State Of U.P. Thru. Prin. Secy. ... vs Indra Pal
2023 Latest Caselaw 3460 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 1
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 44 of 2023
 

 
Appellant :- State Of U.P. Thru. Prin. Secy. Deptt. Of Horticulture And Food Processing Govt. U.P. Lko. And Ors
 
Respondent :- Indra Pal
 
Counsel for Appellant :- C.S.C.
 
Counsel for Respondent :- Mohd. Ateeq Khan
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Subhash Vidyarthi,J.

(C.M.A. No.-1 of 2023)

1. Heard Mr. V.P. Nag, learned Standing Counsel appearing on behalf of the State-appellants and Mohd. Ateeq Khan, learned counsel for the respondent.

2. This is an application for condonation of delay in filing special appeal.

3. The application is supported with an affidavit, in which the reasons for delay have been explained sufficiently.

4. Accordingly, application is allowed. Delay, if any, in moving special appeal is hereby condoned.

(Order on appeal)

5. The instant intra-court appeal under chapter VIII, Rules-5 of the Allahabad High Court Rules, 1952 (hereinafter referred as 'Rules 1952') has been filed against the judgment and order dated 31.03.2022 passed by an Hon'ble Single Judge in Writ-A of 1803 of 2022. The writ petition had been filed by the respondent in the special appeal stating that he was working as a daily wage employee since 2002 and he is not being paid the minimum of pay scale, as is being paid to some other similarly situate persons and the representation moved by him in this regard had been rejected.

6. Relying upon the judgments of the Hon'ble Supreme Court in the cases of State of Haryana and another vs. Tilok Raj and others, (2003) 6 SCC 124. Sabha Shanker Dube vs. Divisional Forest Officer and others., (2019) 12 SCC 297 and State of U.P. and others. vs. Putti Lal, (2006) SCC 337, wherein it has been held that temporary employees are entitled to minimum of pay scale, as long as they continue in this service, the Hon'ble Single Judge held that the petitioner is also entitled for the minimum of the pay scale.

7. Assailing the aforesaid order passed by the Single Judge, Sri. V.P. Nag, the learned Standing Counsel has submitted that in Sabha Shanker Dube (supra) relied upon the Hon'ble Single Judge, the Hon'ble Supreme Court has held as follows:-

"The issue that was considered by this Court in Jagjit Singh (State of Punjab v. Jagjit Singh, (2017) 1 SCC 148) is whether temporary employees (daily-wage employees, ad hoc appointees, employees appointed on causal basis, contractual employees and likewise) are entitled to the minimum of the regular pay scales on account of their performing the same duties which are discharged by those engaged on regular basis against the sanctioned posts. After considering several judgments including the judgments of this Court in Tilak Raj (State of Haryana v. Tilak Raj, (2003) 6 SCC 123) and Surjit Singh (State of Punjab v. Surjit Singh, (2009) 9 SCC 514), this Court held that temporary employees are entitled to draw wages at the minimum of the pay scales which are applicable to the regular employees holding the same post."

8. Sri Nag has submitted that the Hon'ble Single Judge has not recorded any findings that the petitioner was performing the same duties which are discharged by those appointed on regular basis against the sanctioned posts. He has also placed reliance upon a judgment dated 17.10.2022, rendered by a coordinated bench of this Court in Special Appeal No. 446 of 202, wherein after referring to Sabha Shanker Dube (supra) the coordinate bench held that "for giving the benefit of the minimum of the pay scale to such temporary employees which will include the employees appointed on ad hoc basis/daily wage basis or on casual basis etc. The employee concerned needs to establish that he has been discharging similar duties." He has submitted that the special appeal should be allowed and the matter be remitted to the Hon'ble Single Judge for being decided afresh after recording a finding on the aforesaid point.

9. The coordinate bench had allowed Special Appeal No. 446 of 2021, as in that case no findings have been recorded by the Hon'ble Single Judge and the matter has been remanded for being decided a fresh by the Hon'ble Single Judge.

10. The petitioner is seeking parity with one Neeraj Srivastava, who is also working as an unskilled daily wage employee like the respondent and he has already been granted the minimum of pay scale as per the recommendations of the 7th Pay Commission by means of an order dated 23.01.2017.

11. In case, some matter available on record has escaped consideration of the Hon'ble Single Judge, there is no necessity for remanding the matter before the Single Judge for decision a fresh, as while deciding an intra-court appeal under Rules 1952, the power of this Court are coextensive with the powers of the Hon'ble Single Judge while deciding the writ petition.

12. In Baddula Lakshmaiah and others vs. Sri Anjaneya Swami Temple and others, (1996) 3 SCC 52, the Hon'ble Supreme Court held that "it is the internal working of the High Court which splits it into different 'Benches' and yet the court remains one. A letters patent appeal, as permitted under the letters patent, is normally an intra-court appeal whereunder the Letters Patent Bench, sitting as a Court of Correction, corrects its own orders in exercise of the same jurisdiction as was vested in the Single Bench."

13. Therefore, instead of remanding the matter for being decided by the Hon'ble Single Judge we ourselves proceed to examine the question whether the petitioner was performing the same duties, as are being discharged by regularly appointed employees.

14. A perusal of the writ petition indicates that in paras 10, 11, and 12, it has been pleaded, is as follows:-

"10. That the petitioner is performing duties of class IV employee like other regular employee. The work and responsibilities of the petitioner is like regular employees and petitioner is performing same duties and responsibilities like regular employee.

11. That the respondent no.3 on 08.09.2014 vide its order no.1057-62 approved minim of pay of Rs.7,000/- to the petitioner from the state exchequer. A copy of the order dated 08.09.2014 is being annexed as Annexure no.5 to this petition.

12. That the Incharge Officer Tissue Culture Laboratory, Aliganj, Lucknow make fixation of salary of one similarly situated employee Neeraj Srivastava working as daily wager (Group-D) under the provision Government order dated 22.12.2016, Tissue Culture Laboratory, Aliganj, Lucknow is running under control of respondent no.2 and the said Laboratory is part of Horticulture department. The basis salary of the Neeraj Srivastava working as daily wager is Rs. 18,000/-. A copy of the order dated 23.01.2017 is being annexed as Annexure no.6 to this petition."

15. It has specifically been pleaded in the writ petition that the petitioner is performing duties of class IV employees like other regular employees and the work and responsibilities of the petitioner is similar to that of the regularly appointed employees and it has categorically been stated that another similar situate employee Neeraj Srivastava who is working as an unskilled daily wage employee, has already been granted salary as per the minimum of the pay scale payable to regular employees. The factual assertion has not been challenged in the Special Appeal by taking a contrary stand or taking a ground. Therefore, the case of the petitioner, who is also working as an unskilled daily wage employees is similar to that of Sri Neeraj Srivastava, who has already been granted the minimum of the pay scale payable to the regularly appointed and the same benefit cannot be denied to the petitioner.

16. In view of the aforesaid discussion, we do not find any ground to interfere with the judgment passed by the Hon'ble Single Judge. The special appeal lacks merit and the same is, accordingly, dismissed.

(Subhash Vidyarthi,J.) (Ramesh Sinha,J.)

Order Date :- 3.2.2023

Preeti