# Mohan Swaroop & Anr v. The State of U.P. & Ors

- **Citation:** (2021) 5 ILRA 154
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-23
- **Case number:** Writ -A No. 11964 of 2018
- **Bench:** Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohan-swaroop-anr-v-the-state-of-u-p-ors-47053
- **Pages:** 24

## Headnote

A. Service law - Class IV employee -
Initial engagement on daily wage -
Minimum pay-scale - Payment as per 7th
Pay Commission Report - Entitlement -
Break in service and Non-working for
certain periods - Effect - During the last
about 28 years the petitioners had worked
for about 20 years and the dispute was
only
about
7-8
years
-
Continuous
working for the last more than 10 years
was almost undisputed - No charge of
petitioner's
appointment
having
been
made
on
the
basis
of
forged
and
fabricated documents - Held, factual
issues in this regard may have had some
relevance for the purposes of passing
orders of regularization, but it would not
be a relevant consideration for withdrawal
of minimum of pay scale already granted
for the last several years - No error
apparent of face on the record was found
to
review
the
impugned
judgment
directing the State to pay minimum payscale as per 7th Pay Commission Report.
(Para 15, 18 and 29)
B. Civil Procedure Code - O XLVII R 1 -
Review petition - Scope - Review cannot
5 All. Mohan Swaroop & Anr. Vs. The State of U.P. & Ors.
155
be an appeal in disguise - It has to be
confined to errors apparent on the face of
the record - Principle laid down in
Kamlesh Verma's case followed. (Para 28)
Review Petition dismissed. (E-1)
Cases relied on :-

## Text

_Characters 0–39,856 of 78,226. This is a partial read: ask again with offset=39856 for what follows._

154 INDIAN LAW REPORTS ALLAHABAD SERIES

A. Prosecution and imposition of
penalty upon the petitioner by the Lok
Adalat in the judgment dated 05.11.2019,
rendered in Case Crime No. 104/2011,
under
Sections
3/4
of
U.P.
Public
Examinations
(Prevention
of
Unfair
Means) Act, 1998, cannot be the basis of
denial of appointment to the petitioner. The
said proceedings are not relevant criteria
for purposes of appointment of the
petitioner. I find that the respondents
authorities have acted in a manner contrary
to law by requiring the petitioner to
disclose criminal prosecution faced by him
as a juvenile.

45. The competent authority had
misdirected itself in law by finding the
petitioner unsuitable for appointment and
him appointment on the post of Constable
in PAC.

46. The impugned order dated
03.09.2020 is arbitrary and illegal. The
order dated 03.09.2020 passed by the
respondent
No.3-Commandant,
43
Battalion, Provincial Armed Constabulary
(PAC), District Etah, is liable to be set
aside and is set aside.

47. A writ in the nature of mandamus
is issued commanding the respondents to
execute the following directions:

i.
The
appointment
of
the
petitioner shall be processed in light of the
observations made in this judgment.

ii. The appointment letter shall be
issued to him in accordance with law.

iii. The petitioner shall be given
the seniority, he would have been entitled
to but for cancellation of his candidature by
the impugned order.

48. The writ petition is allowed.
----------
(2021)05ILR A154
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.03.2021

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ -A No. 11964 of 2018

Mohan Swaroop & Anr. ...Petitioners
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Pankaj Srivastava

Counsel for the Respondents:
C.S.C.

A. Service law - Class IV employee -
Initial engagement on daily wage -
Minimum pay-scale - Payment as per 7th
Pay Commission Report - Entitlement -
Break in service and Non-working for
certain periods - Effect - During the last
about 28 years the petitioners had worked
for about 20 years and the dispute was
only
about
7-8
years
-
Continuous
working for the last more than 10 years
was almost undisputed - No charge of
petitioner's
appointment
having
been
made
on
the
basis
of
forged
and
fabricated documents - Held, factual
issues in this regard may have had some
relevance for the purposes of passing
orders of regularization, but it would not
be a relevant consideration for withdrawal
of minimum of pay scale already granted
for the last several years - No error
apparent of face on the record was found
to
review
the
impugned
judgment
directing the State to pay minimum payscale as per 7th Pay Commission Report.
(Para 15, 18 and 29)
B. Civil Procedure Code - O XLVII R 1 -
Review petition - Scope - Review cannot
5 All. Mohan Swaroop & Anr. Vs. The State of U.P. & Ors.
155
be an appeal in disguise - It has to be
confined to errors apparent on the face of
the record - Principle laid down in
Kamlesh Verma's case followed. (Para 28)
Review Petition dismissed. (E-1)
Cases relied on :-
1. St. of U.P. Vs Putti Lal, reported in 2002 (2)
UPLBEC 1595: 2006 (9) SCC 337
2. Civil Appeal No.10956 of 2018; Sabha
Shanker Dube Vs Divisional Forest Officer &
ors.), decided by Supreme Court on 14.11.2018
3. St.of Punj. & ors. Vs Jagjit Singh & ors.;
(2017) 1 SCC 148
4. Kamlesh Verma Vs Mayawati & ors.; (2013) 8
SCC 320
(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. Review has been sought by the
respondent State of Uttar Pradesh and its
officials of the judgment and order dated
17.11.2018, passed by this Court in Writ
Petition No.11964 of 2018 and in two other
connected cases, relying upon an order
passed by the Hon'ble Supreme Court of
India in Special Leave Petition (Civil)
Diary No(s). 35935/2019, dated 8.1.2020.
The order of Supreme Court dated 8.1.2020
is reproduced hereinafter:-

"By referring to the affidavit filed
on behalf of the State, the learned Solicitor
General submits that the initial engagement
of the petitioners in the said writ petition
was obtained on the basis of fabricated
documents. The Government did not get an
opportunity to file counter affidavit in the
other writ petitions which were disposed of
in terms of the judgment dated 14.11.2018
of this Court passed in Sabba Shanker
Dubey versus Divisional Forest Officer
(Civil Appeal No.10956 of 2018 etc.).

He
submits
that
the
point
pertaining
to
the
initial
engagement/entitlement of the Respondents
being improper has not been considered by
the High Court. He seeks leave to withdraw
these Special Leave Petitions with liberty
to approach the High Court by filing review
petitions.

Permission is granted.

The Special Leave Petitions are
dismissed as withdrawn with the aforesaid
liberty.

We are informed that a contempt
has been filed by the Respondents.
Contempt proceedings shall not be taken up
till the review petitions are decided by the
High Court."

2. It is after expiry of 11 months of
the aforesaid order of the Hon'ble Supreme
Court of India that the review application
alongwith application for condonation of
delay has been filed on 20th November,
2020. The delay condonation application
has been allowed by a separate order of the
date, passed on the delay condonation
application.

3. A counter affidavit alongwith misc.
applications have been filed by the writ
petitioners opposing the prayer made by
State in the review petition. The writ
petitioners contend that filing of the review
application is actually a fraud played on the
Court and various submissions are made to
substantiate such plea. The review petition
has been heard and the records have been
156 INDIAN LAW REPORTS ALLAHABAD SERIES
minutely scrutinized so as to maintain
sanctity of the Court proceedings.

4. I have heard Sri Arimardan Singh
Rajput and Ms. Monika Arya, learned
Additional Chief Standing Counsels for the
State and its authorities, and Sri Pankaj
Srivastava for the writ petitioners.

5. In order to appreciate the rival
contentions advanced by the parties, it
would be necessary to notice essential facts
in light of which the present petition came
to be decided earlier and for appreciating
the arguments raised in review matter.

6. Writ Petition No.11964 of 2018
came to be filed by Mohan Swaroop (writ
petitioner no.1) and Jwala Prasad (writ
petitioner no.2), seeking following reliefs:-

"(i) issue a writ, order or direction
in the nature of Certiorari quashing the
impugned
orders
dated
08.03.2018,
27.03.2018 and 02.04.2018 passed by the
respondent nos.1, 2 and 3 respectively
(Annexure Nos.18, 19 & 20 to this writ
petition);

(ii) issue a writ, order or
direction in the nature of Mandamus
directing the respondents to continue to
pay Rs.18,000/- as minimum of pay scale
to the petitioner which they were getting
prior to the aforementioned impugned
orders during the pendency of the present
writ petition;

(iii) issue any other or further
writ, order or direction which this Hon'ble
Court may deem fit and proper in the facts
and circumstances of the case; &

(iv) award costs of the writ
petition in favour of the petitioners."

7. A counter affidavit was filed by the
Principal Chief Conservator of Forest on
19.7.2018 in the writ petition, running into
166 pages, followed with a supplementary
counter affidavit filed by the Principal
Chief Conservator of Forest on 16.8.2018.
The matter was heard and this Court found
as a fact that both petitioners were working
since 1991 and were already granted
minimum of pay scale admissible to a
Class-IV employee in view of the orders
passed by the Supreme Court in the case of
State of U.P. Vs. Putti Lal, reported in 2002
(2) UPLBEC 1595. Both the petitioners
were receiving minimum of pay as per Vth,
VIth and VIIth pay commission report and
it was only vide orders impugned that
minimum pay as per VIIth pay commission
report
(Rs.18,000/-
without
any
emoluments) was withdrawn and the
petitioners were restored minimum of VIth
pay commission report (Rs.7,000/- without
any emoluments). Facts, as were brought
on record of writ petition and the counter
and supplementary counter affidavits were
taken note of and a further opportunity was
given to the State and its authorities to
examine their stand in the matter. The
Additional Chief Secretary of the Forest
Department was called upon to clarify as to
how the benefit of minimum of pay scale
previously granted in light of the orders of
Supreme Court in the case of Putti Lal
(supra) could be unilaterally withdrawn and
why the direction of the Supreme Court be
not enforced? The order passed by this
Court on 16.8.2018 contains necessary
facts of the case and also prima facie
observations of the Court, and therefore, is
extracted hereinafter in its entirety:-

"This
petition,
along
with
connected writ petitions, have been filed by
the petitioners, who claim to be working in
the Forest Department of the State since
5 All. Mohan Swaroop & Anr. Vs. The State of U.P. & Ors.
157
prior to 29.06.1991, and therefore, they
have rendered more than 28 years of
service to the Forest Department of the
State. They allege that they are discharging
work which is specifically assigned to them
in the respective Forest Divisions by the
competent authorities. According to the
petitioners, specific orders of posting are
passed for them and charge is also
delivered to them of the work allotted to
them and except for denial of designation,
they are performing work at par with other
employees of the Forest Department who
have been regularized.

They complaint that the State has
been rather unfair in dealing with their
plight; in as much as, even after having
worked for nearly three decades, they are
yet to be regularized and even minimum of
pay scale, which was being granted to them
for the last many years, has been arbitrarily
withdrawn. Petitioners have asserted, in
paragraph 14 of the writ petition, that
pursuant to the orders passed by the
Hon'ble Supreme Court on 21.02.2002 in
State of U.P. Vs. Putti Lal reported in 2002
(2) UPLBEC 1595, they were allowed to
draw minimum of pay scale, except
allowances, etc. which was, otherwise,
admissible to their counterparts in the
Government. The direction of the Hon'ble
Supreme Court in Putti Lal (supra), as is
contained in paragraph no. 5, is relied
upon, and is reproduced hereinafter:-

"5. In several cases, this Court,
applying the principle of equal pay for
equal work has held that a daily-wager, if
he is discharging the similar duties as those
in
the
regular
employment
of
the
Government, should at least be entitled to
receive the minimum of the pay-scale
though he might not be entitled to any
increment or any other allowance that is
permissible to his counterpart in the
Government. In our opinion, that would be
the correct position and we, therefore,
direct that these daily-wagers would be
entitled to draw at the minimum of the payscale being received by their counter-part
in the Government and would not be
entitled to any other allowances or
increment so long as they continue as dailywager. The question of their regular
absorption will obviously be dealt with in
accordance with the statutory rule already
referred to."

Petitioners contend, in paragraph
no. 14 of the writ petition, that they were
paid minimum of pay scale on month-tomonth basis as per the reports of the Pay
Commission enforced from time to time.
According to the petitioners, they were
initially allowed pay scale of Rs. 2,550/-
per month as per the 5th Pay Commission
report from 2002 to 2009; whereafter,
minimum of pay scale, admissible as per
the 6th Pay Commission report, was
extended to them from 11th March, 2010 to
December, 2016. The minimum of pay
scale for a Class - D employee was Rs.
7,000/- per month. After the 7th Pay
Commission report has been enforced in
the State vide Government Order dated
22.12.2016, these petitioners were paid
minimum of pay scale admissible to a Class
- D employee @ Rs. 18,000/- per month
from March, 2017 onwards. Specific
averment, made in that regard in paragraph
14 of the writ petition, has not been
controverted in paragraph no. 26 of the
counter affidavit. What is stated in reply is
that reports of the Pay Commission are
meant only for full time government
servants and have nothing to do with the
daily wagers. It is also stated that the status
158 INDIAN LAW REPORTS ALLAHABAD SERIES
and work of the petitioners are akin to
seasonal labourers, who are engaged for
few months only in a year without
completing 240 days in the said year. The
fact,
however,
that
petitioners
were
receiving minimum of pay scale as per 5th,
6th & 7th Pay Commission reports, since
long is not denied. Along with the writ
petition,
petitioners
have
annexed
passbooks of their Bank Accounts in Bank
of Baroda, as per which they had been
receiving salary in their accounts from U.P.
Treasury @ Rs. 18,000/- per month.
Petitioners have also annexed the orders, as
per which specific work was allotted to
them.

A supplementary affidavit has
been filed, in which an order dated
15.11.2015
of
the
Regional
Forest
Officer, Mahof Forest Range, Pillibhit
Forest
Division,
Pillibhit
has
been
annexed, which shows that petitioner no.
1 is described as 'Equal Pay Worker' and
has been assigned work in Tharu Hut
number 1 and 2. Similar orders have
been annexed to show that specific work
has been allotted to other petitioners.
The pay bills of certain persons from
other divisions (who are not petitioners),
who are claimed to be similarly placed,
have been annexed, in which their gross
pay is shown at Rs. 18,000/-. According
to
the
petitioners,
their
claim
for
regularization is yet to be considered in
terms of the directions issued in Putti Lal
(supra), as also the Rules framed for
regularization and that, protection of
payment at minimum of pay scale
admissible to a Class - IV employee is the
only protection which has been extended
over the years by the State. Their
grievance is that even this bare protection
has been withdrawn on an erroneous
assumption.

Learned
counsel
for
the
petitioners submits that a letter appears to
have been sent by the Principal Chief
Conservator of Forest on 15.06.2017,
which mentions about grant of minimum of
pay scale to such persons in the past. The
letter of 15.06.2017 has been relied upon in
order
to
contend
that
respondents,
themselves, have admitted that petitioners
were being paid at minimum of pay scale,
which was admissible to a Class - C or
Class - D employee. The first paragraph of
the letter of the Principal Chief Conservator
of Forest dated 15.06.2017 reads as under:-

foHkkx esa dk;Zjr lewg ^x^ ds nSfud osru
Hkkxh dkfeZdksa dh NBs osru vk;ksx dh laLrqfr;ks ds
lkn`"; U;wure osru dh Lohd`fr ls lEcfU/kr
'kklukns'k 830@pkSng&3&10&3001⁄4121⁄2@09 fnukad
25&05&2010 ,oa lewg ^^?k^^ ds nSfud osru Hkksxh
dkfeZdksa dks NBs osru vk;ksx dh laLrqfr;ksa ds lkn`";
U;wure osru dh Lohd`fr ls lEcfU/kr 'kklukns'k
la[;k 8301⁄411⁄2@pkSng&3&10&300 1⁄4121⁄2@09] fnukad
25&05&2010 ds }kjk ek0 loksZPp U;k;ky; esa nk;j
okn flfoy vihy la[;k 3634 iqRrh yky cuke
m0iz0 ljdkj ,oa vU; esa ikfjr fu.kZ; fnukad
21&02&2002
rFkk
'kklukns'k
la[;k
fjV
&361@pkSng&3&4991⁄48231⁄2
@96
]
fnukad
03&05&2002 ds vuqikyu esa lewg ^x^ dk U;wure
osrueku :0* 7730@& rFkk lewg ^?k^ dk U;wure
osrueku :0& 7000@& Hkqxrku fd;k tk jgk gSA

It appears that the Principal Chief
Conservator of Forest sought a clarification
from the State Government as to whether
the benefit of minimum of pay scale, which
now stands enhanced in view of 7th Pay
Commission report, is to be extended to
these persons or not?

Learned
counsel
for
the
petitioners
states
that
the
letter
of
15.06.2017 incorrectly describes the status
of the petitioners as daily wagers; in as
much as, the petitioners, admittedly, were
being paid @ of minimum of pay scale, and
5 All. Mohan Swaroop & Anr. Vs. The State of U.P. & Ors.
159
were being described as 'Equal Pay Worker'
in all communications and therefore, use of
expression for them as 'daily wager' was
with an ulterior intent. This letter of the
Principal Chief Conservator of Forest,
which was followed with subsequent
letters, has been replied by the Government
on 08.03.2018, stating that benefit of
Government
Order
dated
22.12.2016,
whereby, 7th Pay Commission report has
been enforced, would be applicable only
for regular employees and not upon daily
wagers.
This
Government
Order
is,
therefore, challenged in this petition.

Learned
counsel
for
the
petitioners refers to the order of the Hon'ble
Supreme Court in Putti Lal (supra) as well
as the subsequent order of the Apex Court
in
Deputy
Director,
Social
Forestry
Division
and
Another
Vs.
Lakshmi
Chandra, passed in Civil Appeal Nos. 879883 of 2016, decided on 02.02.2016, which
arose out of the contempt proceedings
drawn pursuant to the orders passed in Putti
Lal (supra). Paragraph nos. 5 to 8 of the
aforesaid judgment, read as under:-

"5. It is seen from the records of
the contempt petition that the Principal
Chief Conservator of Forests of the State
had filed an affidavit before the High Court
to the effect that necessary instructions had
been issued to all the officers concerned to
implement the directions referred to above
with regard to payment of minimum of the
payscale to the daily wagers.

6.
We
direct
the
Principal
Secretary to the Department of Forests,
U.P. and the Principal Chief Conservator of
Forests, U.P. to file separate affidavits
before
the
High
Court
on
the
implementation of the orders referred to
above. In case, the workmen have not
been paid the amounts as per the orders,
they shall see that wages are paid in terms
of the orders within a period of one month
from today and the affidavit in that regard
shall be filed before the High Court within
two weeks thereafter.

7. In case, the orders are not
implemented, the Principal Secretary to the
Department of Forests and the Principal
Chief Conservator of Forests shall not be
eligible to draw their salaries from the
month of April, 2016, without permission
from the High Court.

8. Subject to the above directions,
these civil appeals are disposed of with no
orders as to costs. Pending interlocutory
applications, if any, are disposed of."
Petitioners, then, contend that the Apex
Court, in a recent judgment in State of
Punjab Vs. Jagjit Singh and Others reported
in AIR 2016 SC 5176, has been pleased to
reiterate the principles, which are in
consonance with the directions issued in
Putti Lal (supra). Submission is that once
the petitioners were being paid salary @ of
minimum of pay scale for years together, as
per the pay scale fixed from time to time by
the State Government, which included
payment at minimum of pay scale as per
7th Pay Commission report, it would be
wholly arbitrary and unjust for the
respondents to withdraw such benefit from
the petitioners pursuant to the impugned
Government Orders; in as much as, it
would clearly be an act in teeth of the
orders of the Hon'ble Supreme Court and
would be contemptuous in nature.

Shri Abhishek Srivastava, learned
Additional Chief Standing Counsel for the
State - respondents, has vehemently urged
160 INDIAN LAW REPORTS ALLAHABAD SERIES
that the action of the State under challenge
is strictly in accordance with law and has
cited a large number of judgments,
including the Division Bench judgment of
this Court in Special Appeal No. 1530 of
2007 (State of U.P. and Others Vs. Chhiddi
and Another) decided on 24.09.2015.
Reliance is also placed upon the judgment
of
the
Hon'ble
Supreme
Court
in
Government of West Bengal Vs. Tarun K.
Roy and Others, passed in Appeal (Civil)
3527 of 1998 decided on 18.11.2003, to
contend that unless a person is regularly
appointed to a post, he would not be
entitled to minimum of pay scale. Reliance
is also placed upon a judgment of the Apex
Court in State of Punjab Vs. Surjit Singh
and Others reported in 2009 (9) SCC 514.
Learned counsel submits that benefit of
minimum of pay scale, if was being
extended to the petitioners, the same was
under threat of contempt and was not
warranted in view of the law laid down by
the Apex Court, as has been referred to in
the aforesaid judgments.

From what has been contended
before this Court, on the basis of material
placed on record, this Court, prima facie,
finds the following facts to exist on records:-

(i) petitioners were engaged from
1990-91 onwards and this engagement, with
few break, has been continued for different
periods.
However,
their
uninterrupted
continuous working for the last more than 10
years is virtually unquestioned;

(ii) specific orders have been
passed sanctioning minimum of pay scale
to the petitioners. To substantiate such plea,
petitioners have annexed an order dated
19.10.2013 passed in favour of the
petitioner no. 1, as per which he has been
placed in minimum of pay scale @ Rs.
7,000/- per month from the month of
October, 2013. This order reads as under:-

^^bl ou izHkkx dh cjkgh jsat esa dk;Zjr
nSfud Jfed Jh eksgu Lo:i iq= Jh :iyky fuoklh
xzke fHkyS ̧;k xkao[ksM+k ftyk ihyhHkhr tksfd o"kZ 1991
ls nSfud osru ij dk;Zjr jgs] dks vkt fnukad 15-102013 dks vk;ksftr p;u lfefr dh lqLrqfr ds vk/kkj
ij U;wure osru :0 7000@& izfrekg dk;Z ij
mifLFkr gksus ds fnukad ls Lohd`r fd;k tkrk gS fd
budh rSukrh bl ou izHkkx dh cjkgh jsat esa tufgr
esa dh tkrh gSA bl rSukrh gsrq bUgsa dksbZ ;k=k HkRrk
ns; ugha gksxkA^^

(iii) records further reveal that
petitioners have been assigned specific
work pursuant to the specific orders passed
by the competent authority from time to
time;

(iv) minutes of meeting dated
15.10.2013 have also been brought on
record
by
the
respondents,
which
acknowledge that the petitioners are
working since long, but it is not possible
to regularize their services as of now.
However,
recommendation
has
been
made to grant them minimum of pay
scale in light of orders passed in different
courts proceedings, and also by the
concerned authorities
of the Forest
Department. The working of petitioners
since long as well as payment of
minimum of pay scale to them is,
therefore, not in issue; and

(v) records also reveal that after
7th Pay Commission report was introduced,
the minimum of pay scale was released to
the petitioners and such benefit was granted
to the petitioners from the month of March,
2017 onwards and got discontinued in
March,
2018.
According
to
the
respondents,
this
benefit
has
been
withdrawn because there was no approval
of the State.
5 All. Mohan Swaroop & Anr. Vs. The State of U.P. & Ors.
161

From the facts, noticed above,
this Court finds that petitioners are
continuing
for
the
last
several
years/decades
and
the
respondents,
themselves,
have
granted
benefit
of
payment to them at minimum of pay scale,
although without any allowances. This
arrangement, apparently, was followed by
the respondents in view of the specific
directions issued by the Hon'ble Supreme
Court in Putti Lal (supra) and has been
reiterated under the orders of the Hon'ble
Supreme Court dated 02.02.2016 in Deputy
Director, Social Forestry Division and
Another Vs. Lakshmi Chandra (passed in
Civil Appeal Nos. 879-883 of 2016,
decided on 02.02.2016).

Once the entitlement of the
petitioners, to be paid minimum of pay
scale admissible to a Class - IV
employee, has been acknowledged by the
respondents, it would be difficult to
accept the contention of the respondents
that minimum of pay scale, which is
applicable now, would not be extended to
them (the petitioners). What is relevant
is the minimum of pay scale and not the
Pay Commission reports; in as much as,
Pay Commission reports are enforced
for different periods depending upon the
price index, etc. It is not in dispute that
7th Pay Commission report has been
enforced in the State. The minimum of
pay scale, as on date, would be the
minimum
of
pay
scale
which
is
admissible to other similarly placed
employees of the State carving out
distinction for persons who are receiving
salary in the minimum of pay scale, so as
to deny them minimum of pay scale
admissible
to
a
similarly
placed
Government servant as on date, only on
the ground that they are treated as daily
wager, would be wholly irrational
and violate Article 14 of the Constitution
of India, apart from being violative of
the directions issued by the Apex Court.

Prima facie, the State would not
be justified in denying minimum of pay
scale to the petitioners at par with other
similarly placed Government employee
(except allowances, etc.) only because
there is no specific order granting
minimum of pay scale to the daily
wagers. The denial of minimum of wages
on the strength of Government Order
dated 08.03.2018 is also found to be
unsustainable
in
law.
This
interpretation,
on
part
of
the
respondents, appears to be inconsistent
with and in teeth of the directions issued
by the Apex Court from time to time.
Although
learned
Additional
Chief
Standing Counsel has referred to various
orders passed by the Apex Court, but
those judgments, apparently, will have
no applicability in the facts of the
present case; in as much as, a specific
direction of the Hon'ble Supreme Court,
with regard to employees of Forest
Department (which has already been
implemented by them), would continue
to be applicable upon them, particularly,
when the latest order of the Hon'ble
Supreme Court, inter se, parties arising
out of the same contempt proceedings,
reiterates the direction issued by the
Apex Court in Putti Lal (supra).

In view of the above, it would
be appropriate to extend one more
opportunity
to
the
respondents
to
examine their stand and to call upon the
Additional
Chief
Secretary,
Forest
Department of the State of U.P. to clarify
as to how the benefit of minimum of pay
162 INDIAN LAW REPORTS ALLAHABAD SERIES
scale, which has been extended to these
persons under the orders of the Apex
Court, referred to above, could be
withdrawn unilaterally by the State
pursuant to the Government Orders
impugned? The Officer shall also explain
as to why the direction of Apex Court
dated 02.02.2016 to deny salary to him
and the Principal Chief Conservator of
Forest be not enforced?

The Officer concerned, before
filing his reply, is expected to be conscious
of the fact that the direction issued by the
Hon'ble Supreme Court is, otherwise,
binding upon all the authorities by virtue of
Article 141 of the Constitution of India.

Let the required affidavit be filed
by 31st of August, 2018. Put up this case,
in the additional cause list, on 31.08.2018.
" (Emphasis supplied)

8. The matter was adjourned again on
31.8.2018 requiring the authorities to file
their affidavit, after examining their own
records
in
light
of
the
previous
observations made in the matter. The order
dated 31.8.2018 reads as under:-

"Supplementary affidavit filed
today is taken on record.

Pursuant to the order passed on
16.8.2018, matter is listed today. Learned
Standing Counsel has made a request to
defer the hearing as various materials are
being collected in the process.

Supplementary affidavit has been
filed on behalf of the petitioner stating that
the Principal Chief Conservator of Forest is
proceeding to harass and victimize all those
who have complied with the orders of the
Hon'ble Supreme Court.

Learned
counsel
for
the
petitioners submits that officers are in
contempt and appropriate proceedings be
drawn against them.

In view of the fact that the matter
is being deferred on request of the learned
Standing Counsel, this Court need not
make any observations on the oral prayer of
the petitioners, at this stage.

Let this matter be listed in the
additional cause list on 13.9.2018 at 2.00
PM. Required affidavits shall be filed, in
terms of the previous order, by the
Additional
Chief
Secretary
and
the
Principal Chief Conservator of Forest, by
the next date fixed, failing which both the
officers shall remain personally present
before the Court alongwith records.

It shall be open for the learned
Standing Counsel to obtain instructions
with regard to averments made in the
supplementary affidavit filed today."

9. The respondents in their counter
affidavit primarily urged that petitioners
have not worked continuously since 1991,
as was alleged in the writ petition, and that
there were breaks in their working from
time to time. A plea was also taken that
benefit of minimum of pay scale was
allowed previously in the year 2013 in
ignorance of correct facts about petitioners'
continuous working since 1991.

10. The petitioners filed a rejoinder
affidavit denying the allegations made in
the counter affidavit and prayed for
initiating perjury against the officials of the
Forest Department. It was also contended
that respondents have filed false affidavit
about petitioners' working not being
continuous since 1991 and that the stand of
5 All. Mohan Swaroop & Anr. Vs. The State of U.P. & Ors.
163
respondents was contrary to their own
record.

11.

The
above
accusation
of
petitioners led to filing of a supplementary
counter affidavit by Principal Secretary,
Forest, State of U.P., on 12.9.2018, running
into 88 pages. A supplementary counter
affidavit was also filed by the Principal
Chief Conservator of Forest on 10.9.2018,
running into 113 pages. The Sub-Divisional
Officer also filed a short counter affidavit
on 11.9.2018. An application thereafter was
filed by the Principal Chief Conservator of
Forest on 25.9.2018 to withdraw his
previous affidavit to which an objection
was also filed by the petitioners. Third
supplementary
counter
affidavit
was
thereafter filed by the Principal Chief
Conservator of Forest on 29.9.2018, which
was followed with yet another counter
affidavit
filed
by
Principal
Chief
Conservator of Forest on 3.10.2018. These
affidavits formed part of the record of writ
petition.

12. The matter remained pending and
in between the roster changed. An order
came to be passed by the Hon'ble Chief
Justice on 1.10.2018 nominating this Court
to hear the present petition alongwith
connected matters. On 3.10.2018, the
matter was heard again at length and
following orders were passed:-

"1. This matter has been placed
today pursuant to an order of nomination
passed by Hon'ble The Chief Justice on 1st
October, 2018.

2. A detailed order had been
passed
on
16.8.2018,
requiring
the
respondents to file an affidavit in light of
the observations made therein. Matter was
thereafter
adjourned
on
different
occasions and following orders were passed
on 25.9.2018:-

"This matter is listed today
pursuant to an order passed on 20th of
September, 2018.

An application has been filed for
permitting the learned Standing Counsel to
withdraw
the
supplementary
counter
affidavit filed by the respondents on 10th of
September, 2018. This application is
supported by the affidavit of Principal
Chief Conservator of Forest, wherein it is
stated that some of the paragraphs were not
properly worded and for which the
deponent tenders an unconditional apology.

Shri Pankaj Srivastava, learned
counsel appearing for the petitioners
strongly contests the application and
contends that materials have been brought
on record, which would constitute an act of
ex-facie contempt, and therefore, the
respondents ought not to be allowed to
withdraw their affidavit.

Shri Abhishek Srivastava, learned
Additional Chief Standing Counsel submits
that an affidavit in reply to the writ petition
and the observations made by this Court in
the order dated 16.8.2018 would be served
upon the petitioners by Monday i.e. 1st of
October, 2018.

Application for withdrawal would
be considered on the next date fixed in the
matter i.e. 3rd of October, 2018. Petitioners
would be at liberty to file a reply to the
affidavits of respondents by then.

List this case in the additional
cause list on 3rd of October, 2018.
164 INDIAN LAW REPORTS ALLAHABAD SERIES

The Principal Chief Conservator
of Forest shall remain personally present
before the Court along with the relevant
records."

3. Pursuant to the aforesaid order,
the Principal Chief Conservator of Forest is
present before the Court. Sri Neeraj
Tripathi, learned Additional Advocate
General
assisted
by
Sri
Abhishek
Srivastava appearing for the respondent
State have been heard on an affidavit filed
by the concerned respondent.

4. This Court on 16.8.2018 had
recorded following prima facie findings:-

"(i) petitioners were engaged
from
1990-91
onwards
and
this
engagement, with few break, has been
continued for different periods. However,
their uninterrupted continuous working for
the last more than 10 years is virtually
unquestioned;

(ii) specific orders have been
passed sanctioning minimum of pay scale
to the petitioners. To substantiate such
plea, petitioners have annexed an order
dated 19.10.2013 passed in favour of the
petitioner no. 1, as per which he has been
placed in minimum of pay scale @ Rs.
7,000/- per month from the month of
October, 2013. This order reads as
under:-

^^bl ou izHkkx dh cjkgh jsat esa dk;Zjr
nSfud Jfed Jh eksgu Lo:i iq= Jh :iyky fuoklh
xzke fHkyS ̧;k xkao[ksM+k ftyk ihyhHkhr tksfd o"kZ 1991
ls nSfud osru ij dk;Zjr jgs] dks vkt fnukad 15-102013 dks vk;ksftr p;u lfefr dh lqLrqfr ds vk/kkj
ij U;wure osru :0 7000@& izfrekg dk;Z ij
mifLFkr gksus ds fnukad ls Lohd`r fd;k tkrk gS fd
budh rSukrh bl ou izHkkx dh cjkgh jsat esa tufgr
esa dh tkrh gSA bl rSukrh gsrq bUgsa dksbZ ;k=k HkRrk
ns; ugha gksxkA^^

(iii) records further reveal that
petitioners have been assigned specific
work pursuant to the specific orders passed
by the competent authority from time to
time;

(iv) minutes of meeting dated
15.10.2013 have also been brought on
record
by
the
respondents,
which
acknowledge that the petitioners are
working since long, but it is not possible to
regularize their services as of now.
However, recommendation has been made
to grant them minimum of pay scale in
light of orders passed in different courts
proceedings, and also by the concerned
authorities of the Forest Department. The
working of petitioners since long as well as
payment of minimum of pay scale to them
is, therefore, not in issue; and

(v) records also reveal that after
7th Pay Commission report was introduced,
the minimum of pay scale was released to
the petitioners and such benefit was granted
to the petitioners from the month of March,
2017 onwards and got discontinued in
March,
2018.
According
to
the
respondents,
this
benefit
has
been
withdrawn because there was no approval
of the State."

5. In the supplementary counter
affidavit filed today by the Principal Chief
Conservator of Forest, the prima facie
findings contained in the order dated
16.8.2018 are sought to be challenged by
contending that benefits were wrongly
granted to the petitioners earlier, and that
officers who had extended benefits to the
petitioners are being proceeded with
departmentally. Attention of the Court has
been
invited
to
para
18
of
the
supplementary counter affidavit, which
reads as under:-
5 All. Mohan Swaroop & Anr. Vs. The State of U.P. & Ors.
165

"18. That the Department had
also proceeded to take action against the
erring officials, who were instrumental in
granting minimum pay to the petitioners in
year 2013. It is worth mentioning that the
petitioner no.1, who was working in
another Forest Division of Pilibhit Forest
area has been granted minimum pay by the
other Division and not the Divisional
Forest Officer under whom he has worked.
Similarly it is also surprising that the
document, which has been considered by
Selection Committee at the time of granting
minimum of the pay scale to petitioner
nos.1 and 2 in the year 2013, the committee
was not having the work details of the
petitioner no.1 after 2010 and the petitioner
no.2 after 2006 and on account of all these
facts the Department has proceeded against
the erring officials, who have improperly
granted minimum pay to the petitioners
without examining their record thoroughly
and in teeth of rule-8 of the Regularization
Rules, 2001."

6. In para 17, the officer admits
that
certain
duties
were
allotted
to
petitioners and that orders might have been
issued by the then Divisional Forest
Officer, at local level. It is then stated that
notwithstanding such records the nature of
engagement of petitioners remain that of a
daily wager. Para-17 of the supplementary
counter
affidavit
is
also
reproduced
hereinafter:-

"17. That the petitioners in their
Supplementary
Affidavit
have
only
annexed two documents pertaining to them
as all other documents have no relation
with them. One such document is letter
dated 15.11.2015 annexed as annexure no.1
to the second supplementary affidavit dated
21.5.2018. It is stated that regarding some
duties allotted to the petitioners, the
orders might have been issued by the then
Divisional Forest Officer alongwith the
orders for other regular employees by the
then Divisional Forest Officer at local
level. The duties of the petitioners were of
the nature of daily wagers only but instead
of maintaining their muster roll, vouchers
have been prepared for their payment
because of accounting procedure for
payment of minimum pay. It is to be made
clear that no order has been issued from the
Headquarter level of the U.P. Forest
Department
regarding
assigning
any
specific duty of responsibility to any daily
wager getting minimum of the pay scale."

7. Oral submission is advanced
on behalf of respondents contending that
there were different divisions in Pilibhit
where petitioners were engaged and while
petitioners were working in one division,
some of the privileges have been granted
by officers of other divisions. This oral
submission, however, is not supported by
any specific pleading in the supplementary
counter affidavit. The respondents have
also placed reliance upon a chart
contained
in
Annexure-3
to
the
supplementary
counter
affidavit
to
suggest
that
petitioners
were
not
working on a regular basis. This chart,
however, contains a remark column as
per which the basis of such contention is
the certificate or cashbook item. The
officer swearing the affidavit has not
owned any responsibility with regard to
working
of
the
petitioners,
with
reference to the records available in the
office concerned. The assertions, on
facts, are based upon only two records.
Facts ought not to be pleaded with
reference to selective records, when the
respondents are in possession of entire
166 INDIAN LAW REPORTS ALLAHABAD SERIES
records with them. It is not in dispute
that petitioner no.1 has been working
since 1991. Similar is the situation
regarding
other
petitioners.
The
selection committee has already granted
benefit of minimum of pay scale to
petitioner in the year 2013 and the
dispute appears to have been raised only
when minimum of pay scale as per the
VIIth Pay Commission Report was
withdrawn under the impugned orders.
It is at this stage that respondents have
virtually started questioning all previous
decisions extending privileges to the
petitioners on the basis of records
available. Such orders have otherwise
not been withdrawn in any proceedings
known to law. Although the Principal
Chief Conservator of Forest was directed
to remain present with records to assist
the Court, but upon being asked to
produce relevant records relating to
petitioner no.1, as a test case, no records
are
available
or
produced.
The
arguments
advanced
on
behalf
of
respondents are otherwise not found to
be supported by reliable material.

8.