# Shiv Kumar Singh & Ors v. State Of U.P. & Ors

- **Citation:** (2016) 5 ILRA 1185
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-23
- **Bench:** Dr. Devendra Kumar Arora
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-kumar-singh-ors-v-state-of-u-p-ors-43757
- **Pages:** 13

## Headnote

Constitution of India - Art. 226 - Writ of Mandamus - Non-Compliance of Earlier Binding
Judgment
Where earlier directions of the High Court directing regularization scheme and payment of minimum of payscale had attained finality after dismissal of special appeal, non-compliance by authorities held arbitrary and
amenable to mandamus under Art. 226. (Paras 4, 5, 20, 21, 24, 36, 37, 38)

(B) Service Law - Daily Wagers - Regularization - Continuing Engagement - Legitimate
Expectation
Daily wagers continuously engaged for decades cannot be denied consideration for regularization especially
when rules, Government orders and Court directions mandate phased regularization on availability of posts.
Refusal amounts to arbitrariness and violation of Articles 14 & 21. (Paras 20, 24, 29, 30, 31, 33, 34, 35, 36)

(C) Equal Pay for Equal Work - Minimum of Pay-Scale
Direction in earlier writ requiring payment of minimum of pay-scale till regularization held binding; later plea
that workers are only daily wagers governed by Minimum Wages Act rejected, as their duties correspond to
Class-IV posts. Reference to Uma Devi (2006) does not bar grant of minimum wages at lowest grade. (Paras
4, 11, 22, 23, 31, 32, 33)
1186 INDIAN LAW REPORTS ALLAHABAD SERIES
(D) Administrative Law - Non-Disclosure of Material Facts - Effect on Decision-Making
Rejection of petitioners' representation dated 23.11.2009 by Secretary based solely on University's incomplete
information held vitiated for non-consideration of binding High Court directions and final judgment;
constitutes non-application of mind. (Paras 22, 23, 36, 37, 38)

(E) Contempt Jurisdiction - Subsequent Writ Maintainable
Dismissal of contempt petition does not bar fresh writ where substantive rights remain undecided; contempt
court only examines wilful disobedience, not merits of underlying entitlement. (Paras 8, 9)

(F) Public Employment - Arbitrary Denial of Benefits - Articles 14 & 21
Prolonged use of daily wage labour without regularization or minimum pay violates dignity, security of tenure
and equality; arbitrary exercise of State power struck down as contrary to Articles 14 and 21. (Paras 26, 27,
28, 29, 30, 33, 34, 35)

In Result
Impugned order dated 17.12.2009 quashed; Secretary directed to reconsider petitioners' claims in light of
earlier binding judgments and Government Orders dated 13.08.2015 & 24.02.2016 within three months. Writ
allowed. (Paras 37, 38, 39)

List of Cases cited:

## Text

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5 All. Shiv Kumar Singh & Ors. Vs State Of U.P. & Ors.

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Accordingly, second substantial question of law is also decided against defendant-appellant and in
favour of plaintiff respondent.

17. On the basis of above discussion, it is found that there is no factual or legal error or
illegality in the judgment of first appellate court, when it had allowed the appeal, set aside the
judgment of trial court and decreed the original suit. The findings of first appellate are found
correct, which are hereby confirmed.

18. Accordingly, this appeal is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.05.2016

BEFORE

THE HON'BLE DR. DEVENDRA KUMAR ARORA, J.

Service Single No.- 7581 Of 2010

Shiv Kumar Singh & Ors. ...Petitioners
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
P.N.Singh Kaushik, D.N.Tripathi

Counsel for the Respondents:
C.S.C., Kuldeep Pati Tripathi, Manik Sinha

Constitution of India - Art. 226 - Writ of Mandamus - Non-Compliance of Earlier Binding
Judgment
Where earlier directions of the High Court directing regularization scheme and payment of minimum of payscale had attained finality after dismissal of special appeal, non-compliance by authorities held arbitrary and
amenable to mandamus under Art. 226. (Paras 4, 5, 20, 21, 24, 36, 37, 38)

(B) Service Law - Daily Wagers - Regularization - Continuing Engagement - Legitimate
Expectation
Daily wagers continuously engaged for decades cannot be denied consideration for regularization especially
when rules, Government orders and Court directions mandate phased regularization on availability of posts.
Refusal amounts to arbitrariness and violation of Articles 14 & 21. (Paras 20, 24, 29, 30, 31, 33, 34, 35, 36)

(C) Equal Pay for Equal Work - Minimum of Pay-Scale
Direction in earlier writ requiring payment of minimum of pay-scale till regularization held binding; later plea
that workers are only daily wagers governed by Minimum Wages Act rejected, as their duties correspond to
Class-IV posts. Reference to Uma Devi (2006) does not bar grant of minimum wages at lowest grade. (Paras
4, 11, 22, 23, 31, 32, 33)
1186 INDIAN LAW REPORTS ALLAHABAD SERIES
(D) Administrative Law - Non-Disclosure of Material Facts - Effect on Decision-Making
Rejection of petitioners' representation dated 23.11.2009 by Secretary based solely on University's incomplete
information held vitiated for non-consideration of binding High Court directions and final judgment;
constitutes non-application of mind. (Paras 22, 23, 36, 37, 38)

(E) Contempt Jurisdiction - Subsequent Writ Maintainable
Dismissal of contempt petition does not bar fresh writ where substantive rights remain undecided; contempt
court only examines wilful disobedience, not merits of underlying entitlement. (Paras 8, 9)

(F) Public Employment - Arbitrary Denial of Benefits - Articles 14 & 21
Prolonged use of daily wage labour without regularization or minimum pay violates dignity, security of tenure
and equality; arbitrary exercise of State power struck down as contrary to Articles 14 and 21. (Paras 26, 27,
28, 29, 30, 33, 34, 35)

In Result
Impugned order dated 17.12.2009 quashed; Secretary directed to reconsider petitioners' claims in light of
earlier binding judgments and Government Orders dated 13.08.2015 & 24.02.2016 within three months. Writ
allowed. (Paras 37, 38, 39)

List of Cases cited:

1. Delhi Transport Corporation vs. D.T.C. Mazdoor Congress & Others1991 Supp (1) SCC 600
2. Maneka Gandhi vs. Union of India & AnotherAIR 1978 SC 597
3. Secretary, State of Karnataka vs. Uma Devi & Others (2006) 4 SCC 1
4. Raja Ram Pandey vs. State of U.P.2009 (27) LCD 771
5. Ishwar Deen vs. State of U.P. 2008 (26) LCD 1134

(Delivered by Hon'ble Dr. Devendra Kumar Arora, J.)

1. Heard Mr. D.N. Tripathi, learned Counsel for petitioners, Mr. Manik Sinha, learned
Counsel for the Narendra Deo University of Agriculture & Technology and Mr. Prashant Jaiswal,
learned Additional Chief Standing Counsel for the State.

2. Petitioners have approached this Court under Article 226 of the Constitution of India,
challenging the order dated 17.12.2009 passed by the opposite party No.1-Secretary, Agriculture,
Education & Research, Lucknow, contained in Annexure No.1 to the writ petition, whereby the
Secretary, Agriculture, Education & Research, Lucknow, while examining the representation of the
petitioner and going through the order dated 19.11.2009 passed in Contempt Petition No. 661 (C)
of 2004 :Deo Narain Misra and 33 others Vs. M. Deoraj Special Secretary, Government of U.P.,
Lucknow Agriculture, rejected the claim of the petitioners for payment of minimum of pay-scale as
per the recommendation of 6th Pay Commission on the ground that petitioners are not working
against any post in the University and they are being paid Rs.100/- per day as daily wager as per
Notification issued by the Labour Department of the State Government.

3. According to the petitioners, petitioners Nos. 1, 2 and 3 were engaged as Lineman in the
University on 16.6.1987, 26.6.1987 and 16.6.1987, respectively; petitioners Nos. 4 and 5 as Pump
5 All. Shiv Kumar Singh & Ors. Vs State Of U.P. & Ors.

1187
Operator on 1.9.1990, 3.1.1989, respectively; petitioners No. 6 as Mate Supervisor on 1.2.1986;
petitioner No. 7 as Beldar on 11.9.1987; and petitioner No.8 as Mate on 1.2.1987.

4. Petitioners along with similarly situated persons had earlier approached this Court under
Article 226 of the Constitution of India by filing writ petition No. 4257 (SS) of 1994, praying
therein for regularization of their services as they have been working in the University for the last
ten years or more. This writ petition was clubbed with the writ petitions filed by the similarly
situated persons, leading writ petition No. 264 (SS) of 2000 : Ajay Kumar Singh Vs. The
Chancellor, Narendra Dev University Agriculture & Technology & others. This Court, vide
common judgment and order dated 23.7.2002, disposed of the bunch of writ petitions with the
following directives :

"the University shall frame a scheme for regularization of Class III & IV
employees, who are working on daily wage basis in a phased manner within a period of four
months and submit the same before the State Government, who will consider and take a decision on
the scheme submitted by the University within four months thereafter and the opposite parties shall
consider the case of the petitioners for regularization, in accordance with law, as soon as the posts
are sanctioned by the State Government. Till the services of the petitioners are not regularized, the
opposite parties shall not make any fresh recruitment on regular basis either on Class III or Class
IV posts and shall pay the minimum of the pay-scale of the respective posts on which the
petitioners are working. The benefit of this order shall be given only to those daily wage employees
who are working at present. In the circumstance, there shall be no order as to costs."

5. Not being satisfied with the aforesaid judgment and order dated 23rd July, 2002, the
State authorities had challenged the same by filing Special Appeal No. 395 of 2003 : State of U.P.
Vs. Merai and others. A Division Bench of this Court, vide judgment and order dated 25.11.2003,
dismissed the special appeal. Thereafter, neither State authorities nor the University authorities had
challenged the judgment and order dated 25.11.2003 before the higher forum, therefore, the same
has attained finality.

6. According to the petitioners, though judgment and order dated 23.7.2002 is binding upon
the opposite parties after dismissal of the Special Appeal vide judgment and order dated 25.11.2003
as the same has not been challenged before higher forum but the judgment and order dated
23.7.2002 passed in writ petition No. 4257 (SS) of 1994 has not been complied with by the
opposite parties, therefore, the petitioners had approached this Court under contempt jurisdiction by
filing Contempt Petition No. 661 of 2004 : Deo Narain Misra and 33 others Vs. M. Deoraj Special
Secretary, Government of U.P., wherein on 12.11.2009, one Ram Vachan Ram, Administrative
Officer of the University appeared and had stated that under the orders of the Court, 21 days' work
is being provided to the petitioners and they are being paid minimum pay-scale at the rate of
Rs.2550/-. Appreciating the aforesaid submission of Administrative Officer of the University,
following order has been passed on 12.11.2009 :
1188 INDIAN LAW REPORTS ALLAHABAD SERIES
"In compliance of the court's order the Administrative Officer Ram Vachan Ram is
present before this court. He has stated that under the orders of the court 21 days' work is being
provided to the petitioners and they are being paid minimum pay scale @ Rs. 2550/-.

The learned counsel for the petitioner submits that since there is no order of the
court that only 21 days' work should be allotted, hence, this is flouting of the court's order and the
petitioner may be allowed to work on all the working days' as there are number of clear working
days in every month. Second argument of learned counsel for the petitioner is that minimum of pay
scale has been revised from Rs. 2550 to 4400-6050.

 Accordingly, the opposite parties are directed to give work to the petitioners as
many clear working days are available in a month and pay the minimum revised pay-scale @ Rs.
4400-6050 within a month from today.

In case the orders are not complied within the above stipulated time the Vice
Chancellor shall appear in person before this court on 23rd December 2009 to explain why the
orders of this court have not been complied with.

List this case on 23rd December 2009. It has been stated by the Administrative
Officer that the Finance Officer that the financial sanction has to come from the State Government
and the hands of the opposite party are very tight and further the Special Secretary, U.P.
Government while appearing before the court had assured that the financial sanction is required by
the Registrar shall be provided to the institution. Since he has failed to do so the University is in
penury situation.

At this juncture the Chief Standing Counsel who is present in the court informed
the court that now there is a separate department looking after the agricultural education and
perhaps the Secretary, Agricultural Education is not even aware about this contempt petition.

Under the circumstances the petitioners are given the liberty to make a
representation to the Secretary, Agricultural Education within a period of one week from today who
shall also decide the representation within a month."

7. Pursuant to the order dated 12.11.2009, the petitioners had moved a representation dated
23.11.2009 to the State Government, requesting therein that they be paid Rs.4400/- which is the
lowest pay-scale of the revised pay-scale. Thereafter, in compliance of the order dated 12.11.2009,
the Secretary, Agriculture, Education & Research, Lucknow, examined the claim of the petitioners
and after going through the information given by the University authorities, rejected the petitioners'
representation dated 23.11.2009 on the ground that since as per information furnished by the
University, petitioners were not working against any post and were only permitted to work as daily
wager and were paid Rs.100/- per day as per the notification issued by the Labour Department of
the State Government. In the meantime, the contempt petition preferred by the petitioners was
dismissed vide judgment and order dated 2.4.2010 with the following observations:
5 All. Shiv Kumar Singh & Ors. Vs State Of U.P. & Ors.

1189
"Heard learned counsel for the petitioners, learned counsel for the opposite parties
as well as learned Standing Counsel.

This Court vide judgment and order dated 16.4.2002 directed the opposite parties
to frame a scheme for regularisation. The said order was subjected to challenge in Special Appeal
No.395 of 2003, which approved the judgment of the Hon'ble Single Judge. Thereafter, opposite
parties proceeded to frame a scheme for regularisation.

Learned counsel for the University states that in pursuance to the order of this
Court scheme has been framed for regularisation as and when the vacancies are sanctioned by the
State Government the petitioners and others belonging to the category of petitioners are being
regularised against the sanctioned posts. He further states that even otherwise the petitioners are
continuously engaged on daily wage basis and they are continuously working on daily wage basis
and they have been paid the minimum pay scale of Rs.2550/-, but after the revision daily wage
emoluments of the workers/casual labours was enhanced to Rs.100/- per day the amount, which
they were getting was less than the amount, which would be otherwise admissible to them at
Rs.100/- per day basis.

Since the scheme for regularisation has been framed and process for regularisation
is going on, therefore, in the opinion of the Court the order of this Court has been substantially
complied with. Hence, no comtempt is made out against the opposite parties.

Contempt petition is dismissed. Notices issued are discharged."

8. After dismissal of the contempt petition, petitioners have filed the present writ petition,
challenging the order dated 17.12.2009 passed by the Secretary, Agriculture, Education &
Research, Lucknow.

9. Mr. D.N. Tripathi, learned Counsel for petitioners has submitted that the question of
engagement of the petitioners has already been adjudicated and decided by this Court vide
judgment and order dated 23.7.2002 passed in writ petition No. 4257 (S/S) of 1994, wherein the
opposite parties were directed to reguarlize the services of the petitioners by framing a
regularization scheme and till the services of the petitioners are not regularize, the opposite parties
were restrained to make any fresh recruitment on regular basis either on Class-III post or Class-IV
post and further directed to pay the minimum of the pay-scale of the respective post on which
petitioners are working. It was also directed that the benefit of the order dated 23.7.2002 shall also
be given to those daily wage employees who are working at present. The said judgment and order
dated 23.7.2002 has also been affirmed by a Division Bench of this Court in Special Appeal No.
395 of 2003.

10. Elaborating his submission, learned Counsel for petitioners has contended that when
the judgment and order dated 23.7.2002 was passed by this Court, petitioners were working and
they are still working but neither their services have been regularized nor they have been paid the
1190 INDIAN LAW REPORTS ALLAHABAD SERIES
revised minimum of the pay-scale till date. He submitted that the order passed by this Court is
having statutory force of law and is binding upon them as per the principles of resjudicata. He
submitted that the minimum of the pay-scale i.e. Rs.2550/- are being paid to petitioners since
November, 2014 vide order dated 31.1.2014 passed by the Director, Administration & Monitoring.

11. Counsel for petitioners has next submitted that in pursuance of the order 23.7.2002
passed by this Court, University has framed a regularization scheme, which was duly approved by
the State Government and under the garb of the regularization scheme, number of daily wagers
have been regularized and number of daily wagers are being paid the minimum of the pay-scale.

12. Lastly, Counsel for petitioners has submitted that during the pendency of the present
writ petition, the University authorities passed an order dated 31.1.2014, whereby the minimum of
the regular pay-scale as per Vth Pay Commission Report has been paid to petitioners in pursuance
of earlier order dated 24.10.2001 passed by the University authorities itself. He also informed that
in an identical matter i.e. in writ petition No. 5979 of 2015 (S/S), this Court has passed an ad
interim order dated 17.11.2015, directing the opposite parties to pay the minimum of the regular
pay-scale to the petitioners of that writ petition as per the recommendation of the VI Pay
Commission. Therefore, petitioner's claim for payment of minimum pay-scale has wrongly been
rejected by the opposite party No.1 and the present writ petition is liable to be allowed.

13. Per contra, Mr. Prashant Jaiswal, learned Additional Chief Standing Counsel has
submitted that in compliance of the order dated 12.11.2009 passed in Contempt Petition No. 661 of
2004, the representation of petitioners was duly considered and rejected vide order dated
17.12.2009 by a speaking and reasoned order. He further submitted that in the impugned order
dated 17.12.2009, it is clearly mentioned that that petitioners were not working against any
sanctioned post and they are getting wages regularly under law, therefore, petitioners are not
entitled to get the benefit of VI Pay Commission recommendation i.e. the pay-scale of Rs.44008050 of Class IV post.

14. Mr. Jaiswal has further submitted that for regularization of the daily wager Labourer of
the University, regularization rules have been framed by the University and on availability of the
posts and fulfilling the eligibility criteria, the case of the petitioners would be considered for
regularization under law. He further submitted that Contempt Petition No. 661 of 2004 was
dismissed vide order dated 2.4.2010 on appreciating the fact that in pursuance of the order dated
29.11.2000, the University has framed a scheme for regularization and as and when the vacancies
are sanctioned by the State Government, the petitioners and others belonging to the category of the
petitioners would be regularized against the sanctioned posts. Therefore, the petitioner's claim has
rightly been rejected by the impugned order.

15. Mr. Manik Sinha, learned Counsel for the University has raised various objections with
regards to the maintainability of the writ petition and submitted that petitioners were earlier getting
Rs.100/- per day, which has subsequently been revised to Rs.120/- per day and now the State
5 All. Shiv Kumar Singh & Ors. Vs State Of U.P. & Ors.

1191
Government has revised the same to Rs. 140/- per day. He submitted that the petitioners are getting
the wages under the Minimum of Wages Act, 1948.

16. Mr. Manik Sinha has further contended that the daily wagers are working as Farm
Labourers like Mate, Beldar, Supervisor, and Farm Pump Operator. All these classes are relating to
farming and agricultural work, therefore, such labourers are governed by Part II of the Schedule of
the Minimum of Wages Act, 1948.

17. Counsel for the University has next contended that the petitioners have not annexed
their appointment orders because they were never given any appointment order but they were
engaged as daily wagers orally. He submitted that no advertisement was ever issued nor they were
brought through employment exchange. His submission is that petitioners are neither working in
Class-IV post nor against any sanctioned posts or vacant posts but they are working only on daily
wage basis. There is no master servant relationship between the University and the petitioners.
Therefore, petitioners have no right to claim the pay-scale on the basis of recommendation of the
VI Pay Commission Report. Thus, present writ petition deserves to be dismissed.

18. I have heard rival submissions of the learned Counsel for the parties and gone through
the record.

19. Admittedly, petitioners had earlier approached this Court by means of writ petition No.
4257 (S/S) of 1994, assailing inaction of the University in not regularizing their services even after
rendering more than ten years satisfactory services as daily wager. The said writ petition was
clubbed together with the writ petitions filed by the similarly situated persons, the leading writ
petition No. 264 (SS) of 2000 : Ajay Kumar Singh Vs. The Chancellor, Narendra Dev University,
Agriculture & Technology & others. This Court, vide common judgment and order dated
23.7.2002, after hearing the parties, disposed of the writ petition with a direction to the University
to frame a scheme for regularization of Class-III & IV daily wage employees in a phased manner
within a period of four months and submit the same before the State Government and the State
Government was required to consider and take a decision on the scheme submitted by the
University within next four months. It was also directed that as soon as the posts are sanctioned by
the State Government, University should consider the case of the petitioners for regularization, in
accordance with law and till regularization of the services of the petitioners, the opposite parties
were restrained from making any fresh recruitment on regular basis either on Class-III or Class IV
posts and were directed to pay the minimum of the pay-scale of the respective posts on which the
petitioners are working. It was also directed that the benefit of the order shall be given only to those
daily wage employees who are working at present.

20. It appears that instead of complying the judgment and order dated 23.7.2002, the State
Authorities had approached this Court by filing Special Appeal No. 395 of 2003 : State of U.P. Vs.
Merai and others, challenging the judgment and order dated 23.7.2002. A Division Bench of this
Court, vide judgment and order dated 25.11.2003, dismissed the special appeal. Thereafter,
opposite parties have neither taken further steps for challenging the order dated 25.11.2003 before
1192 INDIAN LAW REPORTS ALLAHABAD SERIES
the higher Court nor complied with the judgment and order dated 23.7.2002 passed by the learned
Single Judge, therefore, petitioners were constrained to approach this Court under contempt
jurisdiction by means of Contempt Petition No. 661 of 2004, wherein on 12.11.2009,
Administrative Officer Ram Vachan Ram had appeared before the Court and made a statement that
under the orders of the Court, 21 days' work is being provided to the petitioners and they are being
paid minimum pay-scale at the rate of Rs.2550/- and on this statement, the Court after appreciating
the fact that there is no order of the Court that only 21 days' work should be allotted to the
petitioners, directed the opposite parties to give work to the petitioners as many clear working days
are available in a month and pay the minimum revised pay-scale at the rate of Rs.4400-6050/-
within a month from the date of the order and thereafter, on the statement of Administrative Officer
that the financial sanction has to come from the State Government and now there is a separate
department looking after the agricultural education, the Court gave liberty to the petitioners to
move a representation to the Secretary, Agricultural Education within a period of one week from
the date of the order and the Secretary, Agricultural Education was required to decide the same
within next one month.

21. Pursuant to the order dated 12.11.2009, the petitioners had approached the Secretary,
Agricultural Education by moving a representation dated 23.11.2009, stating therein that they may
be granted pay-scale of Rs.4400-Rs.6050/- instead of Rs.2550/-. The Secretary, Agricultural
Education, after going through the information given by the Vice- Chancellor of the University
vide letter dated 15.12.2009 that petitioners are not working against any posts and they are engaged
for the work done by the daily wager and they are being paid Rs.100/- per day as per the
notification issued by the Labour Department of the State Government, rejected the claim of the
petitioners vide order dated 17.12.2009, which is impugned in the present writ petition.

22. A perusal of the impugned order dated 17.12.2009 reveals that the University authority,
in its comments dated 15.12.2009, had not informed the Secretary, Agriculture, Education and
Research, Lucknow, about the order dated 23.7.2002 passed by this Court in bunch of writ
petitions, leading writ petition No.264 (SS) of 2000 :Ajay Kumar Singh Vs. The Chancellor,
Narendra Dev University, Agriculture & Technology & others, in which writ petition filed by the
present writ petitioners and others i.e. writ petition No. 4257 (SS) of 1994 was also connected. It
appears that the University authority had also not communicated to the Secretary about the
dismissal of the Special Appeal No. 395 of 2003, which was filed against the judgment and order
dated 23.7.2002. It has also not communicated to the Secretary that after dismissal of the special
appeal No. 395 of 2003 vide judgment and order dated 25.11.2003, the same has not been
challenged before the higher forum either by the University or by the State authorities.

23. A bare perusal of the judgment and order dated 23.7.2002, which has attained finality
and is binding upon the opposite parties, shows that the benefit of consideration of regularization in
a phased manner under the scheme of regularization to be framed has been extended only to such
daily wagers who had been working at the relevant time. It is not in dispute that when the judgment
and order dated 23.7.2002 was passed by this Court, present writ petitioners were working and are
still working.
5 All. Shiv Kumar Singh & Ors. Vs State Of U.P. & Ors.

1193
24. Now the stand of the University in the present writ petition that petitioners have not
annexed their appointment orders in the present writ petition because they were never given any
appointment order; they were not brought through employment exchange; and there is no master
and servant relationship, are very surprising for the reasons that the University has itself stated in
the counter affidavit that no appointment order was ever issued in respect of the appointment of the
petitioners on regular basis and the petitioners were engaged on daily wage basis without issuing
any appointment order. Normally, the daily wager are being engaged on account of exigencies of
work without issuing any advertisement, therefore, such daily wage engagement is neither
advertised nor such persons are called from the employment exchange. The master and servant
relations exists at the moment when the person(s) is/are engaged, may be, on daily wage and is/are
being paid honourarium/salary/wages. Therefore, the stand of the University that there is no
relations of master and servant with the petitioners is incorrect, specially when the engagement of
the petitioners as daily wagers is continued for the last two decades and more.

25. At this juncture, it would be useful to point out that petitioners were engaged between
1986 to 1990 and are litigating for their rights to be paid minimum of the pay-scale as well as
regularization in service since last two decades and more as the State Government has issued orders
and framed rules for regularization of daily wagers from time to time but on account of
lackadaisical attitude of the authorities, such a benefit was not extended to petitioners. The Apex
Court, while considering the sufferings of such employees/daily wagers, noticed in the case
reported in 1991 Supplementary (Vol-I) SCC 600 :Delhi Transport Corporation Vs. D.T.C.
Mazdoor Congress and others, which reads as under:

"The employment under the public undertakings is a public employment and a
public property. It is not only the undertakings but also the society which has a stake in their proper
and efficient working. Both discipline and devotion are necessary for efficiency. To ensure both,
the service conditions of those who work for them must be encouraging, certain and secured, and
not vague and whimsical. With capricious service conditions, both discipline and devotion are
endangered, and efficiency is impaired."

The right to life includes right to livelihood. The right to livelihood therefore
cannot hang on to the fancies of individuals in authority. The employment is not a bounty from
them nor can its survival be at their mercy. Income is the foundation of many fundamental rights
and when work is the sole source of income, the right to work becomes as fundamental.
Fundamental rights can ill-afford to be consigned to the limbo of undefined premises and uncertain
applications. That will be a mockery of them."

26. There is need to minimize the scope of arbitrary use of power in all walks of like. It is
all the more improper and undesirable to expose the precious rights like the rights of life, liberty
and property to the vagaries of individual whims and fancies. It may be added that daily wagers are
appointed in exigencies of work and not against any substantive vacancy after due selection
process.
1194 INDIAN LAW REPORTS ALLAHABAD SERIES
27. It may further be pointed out that a seven Judge Bench decision of the Apex Court in
Maneka Gandhi vs. Union of India and anr.; AIR 1978 SC 597, has held that reasonableness and
non-arbitrariness is part of Article 14 of the Constitution. It follows that the Government must act
in a reasonable and non-arbitrary manner otherwise Article 14 of the Constitution would be
violated.

28. In Raja Ram Pandey vs. The State of U.P.; 2009 (27) LCD 771, this Court held as
under:

"Right to consider for regularization is a fundamental right. However, when the
regularization is done in order of seniority subject to fitness, then supersession of seniors on
unfounded grounds is an arbitrary act and is also violative of Arts. 14 and 21 of the Constitution of
India. In case the petitioner was qualified for regularization, then denial of regularization by
respondents against regular vacancy is a highly arbitrary act and violative of Article 14 of the
Constitution of India."

29. In Ishwar Deen vs. State of U.P. : 2008 (26) LCD 1134, this Court while considering
provisions of Regularization Rules of 2001 held as under:

"Though, the State has got right to fill up vacancies through direct recruitment but
while doing so it shall always be necessary for the State to Exercise the statutory power conferred
by the Rules (supra) to consider the cases of the employees, who are serving in the department like
in the present case for about two deceased or more. Needless to say that the Rules framed under
Article 309 of the Constitution of India have got statutory force and one Rule 4(a) of the Rules
enable the authorities to consider the cases of the employees for regularization who were appointed
prior to 29.6.1991, then it shall always be incumbent upon the authorities to exercise power in just
and fair manner to consider the case of the employees for regularisation."

30. In the counter affidavit filed on behalf of the University, much emphasis has been laid
upon the judgment of the Apex Court in Secretary, State of Karnataka Vs. Uma Devi and others :
2006 (4) SCC 1 and on that basis, it has been averred that since the petitioners were engaged on
daily wage basis, therefore, they have no right to be absorb in service. In Uma Devi (Supra), with
respect to the payment of minimum salary at the lowest rate or minimum of the pay scale of the
corresponding scale of the post on which regular employees are working, the observations have
been made by the Apex Court in para 46, which are reproduced as under :

"46. In cases relating to service in the commercial taxes department, the High
Court has directed that those engaged on daily wages, be paid wages equal to the salary and
allowances that are being paid to the regular employees of their cadre in Government service, with
effect from the dates from which they were respectively appointed. The objection taken was to the
direction for payment from the dates of engagement. We find that the High Court had clearly gone
wrong in directing that these employees be paid salary equal to the salary and allowances that are
being paid to the regular employees of their cadre in Government service, with effect from the
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dates from which they were respectively engaged or appointed. It was not open to the High Court
to impose such an obligation on the State when the very question before the High Court in the case
was whether these employees were entitled to have equal pay for equal work so called and were
entitled to any other benefit. They had also been engaged in the teeth of directions not to do so. We
are, therefore, of the view that, at best, the Division Bench of the High Court should have directed
the wages equal to the salary that are being paid to regular employees be paid to those, daily wage
employees with effect from the date of its judgment. Hence, that part of the direction of the
Division Bench is modified and it is directed that these daily wage earners be paid wages equal to
the salary at the lowest grade of employees of their cadre in the Commercial Taxes Department in
Government service, from the date of the judgment of the Division Bench of the High Court. Since,
they are only daily wage earners, there would be no question of other allowances being paid to
them. In view of our conclusion, that Courts are not expected to issue directions for making such
persons permanent in service, we set aside that part of the direction of the High Court directing the
Government to consider their cases for regularization. We also notice that the High Court has not
adverted to the aspect as to whether it was regularisation or it was giving permanency that was
being directed by the High Court. In such a situation, the direction in that regard will stand deleted
and the appeals filed by the State would stand allowed to that extent. If sanctioned posts are vacant
(they are said to be vacant) the State will take immediate steps for filling those posts by a regular
process of selection. But when regular recruitment is undertaken, the respondents in C.A. Nos.
3595-3612 and those in the Commercial Taxes Department similarly situated, will be allowed to
compete, waiving the age restriction imposed for the recruitment and giving some weightage for
their having been engaged for work in the Department for a significant period of time. That would
be the extent of the exercise of power by this Court under Article 142 of the Constitution to do
justice to them."

Thus, the contention of the University with regards to denial of minmum of payscale in pursuance of the VI Pay Commission report, is not sustainable in view of the aforesaid
observations of Uma Devi (supra).

31. It is apt to mention that University has tried to make distinction of the petitioners' work
and the persons who are working on Class-IV post in the University, by saying that petitioners are
engaged on the posts like Mate, Farm Labourers, Beldar, Supervisor and Farm Pump Operators and
all such labourers are governed by Part-II of the Schedule of the Minimum of Wages act, 1948,
therefore, it cannot be said that petitioners are working on Class-IV posts. On repeated query,
neither learned Additional Chief Standing Counsel nor learned Counsel for the University could
demonstrate as to which type of employees are categorized as Class IV employee. Apparently, all
the workers 'may be' discharging any nature that is being done by the present writ petitioners, falls
under the definition of Class-IV employees and such type of workers are also engaged in other
department of the State Government, like P.W.D., Irrigation etc. Therefore, the stand of the
University that petitioners do not fall under the category of Class-IV employee is misconceived.
Even otherwise, it is not open for the University to somersault the stand earlier taken in bunch of
writ petitions decided vide judgment and order dated 23.7.2002, which, of course, has attained
1196 INDIAN LAW REPORTS ALLAHABAD SERIES
finality. Therefore, the petitioners are entitled to get minimum of the pay-scale of the respective
posts on which they are working in pursuance of the judgment and order dated 23.7.2002.

32. Undoubtedly, as per the judgment and order dated 23.7.2002, the benefit of
consideration of regularization and payment at the minimum of the pay-scale on the respective
posts has been provided only for such daily wagers who have been working for the last more than
10 years and are working presently also. It is also not in dispute that petitioners were engaged as
daily wager sometime between 1986 to 1990 and they have been allowed to continue in the same
capacity till date without any break. Therefore, it can well be presumed that the work does exist and
that such daily wagers cannot be deprived of the regular service benefits, which would have
otherwise been made available to them in case their services were regularized or they were given
regular appointments. Thus, non-consideration of regularization of services of the daily wager, who
have put in continuous service for such a long time and non payment of even minimum of the payscale would constitute arbitrariness on the part of the State as well as the University.

33. Needless to mention here that the daily wagers, who have put in their entire youth in
service of the University, cannot be thrown out in lurch simply because of the inaction of the
opposite parties in considering their regularization and not giving them regular service benefits,
when the verdict of this Court in their favour.

34. Neither Counsel for the University nor counsel for the State have ever stated that
services of these daily wagers have been dispensed with at any point of time or any decision was
taken or has been taken to terminate their services. This shows that on one hand, the daily wagers
aforesaid are being deprived of their absorption in service on regular basis and the payment of the
pay-scale and on the other hand, they would be allowed to continue as daily wagers without any
objection from the University or by the State. Therefore, since the daily wagers are being
continuously allowed to work without break, it is not open for the State to say that they should not
be considered for regularization or minimum of the pay-scale should not be paid to them.

35. Apparently, pursuant to the order dated 23.7.2002, the University has framed a scheme
for regularization. Further, as averred above, correct facts have not been brought to the notice of the
Secretary by the University authorities, especially about the order dated 23.7.2002 passed in writ
petition No. 4257 (SS) of 1994, which was affirmed by a Division Bench of this Court in Special
Appeal No. 395 of 2003 vide judgment and order dated 25.11.2003; the University has not filed
any special appeal against the judgment and order dated 23.7.2002 and as such, the said judgment
dated 23.7.2002 has attained finality, which, of course, is now binding upon the opposite parties.
Moreso, recently the State Government has issued a Government Order dated 13.8.2015 whereby it
has been provided that persons working on daily wage/work charge/contractual basis in the
department of the State Government, its autonomous bodies, public undertakings/local bodies,
development authorities and Zila Pancahyat, who were engaged upto 31.3.1996 shall be
regularized. By the subsequent government order dated 24.2.2016, the cut of date was altered to
31.12.2001.
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36.