# State of U.P v. Mangal Prasad and others

- **Citation:** (2008) 2 ILRA 547
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-07-28
- **Bench:** Ashok Bhushan, Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-mangal-prasad-and-others-41201
- **Pages:** 6

## Headnote

Constitution of India-Article 226-Salarywork charge employee working for last
29 years-direction by Single Judge to
create post and regularise them-so for
the direction for creation of post by
Single
Judge
-set
aside-strict
in
accordance with seniority-regularisation
may going on-salary as per regular
employees-cannot be given keeping in
view of latest Law of the Apex Courthowever
imposition
of
ceiling
on
dearness allowance-held-illegal.

Held: Para 22

We are of the considered opinion that in
view of the judgment referred to above,
all the work charged employees of the
Corporation are entitled to the benefit of
said judgment. There cannot be any
ceiling of dearness allowance on the
such work charged employees so long
the judgment dated 13.09.2007 holds
the field
Case Law discussed:
(1996) 11 SCC 77, AIR 1986 SC 584, (1995) 5
SCC 210; (1997) 3 SCC 632, AIR 1992 SC
2130, (1990) 1 SCC 361; AIR 2006 SC 845,
AIR 2001 SC 706, (2005) 1 SCC 639, 2266(SS)
of 2007.

## Text

2 All] State of U.P. V. Mangal Prasad and others
547
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.07.2008

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE ARUN TANDON, J.

Special Appeal 80 of 2007

State of U.P.

...Appellants
Versus
Mangal Prasad and others ...Respondents

Counsel for the Appellants:
Sri. R.V. Singh
Sri. Suresh Singh
Sri. P.K. Pandey

Counsel for the Respondents:
Sri. U.N. Sharma
Sri. P.N. Rai
Sri. Ravindra Kumar
Sri. Y.K. Saxena

Constitution of India-Article 226-Salarywork charge employee working for last
29 years-direction by Single Judge to
create post and regularise them-so for
the direction for creation of post by
Single
Judge
-set
aside-strict
in
accordance with seniority-regularisation
may going on-salary as per regular
employees-cannot be given keeping in
view of latest Law of the Apex Courthowever
imposition
of
ceiling
on
dearness allowance-held-illegal.

Held: Para 22

We are of the considered opinion that in
view of the judgment referred to above,
all the work charged employees of the
Corporation are entitled to the benefit of
said judgment. There cannot be any
ceiling of dearness allowance on the
such work charged employees so long
the judgment dated 13.09.2007 holds
the field
Case Law discussed:
(1996) 11 SCC 77, AIR 1986 SC 584, (1995) 5
SCC 210; (1997) 3 SCC 632, AIR 1992 SC
2130, (1990) 1 SCC 361; AIR 2006 SC 845,
AIR 2001 SC 706, (2005) 1 SCC 639, 2266(SS)
of 2007.

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard Sri U.N. Sharma Senior
Advocate assisted by Sri P.N. Rai
Advocate on behalf of the Bridge
Corporation, Standing Counsel on behalf
of the State of U.P. and Sri Ravindra
Kumar Advocate on behalf of the
employees.

2. These special appeals have been
filed by the State of U.P. as well as the
U.P.
State
Bridge
Corporation,
established by the State of U.P. against
the common judgement of the learned
Single Judge delivered in a bunch of 154
writ petitions. All the appeals have been
clubbed and are being decided by this
judgement. The relevant facts for the
decision of these appeals are:

3. U.P. Bridge Corporation has been
constituted by the State of U.P. basically
for carrying on the construction work of
Bridges etc. It is not in dispute that the
power to create posts both Class-IV and
above in the U.P. Bridge Corporation vest
with the State Government. The aforesaid
154 writ petitions were filed by the
persons, who were engaged by the Bridge
Corporation as daily wager/work charged
employees since 1975 onwards, with the
prayer
that
the
State
Government/Corporation be directed to
regularize the services of such petitioners
who have completed requisite years of
service in the Corporation and further to
ensure that such employees are granted
minimum of the pay scale admissible to
regular
employees,
till
such
regularization.
548 INDIAN LAW REPORTS ALLAHABAD SERIES [2008

4. Before the writ Court a stand was
taken
on
behalf
of
the
State
Authorities/Bridge Corporation that there
were no regular vacancies available and
therefore
no
regularization
can
be
directed. Prayer for salary at par with the
regular
employees
working
in
the
Corporation was also disputed on the
ground that the nature of appointment of
petitioners
being
different
qua
the
appointment of regular employees, they
cannot claim parity with any regularly
appointed staff for the purposes of
payment of salary.

5. The learned Single Judge, after
hearing the counsel for the parties, by
means of the impugned judgement and
order dated 16th September, 2004 has
allowed the writ petitions. It has been held
that since the writ petitioners have been
working with the U.P. State Bridge
Corporation for last more than 29 years, it
is patently arbitrary to keep such
employees as daily wagers/work charged
employee for such a long period. The
Court proceeded to direct the State
Government to create additional posts in
order to ensure that writ petitioners are
absorbed against the said newly created
posts and are paid salary on regular basis.
The Court further provided that till such
regularization the interim order granted
by this Court permitting the petitioners to
continue in service and to be paid current
salary as payable to regular workers
would continue. It is against this order of
the learned Single Judge that the present
special appeals have been filed.

6. On behalf of the appellants it is
vehemently contended that power to
create posts is within the exclusive
domain of the employer, in the facts of
the case State Government. The State has
to take care of its financial commitments
and liabilities before creating additional
Posts.

7. Today a letter issued by the State
Government dated 27th August, 2007 has
been brought on record. Under the said
letter the total number of posts; both in
the regular cadre as well as in the work
charged establishment in the Bridge
Corporation have been specified. The
total number of posts sanctioned within
the regular cadre are 1493, while those
within the work charged establishment
has been provided as 2934. The break up
of the post category wise has also been
enclosed along with the Government
Order. Lastly reference has been made to
the letter of the Secretary, State of Uttar
Pradesh dated 24th July, 2008, wherein it
is recorded that the writ petitioners shall
be regularized as and when regular
vacancies
become
available
in
the
Corporation within the regular post
created under the aforesaid Government
Order dated 27th August, 2007. It is also
recorded that seven out of such writ
petitioners have already been regularized.
The detail of special appeals referable to
these writ petitioners has been specified.
So far as remaining writ petitioners are
concerned, it is mentioned that one of the
petitioner has expired and six petitioners
still remain to be regularized. The State
Government has decided that as and when
regular vacancy becomes available in the
Corporation their claim for regularization
shall also be considered as per the
seniority.

8. In view of the aforesaid
development,
counsel
for
the
writ
petitioners-respondent contends before us
that the State Government should have
created necessary number of posts and in
2 All] State of U.P. V. Mangal Prasad and others
549
case the State Government wants some
time for creation of new posts, the
direction issued for payment of salary at
par with the regular employees be
maintained and appropriate direction for
the purpose be issued.

9. We have heard counsel for the
appellants as well as counsels for the writ
petitioners and have gone through the
records.

10. It cannot be disputed that the
power to create posts is within the domain
of the employer, in the facts of the case
the State Government. The Court while
exercising powers under Article 226 of
the Constitution of India cannot insist
upon the employer to create additional
posts so that regularization of daily wage
employees can be effected. At best a
direction can be issued for consideration
of the matter and appropriate orders being
passed by the State employer.

11.

Having
regard
to
the
Government Order, which has been
brought on record today, dated 27th
August, 2007, we are of the considered
opinion that the decision taken by the
State
Government
to
create/sanction
regular post to the extent of 1493 and
2934 in the work charged establishment
for the Bridge Corporation cannot be
faulted with nor this Court has the
expertise to examine as to whether such
creation of posts is as per the requirement
of the Bridge Corporation or not.

12. The Court has to rely upon the
wisdom of the State Government and its
officers who have the necessary expertise
qua requirement of work force for an
establishment. We, therefore, record that
the order passed by the learned Single
Judge for creation of additional posts
cannot be approved. Any claim of the writ
petitioners for regularization has to be
considered within four corner of the post
created
and
available
with
Bridge
Corporation. We also take note of the
letter dated 24th July, 2008 whereunder
seven writ petitioners have already been
regularized. The special appeals, with
reference to such writ petitioners, who
have been regularization, are Special
Appeal Nos. 81 of 2007, 84 of 2007, 86 of
2007, 87 of 2007, 88 of 2007,89 of 2007
and 90 of 2007. In view of the aforesaid
order of the State Government, the said
special appeals have become infructuous
so far as the issue of regularization is
concerned.

13. So far as the right of writ
petitioners, who have yet not been
regularized, are concerned, we feel that
substantial justice has been done by the
appellants by providing that the claim of
remaining
writ
petitioners
shall
be
considered as and when regular vacancies
become available within the regular post
provided under the Government Order
dated 27th August, 2007 (Reference letter
of the Secretary dated 24.07.2007). We,
however,
direct
that
the
claim
of
remaining writ petitioners for regular
appointment shall be considered strictly in
accordance with the seniority at the
earliest from the date the post so become
available.

14. So far as the plea for grant of
regular pay scale at par with the regular
employees working in the Corporation
pending regularization is concerned, we
notice that the Government Order itself
create different category of the post on the
regular side vis-a-vis those for work
charge establishment. The pay scale
550 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
admissible to the various categories of the
posts both on the regular cadre and work
charge establishment has also been
provided for.

15. It is settled law that any work
charged employee cannot claim parity
with the regular employees working in the
establishment so far salary in the regular
pay scale is concerned. At the best they
are entitled to the payment of minimum of
the wages provided under the statutes or
the prevailing wages in the locality only.

16. The legal proposition in that
regard has been settled under the
judgement of the Hon'ble Supreme Court
in the case of State of Haryana & Ors. Vs.
Jasmer Singh & Ors., (1996) 11 SCC 77,
the Hon'ble Supreme Court considered the
provisions of Articles 39 (d), 14 and 16 of
the Constitution and held that the
principle of 'equal pay for equal work' is
not always easy to apply. The Court
further observed as under:-

"The respondents, who are employed
on daily wagers cannot be treated as on a
par with persons in regular service of the
State of Haryana holding similar posts.
Daily-rated workers are not required to
possess the qualifications prescribed for
regular workers, nor do they have to fulfil
the requirement relating to age at the time
of recruitment. They are not selected in
the
manner
in
which
the
regular
employees are selected. In other words,
the requirements for selection are not as
rigorous. There are also other provisions
relating to regular service such as the
liability of a member of the service to be
transferred, and his being subject to the
disciplinary jurisdiction of the authorities
as prescribed, which daily-rated workmen
are not subjected to. They can not,
therefore,
be
equated
with
regular
workmen for the purposes for their wages.
Nor can they claim the minimum of the
regular pay scale of the regularly
employed."

17.

In
Gujarat
Agricultural
University Vs. Rathod Labhu Bechar &
Ors., AIR 2001 SC 706, the Hon'ble
Supreme Court considered a similar issue
of pay parity to the daily-rated workers
working since long considering large
number of its earlier judgments including
Surinder Singh Vs. Engineer-in-Chief,
C.P.W.D., AIR 1986 sc 584, Ghaziabad
Development
Authority
Vs.
Kikram
Chaudhary, (1995) 5 SCC 210; Basudev
Pati Vs. State of Orissa, (1997) 3 SCC
632; Jasmer Singh (supra); State of
Haryana Vs. Piara Singh, AIR 1992 SC
2130; Bhagwati Prasad Vs. Delhi State
Mineral
Development
Corporation,
(1990) 1 SCC 361; and held that for their
absorption etc. the University may frame
the Scheme for regularisation and as
regularisation cannot be directed in
absence
of
regular post and such
employees can be entitled for minimum
wages under the Statute, if any, or the
prevailing wages in the locality but the
question of claiming the minimum of the
pay scale of a regular employee would not
arise.

18. In State of Karnataka & Ors. Vs.
KGSD
Canteen
Employees
Welfare
Association & Ors., AIR 2006 SC 845,
after considering very large number of its
earlier judgments and considering the
provisions of Articles 14, 16 and 39 9(d)
of the Constitution of India, the Hon'ble
Supreme Court held that daily wagers
cannot claim pay scale as that of
Government employees. The Court again
reiterated the law laid down by it in its
2 All] State of U.P. V. Mangal Prasad and others
551
earlier judgment in Mahendra L. Jain &
Ors. Vs. Indore Development Authority &
Ors., (2005) 1 SCC 639, wherein it has
been held that the daily wagers do not
hold the post, therefore, they were not the
employees of the State. Salary of a regular
scale of pay, it is trite, is payable to an
employee only when he holds a status.

19. In view of the above, the law can
be summarised that daily wagers do not
hold the post. They cannot claim parity
with those who are working in the regular
cadre as they earned a status, therefore,
the question of parity with them would
not arise. The pay scale may depend upon
large
number
of
factors
including
seniority,
experience,
educational
qualification, mode of selection and it
cannot be claimed by the persons unless
they establish complete equality with
those who are working in regular cadre.
The daily wagers are entitled only for
minimum of the wages fixed by the State
Government or the wages prevailing in
the locality.

20. In view of the aforesaid, the
present special appeals are disposed of by
providing that the claim of the remaining
writ petitioners for regular appointment
shall be considered strictly in accordance
with the seniority by the appellants as
early as possible on a regular vacancy
within the regular cadre specified under
the Government Order dated 27th August,
2007, becoming available.

21. At this stage counsel for the
respondents- writ petitioners contended
that despite the judgment and order of this
Court dated 13th September, 2007 passed
in Writ Petition No. 2266(SS) of 2007
(along with connected writ petitions) the
Managing Director of Bridge Corporation
has passed an order dated 26th June, 2008
whereby the ceiling earlier fixed qua
payment of dearness allowance has been
relaxed with regard to some of the daily
wage employees only.

22. We are of the considered opinion
that in view of the judgment referred to
above, all the work charged employees of
the Corporation are entitled to the benefit
of said judgment. There cannot be any
ceiling of dearness allowance on the such
work charged employees so long the
judgment dated 13.09.2007 holds the
field.

23. Counsel for the State as well as
Bridge Corporation in reply submitted
that an special appeal against the
judgment of the learned Single Judge
dated 13th September, 2007 has been filed.
However, no interim order has been
granted.

24. We may clarify that any
payment as directed under the judgment
and order dated 13th September, 2007
shall abide the orders, which may have
been or may be passed in the special
appeal filed against the same

In view of the aforesaid, the
judgment of the learned Single Judge is
substituted by the directions issued above.
All the special appeals are disposed of
accordingly.
Appeal Disposed of.
---------
552 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.05.2008

BEFORE
THE HON'BLE AMITAVA LALA, J.
THE HON'BLE SHISHIR KUMAR, J.

First Appeal No. 223 of 2008
Connected with:
First Appeal No. 222 of 2008

Bharat Petroleum Corp. Ltd ...Appellant
Versus
M/s. Amar Autos & others...Respondents

Counsel for the Appellant:
Sri Sudhir Chandra
Sri Prakash Padia.

Counsel for the Respondents:
Sri Shashi Nandan
Sri P.C. Jain

Code of Civil Procedure-Order XXIX Rule
I-Rejection of Plaint-suit instituted on
behalf of company plaint signed by
holder of power of attorney-Trail court
rejected the plaint on the ground that
such deed power of attorney not verified
by notary nor registered under Section
17 of the registration act-held-totally
perverse-once
suit
instituted
duly
verified and supported by affidavit-it
stand better than notary-more over the
Trail court can ask the signature of plaint
to file better affidavit expanding the
authority-but
rejection
order
held
arbitrary- illegal-liable to set aside.

Held: Para 11

There is a thinner line in between
authorization to sign and verify the
pleadings, and to institute a suit on
behalf of the corporation, company or a
body corporate. Whenever a person is
authorized
to
sign
and
verify
the
pleadings other than verification of
plaint, written statement, memorandum
of appeal, etc., it is doing so by filing
affidavit in support of such contentions.
Therefore, it stands on a better position
than ordinary verification. But a person
when
verifies
the
plaint,
written
statement or memorandum of appeal, it
is a verification simplicitor, meaning
thereby that the verification part is also
to
be
evidently
proved
unlike
an
affidavit, which itself is an evidence.
Hence, authorization to institute a suit
stands in the lower side than putting
signature and verifying a pleading by
way of an affidavit. On the other hand,
signature and verification of the pleading
of a plaint can not be made for the sake
of signature and verification alone but
for the purpose of filing of the same
before the Court either by him or by his
learned Advocate. As soon as it is filed,
the same will be treated to be institution
of such proceeding by the person who
has signed and verified. It is automatic.
Institution of suit and right to institute
the suit are distinct and different. The
argument
of
Mr.
Shashi
Nandan
restricted only to the first part of Order
XXIX Rule 1 of C.P.C. but not to the last
part. If the suit is proceeded and the
evidence is led and if any of the
defendants
want
to
challenge
the
verification of the plaint, he can call the
deponent as witness for the purpose of
examination. But Court can not prevent
anyone from instituting a suit when his
authority is apparently satisfactory. No
body will be prevented from enforcing
his legal right. It is a gross mistake on
the part of the Court below to construe
that the power of attorney should be
registered and then only the suit can be
instituted by a representative of the
company
or
corporation.
Moreover
justification of filing the plaint by the
authorised
representative
of
the
corporation
or
company
will
be
considered from the practical point of
view. If the Court below is not happy, it
could have called upon the company to
file an affidavit of competency, which is
desirable under such circumstances, but
not outright rejection of the plaint.
Therefore, from any angle the order/s
impugned appear to be perverse in