Allahabad High Court
Smt. Komal vs State Of Up Thru ... on 7 April, 2022
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 8
Case :- WRIT - A No. - 10506 of 2019
Petitioner :- Smt. Komal
Respondent :- State Of Up Thru Prin.Secy.Horticultureand Food Processingandors
Counsel for Petitioner :- Km. Madhurima Bhargava
Counsel for Respondent :- C.S.C.
Hon'ble Abdul Moin,J.
1. Heard learned counsel for the petitioner and learned Standing counsel appearing on behalf of the State-respondents.
2. Instant petition has been filed praying for the following main reliefs:-
"(i) Issue a writ, order or direction in the nature of Mandamus directing the respondents to pay the petitioner the minimum pay scale per month along with dearness allowance regularly without deducting the payment for Sundays and other Gazetted and State Government declared holidays from the salary account and not from the wages account as paid to other similarly situated persons."
3. The case set forth by the petitioner is that in the year 2002, she was appointed on the post of Mali/Group-D post on daily wage basis and has been working since then continuously. In the year 2011, the petitioner filed Writ Petition No. 965 (SS) of 2011 for payment of a regular pay scale. This Court vide judgment and order dated 24.04.2017, a copy of which is annexure 2 to the writ petition directed the respondents to consider the case of the petitioner for regularization and for grant of minimum pay scale. In pursuance thereof, the respondents have passed an order dated 16.09.2017, a copy of which is annexure 1 to the writ petition whereby though the petitioner has been granted the minimum pay scale in the grade of Rs. 5200-20200 with grade pay of Rs. 1800/- yet the said pay scale has only been granted on the basis of the actual working of the petitioner per day. Learned counsel for the petitioner contends that a perusal of the said order would indicate that neither any dearness allowance has been granted to the petitioner nor any payment is to be made for Sunday and other Gazetted holidays on which obviously the petitioner cannot be expected to discharge her duties the same being holidays.
4. In this regard, learned counsel for the petitioner has drawn the attention of the Court towards the orders dated 14.07.2005, a copy of which is annexure 3 to the petition as well as an order dated 23.02.2016, a copy of which is annexure 4 to the petition whereby persons similarly circumstanced have been granted their minimum pay scale including Sundays and Gazetted Holidays as well as the dearness allowance.
5. Placing reliance on a Division Bench Judgment of this Court in the case of Ram Kishore and ors Vs. State of U.P and ors reported in 2013 (13) LCD 992, learned counsel for the petitioner contends that Division Bench of this Court has already been seized of the matter pertaining to grant of dearness allowance to the daily wagers and has held that the daily wager would also be entitled for payment of dearness allowance when they are getting minimum pay scale. Learned counsel for the petitioner also argues that persons similarly circumstanced have been granted the dearness allowance as well as no deductions have been made on account of the non working of Sunday and other holiday, as such putting a condition, as has been stipulated in the impugned order dated 16.09.2017 would be patently violative of Articles 14 & 16 of the Constitution of India.
6. On the other hand, learned Standing counsel on the basis of averments contained in the counter affidavit argues that the two persons whose example has been given by the petitioner, have been granted the said benefit in pursuance to the directions issued by the writ Court. However, learned Standing counsel is unable to distinguish the judgment of this Court in the case of Ram Kishore (supra) whereby the writ Court has directed the payment of dearness allowance to daily wages on being paid minimum pay scale.
7. Having heard the learned counsel appearing for the contesting parties and having perused the records what is apparent is that the petitioner has been granted the minimum of pay scale in pursuance of the directions issued by the writ Court vide order dated 16.09.2017. However, the petitioner has not been found entitled for being given the payment for Sundays and other Gazetted holidays and neither any dearness allowance has been granted to the petitioner. At the same time, the persons similarly circumstanced namely the persons whose orders have been annexed as annexures 3 & 4 to the writ petition, have been granted the benefit of payment on Sundays and other Gazetted Holidays including dearness allowance. A Division Bench of this Court in the case of Ram Kishore (supra) has held that when a daily wager is granted a minimum of pay scale he would also be entitled for dearness allowance. Thus, this Court does not find any valid reason for the respondents to have not granted the dearness allowance and for not having permitted payments for Sundays and other Gazetted Holidays to the petitioner.
8. Considering the aforesaid, the writ petition is allowed. A writ of mandamus is issued directing the respondents to pay the dearness allowance to the petitioner and further restraining them from making any deductions for Sundays and other Gazetted Holidays.
9. Let this order be complied with within a period of three months from the date of receipt of a certified copy of this order.
Order Date :- 7.4.2022
Pachhere/-
