# Ram Kishore And Ors v. State of U.P. & Ors

- **Citation:** Special Appeal No. 304 of 2012
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-04-11
- **Case number:** Special Appeal No. 304 of 2012
- **Bench:** Uma Nath Singh, Dr. SATISH CHANDRA
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-kishore-and-ors-v-state-of-u-p-ors-42877
- **Pages:** 6

## Headnote

Constitution of India, Art. 226- Minimum
Basic
Pay-entitlement-daily
wager
working in Trade Tax department w.e.f
1994
Although
not
entitled
for
regularization under Rule-but direction
of Single Judge to pay D.A.-considering
percentage change general price index
over time neutralize the prices index also
effects reflects erosion in purchasing
power-D.A. and no other allowances or
increment payable held admissible to
those daily wagers also.

Held: Para-20
It may be mentioned that in India, the
Dearness Allowance has a history dating
back of World War II. At that time, many of
the
lower-paid
employees
received
Dearness Allowance Based on their wages
or salaries. Many changes to Dearness
Allowance and its computations have
occurred over the last so many years,
according to both private and government
studies. For example, now a days, to
calculate the D.A., 12 months average of
pay and a set index level is considered to
get the percentage increase in price/cost of
living. Dearness Allowance is paid on a
range of base-pay levels. At the time of
revision
of
the
pay
scale,
the
Pay
472 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Commission always merged D.A. with the
new pay band. Thus, the rising cost affects
the daily wager too. So, we are of the view
that the daily-wagers, who are getting the
minimum pay scale, are also entitled for
getting the dearness allowances only.
Except it, no other allowance or increment
is allowable to them as observed by Hon'ble
Apex Court (supra).

Case Law discussed:
Uttar Pradesh Regularization of daily wages
Appointment on Group-D Post, Rules, 2001;
(1996) 11 SCC; (2003) 6 SCC 123; (2006) SCC
(L&S) 1804; 1986 UPLBEC 313; 2006 SCC
(L&S) 1819

## Text

1 All State of U.P. and others Vs. Ilam Chand Verma and others
471
Sangh's case. In view of the fact that this
Court has held that the Sangh's case was
wrongly decided by the High Court, the
injustice done to these reserve pool
teachers requires to be undone.

(20) In view of the fact that the
vacancies to which these reserve pool
teachers would have been appointed have
already been filled and in all likelihood
those so appointed have been confirmed
in their posts, to appointed these reserve
pool teachers with effect from any
retrospective date would be to throw out
the present incumbents from their jobs for no
fault of theirs. It will, therefore, be in
consonance with justice and equity and fair
to all parties concerned if the remaining
reserve pool teachers are appointed in
accordance with the provisions of U.P.
Ordinance No. 22 of 1978 to substantive
vacancies occurring in the posts of teachers
in recognized institutions which are to be
filled by direct recruitment as and when each
such vacancy occurs.

(21) This will equally apply to those
reserve pool teachers whose services were
terminated and who had not filed any writ
petition or who had filed a writ petition but
had not succeeded in obtaining a stay order,
as also to those reserve pool teachers who
had not been appointed in view of the interim
orders passed by the High Court and
thereafter by reason of the judgment of the
High Court in the Sangh's case and who
have not filed any writ petition.

6. Thus, the special appeal is
disposed of with liberty to appellant State
to file a review petition within a week
before
the
learned
Single
Judge
irrespective of the delay occasioned on
account of filing of this Special Appeal.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.04.2013

BEFORE
THE HON'BLE UMA NATH SINGH,J.
THE HON'BLE Dr. SATISH CHANDRA, J.

Special Appeal No. 304 of 2012

Ram Kishore And Ors. ...Petitioners
Versus
State of U.P. & Ors.
. ..Respondents

Counsel for the Petitioners:
Bulbul Godiyal Madhumita Bose
Counsel for the Respondents:
C.S.C.

Constitution of India, Art. 226- Minimum
Basic
Pay-entitlement-daily
wager
working in Trade Tax department w.e.f
1994
Although
not
entitled
for
regularization under Rule-but direction
of Single Judge to pay D.A.-considering
percentage change general price index
over time neutralize the prices index also
effects reflects erosion in purchasing
power-D.A. and no other allowances or
increment payable held admissible to
those daily wagers also.

Held: Para-20
It may be mentioned that in India, the
Dearness Allowance has a history dating
back of World War II. At that time, many of
the
lower-paid
employees
received
Dearness Allowance Based on their wages
or salaries. Many changes to Dearness
Allowance and its computations have
occurred over the last so many years,
according to both private and government
studies. For example, now a days, to
calculate the D.A., 12 months average of
pay and a set index level is considered to
get the percentage increase in price/cost of
living. Dearness Allowance is paid on a
range of base-pay levels. At the time of
revision
of
the
pay
scale,
the
Pay
472 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Commission always merged D.A. with the
new pay band. Thus, the rising cost affects
the daily wager too. So, we are of the view
that the daily-wagers, who are getting the
minimum pay scale, are also entitled for
getting the dearness allowances only.
Except it, no other allowance or increment
is allowable to them as observed by Hon'ble
Apex Court (supra).

Case Law discussed:
Uttar Pradesh Regularization of daily wages
Appointment on Group-D Post, Rules, 2001;
(1996) 11 SCC; (2003) 6 SCC 123; (2006) SCC
(L&S) 1804; 1986 UPLBEC 313; 2006 SCC
(L&S) 1819

(Delivered by Hon'ble Dr. Satish Chandra, J)

1. Except the Special Appeal No.304
of 2012, all the special appeals have been
filed by the State-appellant against the
various orders passed by the learned
Single Judge. But the facts, circumstances
and prayers are identical in all the special
appeals, hence, all the special appeals are
disposed of by this consolidated order for
the sake of breviate.

2. The brief facts of the cases are
that all the private opposite partiespetitioners are working as daily wagers in
the Estate Department and Trade Tax
Department of the State-appellant. They
filed various writ petitions, where the
learned Single Judge has granted the
minimum of the pay scale to them.
Further, dearness allowance was also
awarded on the minimum of the pay scale.
Being aggrieved the State-appellant has
filed the present special appeals. In
Special Appeal No.304 of 2012, appellant
could not get the said order from the
learned Single Judge. So, he is also before
this Court.

3. With this background, Sri Shobhit
Mohan Shukla, learned Standing Counsel
submits that on 11.12.2012, this Hon'ble
Court in Special Appeal No.304 of 2012,
has passed the following order. The said
order is reproduced as under:-

"As
the
appellants
have
been
admittedly granted minimum pay scale
under a final order dated 02.02.2006
passed in Writ Petition No.1534 (S/S) of
2002, which was not called in question in
higher forum and has thus attained
finality, prima facie it appears that the
appellants would also be entitled to get
other allowances including the dearness
allowance as admissible to other similarly
situated candidates in other services.
Dearness allowance is not relatable to the
employee but to the scale he is drawing."

4. Further, for the purpose of facts,
learned Standing Counsel reads out the
order passed by the learned Single Judge
in Writ Petition No.1500 (S/S) of 2009
dated
03.05.2011.
The
same
on
reproduction reads as under:-

"Heard Mrs. Bulbul Godiyal, learned
counsel for petitioners as well as learned
Standing Counsel.

The writ petition has been filed
seeking direction to the opposite parties
to include dearness allowance in the
minimum
pay
scale
paid
to
the
petitioners.

Learned
counsel
for
petitioners
submits
that
the
petitioners
were
appointed on daily wages during the
period 1994 to 2000 and since then they
have been continuing.
1 All Ram Kishore And Ors. Vs. State of U.P. & Ors.
473

The
petitioners
had
filed
Writ
Petition No. 1534 (SS) of 2002 for
regularization of their services wherein
the Court vide order dated 2.2.2006 had
directed the opposite parties to pay
minimum of the pay scale to the
petitioners considering the fact that the
petitioners have worked for more than ten
and half years. On the basis of the said
order the petitioners are getting the
minimum of the regular pay scale i.e.
Rs.2550/- per month.

It is submitted that under similar
facts and circumstances several persons,
in whose favour the Court had issued
directions for payment of minimum pay
scale,
have
been
given
dearness
allowance and as such the petitioners
have been put to hostile discrimination.

Learned Standing Counsel on the
other hand submitted that the petitioners
have no right to get the dearness
allowance. They are getting the minimum
of the regular pay scale in compliance of
the Court's order.

It is also submitted that there is no
rule, regulation, or the Government
Order for payment of regular pay scale to
the
daily
wages
employees.
The
petitioners are not covered under the
ambit of U.P. Regularization of Daily
Wages Appointments on Group 'D' Post
Rules, 2001. The writ petition is therefore
misconceived.

I have considered the submissions
made by the parties counsel.

It is admitted fact that the petitioners
have been engaged on daily wages during
the period 1994 to 2000 and they are not
covered under Rules of 2001, as such,
they have no right to be considered for
regularization.

So far as the contention of learned
counsel for petitioners that they shall be
given dearness allowance as they are
getting the minimum of the regular pay
scale is concerned, there is nothing on
record to indicate that there is any
provision with regard to payment of
minimum of the regular pay scale to the
daily wages employees. The petitioners
are getting the minimum of the regular
pay scale on the strength of the order
dated 2.2.2006 passed in Writ Petition
No. 1534 (SS) of 2002.

As such, I am of the considered
opinion that no such direction for
payment of dearness allowance can be
issued in the facts and circumstances of
the present case.

The writ petition being devoid of
merit is hereby dismissed."

5. Learned counsel also submits that
regarding the daily wager's appointment
on Group-D posts,on 21.12.2001, the
State Government notified the 'Uttar
Pradesh Regularization of Daily Wages
Appointment on Group-D Post, Rules,
2001 in exercise of power bestowed on it
by the Proviso-2 Article-309 of the
Constitution of India. As per Rule-4(1)(i)
the persons who were directly appointed
on daily wages basis on a Group-D post in
Government service before 29.06.1991
and are continuing in service as such on
the commencement of the said Rules are
subject to other conditions enumerated in
sub-rule 4(1)(ii) and Rule-4(2) are,
eligible for consideration for regular
appointment
against
permanent
or
474 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
temporary vacancy, as may be available
in Group-D post.

6. It is also a submission of the
learned Standing Counsel that by issuing
the Government Order dated 08.09.2010,
the
State
Government
directed
for
consideration of cases of all the daily
wager appointees who are covered under
the cut off date of 29.06.1991 working
either in the Government service or in
Local Bodies, Development Authorities
or Corporations etc., have been given
opportunity for regularization by creation
of supernumerary post. It may be clarified
that the appellant of special appeal no.
304 of 2012 and most of the respondents
in connected appeals are not covered
under the cut off date and other
respondents do not fulfill other conditions
as prescribed under Rule-4 of the
Regularization Rules.

7. Another submission of the State
Government is that the daily wages
employees/workers are not entitled to the
salary and allowances admissible to the
regular
employees
of
the
State
Government and such class of employees
are not entitled to the minimum of the
regular pay scale.

8. For this purpose, he relied on the
ratio laid down in the following cases:-

1. State of Haryana vs. Jasmer
Singh, reported in (1996) 11, SCC 77;

2. State of Haryana & another vs.
Tilak Raj & others reported in (2003),
6 SCC 123; and

3. State of Haryana vs. Charanjeet
Singh, reported in (2006) SCC (L&S)
1804.

9. In the aforesaid cases, it was
observed by the Hon'ble Apex Court that
the daily wagers are not entitled for the
minimum of the pay scale, but they are
entitled for payment of minimum daily
wages only prescribed for such daily
wages worker and admittedly they are
getting so.

10. Learned counsel also submits
that the respondents and other daily
wagers are materially and quantitatively
different from the employees working in a
regular establishment and from two
separate classes, which are distinct,
therefore, claim for the parity and all
benefits in view of the Article 14 and 16
of the Constitution of India are not
justified in view of the law laid down by
the Hon'ble Supreme Court (supra). If the
wages are equated with the minimum of
pay scale it does not mean that such
employee becomes entitled for payment
of
pay
and
addition
of
pay
i.e.
compensatory allowances.

11. Lastly, learned counsel submits
that the opposite-parties are not entitled to
get the dearness allowances. So, the
various impugned orders to this effect,
passed by the learned Single Judge may
kindly be set aside.

12. On the other hand, learned
counsel including Miss Madhumita Bose,
for private-opposite parties relied on the
orders passed by the learned Single
Judge.They made a request to allow
dearness allowance to the daily wager.

13. After hearing all the parties and
on perusal of the record, it appears that
the private-opposite parties are working
as daily wagers in the Trade Tax
1 All Ram Kishore And Ors. Vs. State of U.P. & Ors.
475
Department and Estate Department since
long. The learned Single Judge by passing
various orders have allowed the minimum
of the pay scale to all the petitioners, who
are working more than a decade and thus
have a long service tenure.

14. Needless to mention that as per
Fundamental Rule 21 of the Uttar
Pradesh Fundamental Rules defines the
word " pay" which is as under:-

"21. Pay-Pay means amount drawn
monthly by Government servant as-

(i) the pay, other than special pay or
pay granting in view of his personal
qualifications, which has been sanctioned
for a post held by him substantively or in
an officiating capacity, or to which he is
entitled by reason of his position in a
cadre; and

(ii) overseas pay, technical pay,
special pay and personal pay; and

(iii) any other emoluments which
may be specially classed as pay by the
Governor."

15. In view of above, it is clear that
the pay means amount drawn monthly by
a Government servant which includes
overseas pay, technical pay; special pay;
personal pay and any other emoluments.
Though the word "dearness allowance"
is not mentioned, nonetheless it covers
under the word of "other emoluments"
which may be specially payable to the
employees. The dearness allowance is to
meet the rising cost due inflation.

16. It may be mentioned that
inflation is consisting in the general level
of prices of goods and services in the
economy over a period of time. When the
general price level rise, each unit of
currency buys fewer goods and services.
Consequently, inflation also reflects an
erosion in the purchasing power of money
a loss of real value in the internal medium
of exchange and unit of account within
economy. A chief measure of price
inflation is the inflation rate, annualized
percentage change in a general price
index over time neutralize the price index
dearness allowance is paid to the
employees.

17. In the case of Vishwanath and
others Vs. State of U.P. and others,
1986 UPLBEC 313, this Hon'ble Court
observed that:

"....the petitioners are no doubt daily
wage workers and have no security of
tenure of their service but since they are
performing the same duties and functions
as are being carried out by regular class
IV employees of the High Court, they are
entitled
to
the
same
salary
and
allowances which are being paid to class
IV employees..."

18. In the case of State of U.P. &
others vs. Puttilal, 2006 SCC (L & S)
1819, Hon'ble Supreme Court observed
that:

"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.
476 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

The Hon'ble Apex Court further
direct that these daily-wagers would be
entitled to draw at the minimum of the pay
scale being received by their counterparts
by the Government and would not be
entitled to any other allowances or
increment so long as they continue as
daily-wagers.

19. Needless to mention that the
dearness allowance is applicable to the
minimum of the pay scale for which the
daily-wager are entitled, of course, they
are not entitled for the other allowances
like washing, medical etc. as mentioned
by the Apex Court (supra). The purpose
of paying dearness allowance is to meet
the inflation. So, the dearness allowance
is to be determined as per price index
from time to time. Everybody is suffering
with the inflation.

20. It may be mentioned that in
India, the Dearness Allowance has a
history dating back of World War II. At
that time, many of the lower-paid
employees received Dearness Allowance
Based on their wages or salaries. Many
changes to Dearness Allowance and its
computations have occurred over the last
so many years, according to both private
and government studies. For example,
now a days, to calculate the D.A., 12
months average of pay and a set index
level is considered to get the percentage
increase in price/cost of living. Dearness
Allowance is paid on a range of base-pay
levels. At the time of revision of the pay
scale, the
Pay
Commission
always
merged D.A. with the new pay band.
Thus, the rising cost affects the daily
wager too. So, we are of the view that the
daily-wagers,
who
are
getting
the
minimum pay scale, are also entitled for
getting the dearness allowances only.
Except
it,
no
other
allowance
or
increment is allowable to them as
observed by Hon'ble Apex Court (supra).

21. In view of above, to meet the
inflation,
dearness
allowance
is
admissible to daily wagers who are
getting minimum of the pay scale
admissible to them. To this effect, the
order passed by the learned Single Judge
in Writ Petition No.1500 (S/S) of 2009 is
modified to this extent. In other special
appeals, orders passed by the learned
Single Judge are hereby sustained along
with the reasons mentioned therein and
the special appeals filed by the State are
hereby dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.04.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Second Appeal No. 344 of 2013

Ram Das Singh and Anr Appellants
Versus
Duli Chand ...Appellants/Plantiff

Counsel for the Defendants:
Sri Ashok Mehta
Sri Pradeep Singh Sisodia

Counsel for the Appellants:
Sri Raj Kumar

Code of Civil Procedure, Section 100-second
Appeal-additional evidence photostate copy
of map-alleged to prepared by Lekhpalwhether
admissible
in
evidence-being
secondary
evidence?-held-'No'
unless
execution of original document proved
Secondary evidence-not admissible-lower
appellate Court without considering these
aspect-held-otherwise without any basis-