Smt. Parvati Devi And 3 Others vs State Of U.P. And 3 Others
2019 Latest Caselaw 68 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 18
 

 
Case :- WRIT - A No. - 2174 of 2019
 

 
Petitioner :- Smt. Parvati Devi And 3 Others
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Anil Kumar
 
Counsel for Respondent :- C.S.C.,Shyam Krishna Gupta
 

 
Hon'ble Prakash Padia,J.

1. Heard Sri Anil Kumar, learned counsel for the petitioners, learned Standing Counsel on behalf of respondent nos.1 and 2 and Sri Shyam Krishna Gupta, learned counsel on behalf of respondent nos.3 and 4.

2. The petitioners have preferred the present writ petition with the prayer to issue a mandamus commanding the respondents to regularise the services of the petitioners on the post of Sweeper with all consequential benefits and to pay regularly monthly salary to the petitioners as being paid to the other employees.

3. The facts in brief are that the petitioner no.1 was appointed as Dai (Sewika/Safai Karmchari) on 1.9.1978 in Junior High School, Narayanpur, Deoria. The petitioner no.2 was appointed as Dai (Safai Karmchari) on 18.5.1984 in Primary School Silhata-I, Rudrapur, Deoria. The petitioner no.3 was appointed as Dai (Safai Karmchari) on 1.5.1978 in Primary School Hadha, Rudrapur, Deoria, and petitioner no.4 was appointed as Jhadukash (Safai Karmchari) on 14.9.1985 in Adarsh Purva Madhyamik School, Rudrapur, Deoria.

4. In paragraph 5 of the writ petition, it is contended that the petitioner no.1 was paid stipend @ 5 per month since 1.9.1978 till 1.6.1993. Thereafter she started getting remuneration @ 30 per month from 1.6.1993 to 1.8.1999 and from 2.9.1999 till 2007 was paid Rs.150/- per month. Subsequently in terms of the G.O. dated 20.8.2007 all the petitioners started getting their monthly stipend @ 450/- per month which the petitioners are getting even today. It is further contended that from the date of initial appointment all the petitioners are working regularly with full satisfaction. It is further contended that although the petitioners are working from last 32 years but till date neither their services were regularised nor they were paid even the minimum wages. In this regard certain representations were also made by the petitioners addressed to the Secretary, Basic Shiksha, U.P., Lucknow. One of such representation is appended as annexure 3 to the writ petition. The petitioners also placed reliance upon a communication dated 15.12.2017 from Block Education Officer, Rudrapur, Deoria, to Finance and Account Officer, Basic, Deoria by which a request was made to pay the salary to the petitioners. Since the regular salary was not paid to the petitioners they also approached to the District Magistrate, Deoria, in the year 2018. On the said representations comments were also called for by the District Magistrate, Deoria. Inspite of the same since no action was taken the petitioners have preferred the present writ petition.

5. Part 3 of the Constitution of India deals with the fundamental guarantee to every citizen. Under Article 23 of the Constitution of India traffic in human being and begar and other similar forms of forced labour are prohibited. The Article 23 is quoted hereinbelow :-

"23. Prohibition of traffic in human beings and forced labour

(1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law

(2) Nothing in this article shall prevent the State from imposing compulsory service for public purpose, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them"

6. It was held by Constitution Bench in the case of State of Karnataka Vs. Umadevi reported in 2006 (4) SCC 1 that daily wages earners are entitled only for the minimum wages without any allowances. In paragraph 55 of the aforesaid judgement it was held that :-

"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 are being paid to regular employees be paid to these daily wage 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 daily wage 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 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 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 C.A. No. 3595-3612 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."

7. In the case of Punjab Vs. Jagjeet Singh reported in 2017(1) SCC 148 it was held by the Supreme Court in paragraph 36.3 that daily wage workers be paid wages equally to the salary at the lowest grade of their cadre. The paragraph 36.3 of the aforesaid judgement is reproduced hereinbelow:-

"36.3 We have extracted the aforesaid paragraph, so as not to make any inference on our own, but to project the determination rendered by the Constitution Bench, as was expressed by the Bench. We have no hesitation in concluding, that the Constitution Bench consciously distinguished the issue of pay parity, from the issue of absorption/regularization in service. It was held, that on the issue of pay parity, the High Court ought to have directed, that the daily-wage workers be paid wages equal to the salary at the lowest grade of their cadre. The Constitution Bench expressed the view, that the concept of equality would not be applicable to the issue of absorption/regularization in service. And conversely, on the subject of pay parity, it was unambiguously held, that daily-wage earners should be paid wages equal to the salary at the lowest grade (without any allowances)."

8. In so far as the present writ petition is concerned, it is unfortunate that even after working the petitioner for more than 3 decades they are still being paid their salary @ Rs.15 per day and this is clear violation of fundamental guarantee to the citizens under Article 23 Constitution of India.

9. In this background of the matter, on the request made by learned counsel for the respondents, put up on 11.3.2019 to enable him to seek instructions in the matter.

Order Date :- 25.2.2019

Pramod Tripathi