State of U.P. and Others vs Putti Lal

R.A. Sharma, J.—The petitioners are working as Daily Wagers/ Muster Roll employees in Forest Department of the Government of U. P. for the last several years ranging from about 3 to 20 years. They have filed these writ petitions seeking writ of mandamus directing the respondents to regularise their service and to pay them the same salary which is being paid to the employees belonging to Classes III and IV.

One of these writ petitions No. 23091 of 1995, Sheo Kumar v. State of U. P. was allowed by a learned single Judge on August 25, 1995 with direction to regularise the service of the petitioners therein in terms of the earlier judgment of this Court in Writ Petition No. 26925 of 1990. Against this judgment Special Appeal No. 90 of 1996 has been filed. The Government applied for recall of the said order dated August 25, 1995. This application was rejected by the learned single Judge vide order dated October 2, 1996. While rejecting that application the learned Judge also directed for regularisation of the service of the petitioners therein within one month failing which to face the contempt proceeding. Against the said order another Special Appeal No. 628 of 1996 has been fifed by the Government. In another Writ Petition No. 15302 of 1993, Putti Lal v. State of U. P. a learned single Judge passed an interim order directing the State Government to formulate a Scheme for regularisation/absorption of the employees working as Daily Wager/Muster Roll Employees. Against the said order Special Appeal No. 653 of 1995 has been filed.

The controversy involved in these writ petitions and Special Appeals being the same, they are being decided by a common judgment. The Government has filed counter-affidavit only in some writ petitions and the petitioners have filed rejoinder-affidavit in reply thereto.

The learned counsel for the petitioners have made three submissions in support of the writ petitions, viz. (i) keeping the employees for a long period on daily wages is highly unfair, arbitrary land unreasonable. The petitioners'' service is, therefore, liable to be regularised and they are also entitled to be paid the same pay which is being paid to regular employees belonging to Classes III and IV; (ii) the respondents are bound by the judgment dated February 25, 1993 Kumaun Van Shramik Sangh Centre v. State of V. P. (Writ Petition No. 15627 of 1988), whereby this Court directed them to pay to the Daily Wager/Muster Roll employees the wages at the rate equivalent to the minimum pay scale of the regular employees in corresponding cadres and also to frame Scheme for regularisation of their service; and (iii) as this Court has allowed a number of writ petitions earlier directing regularisation of service of the petitioners therein, the present petitioners are also entitled to the similar direction, because they and the petitioners in earlier writ petitions which have been allowed, are similarly placed. In support of the above three main points some subsidiary points have also been raised by the learned counsel for the petitioners, but it is not necessary to refer to them in this judgment in view of the order which is proposed to be passed in these cases.

On the other hand learned Additional Advocate General, who represents the respondents, while disputing the contentions of learned counsel for the petitioners, has made three submissions, namely, (1) there are neither vacancies for regularisation of the petitioners'' service nor the Government has funds to create regular or supernumerary posts for their absorption; (2) The directions given by this Court in the case of Kumaun Van Shramik Sangh Centre v. State (supra) have to be confined to the members of the petitioners therein and similar benefits cannot be given to other Daily Wagers/Muster Roll employees even if they belong to the same Class to which the members of the petitioners therein belong; and (3) Directions given in other writ petitions are also to be confined to the petitioners who filed those petitions and service of the persons who were not parties in those writ petitions cannot be regularised and for the same reason they cannot be paid salary equivalent to the salary which is paid to the regular employees of the Department belonging to Classes III and IV.

According to the affidavit of Sri P.L. Punia, Principal Secretary Forest Department Government of U. P., in Forest Department of this State two types of Daily Wagers have been employed, viz, (1) those who are paid fixed wages on monthly basis against vouchers. They are called Daily Wagers paid against vouchers; and (2) Muster Roll employees who are paid on daily wage basis. Difference between the two classes is only of the modes of payment; while former are paid on monthly basis against vouchers, the payment to the latter is made on daily wage basis. But they perform almost similar work and discharge similar duties. Some of these workers are working in the Forest Department itself, while others are working in various Schemes undertaken by that Department and if any such Scheme has been completed or given up they have been transferred from one Scheme to another. All these workers have been engaged by Forest Department and are paid their wages by it. According to the Government there are about 20 thousand such employees in Forest Department but, according to the petitioners there are about 55 thousand employees of this nature working in the Department. These employees are working in the Forest Department for the last several years ranging from 3 to 20 years. In some leases such employees are working in the Department for more than even 20 years. In this connection reference may be made to Writ Petition No. 6588 of 1997, Jai Ram Chaudhary v. State of U. P., in paragraph 2 of which the years from which the petitioners therein are working have been given. Said paragraph 2 is reproduced below :

"2. That the services rendered by the petitioners are as follows:

Name/Post

Working since

Place

Qualification

Jairam Chaudhary, Barrier Muharrir

1970

Pharenda

IX Pass

Shyam Dhar Pandey, Barrier Muharrir

1973

Pakari Range

High School

Rajesh Pathak, Watcher

1987

Laxmipur Range

Intermediate

Sri Niwas, Watcher

1987

Pharenda Range

VIII Pass

Gaj Raj, Watcher

1982

Pakari Range

VPass

Palak Dhari, Protection Watcher

1979

Pakari Range

VPass

Sukhey Yadav, Protection Watcher

1976

Pharenda Range

VIII Pass

Parikhan Yadav, Protection Watcher

1984

Pakari Range

VIII Pass

Govind Prasad, Range Clerk

1962

Pharenda Range

VIII Pass

Sri Ghisiyavan, Wireless Operator

1977

Pakari Range

VIII Pass

Daya Ram Ahir, Dakiya

1983

Pakari Range

High School"

The Writ Petition No. 32151 of 1995, Pan Bai v. State of U. P. is also relevant in this regard, in paragraph 2 of which years from which the petitioners therein are working, have been mentioned. The same is reproduced below :

"That the period of service of the petitioners have rendered in the Forest Department and their respective ranges where they have been working is being stated as below :

Sl.

Name of the Petitioner

Year

Range

Post

1.

Pan Bai

1964

Gauna

Sweeper

2.

Smt. Genda Rani

1975

Gauna

Sweeper

It is thus apparent that most of the petitioners have spent cream periods of their lives in the Forest Department working on meagre wages without security of tenure.

There is another important factor which needs to be mentioned. In Writ Petition No. 15302 of 1993, Putti Lal v. State of U. P. (supra) data compiled in the book form has been filed by the petitioners which has been taken on record. This contains the following details of permanent staff and Daily Wagers working in Bundelkhand Division/Circle consisting of five districts, namely, Banda, Hamirpur, Jhansi, Lalitpurand Oral :

"Bunelkhand Forest Circle (Panda, Jhansi, Hamirpur, Lalitpur, Mahoba & Oral Divisions).

Comparative Study of Permanent and Fixed Wagers Staff as per Govt. Affidavit.

Class 3 and Class 4 Post only

Name of Division

Permanent Staff

D. Wager

Banda

70

316

Hamirpur & Mahoba

51

303

Jhansi

69

270

Lalitpur

91

237

Oral

61

148

Total

342

1274

What appears glaring from the date is that the Government is almost running the Forest Department at the level of Classes III and IV posts primarily through Daily Wager/Muster Roll employees who have major pans of their lives in Forest Department earning meagre wages without security of tenure. The learned counsel for the petitioners, in this connection, have also highlighted the fact that the strength of regular cadres of Classes III and IV in the Forest Department has not been increased by the Government for the last several years, because the Government does not consider it necessary to do so, as the Department is being run at the Classes III and IV level through Daily Wagers on payment of meagre wages.

The position in law, as regards the regularisation of Daily Wagers/Muster Roll employees, is settled, according to which there cannot be regularisation of their service unless there are posts/vacancies. It is not necessary to cite all the cases in this connection and it will be sufficient to refer to Ashwani Kumar v. State of Bihar, (1997-II-LLJ-856) only, wherein the Supreme Court has i laid down that service of the Daily Wagers cannot be regularised unless the posts/vacancies are available for their absorption. But in the present cases the issue is not simply that of regularisation of service of the Daily Wagers. The real question I is whether the Government can run its Department primarily by Daily wagers/Muster Roll employees at Classes HI and IV level without giving them job security and without paying them the wages/salary equivalent to that which is paid to the regular employees belonging to those Classes. Inter-linked with this question is the question as to whether employment of persons for considerably long time on meagre wages without regularising their service is unfair, arbitrary and unreasonable. The answer of the respondents to these questions is simple namely, there are not many posts/vacancies available for regularisation of service of Daily Wagers and the Government has no funds for creating extra regular or supernumerary posts for their absorption/regularisation. However, it is not the case of the respondents that the appointments of the petitioners were void or illegal. The petitioners were appointed as per normal practice prevailing at the time of their appointments.

Articles 14 and 16 of the Constitution guarantees equality before the law and the equal protection of the laws. Supreme Court in E.P. Royappa Vs. State of Tamil Nadu and Another, has laid down that :

"equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one appeals to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is "inequal both according to political logic and constitutional law and therefore violative of Article 14".

In Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, Supreme Court has reiterated the same rule holding as under (Para 56) :

"Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in confirmity with Article 14. It must be right and just and fair and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied."

Articles 14 and 16 ensure fairness, reasonableness and non-arbitrariness in the Government actions. Article 38 of the Constitution places legal obligation on the State to strive to promote the welfare of the people by securing and protecting "social order in which justice, social, economic and political shall inform all the institutions of the national life". The State is also required to minimise the inequalities in income and status. Article 30 mandates the State to ensure that all citizens have the right to an adequate means of livelihood and there is equal pay for equal work for both men and women. Article 39A has provided that the State shall secure that the operation of the legal system promotes justice on a basis of equal opportunity. Article 41 ensures right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement. The Supreme Court in paragraphs 4 and 5 of its judgment in Indra Sawhney etc. etc Vs. Union of India and others, etc. etc., has, in this connection, laid down as follows (Paras 4 and 5) :

"The doctrine of equality has many facets. It is a dynamic, and an evolving concept. Its main facets, relevant to Indian Society, have been referred to in the preamble and the articles under the sub-heading "Right to equality"--(Articles 14 to 18). In short, the goal is "equality of status and of opportunity". Articles 14 to 18 must be understood not merely with reference to what they say but also in the light of the several articles in Part IV (Directive Principles of State Policy). "Justice, Social, Economic and Political" is the sum total of the aspirations incorporated in para IV.

Article 14 enjoins upon the State not to deny to any person "equality before the law" or "equal protection of the laws" within the territory of India, xx xx xx xx xx The content and sweep of these two concepts is not the same though there may be much in common. The content of the expression "equality before the law" is illustrated not only by Articles 15 and 16 but also by the several Articles in part IV, in particular, Articles 38, 39, 39A and 46. Among others, the concept of equality before the law contemplates minimising the inequalities in income and eliminating the inequalities in status, facilities and opportunities not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations, securing adequate means of livelihood to its citizens".

The Government works through its servants whose conditions of service including pay scale are regulated by it by statutory Rules and/or by administrative orders subject to Articles 14 and 16 of the Constitution. The strength of the service in the Government Department is fixed and is also increased according to the requirement of work. In the present case the strength of Classes III and IV in the Forest Department has been fixed long ago and does not appear to have been increased and the Department has undertaken various Schemes, It appears that all the Schemes are not of permanent nature, but the Daily Wagers have not been appointed Scheme wise. They have been employed by the Forest Department and if a Scheme has been completed or abandoned they have been transferred to other Schemes. It is obligatory for the Government to pay salary to its employees according to prescribed pay scales. It is not open to it to pay them less than what has been fixed. The Daily Wagers are appointed to meet the unexpected or temporary increased work load. No such appointment can be made when the need is permanent or semi-permanent to last for long period except for a short period by way of interim arrangement. The Government cannot take advantage of prevailing unemployment in the society by employing Daily Wagers even when the need is of permanent or semi-permanent nature. To meet such needs regular appointments are required to be made. The fact that Daily Wagers are working for considerably long time, in some cases even for more than 20 years, demonstrates that the requirement of the additional hands in the Department was of permanent or semi-permanent nature and the Government in such situation should have taken steps for making regular appointments. But that has not been done. Instead Daily Wagers have been appointed who are working on meagre wages. May be that through this method the Government can employ persons on meagre wages, but such a course is not permissible in view of the underlying principle contained in Articles 14 and 16 of the Constitution.

The observations made above are based on the data relating to Bundelkhand Division, supplied by the petitioners. There is no material on the record as regards other Circles /Divisions in the State. As we are relegating the matter to the Government it is to consider the whole issue after collecting necessary materials from all the Divisions/Circles of the State.

In this connection reference may also be made to the Industrial Disputes Act, 1947 (herein after referred to as ''the Act''), Section 2(ra) of which has defined "unfair labour practice" as under :

"2 (ra), "unfair labour practice" means any of the practices specified in the Fifth Schedule;"

Serial No. 10 of "unfair labour practice" contained in Fifth Schedule appended to the Act, being relevant, in this connection, is reproduced below:

"10. To employ workmen as "badlies", casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen."

By the said provision employment of persons as Badlies, casual or temporary for years has been declared to be "unfair labour practice". Almost similar definition of "unfair labour practice", contained in Maharashtra Act came up for consideration in Chief Conservator of Forests and another, Vs. Jagannath Maruti Kondhare, etc. etc., wherein the Supreme Court affirmed the decision of Industrial Court holding that employment of the employees on casual or temporary basis for several years (5 to 6 years is that case) amounts to unfair labour practice. The Supreme Court also rejected the Government''s plea about its inability to regularise the service of Daily Wagers on account of paucity of funds holding as under :

"28. In so far as the financial strain on state exchequer is concerned, which submissions sought to be buttressed by Shri Dholakia by stating that in the Forests Department itself the casual employees are about 1.4 lacs and if all of them were to be regularised and paid at the rate applicable to permanent workmen, the financial involvement would be in the neighbourhood of Rs. 300 crores a very high figure indeed. We have not felt inclined to bear in mind this contention of Shri Dholakia as the same has been brought out almost from the hat. The argument relating to financial burden is one of despair or in terrorem. We have neither been impressed by the first nor frightened by the second, inasmuch as we do not intend that the view to be taken by us in these appeals should apply, proprio vigore, to all casual labourers of the Forest Department or any other Department of the Government.

We wish to say further that if Shri Bhandare''s submission is taken to its logical end, the justification for paying even minimum wages could wither away, leaving any employer, not to speak of model employer like the State, to exploit unemployed persons. To be fair to Shri Bhandare it may, however, be stated that the learned counsel did not extend his submission this far, but we find it difficult to limit the submission of Shri Bhandare to payment of, any fair wages, as distinguished from minimum wages. We have said so because if a pay scale has been provided for permanent workmen that has been done by the State Government keeping in view its legal obligation and must be due which had been recommended by the State Pay Commission and accepted by the Government. We cannot deny this relief of permanency to the respondents-workmen only because in that case they would be required to be paid wages meant for permanent workers. This right flows automatically from the relief of regularisation to which no objection can reasonably be taken, as already pointed out, We would, however, observe that the relief made available to the respondents is not one which would be available ipso facto to all the casual employees either of the Forest Department or any other Department of the State. Claim of casual employees for permanency or for higher pay shall have to be decided on the merits of their own cases."

In the aforesaid case the Supreme Court held that Forest Department is an industry and casual/ daily wagers are workmen under the Act.

In pursuance of the directions issued by this Court pending these cases the Government of U. P. has submitted more than one scheme for regularisation of the petitioners, but those Schemes hardly contain any hope for their regularisation. It has been stated therein that the petitioners can be considered for regularisation against available; vacancies after amending service rules. Available vacancies being few no substantial help can be expected from them. That apart, the Government while framing those Schemes has not applied its mind to the questions dealt with hereinabove. These are aspects which are to be considered by the Government before framing Scheme for absorption of the petitioners. In the present case the appropriate pleadings are also not there, so as to declare the employment of the petitioners as daily wager for considerably long period as "unfair labour practice". We, are, therefore, not expressing any final opinion on this question also. The questions dealt with hereinabove are to be considered and decided by the Government before framing the Scheme for regularisation/absorption of the petitioners and other similarly placed employees.

As regards the second submission advanced by the learned counsel for the petitioners it may be noted that the Writ Petition No. 15627 of 1988 was filed by an Association known as Kumaun Van Shramik Sangh Centre and a daily wager seeking writ of mandamus directing the respondents therein namely, State of U. P. Secretary, Forest Department, Lucknow and Additional Chief Conservator of Forest Kumaun at Nainital to frame the Scheme and to pay the petitioner No. 2, and other similarly placed ; employees the wages at the rates equivalent to minimum pay in the pay scales of the regularly employed workers in the corresponding cadres. The learned Judge while allowing the writ petition did not confine his judgment to the petitioners , members only but issued general directions to the respondents therein for payment of wages/salary and for framing the Scheme for regularisation. Relevant extract of the judgment of learned Judge, is reproduced below:

"..... but the petitioners have certainly made out a case for issuance of a direction to the respondents to pay to the petitioner No. 2 and other similarly circumstanced Daily Rated labourers/workers under the control of the respondents, the wages at the rates equivalent to the minimum pay in the pay scales of the regularly employed workers in the corresponding cadres, but without any increments with effect from August 19, 1988 on which date the writ petition was filed in this Court together with corresponding dearness allowances and additional dearness allowances, if any, payable thereon, with a further direction to the respondents to frame a scheme within a period of six months from the date of presentation of a certified copy of this order before the Secretary, Forest Department, Government of Uttar Pradesh and the Chief Conservator of Forest Department, U. P. Lucknow."

The submission of the learned Additional Advocate General to the effect that the directions given by this Court in the case of Kumaun Van Shramik Sangh Centre v. State of U. P. (supra) should be confined to the members of that Association, cannot be accepted for another reason, viz. it is not open to the Government to pay different pay scales and give different treatment to the similarly placed employees working in the State unless there is plausible justification for such a treatment. In the instant case no such justification has been demonstrated by the respondents. Therefore, benefits of the said judgment of the learned Judge have to go to at! the Daily Wagers/Muster Roil employees. It is admitted by the respondents that the pay at the rate as directed by the learned Judge in the said case, is being paid to those Daily Wagers who are members of Kumaun Van Shramik Sangh Centre and such payment is not being made to any other daily wager working anywhere in the State including in Kumaun hills. It is also admitted that the Scheme as directed by the learned Judge has not been framed by the Government so far. The judgment of the learned Judge is binding on the Government and its functionaries. They are, therefore, bound to pay in terms of the said judgment to every daily rated labourer/muster roll employee and the Government is also bound to frame Scheme for regularisation of their service.

As we are sending back these cases to the Government for consideration of all the questions, it is not necessary to deal with the third point raised by the learned counsel for the petitioners.

For the reasons given above, these writ petitions and the Appeals are partly allowed. The judgments impugned in the Appeals are set aside. The Government of U. P. is directed to appoint a Committee consisting of Secretaries of Finance and Forest Departments and the Legal Remembrancer or their nominees within a month of production of certified copy of this judgment before the Secretary, Forest Department, Uttar Pradesh. The Committee so appointed will consider the question of framing Scheme for regularisation/absorption of the petitioners and other similarly placed employees working in the Forest Department and the Schemes undertaken by the said Department. The Committee will pass speaking order and will submit its report within a period of three months of the date of its constitution by the Government. It will be open to the Association Union of the petitioners to make representation containing all their grievances in this regard before the Committee and if such a representation is made the same shall also be decided by speaking order by the said Committee within the same time specified above. The Government will thereafter pass appropriate order taking into consideration the report of the Committee and material available on the record, within one month of the receipt of the report of the Committee. The whole exercise by the Committee as well as by the Government should be completed within six months from the date of production of certified copy of this judgment before the Government. Till then the parties shall maintain status quo.