# State of U.P v. Shri Raj Kumar & Anr

- **Citation:** (2014) 3 ILRA 1506
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-11-21
- **Case number:** Civil Misc. Writ Petition No. 50116 of 2013
- **Bench:** Mahesh Chandra Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-shri-raj-kumar-anr-43057
- **Pages:** 9

## Headnote

Sri
Himanshu
Upadhyay,
Sri
M.P.S.
Chauhan, S.C.
Industrial Dispute Act 1945-Section 6-Hread with U.P. Industrial Rule 1957-Rule
33-claim of regular salary-once claim of
regularization rejected no question of
payment of salary on regular basis-so for
award given by Labour Court is concernRespondent
1
already reinstated
in
service and as per order of Writ Court
50%
amount
deposited-shall
be
returned to workman.
Held: Para-16
The said writ petition was disposed of
vide
order
dated
26.04.2011
with
direction to the Executive Engineer to
decide the claim of the workman for
regularization and finally the Executive
Engineer vide order dated 25.05.2011,
has rejected the claim of the workman
for regularization on the ground that
demand of regularization could not be
accepted as the same is in violation of
Article 14 and 16 of the Constitution of
India. Once the claim for regularization
of workman on the post of tube well
operator
has
been
denied
by
the
petitioner and the same has attained
finality, therefore, the benefit of regular
salary on the said post cannot be
accepted, and the same would be in
violation of the principle laid down in the
decision of the Apex Court in Case of
Secretary, State of Karnataka Vs. Uma
Devi ( Supra). Therefore, at this stage,
this Court has only to look into the
matter as to whether the award dated
20.08.2007 had been complied by the
department and further the present
impugned order passed under Section 6H (1) can be sustained or not? It is
admitted situation that the award has
attained finality up to Hon'ble Apex
Court and it has also been brought on
record that in pursuance to the award
dated 20.08.2007 the workman has
joined the department. Therefore, while
3 All]. State of U.P. Vs. Shri Raj Kumar & Anr.
1507
deciding the application under Section 6H (1), the respondent No. 1 travelled
beyond the mandate of the award
passed by the Labour Court and the
arrears could only be fixed as per the
award and in the garb of award no
regular
salary
could
be
released,
otherwise indirectly his regularization on
the said post would take place, which
was not under the purview of Section 6H (1) proceeding and the same had been
denied by the petitioner.
Case Law discussed:
AIR 1992 SC 789; AIR 1992 SC 2130; AIR
1996 SC 2638; AIR 1996 SC 3420; AIR 2006
SC 3499; (2006) 2 SCC 716; JT 2013 (9) SC
139; (2006) 4 SCC page 1.

## Text

1506
 INDIAN LAW REPORTS ALLAHABAD SERIES
application in view of principles laid
down by Seven Judges Bench of this
Court in the case of Amrawati and
another Vs. State of U.P. reported in 2004
(57) ALR 290 as well as by Hon'ble Apex
Court in the case of Lal Kamlendra Pratap
Singh Vs. State of U.P. reported in 2009
(3) ADJ 322 (SC).
17. A direction for expeditious
disposal of bail application in view of
principles laid down by this Court as well
as
by
Apex
Court
in
aforesaid
pronouncements appears just.
18.
In view of above, present
application is disposed off with above
direction and it is directed that if the
applicants appear before Magistrate/Session
court within one month from today and
move bail application, Magistrate/Session
court shall dispose of their bail application
expeditiously in view of principles laid down
by this Court in the case of Amrawati and
another Vs. State of U.P. reported in 2004
(57) ALR 290 as well as by Hon'ble Apex
Court in the case of Lal Kamlendra Pratap
Singh Vs. State of U.P. reported in 2009 (3)
ADJ 322 (SC).
19. With above direction application
is finally disposed off.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.11.2014
BEFORE
THE HON'BLE MAHESH CHANDRA TRIPATHI, J.
Civil Misc. Writ Petition No. 50116 of 2013
State of U.P.
.Petitioner
Versus
Shri Raj Kumar & Anr.
...Respondents
Counsel for the Petitioner:
S.C., Sri C.K. Rai
Counsel for the Respondents:
Sri
Himanshu
Upadhyay,
Sri
M.P.S.
Chauhan, S.C.
Industrial Dispute Act 1945-Section 6-Hread with U.P. Industrial Rule 1957-Rule
33-claim of regular salary-once claim of
regularization rejected no question of
payment of salary on regular basis-so for
award given by Labour Court is concernRespondent
1
already reinstated
in
service and as per order of Writ Court
50%
amount
deposited-shall
be
returned to workman.
Held: Para-16
The said writ petition was disposed of
vide
order
dated
26.04.2011
with
direction to the Executive Engineer to
decide the claim of the workman for
regularization and finally the Executive
Engineer vide order dated 25.05.2011,
has rejected the claim of the workman
for regularization on the ground that
demand of regularization could not be
accepted as the same is in violation of
Article 14 and 16 of the Constitution of
India. Once the claim for regularization
of workman on the post of tube well
operator
has
been
denied
by
the
petitioner and the same has attained
finality, therefore, the benefit of regular
salary on the said post cannot be
accepted, and the same would be in
violation of the principle laid down in the
decision of the Apex Court in Case of
Secretary, State of Karnataka Vs. Uma
Devi ( Supra). Therefore, at this stage,
this Court has only to look into the
matter as to whether the award dated
20.08.2007 had been complied by the
department and further the present
impugned order passed under Section 6H (1) can be sustained or not? It is
admitted situation that the award has
attained finality up to Hon'ble Apex
Court and it has also been brought on
record that in pursuance to the award
dated 20.08.2007 the workman has
joined the department. Therefore, while
3 All]. State of U.P. Vs. Shri Raj Kumar & Anr.
1507
deciding the application under Section 6H (1), the respondent No. 1 travelled
beyond the mandate of the award
passed by the Labour Court and the
arrears could only be fixed as per the
award and in the garb of award no
regular
salary
could
be
released,
otherwise indirectly his regularization on
the said post would take place, which
was not under the purview of Section 6H (1) proceeding and the same had been
denied by the petitioner.
Case Law discussed:
AIR 1992 SC 789; AIR 1992 SC 2130; AIR
1996 SC 2638; AIR 1996 SC 3420; AIR 2006
SC 3499; (2006) 2 SCC 716; JT 2013 (9) SC
139; (2006) 4 SCC page 1.
(Delivered by Hon'ble Mahesh Chandra
Tipathi, J.)
1. Heard Sri Ravi Shanker Prasad,
learned
Additional
Chief
Standing
Counsel for the petitioner and Sri M.P.S.
Chauhan,
learned
counsel
for
the
respondent No. 1.
2. By means of the present writ
petition, the petitioner (State of U.P.
through Executive Engineer, Aligarh
Khand, Ganga Canal, District Aligarh)
has challenged the impugned order dated
19.04.2012 passed by the Regional
Deputy Labour Commissioner, Aligarhrespondent No. 2, by which the claim of
respondent No. 1 under Section 6-H of the
Industrial Disputes Act (herein after
referred as "Act") had been allowed.
3. This Court, while entertaining the
present writ petition on 30.09.2013, had
passed the following order in favour of
the petitioner:-
"Learned
Standing
Counsel
submitted that the application moved
under section 6H(1) of U.P. Industrial
Dispute Act was not maintainable. The
respondent workman was daily wager,
hence the wages could not be calculated
considering the salary of the regular
employee, hence award is illegal and
arbitrary.
Learned Standing Counsel further
submitted that in pursuance of the
impugned award, the amount has already
been deposited. However, the same has
not been released as yet.
Issue notice to the opposite party
no.1 returnable at an early date.
In the meantime till the next date of
listing 50% of the amount, if already
deposited, shall be released in favour of
the respondent workman and remaining
50% shall be kept in Fixed Deposit."
4. Brief facts giving rise to the
present
writ
petition
are, that the
respondent No. 1 claimed that he was
engaged on daily wage basis on the post
of Sinchpal in the petitioner-department
on 01.08.1998, and continued upto
31.8.1999 and his services were dispensed
with on oral termination since 01.09.1999.
The respondent no.1 challenged his
termination before Labour Court and the
case was registered as Adjudication Case
No.268 of 2005 (Old Adjudication Case
No. 165 of 2000). The Labour Court vide
award dated 20.08.2007 directed the
petitioner to reinstate the workman
alongwith compensation of Rs. 5,000/-. It
is also apparent from the record, that the
said award has been assailed in the Writ
Petition No.31060 of 2008, which was
dismissed by this Court vide judgment
and order dated 09.07.2008. Against the
said dismissal order, the State has
preferred Special Leave to Appeal No.
2281 of 2009 (Civil) which was also
dismissed by the Hon'ble Apex Court on
7.7.2010. Thereafter, the respondent No. 1
1508
 INDIAN LAW REPORTS ALLAHABAD SERIES
was
immediately
reinstated
in
the
department.
Thereafter,
the
workman/respondent No. 1 had filed
application under Section 6-H (1) of the
Industrial Disputes Act, 1945 ( herein
after referred as Act, 1947) before the
Deputy Labour Commissioner, Aligarh,
claiming that in pursuance to the
judgment and award passed by the Labour
Court, he is entitled to get salary to the
tune of Rs. 26,688/- from 28.11.2007 to
29.02.2008.
5. Again an application had been
filed claiming salary of Rs. 63,566/-.
Against the said application detailed
objection/written statement had been filed
by the petitioner. Thereafter, vide order
dated 04.02.2009, the respondent No. 2
directed for payment of Rs. 63,586/- to
the respondent No. 1.
6. It appears from the record that the
said amount was paid to the respondent
no.1. After receiving the said amount
again he had filed an application on
01.07.2009 under Section 6-H (1) read
with Rule 33 of the U.P. Industrial Rules,
1957 claiming further salary of Rs.
1,44,237/- for subsequent period. Again a
detailed objection has been filed by the
petitioner and refuted that the respondent
No. 1 was never appointed on the post of
Sinchpal and he was not entitled for
salary of the said post and furether the
Labour Court had never directed the
petitioner to reinstate him on the post of
Sinchpal. While rejecting the claim of the
petitioner, the respondent No. 2 vide order
dated
15.09.2010
had
directed
for
recovery of Rs. 1,44,237/- which was sent
to the District Magistrate, Aligarh for
realization. Again respondent No. 1 had
moved another application on 10.02.2011
for recovery of Rs. 2,42,045/- from the
petitioner under Section 6-H (1) of the
Act, 1947. Again the respondent No. 2
directed vide order dated 19.04.2012 for
recovery of Rs. 2,42,045/- from the
petitioner.
7. It also transpires from the record
that meanwhile, the respondent No.1
(workman) had filed Writ Petition No.
24040
of
2011
for
a
mandamus
commanding the petitioner to regularize
his services on the post of Sinchpal and
for disbursement of the arrears of salary
in pursuance to the award of the Labour
Court dated 20.08.2007. The said writ
petition has been disposed of by this
Court vide order dated 26.04.2011 with
directions that the appropriate application
for regularization of the petitioner may be
decided by the department.
8. In compliance of the order passed
by this Court, the claim of the workman had
been decided by the Executive Engineer
vide order dated 25.05.2011 (annexure-14)
with observation that in compliance of the
award dated 20.08.2008, the respondent has
already been reinstated and payments were
also made but his services could not be
regularized in pursuance to the direction
dated 16.03.2007 issued by this Court in
Writ Petition No. 45482 of 2004 with
further observation that the services of the
persons, who had come in the department
by the back door entry, could not be
regularized, as the same is in violation to the
Article 14 and 16 of the Constitution of
India. It also appears from the record that
the order passed by the Executive Engineer
dated 25.05.2011 has attained finality and
the same has not been challenged by the
workman.
9. Sri R.S.Prasad, learned Additional
Chief Standing Counsel submits that the
3 All]. State of U.P. Vs. Shri Raj Kumar & Anr.
1509
order impugned dated 19.04.2012 is
wholly illegal and arbitrary and the
calculation has been made in violation to
the order passed by the Labour Court
dated 20.08.2007. He further submits that
while passing the award, the Labour
Court had clearly held that since the
workman was working on daily wage
basis and during the relevant period, he
had not worked as such, he was not
entitled for any back wages. He further
submits that for his regularization on the
post of Sinchpal, the respondent no.1workman had earlier filed Writ Petition
No. 24040 of 2011 which was simply
disposed of with a direction to the
Executive Engineer of the department
concerned to consider his application, and
vide
order
dated
25.05.2011,
the
Executive Engineer had rejected the claim
of the workman for regularization and
while rejecting his claim, the Executive
Engineer of the department had observed
that the workman was engaged by back
door entry and his regularization in the
department would be in violation of
Article 14 and 16 of the Constitution of
India. As Article 14 is an integral part of
our system, each and every State action is
to be tested on the touchstone of equality.
Any appointment made in violation of
mandate of Articles 14 and 16 of the
Constitution is not only irregular but also
illegal and can not be sustained in view of
the judgments rendered by Hon'ble Apex
Court in Delhi Development Horticulture
Employees'
Union
Vs.
Delhi
Administration, Delhi & Ors., AIR 1992
SC 789; State of Haryana & Ors. Vs.
Piara Singh & Ors. etc., AIR 1992 SC
2130; Prabhat Kumar Sharma & Ors. Vs.
State of U.P. & Ors., AIR 1996 SC 2638;
J.A.S. Inter College, Khurja, U.P. & Ors.
Vs. State of U.P. & Ors., AIR 1996 SC
3420 ; M.P. Housing Board & Anr. Vs.
Manoj Shrivastava, AIR 2006 SC 3499;
M.P. State Agro Idustries Development
Corporation Ltd. & Anr. Vs. S.C. Pandey,
(2006)2 SCC 716; and State of Madhya
Pradesh & Ors. Vs. Ku. Sandhya Tomar
& Anr. JT 2013 (9) SC 139.
10. He further submits that once his
claim for regularization has been turned
down by the department and the same has
not been assailed, then it has attained
finality. Therefore, the respondent No. 1
is not entitled for salary on the post of
Sinchpal in regular capacity. He further
makes submission that the respondent
no.1 himself has made a statement before
the Labour Court that he was engaged on
the post of Sinchpal since 01.08.1998, on
daily wage basis and his services were
dispensed w.e.f. 01.09.1999, the workman
continued to work as daily wager, which
is also reflected from the operative
portion of the award. The Presiding
Officer
has
also
made
categorical
averment that the respondent had worked
as daily wager in the department.
11. He submits that while passing
the impugned order, the respondent No. 2
has erred in directing for calculation of
the arrears on the basis of salary, which
itself is in violation of the award which
was passed keeping in mind that the
workman was working on daily wage
basis and he could only be reinstated in
same capacity in the department and
calculations were liable to be made as
daily wager, otherwise it would be in
teeth of Constitution Bench judgment of
the Apex Court in Secretary, State of
Karnataka vs. Uma Devi, reported in
(2006) 4 SCC, page 1).
12. He further makes submission
that if the claim set out by the workman is
1510
 INDIAN LAW REPORTS ALLAHABAD SERIES
allowed in this way, then it will be in
violation of the judgment of Hon'ble
Supreme Court inUma Devi ( Supra) and
placed his reliance to paragraph 54 of the
Constitution Bench decision of the Apex
Court in the case of Secretary, State of
Karnataka v. Uma Devi, reported in
(2006) 4 SCC, page 1, which reads as
follows:
"54. It is also clarified that those
decisions which run counter to the
principle settled in this decision, or in
which directions running counter to what
we have held herein, will stand denuded
of their status as precedents."
In view of the aforesaid observation
of the Constitution Bench of the Apex
Court, any decisions or directions given
by the Courts, which are contrary to the
principles laid down by the Apex Court in
the case of Secretary, State of Karnataka
v. Uma Devi (supra) will stand denuded
on their status as precedent.
In view of the above, at this stage, it
would be appropriate to refer, the
principles laid down by the Apex Court in
the case of Secretary, State of Karnataka
v.
Uma
Devi
(supra).
Relevant
paragraphs of the judgment of the Apex
Court are being reproduced below:
"43. Thus, it is clear that adherence
to the rule of equality in public
employment is a basic feature of our
Constitution and since the rule of law is
the core of our Constitution, a Court
would certainly be disabled from passing
an order upholding a violation of Article
14 or in ordering the overlooking of the
need to comply with the requirements of
Article 14 read with Article 16 of the
Constitution. Therefore, consistent with
the scheme for public employment, this
Court while laying down the law, has
necessarily to hold that unless the
appointment is in terms of the relevant
rules and after a proper competition
among qualified persons, the same would
not confer any right on the appointee. If it
is
a
contractual
appointment,
the
appointment comes to an end at the end of
the contract, if it were an engagement or
appointment on daily wages or casual
basis, the same would come to an end
when it is discontinued. Similarly, a
temporary employee could not claim to be
made permanent on the expiry of his term
of appointment. It has also to be clarified
that
merely
because
a
temporary
employee or a casual wage worker is
continued for a time beyond the term of
his appointment, he would not be entitled
to be absorbed in regular service or made
permanent, merely on the strength of such
continuance, if the original appointment
was not made by following a due process
of selection as envisaged by the relevant
rules. It is not open to the court to prevent
regular recruitment at the instance of
temporary employees whose period of
employment has come to an end or of ad
hoc employees who by the very nature of
their appointment, do not acquire any
right. High Courts acting under Article
226 of the Constitution of India, should
not
ordinarily
issue
directions
for
absorption, regularization, or permanent
continuance unless the recruitment itself
was made regularly and in terms of the
constitutional scheme. Merely because, an
employee had continued under cover of
an order of Court, which we have
described as 'litigious employment' in the
earlier part of the judgment, he would not
be entitled to any right to be absorbed or
made permanent in the service. In fact, in
such cases, the High Court may not be
justified in issuing interim directions,
since, after all, if ultimately the employee
approaching it is found entitled to relief,
3 All]. State of U.P. Vs. Shri Raj Kumar & Anr.
1511
it may be possible for it to mould the
relief in such a manner that ultimately no
prejudice will be caused to him, whereas
an interim direction to continue his
employment would hold up the regular
procedure for selection or impose on the
State the burden of paying an employee
who is really not required. The courts
must be careful in ensuring that they do
not interfere unduly with the economic
arrangement of its affairs by the State or
its instrumentalities or lend themselves
the instruments to facilitate the bypassing
of
the
constitutional
and
statutory
mandates.
45. While directing that appointments,
temporary or casual, be regularized or
made permanent, courts are swayed by
the fact that the concerned person has
worked for some time and in some cases
for a considerable length of time. It is not
as if the person who accepts an
engagement either temporary or casual in
nature, is not aware of the nature of his
employment. He accepts the employment
with eyes open. It may be true that he is
not in a position to bargain -- not at arms
length -- since he might have been
searching for some employment so as to
eke out his livelihood and accepts
whatever he gets. But on that ground
alone, it would not be appropriate to
jettison the constitutional scheme of
appointment and to take the view that a
person who has temporarily or casually
got employed should be directed to be
continued permanently. By doing so, it
will be creating another mode of public
appointment which is not permissible. If
the court were to void a contractual
employment of this nature on the ground
that the parties were not having equal
bargaining power, that too would not
enable the court to grant any relief to that
employee. A total embargo on such casual
or temporary employment is not possible,
given the exigencies of administration and
if imposed, would only mean that some
people who at least get employment
temporarily, contractually or casually,
would
not
be
getting
even
that
employment when securing of such
employment brings at least some succor
to them. After all, innumerable citizens of
our vast country are in search of
employment and one is not compelled to
accept a casual or temporary employment
if one is not inclined to go in for such an
employment. It is in that context that one
has to proceed on the basis that the
employment was accepted fully knowing
the nature of it and the consequences
flowing from it. In other words, even
while accepting the employment, the
person concerned knows the nature of his
employment. It is not an appointment to a
post in the real sense of the term. The
claim acquired by him in the post in
which he is temporarily employed or the
interest in that post cannot be considered
to be of such a magnitude as to enable the
giving up of the procedure established,
for making regular appointments to
available posts in the services of the State.
The argument that since one has been
working for some time in the post, it will
not be just to discontinue him, even
though he was aware of the nature of the
employment when he first took it up, is not
one that would enable the jettisoning of
the procedure established by law for
public employment and would have to fail
when tested on the touchstone of
constitutionality
and
equality
of
opportunity enshrined in Article 14 of the
Constitution of India.
47.
When
a
person
enters
a
temporary
employment
or
gets
engagement as a contractual or casual
worker and the engagement is not based
1512
 INDIAN LAW REPORTS ALLAHABAD SERIES
on a proper selection as recognized by the
relevant rules or procedure, he is aware
of the consequences of the appointment
being temporary, casual or contractual in
nature. Such a person cannot invoke the
theory of legitimate expectation for being
confirmed
in
the
post
when
an
appointment to the post could be made
only by following a proper procedure for
selection and in concerned cases, in
consultation with the Public Service
Commission. Therefore, the theory of
legitimate
expectation
cannot
be
successfully advanced by temporary,
contractual or casual employees. It
cannot also be held that the State has held
out any promise while engaging these
persons either to continue them where
they are or to make them permanent. The
State cannot constitutionally make such a
promise. It is also obvious that the theory
cannot be invoked to seek a positive relief
of being made permanent in the post.
48. It was then contended that the
rights of the employees thus appointed,
under Articles 14 and 16 of the
Constitution, are violated. It is stated that
the State has treated the employees
unfairly by employing them on less than
minimum wages and extracting work from
them for a pretty long period in
comparison with those directly recruited
who are getting more wages or salaries
for doing similar work. The employees
before us were engaged on daily wages in
the concerned department on a wage that
was made known to them. There is no
case that the wage agreed upon was not
being paid. Those who are working on
daily wages formed a class by themselves,
they
cannot
claim
that
they
are
discriminated as against those who have
been regularly recruited on the basis of
the relevant rules. No right can be
founded on an employment on daily
wages to claim that such employee should
be treated on a par with a regularly
recruited candidate, and made permanent
in employment, even assuming that the
principle could be invoked for claiming
equal wages for equal work. There is no
fundamental right in those who have been
employed on daily wages or temporarily
or on contractual basis, to claim that they
have a right to be absorbed in service. As
has been held by this Court, they cannot
be said to be holders of a post, since, a
regular appointment could be made only
by making appointments consistent with
the requirements of Articles 14 and 16 of
the Constitution. The right to be treated
equally
with
the
other
employees
employed on daily wages, cannot be
extended to a claim for equal treatment
with those who were regularly employed.
That would be treating unequals as
equals. It cannot also be relied on to
claim a right to be absorbed in service
even though they have never been selected
in terms of the relevant recruitment rules.
The arguments based on Articles 14 and
16 of the Constitution are therefore
overruled.
49. It is contended that the State
action in not regularizing the employees
was not fair within the framework of the
rule of law. The rule of law compels the
State to make appointments as envisaged
by the Constitution and in the manner we
have indicated earlier. In most of these
cases, no doubt, the employees had
worked for some length of time but this
has also been brought about by the
pendency of proceedings in Tribunals and
courts initiated at the instance of the
employees.
Moreover,
accepting
an
argument of this nature would mean that
the State would be permitted to perpetuate
an illegality in the matter of public
employment and that would be a negation
3 All]. State of U.P. Vs. Shri Raj Kumar & Anr.
1513
of the constitutional scheme adopted by
us, the people of India. It is therefore not
possible to accept the argument that there
must be a direction to make permanent all
the persons employed on daily wages.
When the court is approached for relief
by way of a writ, the court has necessarily
to ask itself whether the person before it
had any legal right to be enforced.
Considered in the light of the very clear
constitutional scheme, it cannot be said
that the employees have been able to
establish
a legal right to be made
permanent even though they have never
been appointed in terms of the relevant
rules or in adherence of Articles 14 and
16 of the Constitution.
52. Normally, what is sought for by
such temporary employees when they
approach the court, is the issue of a writ
of mandamus directing the employer, the
State or its instrumentalities, to absorb
them in permanent service or to allow
them to continue. In this context, the
question arises whether a mandamus
could be issued in favour of such persons.
At this juncture, it will be proper to refer
to the decision of the Constitution Bench
of this Court in Dr. Rai Shivendra
Bahadur Vs. The Governing Body of the
Nalanda College [(1962) Supp. 2 SCR
144]. That case arose out of a refusal to
promote the writ petitioner therein as the
Principal of a college. This Court held
that in order that a mandamus may issue
to compel the authorities to do something,
it must be shown that the statute imposes
a legal duty on the authority and the
aggrieved party had a legal right under
the statute or rule to enforce it. This
classical
position
continues
and
a
mandamus could not be issued in favour
of the employees directing the government
to make them permanent since the
employees cannot show that they have an
enforceable legal right to be permanently
absorbed or that the State has a legal duty
to make them permanent."
13. Learned counsel for the
respondent No. 1 submits that the present
writ petition cannot be sustained as the
petitioner had preferred an appeal which
was also rejected by the Hon'ble Apex
Court, therefore, the award itself has
attained finality and the workman is
entitled for regular payment.
14.
I have heard the rival
submissions of the learned counsel for the
parties and also perused the record.
15. It is apparent from the record
that while passing the award dated
20.08.2007, learned Labour Court has
categorically observed that the workman
was working in the department in capacity
of daily wager and in this background has
directed for reinstatement alongwith Rs.
5,000/- cost. It is also admitted situation
that in pursuance to the award, the amount
has also been paid to the workman and
time to time application under Section 6H (1) had also been allowed and recovery
has been made. It has also been averred in
the writ petition that the workman had
also filed writ petition No. 24040 of 2011
for a direction to the respondents to
regularize the services of the workman on
the post of Sinchpal (Tubewell Operator)
and for a further direction to the
respondents to disburse the arrears of
salary of Rs. 1,44,237/- due for the period
from 1.8.2008 to 31.07.2009 in pursuance
to the award dated 20.08.2007.
16. The said writ petition was
disposed of vide order dated 26.04.2011
with direction to the Executive Engineer
to decide the claim of the workman for
1514
 INDIAN LAW REPORTS ALLAHABAD SERIES
regularization and finally the Executive
Engineer vide order dated 25.05.2011, has
rejected the claim of the workman for
regularization on the ground that demand
of regularization could not be accepted as
the same is in violation of Article 14 and
16 of the Constitution of India. Once the
claim for regularization of workman on
the post of tube well operator has been
denied by the petitioner and the same has
attained finality, therefore, the benefit of
regular salary on the said post cannot be
accepted, and the same would be in
violation of the principle laid down in the
decision of the Apex Court in Case of
Secretary, State of Karnataka Vs. Uma
Devi ( Supra). Therefore, at this stage,
this Court has only to look into the matter
as to whether the award dated 20.08.2007
had been complied by the department and
further the present impugned order passed
under Section 6-H (1) can be sustained or
not? It is admitted situation that the award
has attained finality up to Hon'ble Apex
Court and it has also been brought on
record that in pursuance to the award
dated 20.08.2007 the workman has joined
the department. Therefore, while deciding
the application under Section 6-H (1), the
respondent No. 1 travelled beyond the
mandate of the award passed by the
Labour Court and the arrears could only
be fixed as per the award and in the garb
of award no regular salary could be
released,
otherwise
indirectly
his
regularization on the said post would take
place, which was not under the purview of
Section 6-H (1) proceeding and the same
had been denied by the petitioner.
17. Therefore, I am of the
considered opinion that the impugned
order cannot be sustained and the
respondent no.1 is entitled to be paid in
pursuance to the award dated 20.08.2007,
and status of the respondent no.1 would
remain as daily wager specially in the
background that for regularization of his
claim, the petitioner had already rejected
the claim way back on 25.05.2011 and the
same has not been assailed by the
workman, therefore, it had attained
finality.
18. Therefore, in view of above, the
order impugned is set aside. However, in
the interest of justice, this Court, while
granting interim order, had observed that
till the next date of listing, 50% of the
amount, if already deposited, shall be
released in favour of the respondentworkman and remaining 50% shall be
kept in Fixed Deposit. If 50% of the
amount has already been released in
favour of the workman, the same would
be adjusted against the admitted amount
and the remaining 50%, which was
directed to be kept in fixed deposit, may
be returned back to the petitioner.
19. In the result, the writ petition is
allowed.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.11.2014
BEFORE
THE HON'BLE SURYA PRAKASH
KESARWANI, J.
Civil Misc. Writ Petition No. 55965 of 2014
Smt. Kamala Devi & Anr.
 ...Petitioners
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioners:
Sri I.K. Mishra
Counsel for the Respondents:
C.S.C.