Nazim Ali and Others vs State of U.P. and Others

Rakesh Tiwari, J.—Heard learned Counsel for the petitioners and Sri Puneet Khare, learned Counsel for respondent Nos. 2 and 3 and also perused the materials on record.

Petitioner No. 1 Nazim Ali appointed on 4.8.1998, petitioner No. 2 Mohd. Anees appointed on 29.10.1998 in the office of Nagar Nigam, Moradabad and petitioner No. 3 Km. Shama Iqbal appointed on 1.3.1997 were engaged as daily wage Clerks @ 60/- per day in the office of Mukhya Nagar Lekha Parikshak, Nagar Nigam, Moradabad.

Learned Counsel for the petitioners has urged that the petitioners filed Writ petition No. 15823 of 2002 (Nazim Ali and others v. State of U.P. and others) in this Court, which was disposed of with the directions to the Mukhya Nagar Adhikari, Nagar Nigam, Moradabad to take appropriate decision on the representation of the petitioners and in compliance thereof the Mukhya Nagar Adhikari vide his order dated 2.7.2009 directed to pay each of the petitioners Rs. 3050/- per month wages on the ground the pay scale of regular Clerk was Rs. 3050-4590/- and since the petitioners are being paid Rs. 3050/- per month wages by the Nagar Nigam, Moradabad--

In the aforesaid backdrop, the petitioners may move a representation for their regularisation and absorption along with their payment of salary including allowances on the post of Clerk, Grade II in accordance with the sixth pay commission recommendations. The petitioners have prayed as under:

Issue a writ, order or direction in the nature of mandamus commanding the respondents to provide revised pay scale and allowances on the post of Clerk Grade-II in accordance with revision of VI pay Commission.

Issue a suitable writ, order or direction in the nature of mandamus commanding the respondents to treat the petitioners as regularised/ absorbed/regular on the post of Clerk in Nagar Nigam, Moradabad with all consequential benefits admissible to the post of Clerk having same work and duties.

Issue any other suitable writ, order or direction as this Court may deem fit and proper in the facts and circumstances of the case.

Award cost of petition to the petitioners.

Admittedly, the petitioners have been appointed as daily wage employees and on the post of Clerk, Grade II in Nagar Nigam, Moradabad, as claimed. Appointment of a person can be made in temporary or ad-hoc or even on daily wage against a permanent post but that does not vest such an employee with the rights and benefits enjoyed by a permanent employee as he does not shoulder or discharge the same responsibilities of the post as a permanent employee does. The mode of recruitment is also different of such daily wagers. A daily wager is also not answerable for any of his act in a domestic enquiry. It is also not possible to hold domestic enquiry against such persons.

The recruitment rules for appointment against a permanent post lay down the procedure for appointment of a candidate against a permanent and substantive vacancy and no person can claim his right of appointment of regularisation or absorption de horse the rules. The order parsed by the Mukhya Nagar Adhikari, Nagar Nigam, Moradabad dated 2.7.2002 does not appear to be in consonance with law. However, as the petitioners are getting minimum of the pay scale of Rs. 3050/- 4590/- as per the Vth Pay Commission. This Court does not want to comment on it as to what is the total emoluments of an employee engaged on daily wages. It may be mentioned that in the Minimum Wages Act, the remuneration of daily wage employee is different from that of a permanent employee who is granted a pay scale. The Apex Court in catena of cases held that grant of pay scale denotes permanent appointment on a post.

In paragraph 13 of the writ petition it has been averred that petitioner Nos. 1 and 3 belong to general category and petitioner No. 2 belongs to backward category and that it appears from annexure No. 2 to the writ petition that in response to a query made by the petitioners under Right to Information Act the petitioner have been informed that there are 33 posts of Clerks, Grade II in Nagar Palika Parishad, Moradabad out of which 19 are posts are vacant. Thus only 14 persons are working as Clerk Grade II in Nagar Nigam, Moradabad. The petitioners are claiming themselves to be working in Nagar Nigam, Moradabad on the post of Clerk, Grade II. Thus they are workmen within the meaning of Section 2(2) of the U.P. Industrial Disputes Act, 1947.

This Court cannot issue any mandamus to the respondents to provide the petitioners revised pay scale and allowances on the basis of pay scale of Clerk, Grade -II in accordance with the revised Vlth Pay Commission nor can direct them to consider the petitioners as regularised/absorbed/regular on the post of Clerks in Nagar Nigam, Moradabad with all the consequential benefits of the post and they claim that they are discharging the same duties that is being discharged by a regular and permanent Clerk, Grade-II in Nagar Nigam,-Moradabad.

Apparently from the averments made in the writ petition, it is clear that the mode of recruitment of permanent employees is different from that of the petitioners, who have been the petitioners engaged as daily wage employees and they are not bound with the Service Rules applicable to a permanent Government employee.

In my opinion, for the reasons stated above, this Court cannot direct their absorption also for the reason that the Government has framed rules for absorption of Daily Wage employees in service, such as the petitioners. If the petitioners are the employees eligible under the rules, they may apply for their absorption for being recruited in accordance with law. Even otherwise, the petitioners have an alternative and efficacious remedy in the labour court/Industrial Tribunal, as has been held in the case of Chandrama Singh v. Managing Director, U.P. Co-operative Union, Lucknow and others (1991) 1 UPLBEC (2) 898. The matter cannot be adjudicated in writ jurisdiction under Article 226 of the Constitution of India. The fact is that the petitioners are discharging the same duties as permanent Clerk, Grade II in Nagar Nigam, Moradabad and are shouldering the same responsibilities etc., is to be proved by them by means of oral and documentary evidence.

For the reasons stated above, the petition is dismissed.

No orders as to costs.