Aditya Kumar And Ors. vs State Of U.P. Thru Prin.Secy. ...
2023 Latest Caselaw 6504 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 

 
Case :- WRIT - A No. - 12118 of 2021
 
Petitioner :- Aditya Kumar And Ors.
 
Respondent :- State Of U.P. Thru Prin.Secy. Animal Husbandary Lucknow Andanr
 
Counsel for Petitioner :- Birendra Kumar Yadav,Satendra Jaiswal
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Vivek Chaudhary,J.

1. Heard learned counsel for the petitioners and learned Standing Counsel for the State.

2. The names of the petitioners were sent by the Employment Exchange for appointment in the year 1987. They faced Selection Committee and thereafter they were appointed on 20.2.1987 on the post of Investigator-cum-Computer in the department of Animal Husbandry. Petitioners have been working in the same department since their appointment. Their representation for regularization was rejected by order dated 16.2.2018. They filed the present writ petition in the year 2021 when they were in age group of 56-59 years i.e., nearing their superannuation. Meanwhile, petitioners no.3 and 4 have retired during pendency of the writ petition.

3. The aforesaid facts itself show that the petitioners have spent their entire life working in the respondent-department, but were never regularized. By impugned order dated 16.2.2018 their representation for regularization is rejected on the following grounds: (i) that they do not posses the required educational qualification for the post of Assistant Statistical Officer; (ii) that the petitioners were working on a fixed pay scale of Rs.10,000/- and were not daily wager; (iii) that they were appointed under a Scheme and the Scheme is extended from year to year; and (iv) that their posts are different than the cadre post and hence, they are not covered by the Regularization Rules.

4. So far ground (i) is concerned, the post of Assistant Statistical Officer was created under the Rules of 2012 and the petitioners are working since 1987 on the post of Investigator-cum-Computer. The respondent department is bound to regularize them, in accordance with their qualification and work performed by them, on appropriate posts. Thus, the said ground cannot be taken against the petitioners for regularizing their services. So far as ground (ii) that the petitioners were working on a fixed pay scale of Rs.10,000/- and were not daily wager is concerned, there is nothing in the Regularization Rules of 2016, which restrains persons working on fixed pay scale from being regularized, hence, the said ground has no force. With regard to ground (iii) that the petitioners were appointed under a Scheme and the Scheme is extended from year to year, it is surprising to note that the petitioners have spent their entire working life with the respondent-department, but neither the Scheme was confirmed nor the posts were created. Under the garb of a Scheme, the State Government cannot take continuous work from the petitioners on long term basis extending to their entire working life. So far as ground (iv) is concerned, merely because their posts are named differently, therefore, they are not entitled for regularization, cannot be a ground for not regularizing the services of the petitioners.

5. The Supreme Court has repeatedly held that the State Government cannot be involved in exploitative labour practice. It cannot engage persons on temporary basis for long periods refusing to grant them benefits of regular employees. Suffice would be to refer to the judgment in case of Prem Singh vs. State of U.P. and others, (2019) 10 SCC 516. The Supreme Court in the said judgment, held:

"31. In the aforesaid facts and circumstances, it was unfair on the part of the State Government and its officials to take work from the employees on the work-charged basis. They ought to have resorted to an appointment on regular basis. The taking of work on the work-charged basis for long amounts to adopting the exploitative device. Later on, though their services have been regularised. However, the period spent by them in the work-charged establishment has not been counted towards the qualifying service. Thus, they have not only been deprived of their due emoluments during the period they served on less salary in work-charged establishment but have also been deprived of counting of the period for pensionary benefits as if no services had been rendered by them. The State has been benefitted by the services rendered by them in the heydays of their life on less salary in work-charged establishment.

.....

36. There are some of the employees who have not been regularised in spite of having rendered the services for 30-40 or more years whereas they have been superannuated. As they have worked in the work-charged establishment, not against any particular project, their services ought to have been regularised under the Government instructions and even as per the decision of this Court in State of Karnataka v. Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] . This Court in the said decision has laid down that in case services have been rendered for more than ten years without the cover of the Court's order, as one-time measure, the services be regularised of such employees. In the facts of the case, those employees who have worked for ten years or more should have been regularised. It would not be proper to regulate them for consideration of regularisation as others have been regularised, we direct that their services be treated as a regular one. However, it is made clear that they shall not be entitled to claiming any dues of difference in wages had they been continued in service regularly before attaining the age of superannuation. They shall be entitled to receive the pension as if they have retired from the regular establishment and the services rendered by them right from the day they entered the work-charged establishment shall be counted as qualifying service for purpose of pension."

6. Similar controversy has already been adjudicated by this Court by means of judgment and order dated 17.2.2023 passed in a bunch of writ petitions, leading one is Writ-A No.8968 of 2022, wherein issue relating to interpretation and application of Section 2 of the Act of 2021 for counting qualifying service for the purpose of pension with regard to work charge employees has been dealt with in detail by this Court. Relevant portion of the said judgment reads:

"9. Therefore, the question now before this Court is whether by bringing Act of 2021, the State Government has done away with the vice pointed out by the Supreme Court in case of Prem Singh (supra). In the said judgment, the Supreme Court found that the State Government has adopted exploitative labour practice by taking work of regular employees from work charge employees on long term basis without any rationale classification while refusing them benefits available to regular employees. Supreme Court specifically held that the State Government can not get involved in corrupt labour practices. On the aforesaid grounds, the Supreme Court read down the provisions of Rule 3(8) of the Rules of 1961 and struck down Regulation 370 of Civil Services Regulations and Para 669 of the Financial Handbook.

10. It is the duty of State to create new temporary or permanent posts as per its needs and make appointments on the same. Law also permits State to appoint daily wagers or work charge employees, but only when the work is for short period or is in a work charge establishment for fixed duration. Law does not permit the State to take work for long period, extending even for the entire working life of a person, on temporary or work charge basis. In such cases, it is the duty of State to create new posts and make appointments, giving all benefits of regular employees. Otherwise, State would be found to be adopting exploitative labour practice.

7. Present matter is squarely covered by the law laid down in the aforesaid judgment. The State Government has taken work from the petitioners for their entire working life on fixed remuneration. They have worked as a regular employee for the entire working hours of each day in their entire life. Merely because they were continued on fixed remuneration cannot be a ground for refusing them regularization. They are entitled to be considered for regularization as per their qualification and work they have performed throughout their working life.

8. In view thereof, the impugned order dated 16.2.2018 cannot stand and is set aside. The respondents are directed to regularize the services of the petitioners on the basis of their qualification and taking into consideration the posts on which they are working. The petitioner nos.3 and 4 who have retired during pendency of the writ petition are also entitled for pensionary benefits. The regularization order shall be passed within a period of four weeks from the date a certified copy of this order is produced before respondent no.2-Director, Animal Husbandry Department, U.P., Lucknow.

9. However, petitioners nos.3 and 4 shall be entitled to past pensionary benefits for last three years only.

10. The writ petition stands allowed.

[Vivek Chaudhary,J.]

Dated: March 01, 2023

Sachin