Research › Search › Judgment

Allahabad High Court · body

2002 DIGILAW 1268 (ALL)

Manoj Kumar v. State Of U. P.

2002-09-13

A.K.YOG

body2002
JUDGMENT : - A.K.Yog 1. HEARD Sri Arun Kumar, advocate, for the petitioners and learned standing counsel, on behalf of the respondent No. 1 and Sri B. Dayal, advocate, on behalf of respondent No. 2. 2. MANOJ Kumar and five others have filed this writ petition under Article 226, Constitution of India before this Court against impugned order dated 12.3.1999 passed by Secretary (Awas) Government of U. P. rejecting proposal sent by the Meerut Development Authority (called the M.D.A.) for approving creation of six posts of Horticulture Inspector in the M.D.A. and also regularisation of the petitioners, who possessed graduate degrees in Agriculture and fully qualified for holding the post of Horticulture Inspector and were working as daily wager since 1990-91. The petitioners also prayed that their services be not dispensed with or determined during the pendency of the writ petition and further direction be given to the respondents to pay arrears of salary and to continue to pay future salary as per prescribed pay scale for sanctioned post of Horticulture Inspector along with consequential benefits etc. Petitioners submitted that their working has been up to the mark and there was no complaint on that score. At the time of filing present writ petition in this Court passed order dated 12.4.1999 : "Mr. K. R. Singh appears on behalf of respondent No. 1 Mr. B. Dayal appears on behalf of respondent No. 2. They may file counter-affidavits within 4 weeks. Rejoinder affidavit may be filed within two weeks. List on 24th May peremptorily. There shall be an order of status quo with regard to the service of the petitioner till 28th of May, 1999." 3. A statement has been made by the learned counsel for the petitioners that petitioners are still working in the M.D.A. and paid their wages. It will be recalled that U. P. Urban Planning Development Act, 1973 (for short called the Act, 1973) was enacted and development authorities were created in certain towns. 4. MEERUT Development Authority was constituted, under the aforesaid Act on 29.8.1977 under Section 3 of the Act, 1973. Section 5 of the Act reads : "5. It will be recalled that U. P. Urban Planning Development Act, 1973 (for short called the Act, 1973) was enacted and development authorities were created in certain towns. 4. MEERUT Development Authority was constituted, under the aforesaid Act on 29.8.1977 under Section 3 of the Act, 1973. Section 5 of the Act reads : "5. Staff of the Authority.-(1) The State Government may appoint two suitable persons respectively as the Secretary and the Chief Accounts Officer of the authority who shall exercise such powers and perform such duties as may be prescribed by regulations or delegated to them by the authority or its Vice Chairman. (2) Subject to such control and restrictions as may be determined by general or special order of the State Government, the authority may appoint such number of other officers and employees as may be necessary for the efficient performance of its functions and may determine their designations and grades. (3) The Secretary, the Chief Accounts Officer and other officers and employees of the authority shall be entitled to receive from the funds of the authority such salaries and allowances and shall be governed by such other conditions of service as may be determined by regulations made in that behalf." Section 5A of the Act, 1973, contemplates Centralised Services to be created by the State Government and U. P. Development Authorities Centralised Service Rules, 1985, were framed in exercise of the powers conferred under Section 55 of the Act, 1973. 5. RULE 3 provides for cadre and strength as well as categories of the post constituting a Centralised Service in the Development Authorities and the same included post of Udyan Adhikshak and Udyan Nirikshak (category 'Kha' outside the purview of the U. P. Public Service Commission requiring graduate in Agriculture as minimum qualification). The centralised service did contemplate that in the Horticulture department of the development authorities, there shall be inclusion of Horticulture Officer, Technical Horticulture Supervisor/Assistant Horticulture Inspector and Horticulture Inspector. 6. DEVELOPMENT authorities were put under statutory obligation to develop parks, etc. and hand over to the Nagar Nigam for future maintenance including beautification and environmental plans. The centralised service did contemplate that in the Horticulture department of the development authorities, there shall be inclusion of Horticulture Officer, Technical Horticulture Supervisor/Assistant Horticulture Inspector and Horticulture Inspector. 6. DEVELOPMENT authorities were put under statutory obligation to develop parks, etc. and hand over to the Nagar Nigam for future maintenance including beautification and environmental plans. M.D.A. vide its meeting held on July, 16, 1990, resolved to create post of Horticulture Officer, six posts of the Technical Horticulture Supervisors/Assistant Horticulture Inspectors and one post of Horticulture Inspector apart from other posts and sent its proposal to the Government vide letter No. 885/F/ Authority-91 dated 19.12.1991 for approval/Annexure-4 to the writ petition. The said decision was taken by the M.D.A. in 1990 in view of the fact that only one sanctioned post of Horticulture Inspector was, inadequate to meet the need of expanding town like Meerut in the vicinity of the national capital and within the national capital region. 7. IT appears M.D.A., in anticipation of requisite sanction from the Government to its proposal for creation of new posts of Horticulture Inspectors, appointed petitioners on the basis of their availability and considering their academic qualification. Details of the petitioners, in this respect, are given in Annexure-5 to the writ petition. 8. PETITIONERS were initially engaged as daily wagers on amount of Rs. 30 per day. Even petitioners were required to work on all 7 days of the week without holidays. Amount of wages were revised on the request of the petitioners w.e.f. 1.2.1991 to Rs. 1,275 on a consolidated salary, per month/Annexure-6 to the writ petition. In para 17 of the writ petition it is contended that petitioner Nos. 1 and 2 are working continuously for more than eight years and that petitioner Nos. 3, 4, 5 and 6 are working for more than 7 years continuously without break (Annexure-7 to the writ petition). 9. IT is also mentioned in para 18 of the writ petition, that petitioners were being paid Rs. 94.39 per day after deducting the holidays and their absence, if any, whereas revised pay-scale of Horticulture Inspector, at the relevant time, was in the pay-scale of Rs. 3,200-4,900. 10. 9. IT is also mentioned in para 18 of the writ petition, that petitioners were being paid Rs. 94.39 per day after deducting the holidays and their absence, if any, whereas revised pay-scale of Horticulture Inspector, at the relevant time, was in the pay-scale of Rs. 3,200-4,900. 10. PETITIONERS further stated vide para 23 of the writ petition that, at the time of the filing of the writ petition, there were 12 residential schemes, 335 parks, road-sides, 3 plantation schemes and beautification of the city, which require 12 regular Horticulture Inspectors as per report of the Deputy Secretary, dated 13.5.1998/ Annexure-9 to the writ petition. Vide para 27 of the writ petition it is contended that in the past one Sri Virendra Kumar who was appointed as Horticulture Inspector on daily wages had subsequently been regularised in the year 1994. 11. AVERMENTS contained the writ petition to the above effect have not been controverted or disputed. 12. PETITIONERS made detailed representation claiming regularisation on 10.3.1998/Annexure-11 to the writ petition which was rejected by the Vice-Chairman of the M.D.A., vide impugned order dated 6.5.1998/ Annexure-12 to the writ petition. Feeling aggrieved petitioners filed Writ Petition No. 27740 of 1998 which was finally disposed of with the direction to the State Government to consider question of sanctioning requisite posts keeping in mind that State Government itself formulated several schemes for beautification of the city, within four months (writ para 39). The Vice Chairman in compliance of the aforesaid order referred the matter to the Secretary, Avas Vibhag, U. P., Lucknow vide letter dated 18.11.1998/Annexure-13 to the writ petition. The State Government sent letter dated 14.12.1998 requiring more information which was sent to it vide letter dated 29.12.1998 sent by Vice-Chairman, M.D.A./Annexure-15 to the writ petition. 13. IT appears that some other persons who were working as Horticulture Supervisors were not qualified at the time of filing of the Writ Petition No. 27740 of 1998 and the State Government further sought clarification/information. The Vice Chairman, M.D.A. submitted full information as required/Annexure-18 to the writ petition. 14. THE State Government vide order dated 12.3.1999, however, rejected the request made by the M.D.A. for creation of six posts of Horticulture Inspector/Annexure-19 to the writ petition. The Vice Chairman, M.D.A. submitted full information as required/Annexure-18 to the writ petition. 14. THE State Government vide order dated 12.3.1999, however, rejected the request made by the M.D.A. for creation of six posts of Horticulture Inspector/Annexure-19 to the writ petition. A perusal of the Annexure-19 to the writ petition would show that proposal made by the M.D.A. for creation of the posts of Horticulture Inspectors had been refused on the ground that financial position of the M.D.A. was at decline. There is no finding in the impugned order or material before this Court to show that the M.D.A. was not financially sound otherwise to bear the burden or by no means income of the M.D.A. can be improved. Reasons contained in the impugned order for rejecting the proposal of the M.D.A. for sanctioning six posts of Horticulture Inspectors cannot be said to be directly relevant, the grounds given in the impugned order at best show that financial health of M.D.A. was at decline, but by no stretch of imagination it can be inferred that M.D.A. was financially bankrupt or insolvent. 15. THIS Court cannot ignore importance of maintenance of parks beautification of towns, maintenance of green belts, including social forest activities required under social forestry, etc, particularly in fast growing towns wherein population is becoming dense and dense day-by-day. The importance of parks and play grounds has been recognised by the Legislatures of the State itself by enacting U. P. Park and Play Grounds Protection and Maintenance Act way back in the year 1975 (though notified to commence after a decade). It may be by inaction on the part of the Government in not enacting the provisions of the Act which has itself completely frustrated the object of the aforesaid Act being promulgated and the loss done to the society cannot be measured. 16. THE development authorities including M.D.A. created under the Act, 1973, were vested with jurisdiction and authority for planning a town and required construction therein and before entering into construction activities they are to plan as to how parks etc are to be developed which are essence of healthy life as contemplated and ensured under Article 21, Constitution of India. 16. THE development authorities including M.D.A. created under the Act, 1973, were vested with jurisdiction and authority for planning a town and required construction therein and before entering into construction activities they are to plan as to how parks etc are to be developed which are essence of healthy life as contemplated and ensured under Article 21, Constitution of India. The Apex Court in the case of Gujarat Agricultural University v. Rathod Labhu Bechar and others, 2001 (1) AWC 2.3 (SC) (NOC) B : (2001) 1 UPLBEC 834, held that : "The appellant is an educational institution fully aided by the State Government and is engaged in the educational activities in agriculture and allied sciences and humanity and is also prosecuting research in agriculture and other allied science. It performs its duties and functions under the statutory provisions and in doing so, it engages daily rated labourers for various activities. According to the appellant these labourers are being paid their wages as per the minimum wages fixed by the State Government from time to time under the Minimum Wages Act. They were engaged due to exigencies of work, without considering relevant factors about their educational qualification, age limit and other relevant requirements for the purpose of regular appointment under the recruitment rules. There are different agricultural research centres at different places with different projects and these daily rated workers are unskilled, semi-skilled and skilled labourers of different categories. Since the university is grant-in-aid institution fully funded by the State Government, it requires prior permission/sanction of the State Government for appointment of its employees. In fact, all the posts are sanctioned by the State Government and thereafter they are filled by the university, as per the recruitment rules. The present case pertains to daily wage workers who are plumbers, carpenters, sweepers, pump operators, helpers and masons etc. According to the appellant, no post are sanctioned for them and hence they are working on daily rated basis. Thus, their appointments are on irregular basis and not in accordance with the recruitment rules ................... We heard learned counsel for the parties at length and considered the objections of the respondents with respect to the proposed scheme for the regularisation of daily rated workers. The opposed scheme is reproduced below : "Scheme for regularisation of daily rated labourers of the Gujarat Agricultural University. We heard learned counsel for the parties at length and considered the objections of the respondents with respect to the proposed scheme for the regularisation of daily rated workers. The opposed scheme is reproduced below : "Scheme for regularisation of daily rated labourers of the Gujarat Agricultural University. (1) Daily wages workers, whether skilled, semi-skilled or unskilled, who have completed 10 years or more of continuous service with a minimum of 240 days in each calendar year as on 31.12.1999, shall be regularised as regular employees with effect from 1.1.2000 and shall be put in the time scale of pay applicable to the corresponding lowest grade in the university subject to the following terms and conditions : (a) The daily rated employees shall be eligible and must possess the prescribed qualifications for the post at the time of their appointment on daily rated basis. (b) Daily wages employees shall be regularised in a phased manner to the extent of available regular sanctioned posts/ vacancies on the date of regularisation and on the basis of seniority-cum-suitability including physical fitness. (c) The work and conduct of such employees should have been of overall good category and satisfactory and no disciplinary proceedings are pending against them. (d) The regularisation will be against the posts/ vacancies of the relevant categories only ..........." From the aforesaid, it emerges that the learned single Judge had concurred with the finding of the Tribunal that contesting workmen have been working in the appellant university regularly for a long number of years. The existence of permanent nature of work was inferred on this account and also due to the vastness of appellant-establishment. The regularisation is claimed only in respect of Class IV employees. The main objection, which was raised earlier before us is that a person could only be regularised on any vacant post and if there be one he should be qualified for the same as per qualification, if any, prescribed. In fact, the Tribunal has held on the date of the Award, most of the workmen had completed 10 years of their service. It is also well-settled, if work is taken by the employer continuously from daily wage workers for a long number of years without considering their regularisation for its financial gain as against employees' legitimate claim, has been held by this Court repeatedly as an unfair labour practice. It is also well-settled, if work is taken by the employer continuously from daily wage workers for a long number of years without considering their regularisation for its financial gain as against employees' legitimate claim, has been held by this Court repeatedly as an unfair labour practice. In fact, taking work, from daily wage worker or ad hoc appointee is always viewed to be only for a short period or as a stop-gap arrangement, but we find new culture is growing to continue with it for a long time, either for financial gain or for controlling its workers more effectively with Sword of Damocles hanging over their head or to continue with favoured one in the cases of ad hoc employee stalling competent and legitimate claimants. Thus, we have no hesitation to denounce this practice. If the work is of such a nature, which has to be taken continuously and in any case when this pattern becomes apparent, when they continue to work for year after year, only option to the employer is to regularise them. Financial viability no doubt is one of the considerations but then such enterprise or institution should not spread its arms longer than its means. The consequent corollary is, where work is taken not for a short period or limited for a season or where work is not of part time nature and if pattern shows work is to be taken continuously year after year there is no justification to keep such persons hanging as daily rated workers. In such situation a legal obligation is cast on an employer, if there be vacant post to fill it up with such workers in accordance with rules if any and where necessary by relaxing the qualifications, where long experience could be equitable with such qualifications. If no post exists then duty is cast to assess the quantum of such work and create such equivalent post for their absorption. ......................... What emerges is, all the respondent-workmen are eligible for absorption on the facts of this case subject to any eligible qualification under the rule if any. Though no recruitment rules were filed in the proceedings either before the Tribunal or in the High Court but while proposing the scheme a copy of the recruitment rules for various cadres have been placed before us on behalf of the appellant-university. Though no recruitment rules were filed in the proceedings either before the Tribunal or in the High Court but while proposing the scheme a copy of the recruitment rules for various cadres have been placed before us on behalf of the appellant-university. This gives in column No. 1 the serial No., in column No. 2 the name of the post, in column No. 3 the pay scale, in column No. 4 the age limit and in column No. 5 the qualification. serial No. 10 deals with peon and Class IV servants, serial No. 13 deals with operator-cum-mechanic, serial No. 14 deals with chowkidar serial No. 25 deals with plumber and serial No. 33 deals with carpenter. This shows that recruitment rules did have these posts in its ambit about which we are concerned, yet no posts were created. This proposed creation of post is churned out only after his long battle by the workmen as against the appellant. It was not expected from the institutions like the present appellant, especially when it is fully funded by the State Government that this process of absorption should have taken such a long time and to have yielded to it only after this long battle. This legal position is well known not only to the appellant but the State who is funding it, then why to do it only after Court's intervention. It is true, creation of post does involve financial implication. Hence, financial health of a particular institution plays important role, which Courts also keep in mind. The Court does exercise its restraint to where facts are such where extent of creation of post creates financial disability. But at this juncture we would like to express our note of caution, that this does not give largess to an institution to engage larger number of daily wage workers for long number of years without absorbing them or creating posts which constitutes an unfair labour practice. If finances are short engagement of such daily wage workers could only be for a short limited period and if continuous work is required, it could only do so by creating permanent post. If finances are not available, take such work which is within financial mean. Why take advantage out of it at the cost of workers. .......................... If finances are short engagement of such daily wage workers could only be for a short limited period and if continuous work is required, it could only do so by creating permanent post. If finances are not available, take such work which is within financial mean. Why take advantage out of it at the cost of workers. .......................... In Bhagwati Prasad v. Delhi State Mineral Development Corporation, JT 1989 (4) SC 541 : 1990 (1) SCC 361 , this Court observed : "The main controversy centres round the question whether some petitioners are possessed of the requisite qualifications to hold the posts so as to entitle them to be confirmed in the respective posts held by them. The indisputable facts are that the petitioners were appointed between the period 1983 and 1986 ever since, they have been working and have gained sufficient experience in the actual discharge of duties attached to the posts held by them. Practical experience would always aid the person to effectively discharge the duties and it is sure guide to assess the suitability. The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial entry into the service. Once the appointments were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualifications." Thus, in view of their long experience on the fact of this case and for the concerned posts the prescribed qualification, if any, should not come in the way of their regularisation. Clause 1 (b) provides for the regularisation of daily wagers in a phased manner to the extent of available sanctioned post. 17. Clause 1 (b) provides for the regularisation of daily wagers in a phased manner to the extent of available sanctioned post. 17. IN the aforesaid case, the Apex Court observed that if persons are being engaged to work for long period and also being paid their salary, they have to be treated as regular employees in as much as their long continuance in service will be an enough circumstance to draw an inference of existence of posts and the excuse of paucity of fund will not justify the stand of an employer (like the State Government or any other instrumentality of the State Government) in as much as fact that such employees are being paid their wages will nullify such a ground. 18. IN the instant case, petitioners worked for about 8 to 9 years because M.D.A. engaged them on its own, in anticipation of posts being sanctioned by the State Government and thereafter since 1999 under interim order of this Court as noted above. The de facto position, which poised down in the aforementioned circumstances is that petitioners are actually working in M.D.A. and being paid their wages. It is not relevant that what is being paid to the petitioners being in terms of wages and not as salary. The State Government would have been well advised to find out viable means to strengthen financial position of the M.D.A. by curtailing avoidable expenditure or cutting down expenditure on some other heads which were not so urgent looking to the responsibility of the M.D.A. to maintain parks, plantation, beautification, maintenance of green belts, etc in the town. 19. CONSEQUENTLY the impugned order dated 12.3.1999 passed by the respondent No. 1 Annexure-19 to the writ petition, not being based on rationale cannot be sustained and it is hereby quashed with direction to reconsider the matter in accordance with law, keeping in mind the importance of environmental object plantation, maintenance and development of parks as essential. The State Government will be better advised to take decision within three months of receipt of certified copy of this order regarding sanctioning of posts of Horticulture Inspectors keeping in mind the quantum of work load only since development of parks etc is to be given top priority by the development authorities and all other schemes comes next to it. In case finance is a consideration, expenditure be curtailed on other heads. 20. In case finance is a consideration, expenditure be curtailed on other heads. 20. IT is made clear that until decision is taken by the State Government as directed above, petitioners shall continue in service and paid their remuneration as they were directed under interim order of this Court. The writ petition stands allowed. No order as to costs.