Awadesh Kumar Singh vs State Of U.P. Through Prin. Secy. ...
2023 Latest Caselaw 21 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 17
 

 
Case :- WRIT - A No. - 2066 of 2014
 

 
Petitioner :- Awadesh Kumar Singh
 
Respondent :- State Of U.P. Through Prin. Secy. Backward Class Welfare Ass
 
Counsel for Petitioner :- Shrawan Kumar Verma,I.M. Pandey Ist
 
Counsel for Respondent :- C.S.C.,B.K.Chaudhari
 
CONNECTED WITH
 
Case :- WRIT - A No. - 1019 of 2019
 
Petitioner :- Avdhesh Kumar Singh
 
Respondent :- State Of U.P.Thru Prin.Secy.Backward Class Welfare Dept.Andors
 
Counsel for Petitioner :- I.M. Pandey Ist
 
Counsel for Respondent :- C.S.C.,Brajesh Kumar Chaudhary
 

 
Hon'ble Pankaj Bhatia,J.

Both the matters are connected, as such, are being decided by means of this common order.

Writ - A No.2066 of 2014 has been filed challenging the order dated 3.3.2014 rejecting the representation of the petitioner for claiming minimum wages payable on account of the services rendered by the petitioner.

Writ - A No.1019 of 2019 has been filed challenging the order dated 26.10.2017 whereby the representation of the petitioner for regularization in terms of the 2016 rules has been rejected.

The facts leading to the filing of the present writ petitions, in brief, are that the petitioner claims that the petitioner was appointed on the post of Driver by means of the order dated 1.8.2002 on contractual basis on a stipend of Rs.4,500/- per month. It is argued that subsequent to the said appointment, the rules with regard to recruitment of driver known as 'U.P. State Commission for Backward Classes Driver's Service Rules, 2002' were framed. It is argued that subsequent to framing of the rules, an advertisement for appointment on the post of driver was issued on 22.8.2002 and as per the claim of the petitioner, the appointment order was issued on 22.10.2002 whereby the petitioner was again appointed on contractual basis on a consolidated pay of Rs.4,500/- per month. Subsequent to the said appointment, an order came to be passed on 21.7.2003 whereby the services of the petitioner were dispensed with on the ground that the appointment was without any authority by the person who had issued the appointment letter. The said order dated 21.7.2003 came to be challenged in Writ Petition No.5805 (SS) of 2003 wherein the petitioner was granted interim protection on 11.9.2003. Subsequently, the said writ petition came to be disposed off finally by means of the order dated 2.5.2017 whereby directions were issued to consider the case of the petitioner under the Uttar Pradesh Regularization of Persons Working on Daily Wage or On Work Charge or On Contract in Government Departments on Group 'C' and Group 'D' Posts (Outside the Purview of the Uttar Pradesh Public Service Commission) Rules, 2016.

In terms of the said directions issued, an order came to be passed rejecting the representation of the petitioner on the ground that in terms of the 2016 Rules, the case for regularization can be considered only in respect of employees who were appointed prior to 31.12.2001.

Contention of learned counsel for the petitioner is that admittedly the petitioner was appointed on a substantive vacancy as is clear from the advertisement dated 22.8.2002 and thus, the petitioner has continued on the substantive vacancy since the date of the appointment i.e. 22.10.2002. He further argues that in terms of the rules framed being the Driver's Service Rules of 2002, it is the Secretary who is the appointing authority and the appointment of the petitioner dated 22.10.2002 was made by the Secretary.

He argues that although the petitioner continued in the services partly on the ground of interim order passed by this Court, however, the fact remains that the petitioner was duly appointed in terms of the rules on substantive vacancy. He thus argues that the Hon'ble Supreme Court in the case of Secretary, State of Karnataka & Ors. v. Umadevi & Ors.; (2006) 4 SCC 1 had although disapproved the appointment on temporary basis, however, it had issued directions for considering the regulatization of the employees who were working for more than 10 years and in terms of the said directions, the State Government has framed the rules for regularization including the 2016 Rules.

He next argues that the State being the model employer cannot exploit and force the person to work on contractual basis for a long tenure which in the present case has extended to almost 20 years. He argues that in any event, the petitioner was appointed on a substantive vacancy, thus, he deserves to be given the weightage, whenever, the case of the petitioner is considered for regularization for which a prayer has been made. He places reliance on the judgment of the Hon'ble Supreme Court in the case of University of Delhi v. Delhi University Contract employees Union & Ors.; Civil Appeal No.1007 of 2021 decided on 25.3.2021 wherein the Hon'ble Supreme Court had issued the following directions in Paras - 12 and 13:

"12. It is true that, as on the day when the judgment in Umadevi1 was delivered by this Court, the contract employees had put in just about 3 to 4 years of service. But, as of now, most of them have completed more than 10 years of service on contract basis. Though the benefit of regularization cannot be granted, a window of opportunity must be given to them to compete with the available talent through public advertisement. A separate and exclusive test meant only for the contract employees will not be an answer as that would confine the zone of consideration to contract employees themselves. The modality suggested by the University, on the other hand, will give them adequate chance and benefit to appear in the ensuing selection.

13. We, therefore, direct that all the concerned contract employees engaged by the University be afforded benefits as detailed in paragraphs 6 and 7 of the affidavit dated 09.03.2021 with following modifications:

(a) The benefit of age relaxation as contemplated in paragraph 6 of the affidavit without any qualification must be extended to all the contract employees.

(b) In modification of paragraph 7 of the affidavit, those employees who were engaged in the year 2011 be given the benefit of 10 marks in the ensuing selection process while for every additional year that a contract employee had put in, benefit of one more mark subject to the ceiling of 8 additional marks be given. In other words, if a contract employee was engaged for the first time in the year 2010, he shall be entitled to the benefit of 11 marks, while one engaged since 2003 shall be given 18 marks, as against the appointee of 2011 who will have the advantage of only 10 marks. The contract appointees of 2012 and 2013 will have the advantage of 9 and 8 marks respectively.

(c) The Public Notice inviting applications from the candidates shall specifically state that the advantage in terms of the order passed by this Court would be conferred upon the contract employees so that other candidates are put to adequate notice.

(d) All the contract employees shall be entitled to offer their candidature for the ensuing selection in next four weeks and in order to give them sufficient time to prepare, the test shall be undertaken only after three months of the receipt of applications from the candidates."

Thus, the submission of learned counsel for the petitioner is that the petitioner should be considered for appointment alongwith other deserving candidates, however, he should be given the benefit of services rendered by him on contractual basis.

The next submission of learned counsel for the petitioner is that the petitioner has been made to work for a paltry amount of Rs.4,500/- per month since the year 2002, which is far below the minimum wages and on account of poverty and not being in a bargaining position, the petitioner has continued to render the services. He argues that the State cannot exploit the poor persons and the denial of minimum wages clearly falls within the phrase 'other similar forms of forced labour' as used in Article 23 of the Constitution of India.

He places reliance on the judgment of the Hon'ble Supreme Court in the case of State of Punjab & Ors. v. Jagjit Singh & Ors.; 2016 CJ(SC) 1119 wherein the Hon'ble Supreme Court has the occasion to consider the principle of equal pay for equal work and had recorded as under:

"57. Having traversed the legal parameters with reference to the application of the principle of ?equal pay for equal work?, in relation to temporary employees (daily-wage employees, ad-hoc appointees, employees appointed on casual basis, contractual employees and the like), the sole factor that requires our determination is, whether the concerned employees (before this Court), were rendering similar duties and responsibilities, as were being discharged by regular employees, holding the same/corresponding posts. This exercise would require the application of the parameters of the principle of ?equal pay for equal work' summarized by us in paragraph 42 above. However, insofar as the instant aspect of the matter is concerned, it is not difficult for us to record the factual position. We say so, because it was fairly acknowledged by the learned counsel representing the State of Punjab, that all the temporary employees in the present bunch of appeals, were appointed against posts which were also available in the regular cadre/establishment. It was also accepted, that during the course of their employment, the concerned temporary employees were being randomly deputed to discharge duties and responsibilities, which at some point in time, were assigned to regular employees. Likewise, regular employees holding substantive posts, were also posted to discharge the same work, which was assigned to temporary employees, from time to time. There is, therefore, no room for any doubt, that the duties and responsibilities discharged by the temporary employees in the present set of appeals, were the same as were being discharged by regular employees. It is not the case of the appellants, that the respondent-employees did not possess the qualifications prescribed for appointment on regular basis. Furthermore, it is not the case of the State, that any of the temporary employees would not be entitled to pay parity, on any of the principles summarized by us in paragraph 42 hereinabove. There can be no doubt, that the principle of ?equal pay for equal work? would be applicable to all the concerned temporary employees, so as to vest in them the right to claim wages, at par with the minimum of the pay-scale of regularly engaged Government employees, holding the same post"

Considering the first submission of the learned counsel for the petitioner that he should be considered for appointment alongwith the other suitable candidates, however, he should be given the weightage for the services rendered for the last 20 years, the same deserves acceptance as the petitioner has worked on contractual basis for more than 20 years and leaving the petitioner high and dry at this stage would be clearly arbitrary, thus, taking a cue from the directions given by the Hon'ble Supreme Court in the case of University of Delhi (supra), the present petition is disposed off directing the respondents to make fresh efforts for appointment to the post of Driver and while doing so, adequate weightage shall be given to services rendered by the petitioner and any other similarly placed employees, if any.

With regard to the second contention, clearly the payment of Rs.4,500/- to the petitioner since the year 2002 cannot be accepted as reasonable. Although the payments made to the petitioner may not qualify as 'other forms of forced labour', there is no reason why the respondents would not pay the minimum of pay scale as prescribed by the State to be paid to the Group D posts which is also justified on the ground of equal pay for equal work, thus, the petition with regard to the second prayer is allowed holding that the petitioner shall be entitled for the minimum of the pay scale which is payable to the services rendered by similarly placed employees/Drivers in the State of U.P., which shall be paid to the petitioner after computation within a period of four months from today.

Both the petitions are accordingly decided.

Order Date :- 2.1.2023

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