# State of U.P. and others v. Prabhu Narain Sharma and others

- **Citation:** (2010) 2 ILRA 772
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-07-23
- **Case number:** Special Appeal No.64 of 2006
- **Bench:** Ferdino Inacio Rebello, C.J. Rajiv Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-and-others-v-prabhu-narain-sharma-and-others-41694
- **Pages:** 10

## Text

772 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.07.2010

BEFORE
THE HON'BLE FERDINO INACIO REBELLO, C.J.
THE HON'BLE RAJIV SHARMA, J.

Special Appeal No.64 of 2006

State of U.P. and others ...Petitioners
Versus
Prabhu Narain Sharma and others

 ...Respondents

Constitution of India Art.226-Dearness
allowance-whether
the
work
charge
employee working on consolidated Pay
entitled benefit of Dearness Allowance
With
same
rate
as
per
regular
employee?-held- 'No'-state can classify
its-employee
considering
nature
of
appointment-consolidate
pay
consist
basic Pay, Dearness Allowance, special
Pay
and
leave
encashment-state
government not bound to treat all
employees alike for purpose of wagesorder passed by single judge modifiednot
to
recover
excess
amount
of
Dearness Allowance Already paid-these
retiring within 5 years-50% amount be
deducted from in easy instalment-those
who have not been paid arrears of
Dearness Allowance Be paid in revise pay
in 6th pay commission report within 3
month.

Held: Para 21 & 23

The principle, therefore, is well settled
that the State need not, in exercise of its
executive power or otherwise, treat all
employees alike merely because they are
in its employment. The State can classify
the employees, based on the nature of
employment, and pay them differently. If
so done, it can not be said to be
arbitrary. In the case in hand, after going
into the issue, the State Government
fixed
a
consolidated
pay
for
work
charged
employees.
This,
therefore,
cannot be said to be arbitrary. This
principle has also been referred to in a
Constitution Bench judgment of the
Supreme Court in Secretary, State of
Karnataka & Ors. Vs. Uma Devi (3) &
Ors., (2006) 4 SCC 1.

In view of the above discussion, it is not
possible to hold that the action of
respondents was arbitrary and/or that
the work charged employees are entitled
to
be
treated
alike,
like
regular
employees for the purpose of dearness
allowance. The Judgment of the learned
Single Judge, therefore, is liable to be
set aside and is, accordingly set aside.

At this stage, learned Chief Standing
Counsel submitted that as this Court has
set-aside the judgment of the learned
Single Judge and as such, liberty may be
granted to recover the amount of arrears
and
difference
of
wages
from
the
respondents-employees. Counsel for the
respondents-petitioners submitted that it
will be too harsh to recover the amount
which has already been paid to them
pursuant to the judgment of this Court.
They further added that it is not the case
of the appellants that they have been paid
the
amount
on
account
of
misrepresentation of facts. Moreover,
there are large number of employees who
have
already
attained
the
age
of
superannuation or going to attain the age
of superannuation very soon and recovery
of amount, which has already paid to
them, will cause serious prejudice apart
from
adverse
affect
on
the
family.
Considering
the
peculiar
facts
and
circumstances of the case, we with the
consent of the parties' counsel evolved a
formula in respect of recovering the
amount, which should be adopted by the
appellants. The formula so evolved with
the consensus of the parties, is as
follows:-

(i) There will be no recovery from the
persons who have already superannuated
or are going to attain the age of
superannuation within five years from
today
2 All] State of U.P. and others V. Prabhu Narain Sharma and others
773
(ii) In respect of the employees, who will
be superannuating after five years, from
such employees, 50 % arrears paid as
dearness allowance less component of
fixed pay can be recovered.

(iii) The amount of arrears, which can be
recovered from the employees, shall be
in easy installments spread over a period
of five years.

(iv) In respect of the employees working
in the U.P. State Bridge Corporation or
other governmental bodies, who have
not yet been paid arrears and in respect
of whom the recommendations of the
Sixth Pay Commission are still pending
though
made
applicable
to
regular
employees, the respondents, whether it
be the Government or the Corporation,
are directed to complete the process
within a period of three months from
today and make applicable the revised
pay from the date the work charged
employees in the State are being paid.
Case law discussed:
[(1998) 8 SCC 473]; [(1979) 4 SCC 440]; [AIR
1997 SC 693]; [AIR 1997 SC 2129]; [(2003) 1
SCC 250]; [(2003) AIR SCW 3382]; [(1998) 8
SCC 433];.[2006 (6) ALJ 549]; [AIR 2004 SC
2449]; [(1996) 7 SCC 256]; [AIR 1990 SC
311]; [(2004) 6 SCC 661]; [(2003) 4 SCC 59];
[AIR 2000 SC 1005]; [(1996) 11 SCC 77];
1980 SCC [L & S] 36; [(1998) 1 UPLBEC 313;
[(2002) 2 UPLBEC 1595; (3) & Ors., (2006) 4
SCC 1.

(Delivered by Hon'ble F.I. Rebello, C.J.)

1. Heard Sri D. K. Upadhya, Chief
Standing Counsel assisted by Sri Alok
Sinha, Additional Chief Standing Counsel,
Sri Ajai Kumar Singh alongwith Sri
Shishir Jain for the appellants and Sri A.M.
Tripathi, Sri D. K. Tripathi and Sri V. K.
Shukla, Counsel for the respondents.

At the out-set it may be mentioned
that in few appeals, there was a delay in
filing the Special Appeal and as the
sufficient cause has been shown, the delay
is hereby condoned.

2. Feeling aggrieved, Prabhu Narain
Sharma and 52 others, respondents/writ
petitioners filed a Writ Petition No. 5505
(SS) of 1999 inter alia praying for
quashing of the Government Order dated
26.8.1999. Several other writ petitions with
the same relief were also filed. All these
identical writ petitions were clubbed
together and were allowed by the judgment
and order dated 6.5.2005 and the G.O.
Dated 26.8.1999 whereby the fixed amount
of amount of Dearness Allowance payable
to work-charge employees was quashed. A
number of other writ petitions claiming
benefit of the aforesaid judgment and order
dated 6.5.2005 were also filed and the
same were disposed of in terms of the
aforesaid judgment and order.

The State Government as well as the
Corporation being dissatisfied with the
aforesaid judgment and order dated
6.5.2005 passed in Writ Petition No. 5505
(SS) of 1999:Prabhu Narain Sharma and
52 others vs. State of U.P. and others as
also in other identical writ petitions,
preferred
Special
Appeals.
Similarly,
Bridge Corporation has also filed Special
Appeals, assailing the order of learned
Single Judge extending the benefits of
judgment and order dated 6.5.2005 to the
work-charge
employees
of
the
Corporation.

3. As a common question, is involved
in all these appeals and as such these
appeals have been clubbed together and are
being decided by a common order.

4. The question "Are work charged
employees entitled to dearness allowance
on par with regular employees on the
774 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

ground that they are performing the same
work
and
duties,
which are being
performed by regular employees and, as
such, entitled to 'equal pay for equal work'
and consequently is the Government Order
dated 26.08.1999 illegal?

5. Draped in brevity, the facts of the
case are that Respondents-petitioners are
the work-charge employees of Public
Works Department, Irrigation Department
and U. P. State Bridge Corporation Ltd.
Feeling aggrieved by the Government
Order dated 26.8.1999, they preferred writ
petitions before this Court alleging therein
that they are performing same work and
duties, which are being performed by
regular employees and as such, they are
entitled for equal pay and other benefits.
According to them, denial of benefit which
is available to the regular employees when
they are performing identical work and
treating them differently is arbitrary and
discriminatory. It has also been alleged that
they are also entitled for dearness
allowance
at
par
with
the
regular
employees, but by the Government Order
dated 26.8.1999, a ceiling has been
imposed upon dearness allowance to the
work-charge employees, which action of
the State Government is highly arbitrary
and
discriminatory
as
the
dearness
allowance is paid on the basis of consumer
price index and therefore, there should not
be any ceiling on dearness allowance in
respect of the work-charge employees
only. It is relevant to point out that the
provisions of the Government Order dated
26.8.1999 were also applicable to the work
charge employees of the U.P. State Bridge
Corporation as the same were duly adopted
by the Board of Directors.

6. Aforesaid writ petitions were
seriously contested by the appellants and it
was argued before the learned Single Judge
that the work-charge employees are
governed by paragraphs 667 to 669 of
Financial Handbook Volume 6 which has
been enacted in exercise of powers
conferred under the Government of India
Act. The work charge employees are
engaged purely on temporary basis against
particular project/ work on consolidated
wages. They are not entitled for any
pension or leave salary or allowances,
except the allowances relating to traveling
and daily allowances. It was also argued
that the principle of 'equal pay for equal
work' shall not be attracted in respect of
work charge employees, in view of the fact
they form a distinct and separate class as
per their nature of engagement and
qualifications.
It
is
on
account
of
classification,
that
the
work-charge
employees
are
paid
fixed
dearness
allowance alongwith the consolidated pay,
which is a reasonable classification and
cannot be said to be violative of Article 14
of the Constitution of India.

7. The learned Single Judge while
quashing the Government Order dated
26.8.1999 by the impugned judgment and
order
dated
6.5.2005
came
to
the
conclusions that ceiling on the payment of
dearness allowance to the workcharge
employees is violative of Articles 14 and
21 of the Constitution of India, apart from
being arbitrary and unjust. It has also been
observed that once the Government had
taken decision for payment of dearness
allowance and provisions contained in
financial handbook Vol.6 from paragraphs
667 to 669 having been repealed or
deleted, there was no justification on the
part of the State Government to provide
any ceiling on payment of dearness
allowance.
2 All] State of U.P. and others V. Prabhu Narain Sharma and others
775

8. Learned Counsel for the appellants
has contended that the learned Single
Judge while making aforesaid observations
failed to appreciate the very vital fact that
work charge establishment differs from
regular establishment. The former is a
temporary one, depending upon the project
or a scheme in hand and availability of
funds, whereas the latter is a permanent
establishment. Work-charge employees are
being paid consolidated pay which are
fixed on the basis of the recommendations
made by the Expert Committee right from
1929. As the services of work charge
employees were not regularised though
they have served for decades and as such
petitions were filed which went upto the
Apex Court and in order to bring the workcharge employees on regular establishment
the scheme was framed by the State
Government having approval of the Apex
Court in the case of Raj Narain Prasad v.
State of U.P. [(1998) 8 SCC 473]. It has
also been argued that the engagement of
workcharge
employees
against
the
temporary work/project on consolidated
pay is in existence since 1929 and they
formed a separate class since then. To give
strength to his aforesaid arguments,
reliance has been placed upon Jaswant
Singh and others v. Union of India and
others [(1979) 4 SCC 440], State of
Rajasthan v, Kunji Raman [AIR 1997 SC
693], State of Haryana v. Surinder Kumar
[AIR 1997 SC 2129], State of Orissa and
others v. Balram Sahu and others [(2003) 1
SCC 250], State of Haryana v. Tilak Raj
and others [(2003) AIR SCW 3382] and
suresh Kumar Tiwari and others v. State of
U.P. and others [(1990) 1 UPLBEC 596].

9. Elaborating his arguments, it has
been submitted by the Chief Standing
Counsel that work-charge employees may
be entitled to benefits, admissible to
regular employees only when they are
regularized as per scheme framed by the
State
Government, in
view of
the
observations of Division Bench in its
Judgment and order dated 30.8.1999 in the
case of Barkat Ali versus State of U.P. and
others but so far as they remain on workcharge establishment, in no circumstance,
they can be equated with the regular
employees. The Scheme of regularization
of work-charged Employees of Irrigation
Department has been upheld by the Apex
Court in Writ Petition No. 140 of 1989 Raj
Narain Prasad and others v. State of U.P.
and others reported in [(1998) 8 SCC 433].
Similar scheme in respect of workcharged
employees of Public Works Department
has been framed vide office memo of State
Government dated 15.10.1997. In support
of his submissions, reliance has been
placed upon Bans Gopal versus State of
U.P. and others [2006 (6) ALJ 549].

10. His next contention is that as the
source
and
mode
of
engagement/recruitment of two categories
of employees is different and as such, their
pay and conditions of services are also
different and as such, the consolidated
wages and the corresponding pay-scale of
work-charge employees has been fixed/
revised on the recommendations of the pay
commission. The pay anomaly committee
under the Chairmanship of the Chief
Secretary on consideration of employees'
representation did not find any justification
for abolition of the practice for payment of
fixed
Dearness
Allowance.
Any
interference by this Court on the fixation of
consolidated wages to the work-charge
employees would amount to interference
on the recommendations of the pay
commission or in other way it will amount
to substituting the wage structure fixed on
the
recommendations
by
the
Pay
776 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

Commission, which is an expert body.
Fixation of pay/wages of work-charge
employees is the sole domain of the State
Government and any interference by this
Court, without there being any legal right
in favour of the respondents would be
unsustainable. Merely because, the pay
scale
of
workcharge
employees
is
equivalent to the pay-scale admissible to
the regular employees, it would not entitle
the former to claim dearness allowance at
par with the regular employees. To
strengthen his arguments, reliance has been
placed upon the cases of State of Haryana
v. Jasmeer Singh (supra), Union of India
and another v. Manu Dev Arya [AIR 2004
SC 2449], Joint Action Council of Service
Doctors Organizations and others v. Union
of India and others [(1996) 7 SCC 256],
Dr. Ms. O.Z. Hussain v. Union of India
and others [AIR 1990 SC 311], P. M.
Bhargava
v.
University
Grants
Commission and another [(2004) 6 SCC
661], Jugal Chandra Saikia versus State of
Assam and another [(2003) 4 SCC 59],
Indira Theremal Power Ltd. v. State of
M.P. and others [AIR 2000 SC 1005], Dr.
Shivarao Shantaran Wagle and Union of
India and others [(1998) 2 SCC 115] and
Punjab State Electricity Board and others
v. Jagjiwan Ram and others [(2009) 4 SCC
661].

11. Clarifying the position, it has
been submitted that the consolidated
wages, which are paid to the employees of
work-charge establishment, is constituted
of four components, i.e. basic pay,
dearness allowance, special pay and leave
encashment, if any, but the learned Single
Judge has only dealt with the dearness
allowances and lost sight of the fact that it
is not only the dearness allowance, which
is only payable to an employee of the
work-charge establishment, though they
are entitled for other three components
also. Therefore, it can be said that the
learned
Single
Judge
misread
the
provisions of Government Order dated
26.8.1999. It has been brought to our
notice that while fixing the consolidated
pay/minimum wages, various factors are
taken into account by the expert bodies,
such as, three consumption units for one
earner, minimum food requirement of
2077 calories per average for one adult,
clothing requirements of 72 yards per
annum per family and other factors like,
miscellaneous expenses and conditions
influencing the wage rate. Initially, the
consolidated pay which was being paid to
work-charge
establishment
after
the
recommendations
of
the
4th
Pay
Commission was Rs.1200/- which was
enhanced to Rs.1700/- and later on to
Rs.3200/-. All these enhancements were
made by the State Government on the basis
of
recommendations
of
the
Pay
Commission
and
Pay
Anomaly
Committee.

12. Sri Ajay Kumar Singh along with
Sri Shishir Jain, appearing for the U.P.
State Bridge Corporation while assailing
the judgment of learned Single Judge,
stated that they do not want to add
anything further and adopts the arguments
so advanced by the State Counsel.

13. While defending the judgment of
the learned Single Judge, learned Counsel
for
the
respondents/writ
petitioners
submitted that the learned Single Judge
after scrutinizing the materials on record,
had come to the conclusion that there was
an imposition of ceiling on payment of
Dearness Allowance in respect of the
employees of work-charge establishment
which is discriminatory in nature as
dearness allowance is paid to protect
2 All] State of U.P. and others V. Prabhu Narain Sharma and others
777
wages against inflation. They further
submitted that during pendency of the
Special Appeals, the recommendations of
the Sixth Pay Commission were accepted
by the State Government and Government
Orders dated 14.1.2010 and 18.1.2010
have been issued by the State Government
whereby the employees working on the
work-charge establishment have been
placed in the corresponding pay scale of
regular
employees
by
the
State
Government itself and the system of
consolidated wages has been abaodoned.
Therefore, the assertions of the appellants
are not legally sustainable and the Special
Appeals are liable to be dismissed. On a
quarry, learned Chief Standing Counsel
has informed us that the aforesaid
Government Order dated 18.1.2010 has
been implemented. A copy of the said
Government Order has been produced
before us and has been taken on record.

14. The work-charge establishment,
as pointed out by the Apex Court in the
case of Jaswant Singh, (supra) means an
establishment of which the expenses
including the wages and allowance of the
staff are chargeable to "works". The pay
and allowances of employees who are
borne on a work-charged establishment are
generally shown as a separate sub-head of
the estimated cost of the works. The workcharged employees are engaged on a
temporary basis and their appointment are
made for the execution of the specified
work. This principle was followed in the
State of Rajasthan v. Kunji Raman (supra)
and it was observed that a work-charge
establishment is a distinct establishment
from the regular establishment, which is
permanent in nature. Setting up and
continuance of work-charge establishment
is
dependent
upon
the
Government
projects or a work and availability of funds
for executing it. So far as employees
engaged on work-charge employees are
concerned, not only their recruitment and
service conditions, but the nature of work
and duties to be performed by them are not
the same as those of employees of the
regular establishment. Thus, the Apex
Court held in unambiguous words that a
regular establishment and a workcharge
establishment are two separate types of
establishments and the persons employed
on those establishments thus form two
separate distinct classes.

15. In the State of Haryana and
others v. Jasmer Singh [(1996) 11 SCC
77], the question before the Apex Court
was with regard to the payment of equal
pay for equal work. The Apex Court while
holding that the person working on daily
wages cannot be treated at par with the
persons in regular service observed that the
daily rated works are not required to
possess the qualifications prescribed for
regular workers nor do they have fulfill the
requirements relating to age at the time of
recruitment. They are not selected in the
manner in which regular employees are
selected. Furthermore, the employees
working on consolidated pay are not
subjected to the disciplinary jurisdiction,
whereas it is applicable in respect of
regular employees.

16. In Jaswant Singh Vs. Union Bank
of India: 1980 SCC [L & S] 36, the Apex
Court has made observations that the work
charge
establishment
means
such
establishments
which
expenses
are
chargeable to work. Their wages and
allowances are drawn from separate heads.
The work charge employees are engaged
on work establishment and, therefore, is
different
from
regular
work
charge
employees. The law is also very well
778 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

settled that once the employees are
employed for the purpose of Scheme, they
do not acquire any vested right when the
project is over. It may be added that the
respondent-petitioners when were engaged,
were fully aware of the fact, that their
status and conditions of service are
altogether different than those of regular
employees.

17. It is relevant to mention that in
umpteen cases, the Apex Court has held
that if the persons engaged on daily wages,
consolidated pay or under the workcharged establishment are not appointed in
terms of the provisions of the statute, they
cannot be equated with the regular
employees and thus it cannot be said that
there is any violation of Article 14 of the
Constitution of India. This can be
exemplified from the fact that when a
regular employee reaches on the maximum
of the pay scale, addition of annual
increments automatically stops and in that
situation, as per settled principle of law, it
is not open for him to agitate the matter on
the ground of it being arbitrary or
unjustified as it is relative incidence of the
service. Furthermore, when services of
such persons are not regularized and they
continued on consolidated pay, without
having undergone the process of regular
appointment, they are also not entitled for
regular pay-scale or any other benefit
admissible to a regular employee.

In view of the aforesaid legal
proposition, we are of the considered
opinion that the work-charge employees
engaged under paragraphs 667 to 669 of
Financial
Handbook
Volume
6
on
consolidated wages, form a distinct and
separate
class,
from
a
regular
establishment. Their terms of engagement
is altogether different. The work-charge
employees are not required to undergo any
selection process whereas the regular
employees are always required to undergo
a rigorous selection process. By the
impugned judgment, in our opinion, their
term of engagement has indirectly been
changed, which is not in the domain of the
Court insofar as the benefit of the variable
dearness allowance was extended and
made equivalent to the regular employees.
The same is also in violation of the terms
and conditions of service as the employees
in the work-charge establishment are
engaged on the consolidated pay wages
which includes the wages in the pay-scale,
fixed dearness allowance special pay, leave
encashment (if any). In other words, the
work charge employees (engaged against a
work without adhering to the due
procedure and qualifications etc.) cannot
claim equality with the regular employees
(appointed against sanctioned post as per
due procedure).

18. There is no doubt that the State is
fully competent to prescribe the conditions
of service of regular as well as workcharge employees and Article 14 does
permit
reasonable
classification
on
intelligible differentia. Furthermore, the
pay of regular employees is charged
against the post, while the wages of work
charge employees are charged against the
estimate of work. Therefore, the fixing of
Dearness Allowance to be payable in
respect of Work-charge employees, who
form a separate class, is neither capricious
nor arbitrary but is based on reasonable
classification. Thus, the learned Single
Judge recorded reasonings without taking
into consideration all these important
factors.

19. It is significant to point out that a
scheme of regularization of work-charge
2 All] State of U.P. and others V. Prabhu Narain Sharma and others
779
employees was formulated by the State
Government, which was approved by the
Apex Court while delivering the judgment
in Raj Narain Prasad's case. The workcharge employees, who have not yet been
regularized, pursuant to the aforesaid
Scheme, have admittedly been engaged
under Vol. 6 of Paragraphs 667 to 669 of
the Financial Handbook. We find force in
the submissions of the State Council that
deletion of Vol. 6 of Paragraphs 667 to 669
of the Financial Handbook will not affect
the terms and conditions of work-charge
employees engaged prior to the date of
deletion. Their engagement will continue
to be govern as per provisions of
Paragraphs 667 to 669. At this juncture, it
may be added that Paragraphs 667 to 669
of the Financial Hand Book were deleted
w.e.f. 1.1.2000 and no person has been
engaged on work-charge establishment
thereafter as informed by the Chief
Standing Counsel. In our view, this fact
has not been considered by the learned
Single Judge in its correct perspective.

20. The learned Judge has traced the
history of dearness allowance and its
payment to employees. The learned Judge,
however, failed to take into consideration
that the pay fixed for work charged
employees, included as a component,
dearness allowance. The D.A. included in
the consolidated pay, in labour law, is
known as Fixed Dearness Allowance
(F.D.A.)
vis-a-vis
Variable
Dearness
Allowance (V.D.A.) which is based on the
increase or decrease in the Consumer Price
Index. At what point, neutralization should
be effected for a component of dearness
allowance to be treated as F.D.A. is within
the realm of the State authorities based on
the recommendations received from the
bodies assigned to do the work of fixation
of pay. What the employees on work
charged establishment were denied was the
V.D.A. The learned Judge, without taking
into consideration this aspect, came to the
conclusion that the Government Order
dated 26.08.1999 is discriminatory and
there should not be any restriction on
payment
of
dearness
allowance,
overlooking the vital fact
that the
consolidated
pay
consists
of
four
components, i.e. basic pay, dearness
allowance,
special
pay
and
leave
encashment, if any, and undisputedly, the
employees working on work charged
establishment form a separate class, as has
been held by the Supreme Court in the
judgments, earlier referred to including the
judgment in the case of Jaswant Singh
(supra). Once work charged employees
constitute a different class from regular
employees, the employer is not bound to
treat all employees alike for the purpose of
wages. This principle has been enunciated
by the Apex Court in several cases. This
Court was also seized of that issue in
respect
of
daily
rated
employees/employees on work charged
establishment in the case of State of U.P.
& Ors. Vs. Putti Lal, [(1998) 1 UPLBEC
313. The matter ultimately was heard and
decided by the Supreme Court in State of
U.P. & Ors. Vs. Putti Lal [(2002) 2
UPLBEC 1595, wherein the Hon'ble
Supreme Court, in paragraph 5, had
observed as under:-

"5. In several cases this Court
applying the principle of equal pay for
equal work has held that a daily wager, if
he is discharging the similar duties as these
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 counter part, in the
780 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

Government. In our opinion that would be
the correct position and was therefore,
direct that these daily-wagers would be
entitled to draw at the minimum of the pay
scale being received by their counterpart in
the Government and would not be entitled
to any other allowances or increment so
long as they continue on daily wager. The
question of their regular absorption will
obviously be dealt with in accordance with
the statutory rule already referred to."

21. The principle, therefore, is well
settled that the State need not, in exercise
of its executive power or otherwise, treat
all employees alike merely because they
are in its employment. The State can
classify the employees, based on the
nature of employment, and pay them
differently. If so done, it can not be said
to be arbitrary. In the case in hand, after
going
into
the
issue,
the
State
Government fixed a consolidated pay for
work charged employees. This, therefore,
cannot be said to be arbitrary. This
principle has also been referred to in a
Constitution Bench judgment of the
Supreme Court in Secretary, State of
Karnataka & Ors. Vs. Uma Devi (3) &
Ors., (2006) 4 SCC 1.

In view of the above discussion, it is
not possible to hold that the action of
respondents was arbitrary and/or that the
work charged employees are entitled to be
treated alike, like regular employees for
the purpose of dearness allowance. The
Judgment of the learned Single Judge,
therefore, is liable to be set aside and is,
accordingly set aside.

22. However, in the course of
argument, and as noted earlier, the State
Government by its notifications dated
14.01.2010 and 18.01.2010 has in respect
of employees working in work charged
establishment
placed
them
in
the
corresponding pay scale of regular
employees and also the system of
consolidated wage has been abandoned.
This was permissible for the State to do
and it has so done, but that would only be
from the date from which the notification
has been given effect to, in the instant
case, 01.01.2006. The judgment of the
learned Single Judge was delivered on
06.05.2005. It is in that context that we
shall have to consider and mould the
relief.

23. At this stage, learned Chief
Standing Counsel submitted that as this
Court has set-aside the judgment of the
learned Single Judge and as such, liberty
may be granted to recover the amount of
arrears and difference of wages from the
respondents-employees. Counsel for the
respondents-petitioners submitted that it
will be too harsh to recover the amount
which has already been paid to them
pursuant to the judgment of this Court.
They further added that it is not the case
of the appellants that they have been paid
the
amount
on
account
of
misrepresentation of facts. Moreover,
there are large number of employees who
have
already
attained
the
age
of
superannuation or going to attain the age
of superannuation very soon and recovery
of amount, which has already paid to
them, will cause serious prejudice apart
from adverse affect on the family.
Considering
the
peculiar
facts
and
circumstances of the case, we with the
consent of the parties' counsel evolved a
formula in respect of recovering the
amount, which should be adopted by the
appellants. The formula so evolved with
the consensus of the parties, is as
follows:-
2 All] Ravindra Singh V. State of U.P. and others
781

(i) There will be no recovery from
the
persons
who
have
already
superannuated or are going to attain the
age of superannuation within five years
from today.

(ii) In respect of the employees, who
will be superannuating after five years,
from such employees, 50 % arrears paid
as dearness allowance less component of
fixed pay can be recovered.

(iii) The amount of arrears, which
can be recovered from the employees,
shall be in easy installments spread over a
period of five years.

(iv) In respect of the employees
working in the U.P. State Bridge
Corporation
or
other
governmental
bodies, who have not yet been paid
arrears and in respect of whom the
recommendations
of
the
Sixth
Pay
Commission are still pending though
made applicable to regular employees, the
respondents,
whether
it
be
the
Government or the Corporation, are
directed to complete the process within a
period of three months from today and
make applicable the revised pay from the
date the work charged employees in the
State are being paid.

Appeal Allowed
---------

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.07.2010

BEFORE
THE HON'BLE FERDINO I. REBELLO, C.J.
THE HON'BLE A.P. SAHI, J.

Special Appeal No. 79 of 2010

Ravindra Singh

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

Counsel for the Appellant:
Sri Ashwani K. Misra, Adv.
Sri Atul Khaneja

Counsel for the Respondents:
Dr. Y.K. Srivastava,
C.S.C.

U.P.
Intermediate
Act,
1921
or
Subsequent Amendments by various
difficulties
removal
order-The
question whether the appointment of
the Appellant was against a temporary
vacancy or as Short Term Vacancy and
whether
the
procedure
for
appointment as was existing at the
time the vacancy followed?

After
examining
the
various
difficulties removal order-and the Act
it is clear-no requirement of notifying
the vacancy or publication in 2 news
papers as held by the Full Bench
"Kumari Radha Raizada" (1994 ALJ
1077). Nothing has been placed before
the court by the State showing the
manner
and
the
conditions
of
appointment prescribed for filing in
the Temporary Vacancies-other than
that followed by the Management-the
Management as is apparent from the
facts or record, has advertised the
post in question cannot be saidprocedure
for
appointment
on
Temporary/Short
Term
Vacancy
without authority of law