Smt. Karma Devi vs State of U.P. and Others

Surendra Vikram Singh Rathore, J.—Heard learned Counsel for the parties.

This writ petition shows height of exploitation which the poor citizens of India are facing at the hands of the persons who are in power or are occupying responsible posts.

The case of the petitioner is that she is a Class-IV employee working as sweeper in Junior High School, Ahirauli Ranimau, Vikas Khand Jahangiraganj, District Ambedkar Nagar since 1974. Initially she was working as sweeper and thereafter she was regularly working since 1980 and getting salary of Rs. 150/- per month. Her services were throughout satisfactory and there was nothing against her. She was fully eligible to be considered for appointment to the post of sweeper on the basis of her length of service and was also entitled for payment of regular pay scale as well as for the regularization.

The petitioner submitted a representation on 2.5.2008 mentioning entire facts therein and requested that the minimum pay scale be paid to her but the same has not been decided as yet. On 29.4.2008 and again on 2.7.2009 the Principal of the School issued a certificate in favour of the petitioner that she is working on the post of sweeper regularly prior to the year 1980 and at present getting Rs. 150/- per month as salary. Again a representation dated 6.7.2009 for enhancement of her salary was given and also a request was made for her regularization but the same was not considered by the opposite parties, therefore, this writ petition was filed with the prayer to issue a writ in the nature of mandamus commanding the opposite parties to consider the claim of the petitioner for regularization to the post of sweeper and further to pay the petitioner her salary in the regular scale of pay as admissible to the post of sweeper including all service benefits.

It is submitted by the learned Counsel for the petitioner that by means of an interim order passed by this Court on 13.10.2009 the opposite parties were directed to make payment of wages to the petitioner in view of the relevant Government Orders and the question of payment of arrears of salary and regular pay scale was left upon till the final disposal of this petition.

It is submitted by the learned Counsel for the petitioner that in-spite of interim order of this Court she is still being paid Rs. 150/- per month and the same has not been enhanced.

The case of the opposite parties is that the petitioner is only a part-time worker and she is not a regular employee of the Institution. It is further submitted that the certificate issued by the Principal are of no consequence as the appointing authority is the management of the institution.

The petitioner has filed the certificate issued by the Principal of the said School, in which it is mentioned that the petitioner is working on the post of sweeper and her name is entered in to the register. In the counter affidavit on behalf of Basic Shiksha Adhikari, District Ambedkar Nagar, it is averred that Government Order dated 20.1.2007 provide for the payment to part-time sweeper and Dayee at the rate of Rs. 450/- per month and vide G.O. Dated 27.1.1997 it was provided that after retirement of the part-time sweeper and Dayee, new appointment shall not be made.

Learned Counsel for the petitioner has placed reliance on the pronouncement of this Court in the case of Awadhrani (Smt.) Vs. Director of Education (Basic) and Others, , in which it was held as under:

In employment under State a concept of part time employee is not known. The respondents have not been above to point out any rule or service condition which provide for part time employment under the State. Taking into consideration the present case on the basis of the fact enumerated in the impugned order, the Court finds that the nature of employment of the petitioner is to look after small children in primary schools. The petitioner is required to bring the children from their respective homes to the school and to take them back after the school hours. Small and tender children are put under the care of the petitioner named as ''School Mata''. The nature of these duties by themselves suggest that working hours of the petitioner starts much before school opens, and long after the school closes. The petitioner is not only required to look-after the children but also to maintaining cleanliness in the school. It is rather surprising that all other employees who may devote less hours, are being termed as full time employees and that the petitioner is being treated as a part time employee. The nature of duties performed by the petitioner cannot be treated as part time employment. The work involves regularity, responsibility and same, if not more working hours as regular employees.

It has further been submitted that one Kali Charan who was working as Safai Karmachari had filed writ petition for his regularization, he was initially being paid Rs. 2/- per month as part time wages, which was later increased to Rs. 20/- and ultimately Rs. 150/- per month. His writ petition was allowed and direction was given to make payment of pay scale which is admissible to Class-IV employees and also he should be considered for his regularization. This order of the Hon''ble Single Judge was appealed in Special Appeal No. 369 of 2000 Basic Shiksha Adhiakri, District Faizabad v. Kali Charan and vide judgment dated 7.9.2000 the special appeal was dismissed.

Feeling aggrieved by the order of the Division Bench passed in the above mentioned special appeal, SLP (Civil) No. 19375 of 2000 was preferred before the Hon''ble Apex Court and after hearing the same was dismissed by the Hon''ble Apex Court. Meaning thereby the order passed by this Court in the case of Kali Charan in Writ Petition No. 144(S/S) of 1998 was confirmed by the Hon''ble Apex Court.

The argument of the learned Counsel for the petitioner is that payment of such meagre amount as salary is virtually begar within the purview of Article 23 of the Constitution of India.

Article 23 of the Constitution of India reads as under:--

Art. 23. Prohibition of traffic in human beings and forced labour--(1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.

(2) Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.

The payment of Rs. 150/- per month, is very little amount to pull one''s family. It is really strange that on two occasions the petitioner has moved representation before the opposite parties for her regularization and for enhancement of her salary but the same was not considered at all. It transpires from perusal of the record that there was no sanctioned post against which she could have been regularized.

On the contrary it is proved by the certificate issued by the Principal of the College that she was regularly working as sweeper and she was also signing the attendance register. She was working since 1974. It is true that certificates issued by the principal does not create any right in favour of the petitioner but it definitely proves her continuous service.

Duties of sweeper starts early in the morning. She has the duty to clean all the class rooms, offices and also the entire school compound. Classes and offices cannot be cleaned in office hours so she has to start her work before opening of the school. During the day she must be cleaning the school compound. During course of the working hours of the school her services are also required.

The petitioner has also placed reliance on the pronouncement of this Court in the case of Ram Kailash v. State of U.P. and others, Writ Petition No. 6568 (S/S) of 2003 decided on 13.9.2010, in which this Court, placing reliance on the case of Ram Milan Singh and others v. District Basic Education Officer, Sitapur Writ Petition No. 6300 (S/S) of 1992 had allowed the petition of a part-time employee and directed the opposite parties to pay regular salary to the petitioner.

In the case of Sri Chand v. State of U.P. and others, Civil Misc. Writ Petition No. 17311 of 2005 decided on 22.8.2005, this Court observed as under:--

Admittedly, the work of a sweeper is required in the department. It is not the case of the respondents that they do not require the services of a sweeper. In a public office, the requirement of the services of a sweeper is essential and therefore, it is equally necessary that a sweeper is appointed. If there is no post, it is the obligation of the State to create a post for a sweeper. It is the responsibility of the State to keep the public buildings clean. The job of a sweeper is a permanent job and theretofore a post has to be created. The practice of appointment of a sweeper through the contingency fund is deprecated especially when it is a full time job. On the other hand, the petitioner is being paid on a daily basis @ Rs. 42.50 per day, which comes to approximately Rs. 1000/- per month. In today''s world it is not possible for the petitioner to have two square meals per day on the amount that is being paid to the petitioner. The petitioner is entitled to live with dignity. Consequently, I direct the Principal Secretary, respondent No. 5, to create a post of a sweeper in the office of the Deputy Commissioner (Administration) Trade Tax, Noida, Gautam Budh Nagar, within six months from today. Upon the creation of the post, the petitioner shall be absorbed in the service of the respondents. Till the creation of the post, the petitioner would be paid the minimum wages payable to a sweeper.

In the facts of this case, the amount being paid to the petitioner can by no stretch of imagination be said to be sufficient for any person to pull his family. What to say of family, it is not even sufficient for a single individual, therefore, the payment of such a meager amount, in view of the services being rendered by the petitioner, her work falls within the category of ''Begar''.

In the case of Sanjit Roy Vs. State of Rajasthan, , Hon''ble Apex Court has held that Article 23 of the Constitution of India is enforceable not only against the State but also against private persons indulging in such practice. In the same case it has also been held that in an application under Article 23 of the Constitution of India the Court may direct rehabilitation of the bonded labourers or payment to them of minimum wages. In view of the factual and legal situation the writ petition deserves to be allowed and is allowed. The opposite parties are directed that the petitioner shall be treated as a regular Class-IV employee for the purpose of payment of salary and shall be paid pay scale admissible to Class-TV employees working on such post in Primary Schools under the Basic Education Board. She shall be paid difference of pay what she is getting and the regular pay scale. The opposite parties shall take steps for creation of one post for sweeper in the said school and after Creation of the post the regularization of the petitioner shall be considered in accordance with rules. This entire exercise shall be completed within a period of 6 months from the date when a certified copy of this order is produced before him.