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2017 DIGILAW 606 (UTT)

Mohan Singh Sammal v. State of Uttarakhand

2017-11-14

U.C.DHYANI

body2017
JUDGMENT : U.C. Dhyani, J. 1. Since the facts and law governing the field of the above-noted writ petitions are identical, therefore, they are being decided together by this common judgment for the sake of brevity and convenience. 2. Writ petition no. 934 of 2017 (S/S) shall be the leading case. 3. It may be clarified at the very outset that relief in WPSS no. 933 of 2017 and WPSS no. 991 of 2017 has been sought by the Collection Amins and in rest of the writ petitions, the relief is sought by the Collection Peons. 4. By means of above noted writ petitions, the petitioners seek following relief, among others: (i) Issue a writ, order or direction in the nature of mandamus directing the respondents to grant benefit of service of the same department to the petitioner w.e.f. 09.11.2000, i.e., the date of creation of State of Uttarakhand and also make consequential benefits of pension admissible to the petitioner in the similar manner as it has been made admissible for the Collection Amins / Collection Peons of the hill area, on the strength of the order of the State Government dated 16.12.2011. (ii) Issue a writ, order or direction in the nature of mandamus declaring that the classification carved out by the State Government, based on ‘area of working’ of Collection Amins / Collection Peons, for granting benefit of service w.e.f. 09.11.2000 and consequential benefit of pension, for the Collection Amins / Collection Peons of hill area, indirectly excluding Collection Amins / Collection Peons of plain area, is discriminatory, inasmuch as the classification is not reasonable and rational, having no nexus and logic, with a reasonable object sought to be achieved by the Government; and, therefore, the Policy of the State Government in this respect, if applied for granting the said benefit of service to only one set of employee holding the post of Collection Amins / Collection Peons in hill area excluding the other set of employees, holding the same post in plain area, would be a clear cut violation of Articles 14 and 16 of the constitution of India.” 5. Brief facts, giving rise to the above noted writ petitions, are as follows: (a) During the years 1985 to 1996, the petitioners were employed as Collection Amins / Collection Peons and work was taken from them on seasonal basis. Brief facts, giving rise to the above noted writ petitions, are as follows: (a) During the years 1985 to 1996, the petitioners were employed as Collection Amins / Collection Peons and work was taken from them on seasonal basis. Thereafter, most of the petitioners approached Hon’ble High Court of Judicature at Allahabad in the year 1991, and agitated their grievance against their termination and for appointment and also claimed regularization on the respective posts. At the time of entertaining the writ petition, numbered as 28401 of 1991, Hon’ble Allahabad High Court passed an interim order on 30.09.1991, which reads as under: “Until further orders of this court, the petitioners services shall not be terminated after 30.09.1991 and they shall not be removed unless in accordance with the procedure established by law is followed.” (b) Pursuant to the order of the Hon’ble Allahabad High Court dated 30.09.1991, the department did not terminate the services of the petitioners and permitted them to continue regularly and also granted minimum of pay scale to all the petitioners from the year 1991. (c) In the year 2006, the petitioners have been agitating their claim all through before the department and, thereafter, the department assured the petitioners that if they withdrew their writ petition filed in Allahabad High Court (which was subsequently transferred to this Court in the year 2000, after the creation of State of Uttarakhand), then their claim for regularization can be considered by the department. Acting as per the assurance of the department, the petitioners withdrew their writ petition (new no. 5277 of 2001) on 26.10.2006. Despite withdrawal of the writ petition, the department betrayed the petitioners and the petitioners had to pursue the matter of regularization all through before the department. Ultimately, in the year 2012, the department regularized services of all the petitioners on the posts of Collection Amins / Collection Peons, as the case may be, w.e.f. 04.12.2012. The order regularizing the services of the petitioners has been enclosed as Annexure 4 to the writ petition. 6. It is the submission of learned Senior Counsel for the petitioners that initially the post of Collection Amins and Collection Peons were meant for the plain area of the erstwhile State of Uttar Pradesh and the collection work would be discharged by the Patwaris in the hills. 6. It is the submission of learned Senior Counsel for the petitioners that initially the post of Collection Amins and Collection Peons were meant for the plain area of the erstwhile State of Uttar Pradesh and the collection work would be discharged by the Patwaris in the hills. Since, in the year 1989, the Patwaris of the hills, went on indefinite strike, the department employed Collection Amins and Collection Peons, on seasonal basis, in the hill areas also. Collection Amins and Collection Peons of hill areas worked like regular Collection Amins and regular Collection Peons for years together and, thereafter, they approached Hon’ble Allahabad High Court in the year 1997, with a prayer that a cadre of Collection Peons and Collection Amins may be granted for the hills as well and, accordingly, requisite number of posts may also be created for them, and the Collection Amins and Collection Peons working in the hill areas may be considered for regularization. The writ petition before Hon’ble Allahabad High Court was numbered as WPSS no. 9597 of 1997. The said writ petition was decided vide order dated 16.07.1997. A copy of said judgment and order is enclosed as Annexure 5 to the writ petition. The operative portion of the said judgment reads as under: “In view of the un-rebutted allegations in the petition, I am of the opinion, that this petition deserves to be allowed. Since the petitioners have been performing the same work as the regular Collection Amin and regular Collection Peon, I direct that they shall be given the same salaries, allowances and other benefits and other facilities as regular Collection Amins and Collection Peons, as the case may be, on the principle of equal pay for equal work. The State Government is further directed to take a decision on the recommendation of the District Magistrate, Nainital, for creation of posts (copies of which are annexures-1 and 2 to the writ petition) expeditiously, and till then the services of the petitioners shall be continued without any artificial break in service. The petition is allowed. No order as to costs.” 7. Pursuant to the judgment of the Hon’ble Allahabad High Court dated 16.07.1997, the Government of Uttarakhand, vide order dated 09.06.2006 (copy enclosed as Annexure 6 to the writ petition) created 192 posts of Collection Amins and 192 posts of Collection Peons for hill areas. 8. The petition is allowed. No order as to costs.” 7. Pursuant to the judgment of the Hon’ble Allahabad High Court dated 16.07.1997, the Government of Uttarakhand, vide order dated 09.06.2006 (copy enclosed as Annexure 6 to the writ petition) created 192 posts of Collection Amins and 192 posts of Collection Peons for hill areas. 8. Vide order dated 16.12.2011 (copy enclosed as Annexure 7 to the writ petition), the Government of Uttarakhand granted the benefit of past services to the Collection Amins and Collection Peons of hill areas w.e.f. 09.11.2000. The petitioners being similarly situated and similarly circumstanced, approached the department by means of the representations and applications and requested that they may also be treated similarly and similar benefit of past services may also be given to the petitioners like their counterparts, who were engaged in the hill areas. 9. It was also brought to the notice of the department by the petitioners that as regards the Collection Kurk Amins of the Co-operative Societies of the State, the Government has already provided the benefit of past services to them w.e.f. 09.11.2000 and their services were regularized. Therefore, a similar plea is also raised before this Court by the writ petitioners by means of above noted writ petitions. 10. Learned Senior Counsel for the petitioners submitted that by order of the Secretary, Co-operative Societies, Government of Uttarakhand, dated 16.04.2011 (copy enclosed as Annexure 8 to the writ petition) the Collection Kurk Amins have been given the benefit of past services w.e.f. 09.11.2000. 11. Learned Senior Counsel for the petitioners also submitted that, as a result of granting the benefit of past services to the Collection Peons and Collection Amins of the hill areas, pension has been made available to them in view of Notification dated 25.10.2005 issued by the Government of Uttarakhand. The said Rules were defined as Uttar Pradesh Retirement Benefits (Uttaranchal)(Amendment) Rules, 2005 (copy enclosed as Annexure 9 to the writ petition). As a consequence thereof, the petitioners, who are posted in the plain areas, have been deprived of this benefit of pension which is harsh and iniquitous for the petitioners. 12. It is further submitted by learned Senior Counsel for the petitioners that the services of Collection Amins and Collection Peons are transferable from plain to hill areas and vice versa. A copy of one such transfer order is enclosed as Annexure 16 to connected WPSS no. 12. It is further submitted by learned Senior Counsel for the petitioners that the services of Collection Amins and Collection Peons are transferable from plain to hill areas and vice versa. A copy of one such transfer order is enclosed as Annexure 16 to connected WPSS no. 933 of 2017. It is also submitted that double standard is being adopted by the department, inasmuch as in District Dehradun, the Collection Amins and Collection Peons, who are posted in the plain areas, have been extended the benefit of past services w.e.f. 09.11.2000, whereas the petitioners, who are also posted in the plain areas of the District Nainital have been deprived of similar treatment and benefit. 13. Per contra, learned Standing Counsel for the State drew attention of this Court towards para 2 of the counter affidavit filed by respondent no. 4 District Magistrate, Nainital, in WPSS no. 934 of 2017, wherein it has been mentioned that the posts of Collection Amins / Collection Peons were sanctioned with the condition that said employees should be substantively appointed in hill area, vide G.O. dated 09.06.2006. Since the petitioner Krishna Nand Sanwal was working in the plain area of District Nainital, therefore, he was not provided the benefit of service. By another G.O. dated 16.12.2011, direction was issued to provide service benefit, w.e.f. 09.11.2000, to the Amins / Peons, who are posted against newly created posts in the hilly area of District Nainital. Thus the claim of the petitioner is void and unsustainable. 14. Initially, the Collection work in plain areas of erstwhile State of Uttar Pradesh was taken from Collection Amins and Collection Peons. Collection work, in the hills (of erstwhile State of Uttar Pradesh) was discharged by Patwaris. When Patwaris went on indefinite strike, way back in the year 1989, Collection Amins and Collection Peons, on seasonal basis, were introduced in hills also. They worked like regular Collection Amins and regular Collection Peons for years together. When they approached Hon’ble High Court of judicature at Allahabad for creation of the cadre of Collection Amins and Collection Peons in the hills, the Hon’ble Court, in WPSS no. 9597 of 1997, directed that Collection Amins and Collections Peons, working in the hills, on seasonal basis, shall be given same salaries, allowances, benefits and facilities like regular Collection Amins and Collections Peons on the principle of ‘equal pay for equal work’. 9597 of 1997, directed that Collection Amins and Collections Peons, working in the hills, on seasonal basis, shall be given same salaries, allowances, benefits and facilities like regular Collection Amins and Collections Peons on the principle of ‘equal pay for equal work’. State Government was directed to take a decision on the recommendation of the District Magistrate, Nainital for creation of such posts and till then, the services of the petitioners were directed to be continued without artificial break in service. Pursuant to the judgment dated 16.07.1997 of Hon’ble Court, Government of Uttarakhand, vide order dated 09.06.2006, created 192 posts of Collection Amins and similar number of posts of Collection Peons for hill areas. Vide order dated 16.12.2011, Government of Uttarakhand granted benefit of past services to the Collection Amins and Collections Peons of hill areas w.e.f. 09.11.2000. Collection Kurk Amins of the Cooperative Societies of the State were also provided the benefit of past service w.e.f. 09.11.2000 and their services were regularized. As a result of grant of benefit of past services to the Collection Amins and Collections Peons of hill areas, pension was made admissible to them vide Notification dated 25.10.2005, issued by the Government of Uttarakhand. Uttar Pradesh Retirement Benefits (Uttaranchal)(Amendment) Rules, 2005 were framed to facilitate the same. 15. It may also be noted here that the service of Collection Amins and Collections Peons are transferable from plains to hills and vice versa. Documents have been brought on record to show the same. Further more, the Collection Amins and Collections Peons posted in District Dehradun (which largely comprises of plain area and some part of the hills) have been extended the benefit of past services w.e.f. 09.11.2000. This is evident from Order dated 19.06.2017 that Collection Amins and Collection Peons working in District Dehradun have been granted benefit of their past services w.e.f. 09.11.2000, or the date of their appointments, as the case may be. In other words, if they were appointed in hills, they will be entitled to benefit of past service w.e.f. 09.11.2000 and if they have been appointed at a later date, they will be granted benefit of past service from the dates of their respective appointments. 16. Article 14 of the Constitution of India protects all persons from discrimination. In other words, if they were appointed in hills, they will be entitled to benefit of past service w.e.f. 09.11.2000 and if they have been appointed at a later date, they will be granted benefit of past service from the dates of their respective appointments. 16. Article 14 of the Constitution of India protects all persons from discrimination. The principle of equality before law, an English concept, also known as the rule of law, signifies that all persons are equally subject to the law of the land and no individual (or group of individuals), can have any special privilege in the application of such law. No discrimination can be practiced in the application of the law of the land with reference to an individual or a group of individuals and means, in effect, protection of equal laws of persons in equal circumstances or conditions. Hostile discrimination is not permissible. 17. Hon’ble Apex Court in Workmen of Bhurkunda Colliery of M/s Central Coalfields Ltd. vs Management of Bhurkunda Colliery of M/s Central Coalfields Ltd. and other connected case, reported in (2006) 3 SCC 297 , has held that in case of temporary or ad hoc appointment continued for long, following Piara Singh case, (1992) 4 SCC 118 , the Court presumes that there is regular need for the services on a regular post. Also, workmen in another colliery and 39 workmen in the same colliery had been regularized by the respondent employer. In the facts and circumstances of this case, it becomes imperative to issue directions regarding regularization. Employees who have been working on temporary / ad hoc posts, since the last thirty odd years, are required to be regularized as expeditiously as possible. 18. It was also held by Hon’ble Supreme Court in Ajmer Vidyut Vitran Nigam and others vs Navin Kumar Saini, (2010) 15 SCC 17 that claim to parity in pay scale by respondent work-charged employees with Junior Clerks on ground that, though appointed as helpers, they worked as Junior Clerks. However, respondents were not able to show that they were asked to perform function of Junior Clerk by any competent authority and, therefore, not entitled to scale of pay of Junior Clerk even on notional basis from date of their engagement as helpers as directed by High Court. Moreover, mere volume of work is not relevant, as there were qualitative differences as regards the liability and responsibility. Moreover, mere volume of work is not relevant, as there were qualitative differences as regards the liability and responsibility. Services of respondent work-charged employees appointed as helpers regularized w.e.f. 01.04.1982 and they were given regular pay scale of Lower Division Clerks (LDCs). However, services of other similarly placed workmen who were junior to respondents were regularized as Junior Clerks w.e.f. 01.04.1982 and given regular pay scale but cases of respondents got considered on the ground that they had already been appointed as LDCs. Therefore, cases of respondents ought to have been considered for regularization as LDCs as cases of other persons similarly situated were considered by Selection Committee. Therefore, employer was directed to consider cases of work-charged employees for regularization as Junior Clerks with effect from 01.04.1982 and in case they were found fit, grant them pay scale thereof from said date. 19. In State of Mizoram and another vs Mizoram Engineering Service Association and another, (2004) 6 SCC 218 , Hon’ble Apex Court has held that revised pay scale allowed to one Chief Engineer in tune with Fourth Central Pay Commission would construe Govt.’s acceptance of recommendations of the Commission. Thereafter, discrimination between that individual Chief Engineer and his successors was impermissible. It was further held that though sometimes special pay may be granted to an individual for special reasons such as special merit, expertise etc., which may not be a precedent for others, but in absence thereof, there was no justification for granting higher scale to a particular individual and denying the same to others. 20. In Bhagwati Prasad vs Delhi State Mineral Development Corporation, AIR 1990 SC 371 , Hon’ble Supreme Court observed that practical experience would always aid the persons to effectively discharge the duties and is a 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 of petitioner 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 prescribed educational qualifications. Once the appointments of petitioner 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 prescribed educational qualifications. It can be said that three years’ experience, ignoring artificial break in service for short period / periods created by the management, in the circumstances, would be sufficient for confirmation. If there is a gap of more than three months between the period of termination and re-appointment that period may be excluded in the computation of the three years period. Therefore, the petitioners were entitled to equal pay at par with the persons appointed on regular basis to the similar post or discharge similar duties, and are entitled to the scale of pay and all allowances revised from time to time for the said posts. 21. While applying Article 14, the approach should not be technical, pedantic or doctrinaire. It will not apply if class and categories of service are essentially different in purport and spirit. It forbids hostile discrimination, not reasonable classification. It will certainly apply if equals are treated differently without a reasonable basis. In the instant case, the Collection Amins and Collections Peons, posted in District Dehradun are being treated differently from the petitioners, who belong to plain area, without a reasonable basis. 22. Article 14 confers a fundamental right, but it also amounts to an injunction against any invidious or hostile discrimination. 23. In view of the above, at least a case for consideration of petitioners, working in the plain areas of other districts of the State of Uttarakhand for similar treatment as given to similarly situate Amins / Peons working in District Dehradun, is satisfactorily made out. 24. In the facts and circumstances of the case, this Court deems it expedient to direct the Principal Secretary, Revenue, Government of Uttarakhand, respondent no. 1, to consider the cases of petitioners, who belong to plain areas, for grant of benefit of past service with effect from 09.11.2000 in terms of Notification no. 24. In the facts and circumstances of the case, this Court deems it expedient to direct the Principal Secretary, Revenue, Government of Uttarakhand, respondent no. 1, to consider the cases of petitioners, who belong to plain areas, for grant of benefit of past service with effect from 09.11.2000 in terms of Notification no. 3091/18(2)/2011-07(86)/2008 TC dated 16.12.2011, issued by the Government of Uttarakhand, in respect of similarly placed persons, working in hill areas; as also keeping in mind the spirit contained in the order dated 19.06.2017, issued by District Magistrate, Dehradun, referring and relying Government Order dated 04.01.2017; and also consider for making consequential benefits of pension admissible to the petitioners in the similar manner as has been made admissible to their counterparts of hill areas, in terms of the provisions contained in the U.P. Retirement Benefits (Uttaranchal)(Amendment) Rules, 2005, as applicable in the State of Uttarakhand. The whole exercise shall be completed preferably within three months of production of certified copy of this Order before said authority. 25. The above noted writ petitions stand disposed of with the directions aforesaid. No order as to costs.