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2013 DIGILAW 1591 (ALL)

Ram Naresh v. State of U. P. and Others

2013-05-29

SAEED-UZ-ZAMAN SIDDIQI

body2013
Saeed-Uz-Zaman Siddiqi, J.— All these writ petitions relate to the same law point, hence, I proceed on to decide all the writ petition together with a common judgment. These writ petitions 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. Briefly stated, the petitioners have come to this Court on the grounds interalia that they are full time peon/chowkidars, discharging duties for more than eight hours for sufficiently long time and have been paid salary at the rate of Rs.30/- per month with effect from 27.01.1997; they have been designated as part time peon/chaokidars; they have neither been considered for regularization nor they have been regularized nor they have been paid salary in the pay scale available for Group-D employees; a large number of people in similar circumstances have been placed in the regular pay scale of Group-D employees without consideration and placing the petitioners in the pay scale available for Group-D employees; the petitioners are working continuously as peon/chowkidars for the last 18 years, 12 years, 15 years, 9 years and 8 years respectively; they are working for full time for more than eight hours per day, yet, they have been designated as part time employees. The petitioners have prayed for salary to the petitioners in the regular pay scale available to Group-D employees from due date with all service benefits. The opposite parties have denied the petitioners' version in the counter affidavit and have submitted that the petitioners are working for part time only for one or two hours and they are part time sweepers. Only one post of Class-IV is sanctioned and regular employee is working on the said post. I have heard learned counsel for the parties and gone through the records. In Writ Petition No.1742 (SS) of 2001 the appointment letter, contained as Annexure No.1 relate to appointment letter of Ram Naresh, Annexure No.2 relate to appointment of Vishwanath and Annexure No.3 relate to appointment of Mewa Lal. Their applications have also been annexed with the writ petition. I have heard learned counsel for the parties and gone through the records. In Writ Petition No.1742 (SS) of 2001 the appointment letter, contained as Annexure No.1 relate to appointment letter of Ram Naresh, Annexure No.2 relate to appointment of Vishwanath and Annexure No.3 relate to appointment of Mewa Lal. Their applications have also been annexed with the writ petition. The appointment letter of Mewa Lal, contained as Annexure No.3 shows that he has been employed as part time Chowkidar for Rs.30/- per month and he has been assigned the job of Chowkidar with the condition that he shall clean the school before opening of it and after its closure and shall have to live in the school premises. This job cannot be termed as part time job. In the rejoinder affidavit Mewa Lal has deposed that one K.K. Singh under similar circumstances has also been granted benefits by paying him regular pay scale. The copy of judgment of this Court passed in Writ Petition No.1960 (SS) of 2001 has been annexed along with the affidavit. The petitioners of Writ Petition No.8592 (SS) of 1993 have also the similar grievances. Similar is the case in Writ Petition No.5653 of 2001 and Writ Petition No.5562 of 2001 . The petitioners in Writ Petition No.6041 of 2001 have also the same grievances. This Court in the case of Awadhrani (Smt.) Vs. Director of Education (Basic) and others (2002)2 UPLBEC 1921 , has 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 schools 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. 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 schools 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 no.144 (SS) of 1998 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 Vs. 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, Special Leave Petition (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 meager 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. 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 petitioner has also placed reliance on the pronouncement of this Court in the case of Ram Kailash Vs. 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 Vs. 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 Vs. 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. 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 absorb ed in the service of the respondents. Till the creation of the post, the petitioner would be paid the minimum wages payable to a sweeper." A Full Bench of the Hon'ble Apex Court in Secretary, State of Karnataka and others v. Umadevi and others, (2006) 2 UPLBEC 1880 has held as under:- "One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme." In the facts of this case, the amount being paid to the petitioners 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 AIR 1983 SC 328 the 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 petitions deserve to be allowed and are allowed. The opposite parties are directed that the petitioners 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-IV employees working on such post in Primary Schools under the Basic Education Board. They shall be paid difference of pay what they are getting and the regular pay scale. The opposite parties shall take steps for creation of posts for sweepers and chowkidars etc. in the said schools and after creation of the post the regularization of the petitioners 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 them. _____________