Anjani Kumar Shukla vs Univeristy Of Lucknow Through Its ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2023:AHC-LKO:64606                                                                                                                                                                          Reserved on: 12.04.2023                                                                         Delivered on: 06.10.2023
 
Court No. - 5
 

 
Case :- WRIT - A No. - 4509 of 2002
 

 
Petitioner :- Anjani Kumar Shukla
 
Respondent :- Univeristy Of Lucknow Through Its Registrar And 3 Ors
 
Counsel for Petitioner :- R.C.Singh,Girish Chandra Verma
 
Counsel for Respondent :- K.Chandra,I.B.Singh,Sharad Kumar Srivastava,Shubham Tripathi
 

 
Hon'ble Irshad Ali,J.

1. Heard Sri G.C. Verma, learned counsel for the petitioner and Sri Sharad Kumar Srivastava, learned counsel for the respondent.

2. By means of the present writ petition, the petitioner has prayed for issuance of a writ, order or direction in the nature of certiorari quashing the impugned letter / decision dated 03.09.2012 issued by Finance Controller, Chhatrapati Sahuji Maharaj University (for short, 'CSJMU') - respondent No.3 contained Annexure-18 to the writ petition with a further prayer to issue a writ, order or direction in the nature of mandamus commanding the respondents to consider the case of the petitioner for regularization of his service for payment of salary in regular scale of pay and not to create any artificial break in his service and to allow him to continue in service as hither-to-fore till his services are regularized.

3. Factual matrix of the case is that the petitioner was initially appointed as Class -IV employee (Peon) on 08.08.1995 against a regular vacancy for a period of 89 days on payment of daily

wages and was paid fixed salary @ Rs.2000/- per month for 11 months and thereafter, he was paid wages at daily rates. On 31.03.1998, the petitioner was awarded a cash honorarium of Rs.300/- for his commendable work. On 31.07.2000, he has been put on fixed duty from 02.00 p.m. to 10.00 p.m. in the office of Office Superintendent, Finance Office and he is still working in the same shift.

4. The petitioner has been put on same shift duty i.e. 02.00 p.m. to 10.00 p.m. and is still working in the same. On 08.08.2002, the petitioner came to know that instead of regularizing his services and payment of salary in regular pay scale, the respondents are planning to do away with his services. Hence, the present writ petition has been preferred before this Court.

5. While entertaining the writ petition, this Court granted interim order on 19.08.2002 in the following manner:

"..............................................

In the meantime, there shall be no artificial break in the service of the petitioner."

6. Submission of learned counsel for the petitioner is that the petitioner is continuously working since 08.08.1995. He also possess the requisite qualification for the concerned post, therefore, he is entitled for regularization of his services and for payment of salary in regular pay scale.

7. He next submitted that respondent No.3 has failed to consider that neither the petitioner had ever applied to M/s Mishra Security Agencies nor he was ever engaged through it nor he has ever been paid any salary / wages by the University or M/s Mishra Security Agencies, therefore, the impugned letter dated 03.09.2012 issued by respondent No.3 is wholly illegal, baseless and contrary and is liable to be quashed by this Hon'ble Court.

8. He further submitted that the State Government framed the regularization rules for regulations of services of daily wagers, work charge and contract IV employees in the departments, corporations and public sectors likewise the respondent No.1 and took decision that the Class IV employees, who were appointed before 31.12.2001, have to be regularized. The petitioner was appointed by written order on Class IV posts by the competent authority in the year 1995 and his terms has been extended from time to time as per orders. He has not worked through outsourcing / M/s Mishra Security Services, as alleged by the respondents, however, his signature has not been approved by the respondents and he has not been paid salary since August, 2002.

9. He submitted that services of one Class IV employee, namely, Surendra Kumar Pandey, has been regularized by respondent No.2 as per decision of regularization committee vide order dated 06.02.2018, however, different, discriminatory and false stand has been taken by the respondents in case of the petitioner, which is illegal arbitrary and discriminatory in nature and cannot be permitted by this Hon'ble Court.

10. On the other hand, learned counsel for the respondent(s) submitted that the State Government promulgated Rules in exercise of power provided under Article 309 Constitution of India for regularizing Class III and IV employees working in department on daily wage, work charge and contract basis on the post outside the purview of U.P. Public Service Commission known as Regularization Rules, 2016.

11. He submitted that the petitioner was employed on Class IV post on daily wage basis in KGMU during 08.08.1995 to 31.07.2002. W.e.f. 01.08.2002 to April, 2003, he was employed through M/s Mishra Security Services on contract basis, as the State Government issued an order imposing ban on appointment on daily wage basis and after April, 2003, the petitioner was not employed even by M/s Mishra Security Services nor by KGMU, Lucknow. Therefore, the petitioner is not working in any manner in KGMU after April, 2003 and letter of M/s Mishra Security Services also reflects that the petitioner is not working after April, 2003.

12. He further submitted that Rules of 2016 provide imposes certain conditions, as the employee concerned should be working on the date of promulgation of Rules of 2016 i.e. the employee concerned should be working on 12.09.2016. In the present case, the petitioner is not working since 2003 in KGMU.

13. He submitted that so far as the case of Sri Surendra Kumar Pandey is concerned, he was working in KGMU on the date of promulgation of Rules of 2016. He was employed as Chowkidar in KGMU on 19.09.1987 and his services were terminated on 28.05.1990, against which he filed claim before the labour court, wherein the labour court has held that termination of services of Sri Surendra Kumar Pandey was in violation of Section 6-N of Industrial Disputes Act and directed for his reinstatement in service with full back wages vide judgment dated 25.03.1996. Against the said judgment, the KGMU filed Writ Petition No.5866 (S/S) of 1996 before this Court, wherein following observation was made:

"Shri Suresh Chandra Mishra who has accepted notice on behalf of opposite party no.1 is granted four weeks' time to file a counter affidavit. Meanwhile, the operation of the impugned order dated 25.03.1996 shall remain stayed."

and ultimately, the said writ petition was decided vide judgment and order dated 12.09.2017 with following observation:

"Learned counsel for petitioners in reply a denial is made in para 3 of the rejoinder affidavit by the management. In the said reply it is nowhere said that workman had not worked for 3 years. Only statement is made that he had no good conduct and behavior at the girl's hostel and he lastly engaged from 18.05.1990 to 14.08.1990. there is, therefore, no denial of his previous engagement which the workman has claimed.

In view of the aforesaid, since workman has been continuously working during the pendency of writ petition and there is no further complaint. No force in the present writ petition. The writ petition is dismissed."

In view of the fact that Sri Surendra Prasad Pandey was continuously working w.e.f. 03.05.1999, his services have been regularized under the rules while the petitioner has not been working after April, 2003 even for a single day in KGMU, he no parity can be claimed with Sri Surendra Kumar Pandey. The writ petition being misconceived is liable to be dismissed by this Hon'ble Court. In support of his submissions, he placed reliance upon following judgments:

a) Smt. Shanti Vs. King George Medical University and others; Writ Petition No.2463 (S/S) of 2004.

b) Secretary, State of Karnataka and others Vs. Umadevi (3) and others; (2006) 4 SCC 1.

14. I have considered the submissions advanced by learned counsel for the parties and perused the material on record and the judgments cited by learned counsel for the respondent(s).

15. To resolve the controversy involved in the matter, relevant portion of the judgments relied upon by learned counsel for the respondent(s) are being quoted below:

a) Smt. Shanti Vs. King George Medical University and others (Supra):

"The respondents have submitted in the counter affidavit that the Board of Management had resolved to hire the services through a private agency and, therefore, Misra Security Services was engaged by the Board of Management and the petitioner became an employee of Misra Security Services w.e.f. 11.6.2002. The petitioner has been rendering her services in the hospital through the Misra Security Services with effect from the said date. She has been receiving payment of remuneration through the said agency. As per record, there is no existence of employer-employee relations between the petitioner and the K.G. Medical University. The petitioner is already in employment of Misra Security Services and if the petitioner has been disengaged by the said agency, she can raise her grievance before the said employer, not before the respondents.

The writ petition is devoid of merits and the same is dismissed."

b) Secretary, State of Karnataka and others Vs. Umadevi (3) and others (Supra):

"55. In cases relating to service in the commercial taxes department, the High Court has directed that those engaged on daily wages, be paid wages equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively appointed. The objection taken was to the direction for payment from the dates of engagement. We find that the High Court had clearly gone wrong in directing that these employees be paid salary equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively engaged or appointed. It was not open to the High Court to impose such an obligation on the State when the very question before the High Court in the case was whether these employees were entitled to have equal pay for equal work so called and were entitled to any other benefit. They had also been engaged in the teeth of directions not to do so. We are, therefore, of the view that, at best, the Division Bench of the High Court should have directed that wages equal to the salary that are being paid to regular employees be paid to these daily wage employees with effect from the date of its judgment. Hence, that part of the direction of the Division Bench is modified and it is directed that these daily wage earners be paid wages equal to the salary at the lowest grade of employees of their cadre in the Commercial Taxes Department in government service, from the date of the judgment of the Division Bench of the High Court. Since, they are only daily wage earners, there would be no question of other allowances being paid to them. In view of our conclusion, that Courts are not expected to issue directions for making such persons permanent in service, we set aside that part of the direction of the High Court directing the Government to consider their cases for regularization. We also notice that the High Court has not adverted to the aspect as to whether it was regularization or it was giving permanency that was being directed by the High Court. In such a situation, the direction in that regard will stand deleted and the appeals filed by the State would stand allowed to that extent. If sanctioned posts are vacant (they are said to be vacant) the State will take immediate steps for filling those posts by a regular process of selection. But when regular recruitment is undertaken, the respondents in C.A. No. 3595-3612 and those in the Commercial Taxes Department similarly situated, will be allowed to compete, waiving the age restriction imposed for the recruitment and giving some weightage for their having been engaged for work in the Department for a significant period of time. That would be the extent of the exercise of power by this Court under Article 142 of the Constitution to do justice to them.

56. Coming to Civil Appeal Nos. 1861-2063 of 2001, in view of our conclusion on the questions referred to, no relief can be granted, that too to an indeterminate number of members of the association. These appointments or engagements were also made in the teeth of directions of the Government not to make such appointments and it is impermissible to recognize such appointments made in the teeth of directions issued by the Government in that regard. We have also held that they are not legally entitled to any such relief. Granting of the relief claimed would mean paying a premium for defiance and insubordination by those concerned who engaged these persons against the interdict in that behalf. Thus, on the whole, the appellants in these appeals are found to be not entitled to any relief. These appeals have, therefore, to be dismissed.

57. C.A. Nos. 3520-24 of 2002 have also to be allowed since the decision of the Zilla Parishads to make permanent the employees cannot be accepted as legal. Nor can the employees be directed to be treated as employees of the Government, in the circumstances. The direction of the High Court is found unsustainable.

58. In the result, Civil Appeal Nos. 3595-3612 of 1999, Civil Appeal No. 3849 of 2001, Civil Appeal Nos. 3520-3524 of 2002 and Civil appeal arising out of Special Leave Petition (Civil) Nos. 9103-9105 of 2001 are allowed subject to the direction issued under Article 142 of the Constitution in paragraph 46 and the general directions contained in paragraph 44 of the judgment and Civil Appeal Nos. 1861-2063 of 2001 are dismissed. There will be no order as to costs."

16. In the case of Smt. Shanti (Supra), the petitioner was appointed on daily wage basis and was given time bound engagement and during the said period, she worked 90 days only and between each and every engagement, there was a break. Her appointment was on daily rated basis for a stipulated period and after 89 days, the engagement had come to an end. The Board of Management resolved to hire the services through a private agency and the petitioner was employee of aforesaid agency. There being no employer-employee relations between the petitioner and respondent - KGMU, the writ petition has been dismissed.

17. In the case of Secretary, State of Karnataka and others (Supra), Hon'ble Apex Court has held that in Civil Appeal Nos.3595-612 of 1999, the respondents were temporarily engaged on daily wages in Commercial Taxes Department in some of the districts of the State of Karnataka. They claim that they worked in the Department based on such engagement for more than 10 years and hence, they are entitled to be made permanent employees of the Department. Though, the Director of Commercial Taxes recommended that they be absorbed, the Government did not accede to that recommendation. These respondents, thereupon, approached the Administrative Tribunal in the year 1997 with their claim. The Administrative Tribunal rejected their claim finding that they have not made out a right either to get wages equal to that of others regularly employed or for regularization. Thus, the applications filed were dismissed. The respondents approached the High Court of Karnataka challenging the decision of the Administrative Tribunal. It is seen that the High Court without really coming to grips with the question falling for decision in the light of the findings of the Administrative Tribunal and the decisions of this Court, proceeded to order that they are entitled to wages equal to the salary and allowances that are being paid to the regular employees of their cadre in government service with effect from the dates from which they were respectively appointed. It may be noted that this gave retrospective effect to the judgment of the High Court by more than 12 years. The High Court also issued a command to the State to consider their cases for regularization within a period of four months from the date of receipt of that order.

18. Civil Appeal Nos.1861-2063 of 2001 reflects the other side of the coin. The appellant association with indefinite number of members approached the High Court with a writ petition under Article 226 of the Constitution of India challenging the order of the government directing cancellation of appointments of all casual workers/daily rated workers made after 01.07.1984 and further seeking a direction for the regularization of all the daily wagers engaged by the government of Karnataka and its local bodies. A learned Single Judge of the High Court disposed of the writ petition by granting permission to the petitioners before him, to approach their employers for absorption and regularization of their services and also for payment of their salaries on par with the regular workers, by making appropriate representations within the time fixed therein and directing the employers to consider the cases of the claimants for absorption and regularization in accordance with the observations made by the Supreme Court in similar cases. The State of Karnataka filed appeals against the decision of the learned Single Judge. A Division Bench of the High Court allowed the appeals. It held that the daily wage employees, employed or engaged either in government departments or other statutory bodies after 01.07.1984, were not entitled to the benefit of the scheme framed by this Court in Dharwad District Public Works Department case, referred to earlier. The High Court considered various orders and directions issued by the government interdicting such engagements or employment and the manner of entry of the various employees. Feeling aggrieved by the dismissal of their claim, the members of the associations have filed these appeals.

19. When these matters came up before a Bench of two Judges, the learned Judges referred the cases to a Bench of three Judges. The order of reference is reported in 2003 (9) SCALE 187. This Court noticed that in the matter of regularization of ad hoc employees, there were conflicting decisions by three Judge Benches of this Court and by two Judge Benches and hence the question required to be considered by a larger Bench. When the matters came up before a three Judge Bench, the Bench in turn felt that the matter required consideration by a Constitution Bench in view of the conflict and in the light of the arguments raised by the Additional Solicitor General.

20. Hon'ble Apex Court has held that in view of our conclusion on the questions referred to, no relief can be granted, that too to an indeterminate number of members of the association. These appointments or engagements were also made in the teeth of directions of the Government not to make such appointments and it is impermissible to recognize such appointments made in the teeth of directions issued by the Government in that regard. We have also held that they are not legally entitled to any such relief. Granting of the relief claimed would mean paying a premium for defiance and insubordination by those concerned who engaged these persons against the interdict in that behalf. Thus, on the whole, the appellants in these appeals are found to be not entitled to any relief. These appeals have, therefore, to be dismissed.

21. In the case in hand, the petitioner was engaged on daily wage basis on Class-IV post on 08.08.1995 and continued to work till 08.08.2002. He has took a ground that services of a similarly situated employee, namely, Surendra Kumar Pandey, has been regularized by respondent No.2 as per decision of regularization committee vide order dated 06.02.2018, however, case of the petitioner has been considered on different footing.

22. While taking note of the observations made by Hon'ble Apex Court in the case of Secretary, State of Karnataka and others (Supra), this Court feels it proper that if case of the petitioner is akin to that of Surendra Kumar Pandey, there is no occasion to not provide the same benefits, as have been provided to Surendra Kumar Pandey.

22. In view of reasons recorded above, the writ petition is finally disposed of.

23. However, respondent No.2 is directed to look into the matter and if case of the petitioner is akin to aforementioned person, namely, Surendra Kumar Pandey, appropriate decision shall be taken to provide the same benefits, as have been provided to Surendra Kumar Pandey within a period of eight weeks from the date of production of a certified copy of this order.

24. No order as to costs.

Order Date :- 06.10.2023

Adarsh K Singh