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Uttarakhand High Court · body

2009 DIGILAW 337 (UTT)

Chandra Shekhar Joshi v. State of Uttarakhand

2009-06-30

V.K.BIST

body2009
Hon’ble V.K. Bist, J. 1. Heard learned counsel for the parties. This petition has been filed by the petitioner for following reliefs :- “(I) Issue a writ order or direction in the nature of Certiorari for quashing the impugned order dated 28.05.2007 (Annexure-8) passed by respondent no. 2. (II) Issue a writ order or direction in the nature of mandamus commanding and directing the respondents to grant minimum pay scale of Draftsman to the petitioner as per the direction of the Hon’ble Apex Court in the case of State of U.P. Vs. Putti Lal. (III) Issue any other order of direction, which this Hon’ble Court may deem fit and proper under the circumstances of the case. (IV) Award cost of the petition in favour of the petitioner.” 2. Brief facts of the case are that the petitioner was appointed on the post of Draftsman in the office of Divisional Forest Officer, Soil Conservation Forest Division Nainital on daily wage basis with effect from 19.05.1990. He was permitted to work continuously for several years until he demanded the salary of regular employee on the Principle of Equal Pay for Equal Work in the year 1996 but he was stopped from performing his duties. 3. Aggrieved by the action of respondents the petitioner alongwith another employee filed Writ Petition No. 34729 of 1996 before the Allahabad High Court in which following order was passed:- “Meanwhile, the petitioners shall be permitted to discharge their duties as draftsman and will also be entitled to their salaries.” 4. The respondents filed a Special Appeal No. 474 of 1997 challenging interim order dated 31.10.1996. Same was dismissed on 20.10.1997 as barred by limitation. Thereafter all identical writ petitions including writ petition no. 34729 of 1996 were connected with Special Appeal No. 653 of 1993 and were decided by a common judgment dated 10.12.1997. By this judgment the Government of U.P. was directed to appoint a committee consisting all Secretaries of Finance and Forest Departments and the Legal Remembrancer or their nominees within a month of production of certified copy of the judgment before the Secretary Forest Department, U.P. The committee was directed to consider the question of framing Schemes for regularization/absorption of the petitioners and other similarly placed employees working in the Forest Department and the Schemes undertaken by the said department. The committee was further directed to pass speaking order and submit report within a period of three months from the date of its constitution by the Government. 5. Thereafter the Government was directed to 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 committee as well as Government were further directed to complete whole exercise within a period of six months from the date of production of certified copy of the judgment before the Government. Till then the parties were further directed to maintain status quo. The judgment and order dated 10.12.1997 passed in Special Appeal No. 653 of 1995 was challenged by the State Government before the Hon’ble Apex Court which was numbered as Civil Appeal No. 3634 of 1998. This appeal was decided on 21.02.2002 in which the Hon’ble Apex Court issued a direction to the State Government to pay the minimum of the pay scale to the daily wagers as is available to their counter part in the Government until their services were regularized. Operative portion of the order passed in SLP (C) Nos. 17633-17638/99, 11258/2000 and C.A. Nos. 1982/2000 and 1671-1682/1997 is being quoted below: - “So far as the State of Uttaranchal is concerned, a scheme for regularization of daily workers has been produced before us which, prima facie, does not appear to be objectionable excepting the provision regarding qualification essential for being regularized would be the qualification as was relevant on the date a particular employee was taken in as a daily wager and not the qualification which is being fixed under the scheme. The fact that the employees have been allowed to continue for so many year indicates the existence or the necessity for having such post. But still it would not be open for the court to indicate as to how many posts would be created for the absorption of these daily wages workers. Needless to mention that the Appropriate Authority will consider the case of these daily wagers sympathetically who have discharged the duties for all these years to the satisfaction of their Authority concerned. But still it would not be open for the court to indicate as to how many posts would be created for the absorption of these daily wages workers. Needless to mention that the Appropriate Authority will consider the case of these daily wagers sympathetically who have discharged the duties for all these years to the satisfaction of their Authority concerned. So far as the salary is concerned, as we have stated in the case of State of Uttar Pradesh, a daily wager in the State of Uttaranchal would be also entitled to the minimum of the pay scale as is available to his counter part in the Government until his services are regularized and he is given regular scale of pay. The Civil Appeals and the special leave petitions Stand disposed of accordingly.” 6. After the aforesaid judgment, the Chief Conservator of Forest Kumaon, Nainital issued an order on 10/11-10-2002 to the Divisional Forest Officer, Nainital asking him to make payment Rs. 2550/- per month as minimum of pay scale to daily wage employees. The petitioner was also given the minimum amount which is the pay scale of Class IV employee though the petitioner was working on the post of Draftsman which is Class III post for which minimum of pay scale was Rs. 4,000/- per month. When the petitioner was not paid the pay scale, which is admissible to the Draftsman then he filed a writ petition along with another employee bearing No. 1740 (SB) of 2002 before this Court for issuing a direction to the respondents for making payment to the petitioner minimum of the pay scale of Class III employees. On 11.12.2002 an order was passed in Writ Petition No. 1740 (SB) of 2002 which is quoted below:- “In the meanwhile, the petitioner shall be paid minimum of pay scale of draftsman.” 7. But the said order was not complied by the respondents. On 10.12.2003, learned Single Judge of this Court made the following reference for the opinion of Full Bench: - “(a) Whether in view of the judgment in the case of State of U.P. Vs. Putti Lal [(1998) 1 UPLBEC 313] daily wagers are entitled for ‘minimum pay’? (b) Whether the daily wagers as held by the Apex Court in the case State of Haryana Vs. Putti Lal [(1998) 1 UPLBEC 313] daily wagers are entitled for ‘minimum pay’? (b) Whether the daily wagers as held by the Apex Court in the case State of Haryana Vs. Tilak Raj, 203 AIR SCW 3382 are entitled to minimum wages admissible to such workmen as prescribed and not the minimum in the pay scale applicable to similar employees in regular service? 8. These questions were returned unanswered as according to the opinion of Full Bench questions mentioned in reference order did not arise for consideration and decision. However, the Full Bench observed that the only question in the writ petition was whether the petitioners were engaged as draftsman, which is stated to be a Class III post. In its order, the Full Bench kept it open for the petitioners to produce original of the certificates regarding engagement of the petitioners as draftsman. It was also kept open to the respondents to verify and report the genuineness of the certificates from the Officer/Officers who issued them. The learned Single Judge was also requested to decide the writ petition on the basis of such further materials to be placed on record. The order passed by the Full Bench is quoted below:- “Having heard learned counsel for the petitioners and the learned Additional Advocate General appearing for the respondents and having considered the materials placed on record, we are of the view that the two points mentioned in the Reference Order need not be considered and decided by the Full Bench. It cannot be disputed that the judgment in State of U.P. Vs. Putti Lal is binding on the respondents and the petitioners cannot be denied the benefit of the judgment rendered by the Supreme Court in their own case. In fact the respondents have not disputed their obligation to extend the benefit of the judgment to the petitioners. Their case is that the judgment has been implemented in the case of the petitioners. Thus, the first point mentioned in the Reference Order does not arise for consideration and decision. The second point also does not arise for consideration and decision in this case, because, the rights of the parties have already been finally settled and crystallized as per the judgment of the Supreme Court in State of U.P. Vs. Putti Lal. Thus, the first point mentioned in the Reference Order does not arise for consideration and decision. The second point also does not arise for consideration and decision in this case, because, the rights of the parties have already been finally settled and crystallized as per the judgment of the Supreme Court in State of U.P. Vs. Putti Lal. The only dispute in the writ petition is whether the petitioners were engaged as Draftsman, which is stated to be a Class III post. According to the petitioner, though they were engaged as a draftsman they are being paid only the minimum of the pay scale of class IV employees. According to the respondents, the first petitioner was engaged as a Clerk and he is being paid the minimum of pay scale applicable to Clerks and the second petitioner was engaged as Class IV employee and, therefore, he is being paid the minimum of the pay scale applicable to Class IV employees. In support of the claim of the petitioners that they were engaged as Draftsman, they have produced true copies of some certificates issued by some forest officer. The originals have not been produced. The respondents have doubted the genuineness of the certificates. In view of the respondents’ denial of the claim of the petitioners that they were engaged as Draftsman, it is open to the petitioners to produce the originals of the above-mentioned certificates. It is open to the respondents to verify and report the genuineness of the certificates from the Officer/Officers who issued them. On the basis of such further materials to be placed on record, the learned Single Judge himself can decide the writ petition. Hence, we decline to answer the reference and the case is remitted to the Single Bench.” 9. The Full Bench observed that the judgment in State of U.P. and others Vs. Putti Lal reported in [(1998) 1 UPLBEC 313] is binding on the respondents and the petitioners cannot be denied the benefit of the judgment rendered by the Supreme Court in their own case. 10. During the pendency of writ petition, the petitioner no. 1 died. The Full Bench observed that the judgment in State of U.P. and others Vs. Putti Lal reported in [(1998) 1 UPLBEC 313] is binding on the respondents and the petitioners cannot be denied the benefit of the judgment rendered by the Supreme Court in their own case. 10. During the pendency of writ petition, the petitioner no. 1 died. The writ petition No. 1740 (SB) of 2002 was finally decided on 19.04.2007 with the direction to Chief Conservator of Forest, Kuamon to take decision on the certificates issued by Forest Officer to the petitioner as Draftsman as genuine or not within a period of three months from the date of production of certified copy of the order. The operative portion of the order passed in writ petition no. 1740 (SB) of 2002 is quoted below:- “The petitioner may submit these documents before the competent authority, that is, Chief Conservator of Forest, Kumaon Region, who will take decision whether the certificates issue by Forest Officers are genuine or not and whether the petitioner no. 2 was appointed as Draftsman or not, within a period of three months from the date of production of a certified copy of this order.” 11. Thereafter the petitioner again approached the competent authority, the Chief Conservator of Forest, Kumaon who passed an order on 28.05.2007 rejecting the claim of the petitioner. The claim of the petitioner was rejected on two grounds; first, the appointment of the petitioner was not made on the post of Draftsman by the competent authority and secondly, in view of the judgment of Hon’ble Supreme Court in the case of State of Karnataka Vs. Uma Devi and others reported in [ (2006) 4 SCC 1 ] the petitioner being daily wager cannot be regularized on the post of Draftsman. However, in his order the Chief Conservator of Forest, Kumaon Region found that the certificates submitted by the petitioners were genuine and the same were issued by Sri Anupam Gupta and Smt. Rekha, the then Additional Forest Officer, Land Conservator of Forest Division, Nainital. Aggrieved by the order-dated 28.05.2007 (Annexure-8) passed by Chief Conservator of Forest, Kumaon, Nainital, the present writ petition has been filed. 12. Learned counsel for the petitioner Shri Gopal Narain submitted that the order dated 28.05.2007 passed by respondent no. 2 is illegal and unjustified order and is against the direction of this Court’s dated 19.04.2007. Aggrieved by the order-dated 28.05.2007 (Annexure-8) passed by Chief Conservator of Forest, Kumaon, Nainital, the present writ petition has been filed. 12. Learned counsel for the petitioner Shri Gopal Narain submitted that the order dated 28.05.2007 passed by respondent no. 2 is illegal and unjustified order and is against the direction of this Court’s dated 19.04.2007. According to the him the dispute of regularization has already been settled by the Hon’ble Supreme Court in the case of State of U.P. Versus Putti Lal and the petitioner is entitled to the benefit of that judgment. According to him the only question to be decided by the respondents was about the certificate issued by the respondents to the petitioner regarding his working on the post of Draftsman. He further argued that the judgment of Uma Devi is not applicable in the present case as the dispute had already been settled by the Hon’ble Supreme Court in Putti Lal’s case. 13. Mr. H.M. Raturi, learned Standing Counsel, on the other hand, argued that the petitioner was never appointed on the post of Draftsman in the office of respondent no. 4 and he was engaged on daily wage basis from time to time subject to availability of work and was paid for the same. In support of his argument he further submitted that in Soil Conservation Forest Division, Nainital only one post of Draftsman is sanctioned and already a draftsman was appointed against that post well before the petitioner was engaged as daily wager. He further argued that in view of the fact that the Draftsman is already working on the post, much before the petitioner’s engagement as daily wager, is sufficient to prove that the petitioner was not working on the post of draftsman. Learned Standing Counsel further argued that since the petitioner was never appointed on the post of draftsman by the competent authority nor any selection process was followed according to provisions of U.P. Forest Department Draftsman Service Rules, 1981 and the petitioner was engaged as daily wager in the department, the petitioner’s claim has rightly been rejected in the light of the judgment of Constitutional Bench of Apex Court in the case of State of Karnataka and others Vs. Uma Devi and others. 14. Uma Devi and others. 14. This Court vide order-dated 19.04.2007 passed in Writ Petition No. 1740 (SB) of 2002 directed the Chief Conservator of Forest, Kumaon Region to take decision whether the certificates issued by the Forest Officer regarding working of the petitioner as Draftsman was genuine and whether the petitioner was appointed as draftsman. The Chief Conservator of Forest, Kumaon in his order dated 28.05.2007 gave a finding that certificates issued to the petitioner by the officers were genuine, which clearly shows that the petitioner had worked and was working on the post of Draftsman. The Chief Conservator of Forest Kumaon Region in his order dated 28.05.2007 found that since the petitioner did not provide any certificate, which could prove that the petitioner was appointed by the competent authority as draftsman and concluded that the petitioner was not appointed on the post of draftsman by the competent authority. In view of this Court the Chief Conservator of Forest, Kumaon failed to appreciate that it was not the case of the petitioner that he was appointed on the post of draftsman by the competent authority. The case of the petitioner from the very beginning is that he was appointed on daily wage basis and was given work of Draftsman by the order of competent authority and since he was working on the post of Draftsman he was entitled for the pay scale of Draftsman as per direction issued by the Hon’ble Supreme Court in Putt Lal’s case. Thus, from the record it is clear that the petitioner worked on the post of draftsman for which he was issued certificate by the Divisional Forest Officer, therefore, he is entitled for the benefit of the judgment passed in Putti Lal’s case. It is not disputed that petitioner was a party in one of cases decided together by the Hon’ble Supreme Court (State of U.P. Vs. Putti Lal and connected cases). It is also undisputed that judgment in State of U.P. Vs. Putti Lal is binding on respondents and petitioner cannot be denied benefit of the judgment rendered by the Hon’ble Supreme Court in his own case. Thus, the petitioner is entitled for the minimum of pay scale of Draftsman as per direction of the Hon’ble Supreme Court in Putti Lal case. 14. Putti Lal is binding on respondents and petitioner cannot be denied benefit of the judgment rendered by the Hon’ble Supreme Court in his own case. Thus, the petitioner is entitled for the minimum of pay scale of Draftsman as per direction of the Hon’ble Supreme Court in Putti Lal case. 14. The representation of the petitioner was also rejected in the light of judgment of Constitutional Bench of Supreme Court in the case of State of Karnataka and other vs. Uma Devi and others. Rejection on this ground is not correct as the entitlement of the petitioner is based on the judgment passed of Supreme Court in which the petitioner was also a party. This judgment attained finality and was neither overruled nor reviewed nor reopened. The claim of the petitioner on the basis of judgment passed subsequently cannot be denied. Consequently, the writ petition is allowed. The order-dated 28.05.2007 (Annexure-8) passed by the Chief Conservator of Forest, Kumaon, Nainital (respondent no. 2) is quashed. The respondents are directed to grant benefit of the judgment passed by The Hon’ble Supreme Court in the case of State of U.P. Vs. Putti Lal to the petitioner and grant him minimum of pay scale of Draftsman. No order as to costs.