# Kiran Pal and others v. State of U.P. and others

- **Citation:** (2009) 1 ILRA 97
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-11-12
- **Case number:** Writ petitions No. 22767 of 2008, 22768 of 2008, 22769 of 2008, 22770 of 2008
- **Bench:** V.M. Sahai, Ran Vijay Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kiran-pal-and-others-v-state-of-u-p-and-others-41324
- **Pages:** 5

## Headnote

Constitution
of
India-
Art.226Regularisartion of Service and claim of
Minimum
Pay
Scale-
Petitioner
/Applicant engaged on daily wages basis
in Power Corporation- stopped from
working-
writ
seeking
direction
for
regularization as number of post lying
vacant -in absence of regularisation
Policy or Rules-Court can't grant such
relief- so for the claim of minimum basic
pay concern-daily wager holds no posthence no question of Basic Pay in
absence of Pay Scale-held-learned Single
Judge rightly declined to interfere.

Held: Para 6

There is nothing on the record to
indicate that the petitioner is eligible for
consideration
for
the
purposes
of
regularisation, therefore, in view of the
98 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
above decisions of the Apex Court order
for regularisation of the petitioner's
services cannot be passed by this Court
in absence of any statutory provisions.
Case law discussed:
1972 1 SCC 409, 2004 (Vol.II) SCC 377, 2004
7SCC 112, 2004 8 SCC 353, 2005 1 Supreme
Court cases 639, 1996 (II) SCC 777, 1995 (5)
SCC 210, 2003 (1) SCC 250, 2003 (6) SCC 123

## Text

1 All] Kiran Pal and others V. State of U.P. and others
97
Case law discussed:
2006 (54) ACC, 1015

(Delivered by Hon'ble Amar Saran, J.)

1. Heard learned counsel for the
petitioners and the learned A.G.A.

2. The petitioner is seeking quashing
of the F.I.R. under sections 2/3 of the
Gangsters Act, P.S. Indira Puram, district
Ghaziabad, in Case Crime No. 55/2009.

3. It was argued by the learned
counsel for the petitioners that the
allegations in the F.I.R. were of preparing
forged documents and earning a lot of
money by sale of plots on the basis of
forged documents. It is argued by the
learned counsel for the petitioners that
five cases were shown against them and
in all those cases they have got
themselves bailed out and in certain
matters of 2008, the arrest of the
petitioners was stayed in Criminal Misc.
Writ petitions No. 22767 of 2008, 22768
of 2008, 22769 of 2008, 22770 of 2008
and 22771 of 2008.

4. In the decision of Kishan Pal
alias K.P. vs. State of U.P. and another,
2006 (54) ACC, 1015, it has been held
that it would not proper in such matters
for High Court to interfere in writ
jurisdiction as petitioners can always
appear before the Court concerned and
make submissions there.

5. In this view of the matter, we find
no ground for quashing the criminal
proceedings
under
Sections
2/3
of
Gangsters Act.

6. However, it is directed that if the
petitioners appear in the aforesaid case
within three weeks before the Court
concerned, their prayer for bail may be
considered expeditiously in accordance
with the provisions of Gangsters Act.
With the aforesaid observations the writ
petition is dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.11.2008

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE RAN VIJAY SINGH, J.

Special Appeal No. (859) of 2008

Sarvan Kumar

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

Counsel for the Appellant:
Sri Anees Ahmad

Counsel for the Respondents:
Sri J.P. Pandey
Sri Saurabh Pathak
S.C.

Constitution
of
India-
Art.226Regularisartion of Service and claim of
Minimum
Pay
Scale-
Petitioner
/Applicant engaged on daily wages basis
in Power Corporation- stopped from
working-
writ
seeking
direction
for
regularization as number of post lying
vacant -in absence of regularisation
Policy or Rules-Court can't grant such
relief- so for the claim of minimum basic
pay concern-daily wager holds no posthence no question of Basic Pay in
absence of Pay Scale-held-learned Single
Judge rightly declined to interfere.

Held: Para 6

There is nothing on the record to
indicate that the petitioner is eligible for
consideration
for
the
purposes
of
regularisation, therefore, in view of the
98 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
above decisions of the Apex Court order
for regularisation of the petitioner's
services cannot be passed by this Court
in absence of any statutory provisions.
Case law discussed:
1972 1 SCC 409, 2004 (Vol.II) SCC 377, 2004
7SCC 112, 2004 8 SCC 353, 2005 1 Supreme
Court cases 639, 1996 (II) SCC 777, 1995 (5)
SCC 210, 2003 (1) SCC 250, 2003 (6) SCC 123

(Delivered by Hon'ble V.M. Sahai, J.)

1. List has been revised. No one
appears on behalf of the appellant to press
this Special Appeal.

2. This special appeal has been filed
against the judgement and order dated
22.9.2008 passed by Hon'ble Single Judge
in Civil Misc. Writ Petition No. 49242 of
2008 Sarvan Kumar Vs. State of U.P. The
said writ petition was filed with the
following prayers:

1. Issue a writ order or direction in the
nature
of
mandamus
commanding/directing
the
respondents
to
regularise
the
petitioner on the post of Line Man in
the Electricity Department.
2. Issue a writ order or direction in the
nature
of
mandamus
commanding/directing
the
respondents to pay the salary to the
petitioner month to month regularly
as
regular
employee
with
all
consequential benefits.
3. Issue a writ order or direction in the
nature
of
mandamus
commanding/directing
the
respondents
to
decide
the
representation/application
of
the
petitioner dated 15.7.2008 (contained
in Annexure NO.4 to the writ
petition).

3. The writ petition was dismissed
by learned Single Judge holding that in
absence
of
any
rule
meant
for
regularisation no mandamus can be issued
directing the respondents to regularise the
services of the appellant/petitioner.

4. We have heard Shri Saurabh
Pathak, holding brief of Shri J.P. Pandey
and learned standing counsel for the
respondents and perused the records.

The facts giving rise to this case are
that the petitioner was engaged on daily
wage basis in the power corporation. It
appears after sometime the respondents
have stopped taking work from the
petitioner. The petitioner has filed the
Writ petition before this Court on the
ground that number of vacancies are still
existing and the petitioner be regularised
against the said post. It was also prayed
that the petitioner be paid regular salary
month to month as admissible to the
regular employees.

5. The question of regularisation of
daily wage employee and admissibility of
the regular pay scale has been considered
time and again by the Apex Court in the
case of R.N. Nanjundappa Vs. T.
Thimmiah reported in (1972) 1 SCC 409
where the Apex Court has observed that:

"If the appointment itself is in
infraction of the rules or if it is in
violation
of
the
provisions
of
the
Constitution
illegality
cannot
be
regularised. Ratification or regularization
is possible of an act which is within the
power and province of the authority but
thee has been some non-compliance with
procedure or manner which does not go
to
the
root
of
the
appointment
Regularisation cannot be said to be a
1 All] Sarvan Kumar V. State of U.P. and others
99
mode of recruitment. To accede to such a
proposition would be no introduce a new
head of appointment in defiance of rules
or it may have the effect of setting at
naught the rules"

This view has been followed in many
other cases like: Sultan Sadik Versus
Sanjay Rai Subba reported in 2004
(Vol.!l) SCC 377, A. Aumrani VeJSus
Registrar, Cooperative Societies and
others reported in (2004) 7SCC 112
where the Apex Court has observed:

"No
regularisation
is,
thus,
permissible in exercise of the statutory
power conferred under Article 162 of the
Constitution if the appointments have
been made in contravention of the
statutory rules.......Regularisation, in our
considered opinion, is not and cannot be
the mode of recruitment by any "State"
within the meaning of Article 12 of the
Constitution of India or any body or
authority governed by a statutory Act or
the Rules framed thereunder. It is also
now well settled that an appointment
made in violation of the mandatory
provisions of the statute and in particular,
ignoring
the
minimum
educational
qualification
and
other
essential
qualification would be wholly illegal.
Such illegality cannot be cured by taking
recourse to regularisation. "

In the case of Pankaj Gupta Versus
State of J& K reported in 2004 8 SCC
353 the Apex Court has observed: -

"No persons illegally appointed or
appointed
without
following
the
procedure prescribed under the law, is
entitled to claim that he would be
continued in service. In this situation, we
see no reason to interfere with the
impugned order. The appointees have no
right to regularisation in the service
because of the erroneous procedure
adopted by the authority concerned in
appointing such persons"

In the case of Mahendra I. Jain and
others
Versus
Indore
Development
Authority and others reported in (2005) 1
Supreme Court cases 639 the Apex Court
has observed:-

"The
question, therefore, which
arises for consideration is as to whether
they could lay a void claim for
regularisation of their services. The
answer thereof must be rendered in the
negative.
Regularisation
cannot
be
claimed as a mater of right. An illegal
appointment cannot be legalised by
takings recourse to regularisation. What
can be regularised is an irregularity and
not an illegality. The constitutional
scheme which the country has adopted
does not contemplate any back-door
appointment. A State before offering
public service to a persons must comply
with the constitutional requirements of
Articles 14 and 16 of the Constitution. All
actions of the State must conform to the
constitutional
requirements.
A
daily
wager in the absence of a statutory
provision in this behalf would not be
entitled to regularisation."

Similar view has been taken by the
Constitution Bench decision of the Apex
Court reported in 2006 (Vol./V)SCC I,
Secretary, State of Karnataka Versus
Uma Devi, State of U.P. Versus Desh Raj
reported in 2007 (Vol I) SCC 257 and
Municipal
Corporation
Versus
Om
Prakash Dube, 2007 (1) SCC373.
100 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

6. There is nothing on the record to
indicate that the petitioner is eligible for
consideration
for
the
purposes
of
regularisation, therefore, in view of the
above decisions of the Apex Court order
for regularisation of the petitioner's
services cannot be passed by this Court in
absence of any statutory provisions.

7. So far as the availability of the
minimum of pay scale to a daily wage
worker is concerned it has also been
considered in numerous decisions of the
Apex Court. In the case of State of
Haryana Versus Jasmer Singh reported
in 1996 (Il) SCC 777 the Apex Court has
observed:-

"The respondents, therefore, in the
present appeals who are employed a daily
wages cannot be treated as on a par with
persons in regular service of the State of
Haryana holding similar posts. Daily
rated workers are not required to possess
the qualifications prescribed for regular
workers not do they have to fulfill the
requirement relating to the age at the time
of recruitment. They are not selected in
the manner in which regular employees
are
selected.
In
other
words
the
requirements for selection are not as
rigorous. There are also other provisions
regarding to regular service such as the
liability of a member of the service to be
transferred and is being subject to the
disciplinary jurisdiction of the authorities
as prescribed which daily rated workmen
are not subjected to. They cannot
therefore.
be
equated
with
regular
workmen for the purpose for their wages.
Nor can they claim minimum of the
regular pay scale of the regularly
employee. "

In the case of Harbans Lal VelSus
State of Himanchal Pradesh reported in
1989 (4) SCC 459 and in the case of
Ghaziabad
Development
Authority
Versus Vikram Chaudhary reported in
1995 (5) SCC 210 the Apex Court has
held that daily rated workmen were
entitled to be paid minimum of wages
admissible to such workmen as prescribed
and not minimum in the pay scale as
applicable to similar employees in the
regular service unless the employer had
decided to make such minimum in the pay
scale applicable to the daily rated
workmen. The same view has been
reiterated by the Apex Court in the case of
State of Orissa Versus BaLram Sahu
reported in 2003 (1) SCC 250 where the
Apex Court has held that the daily rated
employees are entitled for minimum
wages not minimum of the pay scale.

In the case of State of Haryana
Versus Tilakk Raj reported in 2003 (6)
SCC 123 the Apex Court has held that the
pay scale is attached to a definite post and
a daily wager holds no post, hence they
cannot be compared with the regular and
permanent staff for any or all purposes
including claim for parity.

8. In view of the above settled
position of law, we do not find any error
in the order passed by the learned Single
Judge. The special Appeal fails and is
hereby dismissed.
---------
1 All] Kapil Kumar V. State of U.P. and others
101
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.11.2008

BEFORE
THE HON'BLE S. RAFAT ALAM, J.
THE HON'BLE SUDHIR AGARWAL, J.

Special Appeal No. 909 of 2007

Kapil Kumar

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

Counsel for the Appellant:
Sri S.N. Pandey
Sri Havaldar Verma

Counsel for the Respondents:
Sri Ravindra Singh
S.C.

Constitution
of
India-Art.226Compassionate appointment claimed by
dependent of Seasonal worker-No Such
Scheme
providing
compassionate
appointment existed either prior or after
the death of such seasonal employeeabsence of policy or rule-can not be
claimed as a matter of right-single judge
rightly declined to grant any relief.

Held: Para 12

In the case in hand, it is admitted
position that there is no scheme for
providing compassionate appointment to
the seasonal employee. The question as
to whether the claim for compassionate
appointment can be considered at par
with the regular employee, we do not
propose to repeat except to find it
appropriate to record our agreement
with detailed reasons given by the
Hon'ble Single Judge considering the
distinction between regular and seasonal
employees
and
various
terms
and
conditions of their services in order to
hold that they do not stand at par but
constitute two different classes.

Case law discussed:
AIR 1996 SC 580=1995 SCW4500, 2006 (1)
ESC
316,
2007(3)SC398,
2006(7)SCC350,
1994(3)SC525,
(2006)5
SCC
523,
1996(5)SCC308, (1994)2SCC718.

(De levered by Hon'ble S. Rafat Alam, J.)

1. Aggrieved by the judgment dated
22.12007 passed by the Hon'ble Single
Judge dismissing the appellant's Civil
Misc. Writ Petition No. 40099 of 2006,
this intra Court appeal under the Rules of
the Court has been preferred by the
appellant contending that there is no
substantial distinction between a regular
employee and a seasonal employee and,
therefore,
once
the
scheme
for
compassionate appointment was extended
and adopted for regular employee, the
same would be deemed applicable to the
seasonal
employees.
It
is
further
contended
that
being
a
seasonal
employee, the father of the petitioner-
appellant had a right to be engaged
continuously in the successive seasons,
meaning thereby, for all purposes he was
a regular employees and, therefore,
cannot be denied the benefit of the
provisions of compassionate appointment
only on the basis that the petitioner-
appellant's father was engaged as seasonal
employee. Lastly, it is contended that the
Sugar
company
itself
a
Seasonal
Department and, therefore, it can of be
said that the seasonal employee, are not at
par with the regular employee. For this
purpose reliance has been placed on
Aspinwall
&
Co.,
Kulshekar,
Mangalore versus lalitha Padugay &
others, AIR 1996 SC 580 = AIR 1995
SCW 4500. Placing reliance on a
Division Bench judgment of this Court in
the case of State of U.P. & others Vs.
Smt. Malti Devi, 2006 (1) ESC 316, it is
contended that in respect to a government