# Union of India and others v. Dukkhi Lal and another

- **Citation:** (2005) 3 ILRA 1047
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-10-28
- **Case number:** Civil Misc. Writ Petition No. 14177 of 2001
- **Bench:** Dr. B.S. Chauhan, Bharati Sapru
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/union-of-india-and-others-v-dukkhi-lal-and-another-40583
- **Pages:** 8

## Headnote

(A) Industrial Dispute Act 1947-S-25-NRe-appointment-after
two
years
working-petitioner,
employee
retrinched-termination order remained
unchallenged-No appointment could be
made only on the basis of seniority listprepared under Rule 77-petitioner, were
allowed to participate in the screening
test but not succeeded despite of the
direction of Tribunal-the Department
failed
to
produce
the
guidelinesprescribing procedure for screening testtribunal rightly drawn adverse inference
against the department-direction for reappointment/regularization upheld.

Held: Para 20,21,22 and 23

The present case is required to be
considered in the light of the aforesaid
settled
legal
propositions.
Petitioner
worked from 1984 to 1986 for a period
of 2 years and was retrenched. He never
challenged the termination of his service.
At the most, petitioner could claim the
relief available to him under Section 25G and 25-H of the Industrial Disputes
Act, 1947 or his case could be considered
for re-employment in accordance with
the seniority list prepared under Rule 77
of
the
Industrial
Disputes
Rules
whenever
the
vacancy
occurred.
Petitioner
did
not
challenge
the
termination order. As per the scheme
framed by the Department his case was
considered. Petitioner appeared in the
test, but could not pass the same.

The Tribunal allowed the claim of the
employee drawing adverse inference
against
the
Department
for
not
producing the policy under which the
test
was
conducted
and
record
of
selection. We find no force in the
submissions made by Shri Govind Saran,
learned counsel for the petitioners that
there was no occasion for the learned
Tribunal to draw the adverse inference
as the said record was not relevant to
determine the controversy.

In Mst Ramrati Kuer Vs. Dwarika Prasad
Singh, AIR 1967 SC 1134, the Hon'ble
Supreme Court held that in case of
withholding
the
material
evidence,
adverse can be drawn by the Court
against a party who possesses the
evidence, but does not produced the
same in spite of the order of the Court. A
similar view has been reiterated in Indira
Kaur Vs. Sheo Lal Kapoor, AIR 1988 SC
1074 and Mohinder Kaur Vs. Kusam
Anand, AIR 2000 SC 1745.

In the instant case the Tribunal has
recorded a finding of fact as under:
1048 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
"Learned counsel for the respondents
was directed to produce a copy of the
guidelines prescribing the procedure and
the requirement for holding screening
test for absorption of casual labourers.
The record has not been produced. It is
presumed that the same is not available
in
the
office
of
the
respondents".
(Emphasis added)

In view of the above, as the learned
Tribunal
has
specifically
asked
the
present
petitioner
to
produce
the
relevant record and for the reasons best
known to it the petitioner did not
produce it before the Tribunal, the
Tribunal has rightly drawn the adverse
inference against the Department.

(B) Constitution of India Art. 226-Service
law-Regularisation-mere
working
240
days working-or long period of working
under the interim order of court-No
benefit can be derived by the employee.

Held: Para 9

The question of regularisation does not
arise by merely working for 240 days or
any particular number of days, unless it
is so long that his continuation on ad hoc
basis becomes arbitrary as no such ad
hoc employee can derive any benefit for
working for particular number of days or
even for years under the interim order of
the Court. More so, his appointment
should be directly in accordance with
law.
Case law discussed:
1987 (Supp.) SCC-497
1991 (1) SCC-28
AIR 1992 SC-2130
AIR 1994 SC-1808
(1996) 10 SCC-65
AIR 1996 SC-417
1996 (9) SCC-217
1996 (11) SCC-341
AIR 1996 SC-708
1996 (1) SCC-773
1991 Lab. C.I.C. 944
AIR 2003 SC-2357
2004 (7) SCC-112
2005 (2) SCC-470
2002 (4) SCC-726
2005 (1) SCC-639
(2005) AIR Sew. 4920
AIR 1997 SC-2685
1998 (1) SCC-183
AIR 1994 SC-2148
1918 (6) SCC-626
AIR 1952 SC-192
AIR 1967 SC-113

## Text

3 All] Union of India and others V. Dukkhi Lal and another
1047
had also sustained 3 simple injuries, the
F.I.R. was promptly lodged and there is
no material to show that the applicant was
having any right of self defence as such,
the plea of self defence if taken shall be
considered at the stage if trial therefore,
without expressing any option on the
merit of the case, the applicant is not
entitled for bail.

According this bail application is
rejected at this stage.
Application rejected.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.10.2005

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE BHARATI SAPRU, J.

Civil Misc. Writ Petition No. 14177 of 2001

Union of India and others ...Petitioners
Versus
Dukkhi Lal and another ...Respondents

Counsel for the Petitioner:
Sri Govind Saran

Counsel for the Respondents:
Sri Sanjay Kumar
S.C.

(A) Industrial Dispute Act 1947-S-25-NRe-appointment-after
two
years
working-petitioner,
employee
retrinched-termination order remained
unchallenged-No appointment could be
made only on the basis of seniority listprepared under Rule 77-petitioner, were
allowed to participate in the screening
test but not succeeded despite of the
direction of Tribunal-the Department
failed
to
produce
the
guidelinesprescribing procedure for screening testtribunal rightly drawn adverse inference
against the department-direction for reappointment/regularization upheld.

Held: Para 20,21,22 and 23

The present case is required to be
considered in the light of the aforesaid
settled
legal
propositions.
Petitioner
worked from 1984 to 1986 for a period
of 2 years and was retrenched. He never
challenged the termination of his service.
At the most, petitioner could claim the
relief available to him under Section 25G and 25-H of the Industrial Disputes
Act, 1947 or his case could be considered
for re-employment in accordance with
the seniority list prepared under Rule 77
of
the
Industrial
Disputes
Rules
whenever
the
vacancy
occurred.
Petitioner
did
not
challenge
the
termination order. As per the scheme
framed by the Department his case was
considered. Petitioner appeared in the
test, but could not pass the same.

The Tribunal allowed the claim of the
employee drawing adverse inference
against
the
Department
for
not
producing the policy under which the
test
was
conducted
and
record
of
selection. We find no force in the
submissions made by Shri Govind Saran,
learned counsel for the petitioners that
there was no occasion for the learned
Tribunal to draw the adverse inference
as the said record was not relevant to
determine the controversy.

In Mst Ramrati Kuer Vs. Dwarika Prasad
Singh, AIR 1967 SC 1134, the Hon'ble
Supreme Court held that in case of
withholding
the
material
evidence,
adverse can be drawn by the Court
against a party who possesses the
evidence, but does not produced the
same in spite of the order of the Court. A
similar view has been reiterated in Indira
Kaur Vs. Sheo Lal Kapoor, AIR 1988 SC
1074 and Mohinder Kaur Vs. Kusam
Anand, AIR 2000 SC 1745.

In the instant case the Tribunal has
recorded a finding of fact as under:
1048 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
"Learned counsel for the respondents
was directed to produce a copy of the
guidelines prescribing the procedure and
the requirement for holding screening
test for absorption of casual labourers.
The record has not been produced. It is
presumed that the same is not available
in
the
office
of
the
respondents".
(Emphasis added)

In view of the above, as the learned
Tribunal
has
specifically
asked
the
present
petitioner
to
produce
the
relevant record and for the reasons best
known to it the petitioner did not
produce it before the Tribunal, the
Tribunal has rightly drawn the adverse
inference against the Department.

(B) Constitution of India Art. 226-Service
law-Regularisation-mere
working
240
days working-or long period of working
under the interim order of court-No
benefit can be derived by the employee.

Held: Para 9

The question of regularisation does not
arise by merely working for 240 days or
any particular number of days, unless it
is so long that his continuation on ad hoc
basis becomes arbitrary as no such ad
hoc employee can derive any benefit for
working for particular number of days or
even for years under the interim order of
the Court. More so, his appointment
should be directly in accordance with
law.
Case law discussed:
1987 (Supp.) SCC-497
1991 (1) SCC-28
AIR 1992 SC-2130
AIR 1994 SC-1808
(1996) 10 SCC-65
AIR 1996 SC-417
1996 (9) SCC-217
1996 (11) SCC-341
AIR 1996 SC-708
1996 (1) SCC-773
1991 Lab. C.I.C. 944
AIR 2003 SC-2357
2004 (7) SCC-112
2005 (2) SCC-470
2002 (4) SCC-726
2005 (1) SCC-639
(2005) AIR Sew. 4920
AIR 1997 SC-2685
1998 (1) SCC-183
AIR 1994 SC-2148
1918 (6) SCC-626
AIR 1952 SC-192
AIR 1967 SC-1134
AIR 2000 SC-1245

(Delivered by Hon'ble Dr. B.S. Chauhan, J.)

1. This writ petition has been filed
for quashing the judgment and order dated
11/1/2000 (Annex. 4), by which the
application of the respondent employee
has
been
allowed
by
the
Central
Administrative
Tribunal,
Allahabad
Bench Allahabad (hereinafter called the
Tribunal) directing the department to
absorb and regularise the services of the
said
employee
after
11
years
of
termination of his service and order dated
07/2/2001 (Annex-6) by which the review
petition of the Department has been
dismissed.

2. The facts and circumstances
giving rise to this case are that the
respondent-employee had worked as a
Casual Labourer from 06/1/1984 to 1986.
His services were dispensed with for want
of work. His case was to be considered
for re-employment as per the seniority list
of casual labourers as and when the
vacancy would arise in the future. The
respondent employee filed an application
in 1997 for appointment, absorption and
regularisation in the Railway Department
as Class IV employee. His application
was
contested
by
the
Department
submitting that the case of the said
employee was considered, he appeared in
the screening test but could not pass, and
thus he could not be empanelled for
3 All] Union of India and others V. Dukkhi Lal and another
1049
absorption against one of the substantive
vacancies. The claim of the said applicant
has been allowed on the ground that the
department failed to produce the copy of
the guidelines prescribing the procedure
for
holding
the
screening test for
absorption of casual labourers and record
thereof. The review application has also
been rejected. Hence this petition.

3. Shri Govind Saran, learned
counsel for the petitioners has submitted
that the employee was not in service from
1986-1997. He filed the application after
eleven years, therefore, the question of his
absorption/regularization could not arise;
it was not the case even of the applicant
that he succeeded in the test conducted by
the
Department,
nor
allegations
of
malafide had been alleged against any
person, nor there was any pleading
suggesting any illegality or irregularity in
the screening test, therefore, there was no
occasion for the Tribunal to draw the
adverse inference against the department
for not producing the policy etc; the
Tribunal could not issue a direction to
absorb and regularise the service of the
said applicant as at the most the Tribunal
could direct to consider his case for
regularisation, hence the petition deserves
to be allowed setting aside the impugned
judgment and orders.

4. Sri Sanjay Kumar, learned
counsel appearing for the respondentemployee has submitted that it was an
obligation on the part of the department to
produce the entire record of selection
before the Tribunal, and as the department
failed to do so, the Tribunal has rightly
drawn the adverse inference and thus no
interference is called for. The petition is
liable to be dismissed.

We
have
considered
the
rival
submissions made by learned counsel for
the parties and perused the record.

The issue of regularisation has been
considered by the Hon'ble Apex Court
time and again.

5. The question as to whether the
services of certain employees appointed
on ad hoc basis should be regularised
relates to the condition of service. The
power to prescribe the conditions of
service can be exercised either by making
Rules under the proviso to Article 309 of
the Constitution of India or any analogous
provision and in the absence of such
Rules, under the instructions issued in
exercise of its executive power. The Court
comes into the picture only to ensure
observance of fundamental rights and
statutory provisions, Rules and other
instructions,
if
any,
governing
the
conditions of service. The main concern
of the Court in such matters is to ensure
the Rule of Law and to see that the
executive acts fairly and gives a fair deal
to its employees consistent with the
requirements of Articles 14 and 16. It also
means that the State should not exploit its
employees nor should it seek to take
advantage of the haplessness and misery
of either the unemployed persons or the
employees, as the case may be. As is
often said, the State must be a model
employer. It is for this reason, it is held
that equal pay must be given for equal
work, which is indeed one of the
Directive Principles of the Constitution. It
is for this very reason it is held that a
person should not be kept in a temporary
or ad hoc status for long. A perusal of the
authorities would show that appointments
are as a rule to be made in accordance
with
statutory
rules,
giving
equal
1050 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
opportunity to all the aspirants to apply
for the posts and following the prevalent
policy of reservation in favour of
Scheduled Castes/Scheduled Tribes and
other backward classes. Whenever the
employees are appointed on ad hoc basis
to meet an emergent situation, every
effort should be made to replace them by
the employees appointed on regular basis
in accordance with the relevant rules as
expeditiously as possible. Where the
appointment
on
ad
hoc
basis
has
continued for long and the State has made
rules
for
regularisation,
case
for
regularisation of employee has to be
considered in accordance with the said
rules. Where, however, no rules are
operative, it is open to the employees to
show that they have been dealt with
arbitrarily and their weak position has
been exploited by keeping them on ad hoc
for long spell of time. However, it is a
question of fact whether in the given
situation, they were treated arbitrarily.
(Vide Dr. A.K. Jain Vs. Union of India,
1987
Supp
SCC
497;
Jacob
M.
Puthuparambil & Ors. Vs. Kerala Water
Authority & Ors., (1991) 1 SCC 28; State
of Haryana & Ors. Vs. Piara Singh &
Ors., AIR 1992 SC 2130; J & K. Public
Service Commission etc. Vs. Dr. Narinder
Mohan & ors, AIR 1994 SC 1808; Er.
Ramakrishnan & Ors. Vs. State of Kerala
& Ors., (1996) 10 SCC 565; and Ashwani
Kumar & Ors Vs. State of Bihar & Ors.,
AIR 1997 SC 1628).

6. In Khagesh Kumar Vs. Inspector
General of Registration, U.P. & ors., AIR
1996 SC 417, the Hon'ble Supreme Court
did not issue direction for regularisation
of employees who had been appointed on
ad hoc basis or on daily wages after the
cut off date, i.e., 1.10.1986 as was
required by the provisions of U.P.
regularisation of Ad hoc Appointment
(On posts Outside the Purview of the
Public Service Commission) Rules, 1979.
The same view has been taken by the
Supreme Court in Inspector General of
Registration, U.P. & anr. Vs. Avdesh
Kumar & ors., (1996) 9 SCC 217.
Moreover, in the above referred cases it
has been laid down that for the purpose of
regularisation,
various
pre-requisite
conditions are to be fulfilled, i.e., the
temporary/as hoc appointment of the
employee should be in consonance with
the statutory rules and it should not be a
back-door entry. The service record of the
employee should be satisfactory; the
employee should be eligible and/or
qualified for the post at the time of his
initial appointment. There must be a
sanctioned
post
against
which
the
employee seeks regularisation and on the
said sanctioned post, there must be a
vacancy. Moreover, regularisation is to be
made according to seniority of the
temporary/ad
hoc
employees.
The
regularisation
should
not
be
in
contravention
of
the
State
Policy
regarding
reservation
in
favour
of
Scheduled Castes/Scheduled tribes and
other
backward
classes
and
other
categories for which State has enacted any
Statute or framed rules or issued any
Government Order etc.

7. Similar view has been reiterated
by the Hon'ble Supreme Court in Union
of India Vs. Bishamber Dutt, (1996) 11
SCC 341; and State of Uttar Pradesh Vs.
U.P.
Madhyamik
Shiksha
Parishad
Shramik Sangh, AIR 1996 SC 708. In the
case of State of Himachal Pradesh Vs.
Ashwani Kumar, (1996) 1 SCC 773, the
Apex Court held that if an employment is
under
a
particular
Scheme
or
the
employee is being paid out of the funds of
3 All] Union of India and others V. Dukkhi Lal and another
1051
a Scheme, in case the Scheme comes to
closure or the funds are not available, the
Court has no right to issue direction to
regularise the service of such an employee
or to continue him on some other project,
for the reason that "no vested right is
created in a temporary employment."

8. In Prabhu Dayal Jat Vs. Alwar
Sahkari Bhumi Vikas Bank, 1991 Lab.&
IC 944, the Court rejected the case of an
employee,
for
regularisation
as
his
services stood terminated on the ground
that he had been appointed without any
authorisation of law.

9. The question of regularisation
does not arise by merely working for 240
days or any particular number of days,
unless it is so long that his continuation
on ad hoc basis becomes arbitrary as no
such ad hoc employee can derive any
benefit for working for particular number
of days or even for years under the
interim order of the Court. More so, his
appointment
should
be
directly
in
accordance with law. (Vide M.D. U.P.
Land Development Corp. Vs. Amar
Singh, AIR 2003 SC 2357; A. Umarani
Vs. Registrar, Coop. Societies, (2004) 7
SCC 112; Pankaj Gupta Vs. State of J &
K, (2004) 8 SCC 353 and Dhampur Sugar
Mills Ltd. Bhola Singh, (2005) 2 SCC
470).

10. In Vindon T. Vs. University of
Calicut (2002) 4 SCC 726 and Mahendra
L. Jain & ors. Vs. Indore Development
Authority & Ors., (2005) 1 SCC 639, it
has categorically been held by the Hon'ble
Apex Court that the appointees appointed
irregularly can be regularised but illegally
appointed
employees
cannot
be
regularised. As illegal appointments are
void ab initio being opposed to public
policy and violative of Articles 14 and 16
of
the
Constitution,
and
all
such
authorities and instrumentalities which are
State within the meaning of Article 12 of
the
Constitution,
must
give
strict
observance to the mandate of the
Constitution. Regularisation can never be
claimed as a mater of right. A daily wager
in absence of statutory provisions in this
behalf cannot claim entitlement for
regularisation.

11. In State of West Bengal & Ors.
Vs. Alpana Roy & Ors., (2005) AIR SCW
4920, the Hon'ble Supreme Court held
that if someone's name is included in the
list of unapproved employees for a long
time, mere empanelment would not give
any right of regularisation in service if the
appointment at the initial stage had been
made de hors the recruitment rules.

12. It is also settled legal proposition
that a retrenched employee cannot claim
the relief of regularisation unless his
termination from service is found to be
illegal. Thus, only an employee who is
continuing in service for a long time is
eligible for seeking such a relief. (Vide
H.P. Housing Board Vs. Om Pal & Ors,
AIR 1997 SC 2685 and Ramchander &
Ors Vs. Additional District Magistrate &
ors, (1998) 1 SCC 183).

13. Thus, it is evident from the
above settled legal proposition that a
person who had been appointed on daily
wages and worked for a period of 1 or 2
years, cannot claim regularisation in
absence of any statutory provisions. He
must possess the eligibility for the post on
the date of initial appointment and the
appointment
should
be
made
in
consonance with the statutory provisions.
The regularisation is not permissible
1052 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
ignoring the policy framed by the State
providing for reservation in favour of
certain classes. A retrenched employee
cannot
claim
regularisation
without
asking for quashing his termination order.
More so, regularisation may be either
under a scheme framed by the employer
or under the statutory provision framed by
the State for this purpose.

14. In Life Insurance Corporation of
India Vs. Asha Ramchhandra Ambekar
(Mrs.) & anr., AIR 1994 SC 2148, the
Hon'ble Apex Court held that the writ
jurisdiction cannot be exercised issuing
directions straight away as the Courts are
required to issue directions for mere
consideration
of
the
claim
of
the
employee as straightway direction to
appoint a particular person would only put
the authority concerned in a piquant
situation. The disobedience of the said
direction
may
entail
contempt
notwithstanding
the
fact
that
the
appointments etc. may not be warranted
as per the Rules.

15. In Hindustan Shipyard Ltd. &
Anr. Vs. Dr P. Sambasiva Rao &
Ors.,(1996) 7 SCC 499, the Hon'ble Apex
Court held that in a case where the relief
of regularization is sought by employees
working for a long time on ad hoc basis, it
is not desirable for the Court to issue
direction for regularization straight away.
The proper relief in such cases for issuing
direction to the authority concerned to
constitute a Selection Committee to
consider the matter of regularization of
the ad hoc employees as per the Rules for
regular appointment for the reason that
the regularization is not automatic, it
depends
on
availability
of
number
vacancies, suitability and eligibility of the
ad hoc appointee and particularly as to
whether the ad hoc appointee had an
eligibility for appointment on the date of
initial as ad hoc and while considering the
case of regularization, the Rules have to
be strictly adhered to as dispensing with
the Rules is totally impermissible in law.
In certain cases, even the consultation
with the Public Service Commission may
be required, therefore, such a direction
cannot be issued.

16. In Government of Orissa & Anr.,
Vs. Hanichal Roy & Anr., (1998) 6 SCC
626,
the
Hon'ble
Supreme
Court
considered the case wherein the High
Court had granted the relaxation of
service conditions. The Apex Court held
that the Court cannot take upon itself the
task of the Statutory Authority and only
order which Court could have passed was
directing the Government to consider
relaxation itself forming an opinion in
view of the statutory provisions as to
whether the relaxation was required in the
facts and circumstances of the case.
Issuing such a direction by the Court is
illegal and impermissible.

17. Similar view has been reiterated
by the Hon'ble Supreme Court in A.
Umarani (supra).

18. In G. Veerappa Pillai Vs. Raman
and Raman Ltd., AIR 1952 SC 192, the
Constitution
Bench
of
the
Hon'ble
Supreme Court while considering the case
for grant of permits under the provisions
of Motor Vehicles Act, 1939, held that
High Court ought to have quashed the
proceedings of the Transport Authority,
but issuing the direction for grant of
permits "was clearly in excess of its
powers and jurisdiction."
3 All] Union of India and others V. Dukkhi Lal and another
1053
19. In view of the above, it is not
permissible for the Court to take the task
of the employer upon itself and issue a
direction
straight
away
to
absorb/regularise or appoint any litigant.
The Court/Tribunal can issue a direction
to consider his case in accordance with
law. The Court has a power only to issue
direction to the authorities concerned to
consider the case in accordance with law
as absorption may depend upon the
availability of the vacancy, satisfactory
service rendered by him earlier, or a
candidate may be found unsuitable on the
ground that he had been given some
punishment in the domestic inquiry in
past or he did not possess the requisite
qualification/eligibility at the time of
initial appointment etc. etc. More so, the
Appointing Authority has to give effect to
the Reservation Policy of the State.

20. The present case is required to
be considered in the light of the aforesaid
settled
legal
propositions.
Petitioner
worked from 1984 to 1986 for a period of
2 years and was retrenched. He never
challenged the termination of his service.
At the most, petitioner could claim the
relief available to him under Section 25-G
and 25-H of the Industrial Disputes Act,
1947 or his case could be considered for
re-employment in accordance with the
seniority list prepared under Rule 77 of
the Industrial Disputes Rules whenever
the vacancy occurred. Petitioner did not
challenge the termination order. As per
the scheme framed by the Department his
case was considered. Petitioner appeared
in the test, but could not pass the same.

21. The Tribunal allowed the claim
of
the
employee
drawing
adverse
inference against the Department for not
producing the policy under which the test
was conducted and record of selection.
We find no force in the submissions made
by Shri Govind Saran, learned counsel for
the petitioners that there was no occasion
for the learned Tribunal to draw the
adverse inference as the said record was
not relevant to determine the controversy.

22. In Mst Ramrati Kuer Vs.
Dwarika Prasad Singh, AIR 1967 SC
1134, the Hon'ble Supreme Court held
that in case of withholding the material
evidence, adverse can be drawn by the
Court against a party who possesses the
evidence, but does not produced the same
in spite of the order of the Court. A
similar view has been reiterated in Indira
Kaur Vs. Sheo Lal Kapoor, AIR 1988 SC
1074 and Mohinder Kaur Vs. Kusam
Anand, AIR 2000 SC 1745.

In the instant case the Tribunal has
recorded a finding of fact as under:

"Learned counsel for the respondents
was directed to produce a copy of the
guidelines prescribing the procedure and
the requirement for holding screening test
for absorption of casual labourers. The
record has not been produced. It is
presumed that the same is not available in
the office of the respondents". (Emphasis
added)

23. In view of the above, as the
learned Tribunal has specifically asked
the present petitioner to produce the
relevant record and for the reasons best
known to it the petitioner did not produce
it before the Tribunal, the Tribunal has
rightly drawn the adverse inference
against the Department.

24. In view of the above, petition
succeeds partly and it stands disposed of
1054 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
with the modifications of the judgment
and order dated 11/1/2000 to the extent
that the Department shall reconsider the
case
of
respondent-employee
for
absorption/ regularisation. This exercise
may be completed within a period of three
months from today.

Petition
allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.10.2005

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No.16768 of 2003

Vijay Singh and another ...Petitioners
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioners:
Sri Ashok Khare
Sri K.P. Shukla
Sri N.K. Mishra
Sri V.D. Chauhan
Sri Sanjay Kr. Rai

Counsel for the Respondents:
Sri Virendra Kumar
Sri Mahendra Pal Singh Niranajan
S.C.

Constitution of India, Art. 39 (d) Equal
Pay for Equal work-Petitioner appointed
as reader in the year 1966-given pay
scale
of
Rs.4000-6000-while
those
appointed in pursuance of G.O. 12.12.89
or prior to that-getting pay scale of
Rs.4500-7000/- only reason disclosed by
the
authorities,
the
G.O.
dated
23.7.1997-which provides different Pay
Scale
on
the
particular
dateclassification based no rational basisG.O. dated 23.799-held arbitrary and
violative of Art. 14 of the Constitution.

Held: Para 15, 20 & 22
In such a case, the differentiation would
not amount to discrimination, but where
two
classes
of
employees
perform
identical duties with the same measure
of responsibility and have the same
qualification for the appointment on the
said post, in that event, they would be
entitled for equal pay and denial of equal
pay would be violative of Articles 14 and
16 of the Constitution.

In my opinion, the classification made by
the respondents in giving different cadre
to the Readers is not based on any
intelligible criterion nor does it have a
rational nexus and in my opinion, such
differentiation amounts to a hostile
discrimination. It would have been a
different scenario, if persons holding the
same post and performing similar work
had
separate
responsibilities
or
educational qualifications, but merely by
making a differentiation on the ground
that
persons
appointed
prior
to
a
particular date would be given a higher
pay
scale
than
that
of
a
person
appointed after the said date would be a
clear case of hostile discrimination and
violative of Articles 14 and 16 of the
Constitution of India.

The aforesaid principle squarely applies
to the present facts and circumstances of
the case. The classification made by the
Government by its Government Order
dated 23.7.97 was not based on any
rational principle and the classification
made, does not stand the test of
reasonableness under Article 14 of the
Constitution.
Consequently,
the
Government Order dated 23.7.1997 in so
far as its provides the grade of 12002040, which has now been revised to
4000-6000 for the Readers working in
the District Consumer Forum is arbitrary
and violative of Article 14 of the
Constitution of India and to that extent,
the said Government Order is quashed.
The writ petition is allowed.
Case law discussed:
1982 (1) SCC-618
1984 (2) SCC-141
1989 (2) SCC-299