this writ petition who are nine in number could not be regularised because of non sanction of enough posts of Muharrir and they were regularised on Class-IV posts, but they were given salary of Muharrir i.e. Pay Scale of Rs.800-1150/-.

30. It needs to be noticed also that in the Government Order dated 03.02.1990 the Pay Scale of Class-IV posts has been mentioned as Rs.750-940/- and the Pay Scale of Class-III posts has been mentioned as Rs.950-1500/-. The salary of Muharrir as fixed by Nagar Palika Parishad for the petitioners is somewhere between these two Pay Scales.

31. It is not clear whether the salary of Muharrir has been fixed on the basis of Pay Scale as admissible w.e.f. 01.01.1979 or with effect from 01.01.1986 as employees of Local Bodies like Zila Parishad and Nagar Palika Parishad were not given salary as per the Pay Revision admissible to Government Servants w.e.f. The date of such revision for Government Servants.

32. The Executive Officer will have to determine the Pay Scale corresponding to the remuneration that petitioners were getting while working as daily wagers at the time of their initial engagement, so that the judgment and order dated 09.10.1990 in writ petition No. 19069 of 1990 is given full effect to.

33. The impugned order dated 15.02.2013 (Annexure No. 1) is set aside. It is further directed that the petitioners shall make a representation to the Executive Officer, Nagar Palika Parishad again annexing therewith the documentary evidence with regard to the remuneration of the petitioners at the time of their initial engagement as daily wagers in 1986-1987. They may file even a copy of the writ petition No. 19069 of 1990 to prove their case that they were engaged as Muharrir and Naib Muharrir, because the judgment and order dated 09.10.1990 has been passed by this Court on the basis of the averments made in Writ Petition No. 19069 of 1990. Since the judgment and order dated 09.10.1990 does not mention the posts on which the petitioners were engaged as daily wagers, this exercise would have to be done by the Executive Officer to fairly determine the rights of the petitioners for regularisation.

34. In case the Executive Officer determines the entitlement to regularization on the basis of the evidence that the petitioners were initially engaged on remuneration which admissible to Class-IV employees only, even so, it shall not be open for the Nagar Palika Parishad to recover the excess amount already paid to the petitioners, though illegally paid, in view of the law settled by the Hon'ble Supreme Court in State of Punjab Vs. Rafiq Masih (White Washer), 2014 (8) SCC 883.

35. In case it is determined that the petitioners on the basis of their initial engagement and remuneration were entitled to be regularised on Class-III posts, then, Class-III posts shall be sanctioned by the Government in view of the Mandamus issued by this Court earlier on 09.10.1990 in the earlier round of litigation.

36. The writ petition is disposed of with aforesaid observations.

Order Date :- 07.09.2017

LBY