# Khursheed Alam and others v. State of U.P. and others

- **Citation:** (2007) 3 ILRA 805
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-09-05
- **Case number:** Civil Misc. Writ Petition No. 42146 of 2007
- **Bench:** Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/khursheed-alam-and-others-v-state-of-u-p-and-others-41203
- **Pages:** 5

## Headnote

Constitution
of
India,
Art.
226Regularization-and claim for minimum
pay scale-Daily wager-appointed without
following the recruitment process-heldsuch direction can not be issued by the
Court but under the scheme prepared by
the Department-claim of minimum pay
scale payable to regular employee-can
not be granted by writ Court-if petitioner
discharging
same
duty
as
regular
employee-may approach before labour
court-petition dismissed.

Held: Para 13

In this writ petition it is not the
argument of the petitioners that they are
not being paid minimum wages, which
are admissible to daily rated employees
notified by the appropriate Government.
Only parity is claimed in the pay scale,
which can only be paid to an employee
holding permanent post. In case the
petitioners are discharging the duties of
a regular employee they may approach
to the Labour Court for adjudication of
the disputed question of fact.
Case law discussed:
1988 (9) SCC-709
2003 (1) SCC-250
2004 (1) FLR-592
1988 (3) SCC-91
1995 (5) SCC-210
1989 (1) SCC-121

## Text

3 All] Khursheed Alam and others V. State of U.P. and others
805
preliminary inquiry where explanation is
called from an employee would not make
an otherwise innocuous order of discharge
or termination of service punitive in
nature. Therefore, the High Court was
clearly in error in holding that the
respondent's absence from duty was the
foundation
of
the
order,
which
necessitated an inquiry as envisaged
under Rule 16.24 (ix) of the Rules.

28. Ratio of the aforesaid two
judgments quoted above fully applies to
the fact of the present case also and once
petitioner was temporary employee and
his service have been dispensed with as
per
the
terms
and
condition
of
appointment then there is hardly any
scope of interference.

29. In terms of observations made
above, present writ petition is dismissed.

No order as to cost.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.09.2007

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 42146 of 2007

Khursheed Alam and others ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri Khalil Ahmad Ansari

Counsel for the Respondents:
Sri A.K. Rai
S.C.

Constitution
of
India,
Art.
226Regularization-and claim for minimum
pay scale-Daily wager-appointed without
following the recruitment process-heldsuch direction can not be issued by the
Court but under the scheme prepared by
the Department-claim of minimum pay
scale payable to regular employee-can
not be granted by writ Court-if petitioner
discharging
same
duty
as
regular
employee-may approach before labour
court-petition dismissed.

Held: Para 13

In this writ petition it is not the
argument of the petitioners that they are
not being paid minimum wages, which
are admissible to daily rated employees
notified by the appropriate Government.
Only parity is claimed in the pay scale,
which can only be paid to an employee
holding permanent post. In case the
petitioners are discharging the duties of
a regular employee they may approach
to the Labour Court for adjudication of
the disputed question of fact.
Case law discussed:
1988 (9) SCC-709
2003 (1) SCC-250
2004 (1) FLR-592
1988 (3) SCC-91
1995 (5) SCC-210
1989 (1) SCC-121

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard learned counsel for the
parties and perused the record.

2. This petition has been filed by the
petitioners
for
a
direction
to
the
respondent nos. 3 and 4 to pay them the
salary which is being paid to the other
employees and to consider the case of the
petitioners for regularization by deciding
representation dated 23.5.2007 against the
existing vacancies or the vacancies which
may be created or for which sanction may
be obtained from the State Government.
806 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
3. The case of the petitioners is that
they are continuously working as a Clerk
in the office of Nagar Palika Parishad,
Mugghal Sarai, District Chandauli on
daily wages basis since 1991.

4. It is alleged that petitioner no.1
filed Civil Misc. Writ Petition No. 32405
of 1993 which was disposed of vide order
dated 19.1.2004 directing the petitioner
no.1 to make a representation within a
period of two weeks along with a certified
copy of the order. Nagar Palika may pass
appropriate orders preferably within three
months in accordance with law taking into
consideration the Government Order
dated 8th September, 1992. Petitioner no.1
filed representation which was decided in
his favour and he was allowed to work as
Clerk and since then he is continuously
working.

5. It is further alleged that similarly
petitioner nos. 2 and 3 who were
employed as clerk on daily wage basis
filed Civil Misc. Writ Petition No. 29263
of 1991 before this Court which was
finally disposed of vide order dated
5.1.2005 directing respondent no.1 to
consider the case of petitioner nos. 2 and
3 according to Government Order and
pass a detailed and reasoned order
expeditiously, preferably within a period
of two months from the date of
production of a certified copy of the
order. They filed representation before the
authority concerned which was decided in
their favour and since then they are
continuously working as Clerk.

6. The counsel for the petitioners
submits that since the petitioners are
discharging their duties continuously and
regularly and are performing the work
identically to the regular employees for
the last several years, hence they are
entitled to receive the same salary and
conditions of service as the other
employees regularly appointed against
sanctioned posts are receiving and denial
of this benefit would amount to violation
of Article 14 of the Constitution of India.

7. The Standing counsel appearing
for the respondents submits that a daily
wage employee cannot claim parity
regarding salary at par with a regular
employee
unless
his
services
are
regularized.

8. In State of Punjab and others
Vs. Sardara Singh (1998) 9 SCC 709, it
has been held that High Court under
Article 226 of the Constitution should not
issue any direction for regularization of an
employee and it is for the authorities to
frame the scheme for regularization of
daily wagers. State Govt. has also framed
Group ''D' Employees Service Rules,
2001 and the case of the petitioners is to
be considered under the aforesaid Rules if
he is eligible otherwise.

9. In so far as the payment of salary
of the petitioners at par with a regular
employee is concerned admittedly the
petitioners are daily wagers and are not
working against any post. The concept of
minimum wages and minimum pay scale
is different. When an employee is
engaged on daily wages he is paid
minimum
daily
wages.
As
per
notifications of the Central Government
or the State Government minimum wages
whichever is applicable as Minimum Pay
Scale is attached to the post and is
applicable to the regular employees. The
educational qualifications, methods of
recruitment as well as responsibilities and
liabilities
of
regular employees
are
3 All] Khursheed Alam and others V. State of U.P. and others
807
different from daily wage employees. The
regular employees are also liable to be
transferred while daily wage employees
cannot be transferred. The apex court in a
catena of decisions has recently held that
in the absence of proper material the High
Court cannot grant parity in pay to daily
wage workers or casual workers with
regularly appointed workers merely on
presumption of equality of nomenclature
or work. Reference may be given of the
decision rendered by the apex court in
State of Orissa Vs Balaram Sahu, (2003)
1 S.C.C. 250 in this regard. In a catena of
decisions the apex court has directed that
daily wagers be entitled to only minimum
pay as notified by the State Government
for daily wagers and not the minimum
pay scale. There has been a significant
shift in law, as the doctrine of equal pay
for equal work cannot be applied
mechanically merely because the daily
wagers are discharging similar duties as
their counter part regular employees are
discharging. The shift in law is evident
from the following cases:

1
State of Orissa Vs Balaram Sahu,
(2003) 1 SCC 250
2
State of Punjab Vs Savender Kaur,
2004 (1) FLR 592
3
State of Haryana Vs Tilak Raj &
others, 2003 AIR SCW 3382
4
Federation of All India Customs
and
Central
Excise
Stenographers
(Recognized) & others Vs Union of
India & others, 1988 (3) SCC 91
5
Harbans Lal Vs State of Himachal
Pradesh, 1989 (4) SCC 459
6
Ghaziabad Development Authority
Vs Vikram Chaudhary, 1995 (5) SCC
210
7
State of U.P. Vs J.P.Chaurasia, 1989
(1) SCC 121
8
State of Haryana Vs Jasmer Singh,
(1996) 11 SCC 77

10. In State of Orissa Vs Balaram
Sahu, (2003) 1 SCC 250, it has been held
that in the absence of proper material
High Court cannot grant parity in pay to
daily
wage
workers
with
regularly
appointed workers merely on presumption
of equality of nomenclature or work. In
State of Punjab Vs Savinderjit Kaur,
2004 (101) FLR 592, it has been held that
the doctrine of equal pay for equal work
would not apply where it has not been
established that duties and functions of
two categories of employees are at par. In
State of Haryana & another Vs Tilak
Raj & others, 2003 A.I.R. S.C.W. 3382
= 2003 (4) A.W.C. 2597 (S.C.), it has
been held that the claim by daily wagers
in comparison with regular and permanent
staff is not tenable since daily wager
holds no post and scale of pay is attached
to a definite post. In Federation of All
India Customs and Central Excise
Stenographers (Recognized) and others
Vs. Union of India and others (1988 (3)
S.C.C. 91), the apex court explained the
principle of "equal pay for equal work" by
holding that differentiation in pay scales
among Government servants holding the
same posts and performing similar work
on the basis of difference in the degree of
responsibility,
reliability
and
confidentiality
would
be
a
valid
differentiation. In Harbans Lal Vs. State
of Himahcal Pradesh (1989 (4) S.C.C.
459), it is held that a mere nomenclature
designating a person as a carpenter or a
craftsman was not enough to come to a
conclusion that he was doing the work as
another carpenter in regular service. A
comparison
cannot
be
made
with
808 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
counterparts in other establishments with
different managements or even in the
establishments
in
different
locations
though owned by the same management.
The accuracy required and the dexterity
that the job requires may differ from job
to job. In Ghaziabad Development
Authority Vs Vikram Chaudhary (1995
(5) S.C.C. 210) it has been held that it
must be left to be evaluated and
determined by an expert body. In State of
U.P. Vs J.P. Chaurasia (1989 (1) S.C.C.
121), it is pointed out that the principle of
"equal pay for equal work" has no
mechanical application in every case of
similar work. In the case of State of
Haryana Vs Jasmer Singh, (1996) 11
S.C.C. 77, it has been held that the daily
wage employees cannot be treated as on a
par with persons in regular service
holding similar posts.

11. A Division Bench of this Court
in an Special Appeal No. (334) of 2004
arising out of the order and judgment in
Writ Petition No. 37747 of 2002 quashed
the order and judgment of the learned
Single Judge in so far as it treated the
daily wage employees of the Public
Service Commission at par with the
regularly appointed employees and held: -

"We do not agree with certain other
directions given in the said judgment. For
instance, the learned Single Judge after
giving the direction that the petitioners
should be considered for regularization
has thereafter in the same sentence given
a direction that the petitioners are also
entitled to regular wages in the regular
pay scale from 17.2.2001. Thus, we find
that there is a contradiction in the same
sentence of the learned Single Judge. In
our opinion the learned Single Judge
could not validly direct that the petitioners
be regularized. He could only direct that
the petitioners should be considered for
regularization. Having directed that the
petitioners should be considered for
regularization, we fail to understand how
he came in the same sentence say that the
petitioners are entitled to regular pay
scale. This direction for payment of
regular wages and regular pay scale in the
impugned judgment cannot be sustained
and is hereby set aside.
We are further of the opinion that
direction nos. 4 and 5 at the end of the
judgment of the learned Single Judge also
cannot be sustained. The learned Single
Judge has directed in direction no. 4 in the
impugned judgment that the petitioners
whose services are not regularized shall
be allowed to continue in minimum of the
pay scale. This direction is clearly illegal
as has been held by the Supreme Court
and this Court in a series of decisions,
which have been referred to in the
Division Bench decision of this Court in
State of U.P. Vs. U.P. Madhyamik
Shikshak Parishad, 2004 ALJ 232. That
decision was followed in State of U.P. Vs
Rajendra Prasad 2004 (1) UPLBEC 60
etc. The aforesaid decisions have relied
on several Supreme Court decisions,
which have held that an employee who is
not a regular employee cannot be given
the minimum of the pay scale. The
minimum of the pay scale can only be
given to the employees who have been
regularized. For the same reason the
direction no. 5 contained in the impugned
judgment of the learned Single Judge that
the petitioners should be given minimum
of pay scale is also illegal. In fact none of
the petitioner can be given minimum of
the pay scale, and only those who are
subsequently regularized can be given the
minimum of the pay scale as and when
they are regularized. Those who are not
3 All] Rishabh Raj Singh V. State of U.P. and others
809
regularized
will
not
be
given
the
minimum of pay scale at all in view of the
aforesaid decisions.
For the reasons given above, this
special appeal is partly allowed. No order
as to costs.
S/d M. Katju, J.
S/d R.S.Tripathi, J.
27.4.2004"

12. In State of Punjab Vs
Savinderjit Kaur, 2004 (101) F.L.R. 592,
a three judge bench of the apex court
held: -

"even the doctrine of equal pay for
equal work would not apply where it has
not been established that duties and
functions of two categories of employees
are at par"

13. In this writ petition it is not the
argument of the petitioners that they are
not being paid minimum wages, which
are admissible to daily rated employees
notified by the appropriate Government.
Only parity is claimed in the pay scale,
which can only be paid to an employee
holding permanent post. In case the
petitioners are discharging the duties of a
regular employee they may approach to
the Labour Court for adjudication of the
disputed question of fact.

14. The judgments of the apex court
as well as of Division Bench of this Court
are binding upon this Bench. Thus, the
petitioners are not entitled to the pay scale
at par with the regular employees.

15. For the reasons stated above, this
petition is dismissed. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.09.2007
I
BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 46449 of 2007

Rishabh Raj Singh

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the petitioner:
Sri. Rajesh Kumar Singh

Counsel for the Respondents:
S.C.

Constitution
of
India-
Article
226Compassionate
appointment-deceased
employee working as D.I.G. Karagar died
in harness- application to appoint her
minor son moved within 5 years- widow
offered appointment- but she did not
turn
up-after
completing
B.
Tech.
Education-son
claimed
parity
for
appointment on the post of Vishesh
Karyadhikari-when widow can survive
for more than 8 years- given better
education
and
living
standard-no
financial crisis exist- under rule no
provision
of
reservation
of
post
provided-
appointment
can
not
be
claimed as a matter of right.

Held: Para 11

Rule, 1974 given a legal right to the
family member of the deceased to
request a post to be reserved for minor
son
or
daughter
till
attaining
the
majority. Normally the application is to
be moved within five-years after the
death of the father, which was done in
the instance case by the mother but
decline to accept. She could not have
moved
another-application
for
appointing her son at the end of five
years limitation provided under the
Rules. If she had not applied for the job