Krishna Kumar vs State Of U.P.Through Its Secy ...
2023 Latest Caselaw 23559 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:57330
 
A.F.R. 
 
Court No. - 5
 

 
Case :- WRIT - A No. - 3032 of 2006
 

 
Petitioner :- Krishna Kumar
 
Respondent :- State Of U.P.Through Its Secy Basic Education And 4 Ors
 
Counsel for Petitioner :- Rajesh Kumar Katiyar,Ajay Pratap Singh,Amitabh Kumar Rai,Avdhesh Shukla,B.K. Katiyar,Dinesh Kumar,Pramod Kumar Verma
 
Counsel for Respondent :- C.S.C,A.M.Tripathi,Prashant Arora,Rahul Shukla,Sarvesh Kumar Dubey,V K Bajpai
 

 
Hon'ble Irshad Ali,J.

1. Heard Sri Avdhesh Shukla, learned counsel for the petitioners, Sri Pankaj Patel, learned Standing Counsel for the State-respondent, Sri Sarvesh Kumar Dubey, learned counsel for respondent No.2 and Sri Udai Veer Singh, learned counsel for respondent Nos.4 and 5.

2. By means of the present writ petition, the petitioner has challenged the impugned order dated 31.3.2006, contained in Annexures-5 and 6 to the writ petition. It has been prayed for issuance of writ, order or direction in the nature of mandamus, commanding the respondents to allow the petitioners to work on the post of Peon and make payment of salary to them on the said post as and when it becomes due.

3. Factual matrix of the case is that the petitioner No.1 was appointed on 16.2.2000 and petitioner No.2 was appointed on 15.2.2000, on contract basis in District Primary Education Program. Copy of the appointment letter dated 17.12.2001 was issued by the respondent No.4. The petitioners continued to work under the respondent No.4 with sincerity. A circular was issued on 29.9.2006 by the respondent No.2, indicating that District Primary Education Program scheme will come to an end on 31.3.2006 and the employees will be absorbed in Sarva Shiksha Abhyan.

4. Service of both the petitioners was terminated by the impugned order dated 31.3.2006.

5. Learned counsel for the petitioners placed reliance upon certain orders passed in similar Writ Petitions No.5018 (S/S) of 2003 and 5334 (S/S) of 2003, whereby order was passed directing the respondents to allow the petitioners of the aforesaid writ petitions to continue in Sarva Shiksha Abhyan scheme.

6. By means of the present writ petition, the petitioners are also claiming parity of the orders passed in the aforesaid writ petitions.

7. Submission of learned counsel for the petitioners is that once the scheme was converted into Sarva Shiksha Abhyan with the permission to permit the employees working in District Primary Education Program to continue in Sarva Shiksha Abhyan scheme, there is no justification on the part of the respondents not to permit the petitioners to continue in Sarva Shiksha Abhyan scheme. Next submission is that one post was sanctioned in Sarva Shiksha Abhyan, therefore, the petitioners are entitled to continue against the said post. Next submission is that the impugned order passed by by the respondent No.4 is not justifiable in law and is liable to be set aside.

8. Last submission of learned counsel for the petitioners is that the impugned order has been passed in violation of principles of natural justice, without affording an opportunity of hearing to the petitioners.

9. On the other hand, learned counsel for respondent No.4 invited attention of this Court on page 21 of the counter affidavit filed by the respondent No.4, wherein it has been shown that at district level, one post of Peon was sanctioned by the Sarva Shiksha Abhyan and the statement of fact has been made in paragraphs 7 and 8 of the counter affidavit that one Kamlesh Kumar was granted appointment on the basis of seniority by giving preference over others.

10. In paragraph 3 of the counter affidavit filed by the respondent No.2, it has been stated that due to non-availability of sanctioned post, service of the employees shall come to an end and in paragraph 4 thereof, it has been stated that due to non-availability of sanctioned post, no rightful claim of the employees who are granted appointment in District Primary Education Program scheme, shall be available. This fact has been repeated in paragraph 12 thereof.

11. In support of the submission advanced that in absence of sanctioned post, the State cannot be compelled to create a post and absorb the persons who are continuing in service of the State, the direction issued by the High Court to reinstate the employees after creating the posts and absorb them on their qualification, is not sustainable in law, Sri Sarvesh Dubey, Advocate placed reliance upon a judgment in the case of The Government of Tamil Nadu & another Vs. Tamil Nadu Makkal Nala Paniyalargal & Others [2023 LiveLaw (SC) 294].

12. It is submitted that similar view has been taken in the case of Union of India & Others Vs. Ilmo Devi & another [2021 SCC OnLine SC 899].

13. After having heard the rival contention of learned counsel for the parties, I perused the material on record as well as the judgments relied upon.

14. On perusal of the material on record, it is evident that there is one sanctioned post of Peon in Sarva Shiksha Abhyan at district level. In view of the judgments relied upon by Sri Dubey, Advocate, it is crystal clear that no direction can be issued for creation of post to absorb the person who is working in the government department. It is admitted case of the parties that there is one sanctioned post of Peon.

15. Relevant paragraphs 54 to 57 of the judgment in the case of The Government of Tamil Nadu (Supra) are being quoted as under :-

"54. At the same time, this Court further observed that in absence of sanctioned post, the State cannot be compelled to create the post and absorb the persons who are continuing in service of the State.

55. In Nihal Singh and Others (supra) on which heavy reliance has been placed, it was a case where appointments were made by the State Government under Section 17 of the Police Act, 1861. Since their appointments were under the Act, 1861 and were allowed to continue for sufficient long time, which was not considered to be illegal or irregular appointment, this Court considered it appropriate to observe that as they are allowed to continue for such a long term, they deserve regularization of service. In the instant case, the respondents were never appointed in the establishment of the Government against a regular sanctioned post, in the absence whereof, judgment may be of no assistance.

56. The later judgment in Malathi Das (Retired) Now P.B. Mahishy (supra) which has been relied upon, it was a case where the employees were working on daily wage basis serving in different departments which are indeed Government establishments. At one stage, the employees approached the High Court claiming regularization of service and the High Court of Karnataka came to their rescue and directed the State Government to regularize service of such employees who are serving on a daily wage basis in Government departments and finally the SLP was dismissed by this Court. Thereafter, contempt petitions were filed before the High Court and in two phases, the employees were regularized, in the first and second phase of filing contempt petition by the incumbents concerned. But few of the incumbents filed contempt petition which appears to be the third phase, they were not considered for regularization despite the order of the High Court being confirmed by this Court on dismissal of the special leave petition on the premise of the judgment of this Court in Secretary, State of Karnataka and Others Vs. Umadevi (3) and Others (supra). This Court was of the view that once the judgment of the High Court has been affirmed and in two phases on filing contempt petitions, employees have been regularized, there appears no reason to deviate and take away the claim of rest of the employees who are covered by the judgment of the High Court, may be the reason that there was a change in law on the subject after passing of the judgment of this Court in Secretary, State of Karnataka and Others Vs. Umadevi (3) and Others (supra) and this is not the factual matrix in the instant case.

57. We are of the considered view that the direction of the High Court to reinstate after creating the posts and absorb the respondents based on their qualification is not sustainable in law and deserves outright rejection."

16. Relevant paragraphs 27 and 28 of the judgment in the case of Union of India & Others Vs. Ilmo Devi & another (Supra), are quoted below :-

"27. In the case of Daya Lal & Ors. (supra) in paragraph 12, it is observed and held as under:-

?12. We may at the outset refer to the following well settled principles relating to regularisation and parity in

pay, relevant in the context of these appeals:

(i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been

appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of compliance with

one of the elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.

(ii) Mere continuation of service by a temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service

would be ?litigious employment?. Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularisation, if he is not working

against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right.

(iii) Even where a scheme is formulated for regularisation with a cut-off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut-off

date), it is not possible to others who were appointed subsequent to the cut-off date, to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes providing for successive cut-off dates.

(iv) Part-time employees are not entitled to seek regularisation as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularisation or permanent continuance of part-time temporary employees.

(v) Part-time temporary employees in government-run institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor can employees in private

employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute.

[See State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1], M. Raja v. CEERI Educational Society [(2006) 12 SCC

636], S.C. Chandra v. State of Jharkhand [(2007) 8 SCC 279], Kurukshetra Central Coop. Bank Ltd. v. Mehar Chand [(2007) 15 SCC 680] and Official Liquidator v. Dayanand [(2008) 10 SCC 1.]

28. Thus, as per the law laid down by this Court in the aforesaid decisions part-time employees are not entitled to seek regularization as they are not working against any sanctioned post and there cannot be any permanent continuance of part-time temporary employees as held. Part-time temporary employees in a Government run institution cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work."

17. The judgments relied upon by learned counsel for the respondent fully cover the case of the respondents that in absence of any sanctioned post, no direction can be issued for absorption of an employee of the government.

18. In view of the reasons recorded, this writ petition fails and is hereby dismissed.

19. It is however made clear that as and when vacancy will be created, the claim of the petitioners shall be taken into consideration by the respondents.

Order Date :- 28.8.2023

Gautam