# Ram Dulare Shukla v. The Managing Director, Jal Nigam, Lucknow and others

- **Citation:** (2003) 3 ILRA 726
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-07-18
- **Case number:** Civil Misc. Writ Petition No. 47316 of 2002
- **Bench:** S.N. Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-dulare-shukla-v-the-managing-director-jal-nigam-lucknow-and-others-40184
- **Pages:** 9

## Headnote

Constitution
of
India,
Article
226-
Regularisation & payment of SalaryEqual
pay
for
equal
work
Daily
Wage/Muster roll employees- working in
U.P. Jal Nigam as class IV employee for
10
year-Representation
for
regularization of service-Order by Chief
Engineer (Personal) for regularization
grant of minimum wages as given to
regular employees-Order not approved
by State Government Relying on apex
Court's decision in Putti Lal's case order
of Chief Engineer rescinded with out
affording
opportunity
of
hearing
to
petitioners-held, U.P. Jal Nigam framed
Schemes
duly
approved
by
State
Government for regularization of those
employees who had put five years of
service-Hence
Puttilal's
case
which
relates to regularization rules of State
Government, held, not applicable to daily
wages/muster roll employees of Jal
Nigam-directed
to
from
scheme
consistent
with
best
policy
for
regularization of those muster roll/daily
wages employees with five years or
more service in department-secondly,
daily wages/muster roll employees, held,
entitled to minimum of pay scale and
allowances as admissible to their regular
counterparts-
payment
was
made
bonafide, order granting minimum of pay
scale and dearness allowance-Hence no
recovery can be made-Impugned order
dated 22.8.2002 quashed-Equal pay for
equal work.
Cases referred:
(2002) UPCBEC 1595
(2001) 2 SCC 62
AIR 1991 SC 420
(1998) 9 SCC 595
SLP (Civil) 14326 of 2001
1979 ALJ 1184
JT 1995 (1) SC 24: 1979 ALJ 184 (DB)
1996 AWC 94

## Text

726 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

4. Learned counsel for the petitioner
has miserably failed to demonstrate that
while appointing the petitioner, the
procedure prescribed under the Statute
has
been
followed
and
that
the
appointment made by the committee of
management is ever approved by the
authorities, namely, Inspect of Sanskrit
Pathshala or the Deputy Director of
Education (Sanskrit), the authorities who
can perform the statutory function under
the Act.

5. In this view of the matter and
particularly with regard to this assertion
that the petitioner though claims for the
payment of salary from the State of U.P.
but has not impleaded the State of U.P. as
one of the respondents in the writ petition,
the petitioner is not entitled for any relief
and the writ petition deserves to be
dismissed.

6. In the result, the writ petition fails
and is hereby dismissed. The Interim
order, if any, stands vacated. There will
be no order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.7.2003

BEFORE
THE HON'BLE S.N. SRIVASTAVA, J.

Civil Misc. Writ Petition No. 47316 of 2002

Ram Dulare Shukla

...Petitioner
Versus
The Managing Director, U.P. Jal Nigam
Lucknow and others
 ...Respondents

Counsel for the Petitioner:
Sri H.C. Shukla
Counsel for the Respondents:
Sri A.K. Misra
Sri Sabhajeet Yadav
Constitution
of
India,
Article
226-
Regularisation & payment of SalaryEqual
pay
for
equal
work
Daily
Wage/Muster roll employees- working in
U.P. Jal Nigam as class IV employee for
10
year-Representation
for
regularization of service-Order by Chief
Engineer (Personal) for regularization
grant of minimum wages as given to
regular employees-Order not approved
by State Government Relying on apex
Court's decision in Putti Lal's case order
of Chief Engineer rescinded with out
affording
opportunity
of
hearing
to
petitioners-held, U.P. Jal Nigam framed
Schemes
duly
approved
by
State
Government for regularization of those
employees who had put five years of
service-Hence
Puttilal's
case
which
relates to regularization rules of State
Government, held, not applicable to daily
wages/muster roll employees of Jal
Nigam-directed
to
from
scheme
consistent
with
best
policy
for
regularization of those muster roll/daily
wages employees with five years or
more service in department-secondly,
daily wages/muster roll employees, held,
entitled to minimum of pay scale and
allowances as admissible to their regular
counterparts-
payment
was
made
bonafide, order granting minimum of pay
scale and dearness allowance-Hence no
recovery can be made-Impugned order
dated 22.8.2002 quashed-Equal pay for
equal work.
Cases referred:
(2002) UPCBEC 1595
(2001) 2 SCC 62
AIR 1991 SC 420
(1998) 9 SCC 595
SLP (Civil) 14326 of 2001
1979 ALJ 1184
JT 1995 (1) SC 24: 1979 ALJ 184 (DB)
1996 AWC 94

(Delivered by Hon'ble S.N. Srivastava, J.)

1. This petition and other connected
petitions have been filed for the relief of a
writ of mandamus commanding the
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3 All] Ram Dulare Shukla V. The Managing Director, Jal Nigam, Lucknow and others
727
respondents to regularise the service of
the petitioners who are languishing in the
department in the uncertainty of adhocism
for years together.

2. All the petitions may be different
in factual aspect but the subject matter of
impugnment in this batch of the petition
i.e. the order dated 22.8.2002 passed by
the Chief Engineer, (Personal), U.P. Jal
Nigam, Lucknow is identical by ;which
earlier order dated 12.10.2001 passed by
managing Director was rescinded on the
ground that the earlier order aforesaid
granting minimum of the wages at par
with regular employees militated against
the mandate embodied in the decision of
the Apex Court in Civil Appeal No. 3634
of 1995 State of U.P. v. Putti Lal and by
an incompetent authority.

3. The factual matrix of the present
case in writ petition no. 15617 of 2003 is
that the petitioner entered the service on
1.4.1989 as Runner/Chaukidar and in the
course of time, he represented to the
authorities on several dates seeking
regularisation of his service in one of the
vacant
posts
in
the
department.
Ultimately, certain employees invoked the
extra ordinary jurisdiction of this Court in
Lucknow Bench and pursuant to the
directions issued by the Lucknow Bench
of this Court, minimum of pay scale to all
muster roll employees was granted vide
memorandum
dated
12.10.2001.
Subsequently, on the basis of decision of
the Apex Court in Putti Lal, the
aforestated
office
memorandum
was
rescinded and the muster roll employees
were relegated to status quo ante. It is in
this back ground that the petitioner has
preferred the instant petition for relief of
mandamus.

4. Heard learned counsel and
perused the materials on record. The
learned
counsel
for
the
petitioner
premised his argument by submitting that
the impugned order thereby earlier order
granting
minimum
of
the
wages
admissible to a regular employee was
rescinded without affording opportunity
of hearing and the petitioners were
entitled to hearing. It was submitted by
the learned counsel that under the order
dated 12.10.2001 issued by the Chief
Engineer (Personnel), Uttar Pradesh Jal
Nigam, Head Office, Lucknow petitioners
were given minimum of the pay scale
along with other allowance admissible to
the regular employees with effect from
1.10.2001 and that this order was given
effect to in respect of all the muster roll
employees on the rolls of Jal Nigam since
long. It was further submitted that the
impugned order has the effect of affecting
their salaries and as a consequence thereof
their status and livelihood have also come
to suffer and without opportunity of
hearing on such order could be passed. It
was also can vassed that the impugned
order has its foundation in three grounds -
(1) The judgment of Apex Court in State
of U.P. versus Putti Lal1 by which Apex
Court has held that before regularization
no employee could be given minimum
pay scale and as such the order dated
12.10.2001 was contrary to the terms of
the Judgement of Apex Court (2) it has
not been issued with prior approval of the
State and the competent authority and (3)
order dated 12.10.2001 has not been
issued in accordance with law and
submitted that none of the grounds cited
in the impugned order were potent enough
to warrant cancellation of earlier office
order inasmuch as in State of U.P. versus

1 (2002) 2 UPLBEC 1595
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728 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
Putti Lal (supra) the Apex Court had
directed to pay minimum of the pay scale
to the employees who are working for a
long time and are discharging similar
functions as regular employees and
further that the direction given by the
office order dated 12.10.2001 to pay
allowance in addition to the minimum of
the pay scale received reinforcement from
various other decisions of the Apex Court.
It was lastly convassed that in order to
effectuate the order dated 12.10.2001 the
competent
authority
had
sanctioned
various funds which was released by the
Government and it has no grounding in
the fact to say that the order had not
received approbation of the competent
authority or the State government and as
such the order dated 12.10.2001 lacked in
validity and the impugned order is vitiated
in law.

5. In reply to the same Sri A.K.
Misra, learned counsel for opposite
Parties relying upon counter affidavits
filed in some of the writ petitions
including writ petition no. 47316 of 2002
contended that the Jal Nigam was
established by the State of Uttar Pradesh
under section 3 of the U.P. Water supply
and Sewerage Act, 1975 (hereinafter
referred to as the Act). It was further
contended that sections 8 and 89 of the
Act envisaged that the Nigam may
appoint such employees as it may
consider
necessary
provided
the
appointment of such employees shall
specify
their
terms
and
conditions
determined with the approval of the State
government as a matter of policy and in
case if any question arises whether any
matter is or is not a matter as respects
which the State government may issue a
directions under sub section (1) the
decision of the State government shall be
final. He further contended that under the
policy of the State of Uttar Pradesh, U.P.
Jal Nigam framed a scheme to regularise
its work charge employees who had
completed the span of five years of
service in unbroken continuity in .U.P. Jal
Nigam
on
1.4.1985.
The
State
government accepted this scheme and
2163
posts
were
further
created.
Subsequently, on 3.12.1988 2500 posts
created to regularise services of daily
wage/work charge employees who had
completed five years of service in Jal
Nigam and the Board in the meeting dated
18.11.1989
created
5918
posts
for
regularization of daily wage/ muster roll/
work charge employees. Thus, total
10,581 posts were created by the U.P. Jal
Nigam
for
regularization
of
daily
wage/muster roll/work charge employees
who have completed five years of service
until 31.3.1989. 9642 muster roll/work
charge
employees
service
were
regularized. Subsequently those persons
were also allowed revised pay scale
subject to the condition that they fulfill
requisite qualification. It has been pointed
out that matter is still sub judice. He
further contended that the provisions of
notification dated 21.12.2001 providing
regularization cannot be called in aid for
applicability to U.P. Jal Nigam as this
Regularisation Rule is intended for
application to the daily wages employees
of the State Government and not the daily
wage employees of U.P. Jal Nigam. The
learned counsel further canvassed that the
decision in State of U.P. versus Putti Lal
(supra) relates to the workers of Forest
department and orders passed relating to
the Forest department cannot be imported
for application on the ground of parity
with the employees of U.P. Jal Nigam
which is a separate and district entity
different from the State government. He
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3 All] Ram Dulare Shukla V. The Managing Director, Jal Nigam, Lucknow and others
729
draw a distinction stating that petitioners
have been harnessed to work on particular
projects run under U.P. Jal Nigam in the
work charge establishment and since
wages are paid from the funds allocated
for a particular project, it cannot be
assumed that the work of work charge
employee employed for a particular
project is of permanent nature and
consequently by reason of being a muter
roll employee, they are not entitled to get
salary at part with the regular employee of
the Jal Nigam. Since some of the works
allotted to the petitioners, proceeds the
submission, include installation of the
hand pump, management of drinking
water in the pilot districts of U.P. from the
U.P. Jal Nigam has now been assigned to
the U.P. Gramin Paye Jal Mission (Jal
Nidhi)
constituted
by
the
State
government. Similarly by government
order dated 5.1.2002 work of water
supply and sanitation mission has been
taken over from Jal Nigam and has been
entrusted
to
Swajal
Pariyojana
Prabandhan Unit, U.P.. Theatre and work
of installation of hand pumps in all the 70
districts
of
Uttar
Pradesh
was
decentralized and entrusted to Gramin
Panchayats of the State and 10% work of
installation of hand pumps under the
Government order dated 7.1.2002 has
been entrusted to U.P. State Agro
Industrial State Corporation. It is in the
back drop of the above submissions
learned counsel for opposite Parties
propounded that the petitioners are not
entitled to be regularized.

6. I have scanned the submissions
made across the bar in all its pros and
cons. From the facts stated above it is
clear that according to stand taken in the
counter affidavit of the U.P. Jal Nigam
10,581 posts were created from time to
time for regularization of the work
charge/muster roll employees out of
which only 9642 have been regularized
and they are being paid regular pay scales.
Certain posts out of the posts created are
still vacant with the department. From the
perusal of the counter affidavit it is
manifestly clear that U.P. Jal Nigam was
brought into being to resolve problem of
drinking water in small townships below
2000 population under the 8th five year
plan while the urban water supply
schemes are financed by the State and
Central Government. It brooks no dispute
that Ganga Action Plan -I and Ganga
Action Plan- II are also run by U.P. Jal
Nigam and these schemes are perpetual
and permanent in nature. Similarly rural
drinking
water
scheme
and
human
resource development area also being run
by the U.P. Jal Nigam. All these schemes
are of permanent nature.

7. In view of the contention of the
learned counsel that drinking water has
come to the recognised as fundamental
right and further that burgeoning crisis of
pollution has added wide dimension to the
cumbersome task of providing potable
water in the State of U.P., the work of the
Jal Nigam is not likely to decrease but
would rather increase manifold. It is in the
contest of the above contention that I feel
called to examine the question of regular
appointment of the adhoc employees
languishing in a state of uncertainty for
years together. In A.P. Pollution Control
Board II v. Prof. M.V. Nayudu (Retd.)
and others2, the Apex Court held that the
right to access to drinking water is
fundamental to life and there is a duty on
the state under Article 21 to provide clean
drinking water to its citizens. In Subhas

2 (2001) 2 SCC 62
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730 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
Kumar vs. State of Bihar3, the relevant
observation of the Apex Court was that
the right to live is a fundamental right
under Article 21 of the Constitution and it
includes the right of enjoyment of
pollution free water and air for full
enjoyment of life. In the prevailing
situation, clean and pure drinking water
qua
the
depleting
resources
and
proliferation of population growth has
attained the dimension of a challenge and
the State too is striving hard and has
spared no efforts to fling its all resources
in providing clean and pure drinking
water. The contention of the learned
counsel carries some substance that with
depleting resources the resolution of
water problem cannot be measured in
terms of months or years and it should be
taken to be a perennial and continuing
process with proiferation of population
growth. With pure and clean water being
declared as fundamental right, the State is
called upon to strain more and more its
existing resources to the fullest and in the
circumstances it would be day dreaming
to expect that the State would not need the
services of the existing employees and
that they would be surplus with coming to
an end the existing project. Therefore, the
plea of the U.P. Jal Nigam that the Jal
Niam assigns different projects a limited
life and duration and limited work and
that the appointments are made project
wise and to endura for the period the
concerned project subsists, is illusory and
does not commend to me for acceptance.

8. It admits of no doubt that the U.P.
Jal Nigam was established to carry out the
scheme to provide clean drinking water to
the people residing in Uttar Pradesh. All
such schemes whether it is to provide

3 AIR 1991 SC 420
drinking water to the urban population or
rural population or formulated as a nodal
authority under the Ganga Action Plan-I
or Ganga Action Plan-II, converge to one
common object of accomplishing the goal
of providing clean drinking water to the
people of Uttar Pradesh. The argument of
Sri A.K. Misra, learned counsel for
opposite Parties that the work and the
schemes run by the U.P. Jal Nigam are
not of permanent nature, in my considered
view does not commend itself for
acceptance in the perspective of facts
stated supra. In fact the work of the U.P.
Jal Nigam is, by all reckoning of
permanent nature and with burgeoning
population and expanding need of the
humanity, it is not difficult to visualize
that U.P. Jal Nigam is not going to fall
short of work/projects and schemes would
be available in planty to meet the future
needs of the population with crisis of
acute water shortage depending with each
passing year qua the depleting resources
and in the circumstances having regard as
fundamental right, U.P. Jal Nigam is
under a duty to grapple with the
prospective need of the people of the
State of U.P. for provision of clean
drinking water.

9. The order of 12.10.2001 passed
by the Chief Engineer (Personnel), U.P.
Jal Nigam providing minimum of the pay
scale and other allowances to petitioners
who according to the averments made in
the petitions are languishing in precarious
existence for more than ten years, was
rescinded in view of the ratiocination
flowing from the judgement in State of
U.P. vs. Putti Lal (supra) as well as on
the premises that it was not given
approbation by the competent authority
and the State of Uttar Pradesh. Learned
counsel for petitioners placed evidence on
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3 All] Ram Dulare Shukla V. The Managing Director, Jal Nigam, Lucknow and others
731
the judgement in State of U.P. versus
Putti Lal (supra) in which Apex Court has
provided minimum of the pay scale to the
employees of the Forest department. The
ground for cancellation of the order dated
12.10.2001 that in view of the judgment
of Apex Court petitioners are not entitled
to get minimum pay scale does not
survive. The other reason given in the
impugned order that it was not sanctified
by approval of the competent authority
and the State of Uttar Pradesh also has no
grounding in the fact having regard to the
fact that the order dated 12.8.2001 was
levied in implementation and each and
every muster roll employee working in
the establishment since long was paid
minimum of the pay scale equivalent to
the
regular
employees
who
are
discharging
similar
functions.
More
passing bald order by the Chief Engineer
(Personnal) of U.P. Jal Nigam will not
vivify the contention and put life into the
order. It is not disputed that the payment
has to be made by the State government
and by this reckoning, it will not be
difficult to visualise the paper must have
been set in motion for go ahead by the
competent
authority
to
the
State
government and after necessary sanction
given by the competent authority and
approbation
accorded
by
the
State
government the payment could possibly
be made. It admits of no doubt that the
petitioners must not have been paid
minimum of the pay scale merely on the
point of the order passed by the Chief
Engineer
(Personnel).
The
opposite
Parties have not brought any document to
show as to how the actual payments came
to be made. In my view this being a
matter involving finances, unless the
approval comes from the competent
authority of U.P. Jal Nigam studded with
approbation of the State Government, nor
a single shall can be parted with in favour
of any person. Moreover, opposite Parties
have not dwelt upon this aspect in the
counter affidavit as to who is the
competent authority in the U.P. Jal Nigam
and how the payments were made in
compliance of the order of Chief Engineer
(Personnel) in the event of absence of
approval from the State Government. It
would be pre-emptive of the duties of the
Court to wander off into this aspects and
it is for the authority of the Nigam to
consider and decide the same.

10. The second aspect which is very
relevant for the purposes of the present
case is that all the petitioners have put in
more than ten years and they have
actually worked in unbroken continuity.
Sri A.K. Misra, learned counsel for
opposite Parties, has admitted before this
Court that all these persons are actually
working and they have not been declared
surplus. As held supra, the work of U.P.
Jal Nigam is of permanent nature and its
statutory function is to provide clean
drinking water to the citizens of Uttar
Pradesh through various projects in the
Urban as well as in rural areas. It is also
apparent from the counter affidavit that
since 1985 up to now the U.P. Jal Nigam
has framed a number of schemes for
regularization of the muster roll work
charge
employees,
which
were
subsequently approved by the State
government. It is also apparent and
admitted in this counter affidavit that
10581 posts were already created out of
which more than 939 posts are still vacant
and the criteria for regularization in U.P.
Zal Nigam under various schemes since
very beginning is continuous services for
five years. In this perspective U.P. Jal
Nigam is enjoined to frame a fresh
scheme and create remaining posts
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732 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
according to their requirements with
approval of the State Government to
regularize those persons who are working
for more than five years approved by the
State Government. In the perspective of
the facts (supra) it is quite clear that the
U.P. Jal Nigam under a policy has in the
post framed schemes duly approbated by
the State of U.P. for regularization of
those employees who had put in five
years of services and by this reckoning,
the argument of Sri A.K. Misra that putti
lal's case which relates to regularization
rules of the State Government is not
intended for application to the daily
wage/muster roll employees of the Jal
Nigam
does
commend
to
me
for
acceptance.
In
the
circumstances,
direction is rendered necessary that the
U.P. Jal Nigam may take requisite steps
for framing of fresh scheme consistent
with its post policy for regularization of
those muster roll /daily wage employees
who had completed five years or more
service in the department.

11. So far as minimum of the pay
scale is concerned, the Apex Court in both
the cases cited across the bar held the
consistent
view
that
daily
wage
employees working since long and
discharging same work at par with
regularly
appointed
employees
are
entitled to minimum of the pay scale. The
question posed before this court is
whether in the light of various decisions
of the Apex Court, the petitioners are
entitled to other allowances as well or not.
In State of Punjab and others v. Devinder
Singh and others4 the Apex Court was
seized of the case of daily wage ledger
keepers/Ledger clerks on the question
whether those daily wage Ledger clerks

4 (1998) 9 SCC 595
were entitled to salary and allowances at
par with regularly appointed clerks in the
department. While setting aside the
judgment of the High Court the Apex
Court directed as under :

"The direction issued by the High
Court in favour of the respondents
entitling them to get the salary and
allowances
as
regularly
appointed
employees is set aside and instead. It is
directed that the respondents will be
entitled to get the minimum of the pay
scale
available
to
the
Ledger
keepers/ledger clerks with permissible
allowances
on
that
basis
and
the
difference
between
the
emoluments
already paid to each of the respondents
and those payable to them pursuant to the
present order will be payable to the
respondents for a period of three years
prior to the filling of the writ petition and
thereafter minimum salary in the time
scale of ledger keepers/ledger clerks with
appropriate allowances thereon shall be
available to the respondents so long they
work as daily wage ledger keepers/ledger
keepers.

12. At this stage, this Court takes
notice of the decision rendered by the
Apex Court in Chandra Shekhar Azad
University Agra. & Tech. V. Dainik
Wetan Bhogi Karamchari Sang and
others5. The decision of the Apex Court is
excerpted below :

"In view of the limited notice that
had been issued in this case, the question
for our consideration is whether a daily
wager, on being directed to be paid at the

5 Special Leave to Appeal (Civil) No. 14326
of 2001
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3 All] Ram Dulare Shukla V. The Managing Director, Jal Nigam, Lucknow and others
733
minimum off the scale of pay would also
be entitled to the dearness allowances.
The judgement of this Court in
Dhirendra Chamoli v. State of U.P.
(1996) SCC 637, Surendra Singh v.
Engineer-in-Chief (1996) 1 SCC 039,
UPIT
Deptt
Contingent
Paid
Staff
Welfare Asso. V. Union of India (1987)
supp SCC 668 and Daily Rated Casual
Labour v. Union of India (1988) 1 SCC
1221 support the contention that dearness
allowances should also be payable to a
daily wager.
Mr. Pramod Swarup, learned counsel
appearing for the University, however,
says that while granting relief of dearness
allowances, the financial burden on the
State should also be looked into and in
support of the case, he placed reliance on
the decision of this Court in State of
Haryana v. Jasmer Singh (1996) 11 SCC
77) and Daily R.C. Labour, P & T Deptt.
V. Union of India (AIR 1987 SC 2342).
Having examined the aforesaid decisions
relied upon by the learned counsel we are
of the view that these decisions are of no
application to the point in issue.
We, therefore, see no infirmity with
the judgement requiring our interference
under Article 136 of the Constitution of
India.
The
Special
Leave
petitions
accordingly stand dismissed.

13. Learned counsel for petitioners
further urged that since the order passed
by the Chief Engineer (Personnel) was
given effect to by the impugned order
without affording opportunity of hearing
to petitioners, any alternation in the salary
would amount to reduction of salary and
further no recovery could be made from
the petitioners for any money already paid
as wages on the basis of the impugned
order as petitioners have been paid salary
which includes minimum of the pay scale
as well as allowances and that cannot be
reduced without giving opportunity of
hearing. It is settled in law that salary
cannot
be
reduced
without
giving
opportunity of hearing. Reference in the
context of proposition may be made to a
decision of this Court in Mohan Singh v.
Chandrika Bari6. It was a case in which
state government as well as Inspector
General of Police interpreted R. 22 and R.
30
of
the
Fundamental
Rules
in
petitioner's favour and fixed their salary
in the next higher stage and the petitioners
continued to draw the same for a
considerable period of time. The relevant
observation of the Division Bench as
contained in para 9 of the said decision is
excerpted below :

".....It was, therefore, not open to the
State Government to recover the amount
paid to the petitioners merely because
some different view was possible on the
interpretation of the Rules. It is well
settled principle that wages paid to an
employee by an employer voluntarily in
bona fide manner with out there being any
element of fraud or misrepresentation, can
not be recovered from the employee
subsequently merely on the ground that
some mistake of interpretation of rules
might have been committed by the
employer for which the employee could
not be held responsible...."

14. The question posed on the court
now is whether any recovery could be
made in case payment was made bona
fide by the authority concerned ? It is
crystal clear that the order is not traceable
for its basis to any misrepresentation or
fraud or that any fraud was practiced by
the petitioners. As a matter of fact, the

6 1979 All.L.J. 1184
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734 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
petitioners have no art or part to play nor
is it borne out from the record that the
order
has
its
genesis
in
the
misrepresentation or fraud of the parties.
Besides, the law is very clear that no
recovery could be made from the
petitioners unless any misrepresentation
or fraud is borne out from the record (see
JT 1995 (1) SC 24, 1979, ALJ 184 (DB)
and 1996 AWC 94).

15. As a result of foregoing
discussions,
Impugned
order
dated
22.8.2002 is quashed and the writ
petitions are allowed studed with the
following directions.

(1) The U.P. Jal Nigam shall frame
requisite ;scheme consistent with its
policy as done in the past, for
regularisation of Daily wage/muster
roll work charge employee who have
already completed five years of
service
in
the
department
for
regularisation . For this purpose, they
will also create additional posts in
addition to the 939 vacant posts
created earlier according to their
requirements and submit such scheme
within
two
months.
The
State
Government shall pass appropriate
orders in accordance with law and
communicate its decision within two
months from the date of receipt of
scheme from the Jal Nigam.

(2) No recovery of any amount paid as
salary under the orders of the Opp.
Parties shall be made from the
petitioners. In view of what has been
observed above in the body of this
judgment.

(3) No fresh appointment shall be made
in U.P. Jal Nigam in class 4 category
till all the persons entitled under the
scheme
mentioned
above,
are
considered for regularisation.

(4) In view of the assertions that all the
petitioners are discharging functions
at par with similarly situated regular
employees, the authorities shall go
into
the
matter
and
shall
pay
minimum of the pay scale plus
dearness
allowances
pending
regularisation . They shall not be paid
any other allowances.

(5) There shall be no order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.08.2003

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No.12643 of 1998

Amar Babu Srivastava
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri I.N. Singh
Sri Ajay Yadav
Sri Siddharath
Sri Narendra Mohan

Counsel for the Respondents:
S.C.

Service law-Salary-Junior Division Clerk,
N.C.C. at Allahabad-Transferred order of
Transfer dt. 22.5.1987 not served on
Petitioner-could
not
joined
as
Transferred post-admittedly petitioner
presented
himself
on
3.6.1988
for
joining at Mirzapur-Since then entitled
for salary with all consequential benefits
not for period 27.5.1987 to 27.10.1997.
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