RESERVED ON :09.03.2018 DELIVERED ON : 30.03.2018 Case :- WRIT - A No. - 32665 of 2000 Petitioner :- Man Singh Respondent :- State Of U.P.& Others Counsel for Petitioner :- Bhoopendra Nath Singh,Devendra Pratap Singh Counsel for Respondent :- C.S.C.,Shiv Nath Singh,V.B. Singh
Hon'ble Siddharth,J.
This writ petition has been filed, praying for a direction to the respondents to regularize the services of the petitioner on the post of Telephone Operator from the date junior to the petitioner was regularized with all consequential benefits admissible to the post. Further prayer was made for direction to pay the scale of pay to the petitioner which is admissible to the regular employee and fixed the seniority of the petitioner from the initial date of appointment.
The briefs facts of the petition are that the petitioner was appointed on the post of Telephone Operator on daily wage basis on 01.08.1983 in Chandra Shekhar Azad Agriculture & Technical University, Kanpur. He was transferred vide order dated 15.06.1992 by the Administrative Officer of the University to work as a skilled worker. The petitioner represented against the aforesaid transfer order on 19.06.1992, requesting from respondent no.3 that he should be continued on the post of Telephone Operator, so that his seniority is not disturbed. The respondent no.3 maintained the designation of the petitioner as Telephone Operator, but stated that the question of seniority shall be decided after the decision of Smt. Sharda Sharma’s case. The respondent no.3 vide letter dated 30.11.1992 decided the case of Smt.Sharda Sharma and gave her seniority on the post of Clerk from 18.05.1985, when she was appointed on the post of Telephone Operator. The petitioner was transferred by the order dated 16.05.1995 to the office of Director, Beej Avam Prachhetra and then to the office of Director, Construction. One Risideo Sharma was granted regular appointment on the post of Telephone Operator on 13.03.1992, after his transfer to different places. Thereafter, Sri Bijendra Pal Singh another Telephone Operator was regularized on 05.12.1992. The petitioner made several representations against denial of regularization, despite working on the post of Telephone Operator and then on the post of Clerk from 1992. The post was existing but the respondents did not paid any heed to the request of the petitioner for regularization when Sri Bijendra Pal Singh, who was appointed on 01.09.1983 was regularized in service. Several employees like the petitioner approached this Court and orders for payment of minimum scale of pay, was granted to them.
The respondent nos. 2 and 3 filed their Counter Affidavit stating that Sri Risideo Sharma was appointed on regular basis. The petitioner was engaged as Class-III employee on daily basis. He did not suffer any pecuniary loss as wages of telephone operator and of Class-III employee are the same. No post of Telephone Operator is vacant at present. The petitioner shall be considered for regular appointment when similar cases would be considered. The petitioner can not be regularized in the absence of any post.
The petitioner filed Rejoinder Affidavit stating that the petitioner was directed to perform the duties of Clerk and thereafter, his junior was regularized on the post of Telephone Operator. He further stated that his services have been regularized by the order dated 31.05.2001 on the post of Junior Clerk. He is entitled to seniority and other benefits from the date, his junior was regularized.
The petitioner filed a Supplementary Affidavit stating that by the order dated 26.05.2001, the date of appointment of the petitioner has been accepted as 01.08.1983. The petitioner brought on record a seniority list of the daily wage employees ( Clerks) of the University, wherein his name should have found place at Sl.No.41, on the basis of the date of appointment but name of Sri Mahesh Chandra Agnihotri was placed there and thereafter, his juniors, namely, Brijendra Bahadur Singh, Krishna Avtar Gupta, Rafiq Ahmad Varsy, Dinesh Kumar Srivastava, Dilip Kumar,Raj Kishore, Gyan Singh, Subhash Chandra Pandey, Ashok Kumar Singh and Surya Bhan Singh, who are placed at Sl.Nos. 42 to 51, have been regularized on the post of Junior Clerk vide office order dated 10.04.1985 and drawing regular pay scale of the Junior Clerk but the petitioner has been left out from the List. His juniors have been promoted as Clerk and Senior Clerk but he has not been granted the benefit of regular post from the date Sri Mahesh Chandra Agnihotri and other Juniors were regularized i.e., 10.04.1985. Since the petitioner has been regularized only on 31.05.2001, he is entitled to get notional benefits of regularization from the date, his junior was regularized on the post of Junior Clerk (i.e.10.04.1985).
Another Supplementary Affidavit has been filed by the petitioner stating that his junior employees have been promoted upto the post of Office Superintendent but he has retired from the service of the University on 31.07.2016, working on the post of Head Clerk. Therefore he is entitled to the reliefs claimed in the writ petition.
The learned Counsel for the petitioner has relied upon the Judgment in the case of Rajesh Kumar Sharma Vs. State of U.P. and others, (2014) 1 UPLBEC 269, and has placed reliance upon paragraph nos. 13, 14, 15 and 16 which are as follows:-
13. The petitioner is a selected candidate. The number of vacancies advertised were 12. Therefore, it cannot be said that petitioner's selection was not against a vacancy, not advertised. The vacancy is also available since last more than three years but petitioner has been denied appointment thereon, and that too, without any excuse, whatsoever. It is patently arbitrary, discriminatory, illegal and amounts to flagrant infringement of petitioner's fundamental right of equal opportunity of employment and right to earn livelihood, vide Articles 16(1) and 21 of the Constitution of India.
14. Now the question would be, what relief should be granted to petitioner.
15. In normal circumstances a direction issued to appointing authority for appointment of selected candidate, without any further delay would have been sufficient but in the present case, petitioner has suffered, having been denied right to earn livelihood, despite availability of vacancy and his selection and also a corresponding excuseless arbitrary inaction on the part of respondent no. 3. Should the petitioner be allowed to suffer for such illegal, unconstitutional and arbitrary inaction on the part of respondent no. 3, so as to cause a permanent deprivation to him, or, this Court would be justified to do complete justice to petitioner so that respondents may not have the benefit of enjoining fruits of their inaction, i.e., advantage to have flouted law and depriving a person's fundamental right of earning livelihood.
16. In my view, it is the obligation of this Court not to allow any authority to take advantage of its own wrong. Therefore, petitioner is entitled for a remedy which will give him, his due, from due date, else this Court will be failing in its constitutional obligation of protecting fundamental right of an individual.
He has further placed reliance upon the Judgment in the case of Ramesh Chandra Dixit Vs. Presiding Officer, Industrial Tribunal and another, 1992 (65) FLR Page 766, and has relied upon paragraph nos.3, 4, 5 and 6,
3. A perusal of the impugned award dated July 2, 1987 shows that the Industrial Tribunal completely mis-directed itself in the matter. The claim of the petitioner was that since his juniors have been promoted he should also be promoted as Line Mistry. In para 5 of the award it has been observed that promotion is an exclusively management function. However, in my opinion, in the matter of promotion the management cannot act arbitrarily and it cannot overlook the claim of the senior persons and promote Juniors alone. Admittedly the petitioner is senior to the persons promoted, hence the petitioner is also entitled to be promoted as Line Mistry. The petitioner has also worked as substitute Line Mistry between 1974 to 1984 and although this fact alone may not entitle him to promotion but it certainly adds to his claim for promotion particularly when his juniors have also been promoted. In para 7 of the impugned award it has been mentioned that there is a medical certificate which shows that the petitioner was suffering from anaemia with swelling in his legs. In my opinion this alone cannot dis-entitle the petitioner for promotion as it is not a very serious disease and can be easily cured by treatment. In my opinion the action of the management was wholly illegal and arbitrary. The petitioner is entitled for promotion to the post of Line Mistry and back wages.
4. In this connection it may be pointed that the Supreme Court in recent decision has emphasized the importance for every organization of having satisfactory procedures of promotion. Thus in C.SJ.R.
v. Bhat (1990-I-LLJ-246) the Court observed "it is often said and indeed, adroitly, an organsiation, public or private, does not 'hire a hand' but engages or employs a whole man. The person is recruited by an organisation not just for a job, but for a whole career. One must, therefore, be given an opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organisation. It is an incentive for personnel development as well (See Principles of Personnel Management by FIipo Edwin B. 4th Ed. 246). Every management must provide realistic opportunities for promissing employees to move upward" (p.249).
5. Similarly in O.Z. Husain v. Union of India AIR 1990- S.C. 311, the Court observed "provision for promotion increases efficiency of the public service while stagnation reduces efficiency and makes the service ineffective. Promotion is thus a normal incidence of service."
6. In view of the above discussion the writ petition is allowed. The impugned award dated July 2, 1987 is quashed, and a direction is given to respondent No. 2 to give designation and salary of Line Mistry to the petitioner retrospectively with effect from the date when the, first promotion of any person junior to the petitioner was made on the post of Line Mistry. This will be done within 3 weeks of production of certified copy of this judgment before respondent No. 2. There shall be no order as to costs.
Last reliance has been placed on the Judgment of R. K. Dubey Vs. State of U.P. & others, 2000 (2) ESC 758 (All) and has referred to paragraph nos. 6 and 7:-
6. We have heard the petitioner in person, who has submitted written arguments also, as well as Sri Ashok Mehta, learned Chief Standing Counsel on behalf of the respondents. Obviously, the thrust of the petitioner is that he has to be treated at par with his junior Sri Yashpal. We are of the opinion that since the highest pay scale of Rs. 5,900-6,700 has been granted to the petitioner's junior Sri Yashpal with effect from 11.8.1987, on which date the petitioner was also in service (having retired on 31.12.1987), there is no justification whatsoever in denying the said pay scale to the petitioner with effect from 11.8.1987 till the date of his retirement on 31.12.1987. The mere fact that the promotion to Sri Yashpal in the said pay scale of Rs. 5,900-6,700 was granted under an order, dated 26.11.1991 (subsequent to the retirement of the petitioner) cannot be a ground for the denial of the said pay scale to the petitioner with effect from 11.8.1987, on which date he was also admittedly in service. The situation would have been different, had the said pay scale being granted to the petitioner's junior Sri Yashpal with effect from a date subsequent to 31.12.1987 on which the petitioner had retired. Equals have to be treated alike. The seniority of the petitioner was admittedly settled above Sri Yashpal. Therefore, he is entitled to the same pay scale and benefits which have been granted to his junior Sri Yashpal.
7. In the resultant effect, the impugned order dated 19.6.1997 passed by the State Government, Annexure-17 to the writ petition, denying the pay scale of Rs. 5,900-6,700 to the petitioner with effect from 11.8.1987 cannot be sustained and has to be quashed. Its effect would be that the petitioner would be treated at par with Sri Yashpal In the matter of sanction of pay scale of Rs. 5,900-6,700 with effect from 11.8.1987 and he would be entitled to the arrears in the safd pay scale with effect from 11.8.1987 till the date of his retirement on 31.12.1987 if the same have been paid to his junior Sri Yashpal. Consequential pension and retiral benefits shall follow. As regards the payment of arrears to the petitioner in the senior pay scale with effect from 2.7.1973, special grade pay scale with effect from 10.1.1978 and higher pay scale with effect from 15.11.1984 also, again he has to be treated at par with his junior Sri Yashpal, meaning thereby that his salary should be refixed in the said pay scales and the arrears should be paid to him, in case the same have been paid to Sri Yashpal. To say in different words, the petitioner shall not be entitled to any such arrears as also the arrears consequent to his promotion in the pay scale of Rs. 5.900-6,700 with effect from 11.8.1987, only if no such arrears have been paid to his junior Sri Yashpal on the premise that such promotions were notional. We do not find the petitioner to be entitled to any other relief excepting of being placed at par with Sri Yashpal in the matter of promotion and payment of arrears of salary as detailed hereinabove.
The case of Rajesh Kumar Sharma (supra) relates to the denial of opportunity of appointment, despite existence of vacancies. Discrimination in initial appointment in service was the issue involved in this case and there was no issue of discrimination in regularization in service. Therefore the Judgment will not help the petitioner.
The Second case relied upon by the petitioner, Ramesh Chandra Dixit (supra) relates to the claim of promotion by a senior workman, who was discriminated and juniors were promoted on the post of Line Mistry, therefore this Court held that the denial of promotion to the senior workman was illegal and directed the petitioner to be given designation and salary of the post of Line Mistry from the date any person junior to the petitioner was promoted.
The last case relied upon by the petitioner, R.K. Dubey (supra), relates to discrimination in the grant of higher pay scale to the senior when the junior employees were granted the same at earlier point of time.
The learned Counsel for the respondent nos. 2 and 3 has relied upon the Judgment dated 11.02.2015, in the case of Smt. Ram Shree & another Vs. State of U.P. and 2 others, passed in Special Appeal Defective No.119 of 2015 and has argued that the daily wage employee can not claim minimum of pay scale at par with the regular employee since they are recruited without following any procedure of recruitment and the Courts can not direct regularization of any daily wager but can only direct consideration of their regular appointment.
The argument of the learned Counsel for the petitioner that the respondent no.3 discriminated in regularization of the services of the petitioner by transferring him away from the place of initial posting in University to the office of Director Beej Avam Prachhetra, Dilip Nagar Prachhetra, Kanpur Dehat. His juniors in the seniority list were regularized in service in the University by the order dated 10.04.1985 but the petitioner was regularized on the post of Junior Clerk only by the order dated 31.05.2001. Further, his date of appointment was 01.08.1983 and the date of appointment of Mahesh Chandra Sharma was 29.08.1983, therefore, the name of the petitioner was not included in the seniority list of the daily wage clerks of the University and Mahesh Chandra Sharma was given promotion of 10.04.1985. The Case Laws in the case of Ramesh Chandra Dixit (supra) and R.K.Dubey (supra) although relate to the issue of discrimination in promotion and grant of higher pay scale respectively, but the principle of discrimination against the senior and in favour of the junior has been considered and deprecated by this Court in both the cases.
It is true that the petitioner as well as the juniors, who were regularized in service, prior to the petitioner were engaged as daily wagers at different point of time. It is clear from the record that the petitioner was senior to the employees mentioned in the seniority list of clerks, who were promoted by the order dated 10.04.1985 by the University. Therefore, only because, the petitioner was transferred outside of the University, he was denied the opportunity of regularization by the University and his juniors were promoted on the post of Clerk and subsequently to the post of Head Clerk, Office Superintendent, etc. The reliance of the learned Counsel for the respondents on the case of Smt. Ram Shree and another(supra), has no application to the facts and issues involved in this case. This case relates to the question of payment of minimum pay scale to the daily wage employees like their regular counter part and their regularisation in service.
In a recent decision, the Apex Court in the case of Jivan Lal Vs. Pravin Krishna, Principal Secretary and others, reported in (2016)15 Supreme Court Cases 747, has held :
“ The appellants have prayed for regularization of their services with effect from the date they completed 10 years of service. Main reliance is placed on the orders passed by the respondents in the case of similarly situated persons.
2. The learned counsel for the respondents has vehemently contended that all the regularization orders passed in the case of those pointed out by the appellants are illegal since the State, in principle, had decided to discontinue the appointment to the post of Sweepers by order dated 10.12.1997. However, the fact remains that after the said order also, many similarly situated persons have been granted regularization with effect from the date of completion of 10 years of service.
3. In that view of the matter, we do not find any justification in discriminating the appellants herein. The policy had been violated in many cases. There cannot be any pick and choose policy; it would certainly lead to corruption. Hence, the appeals are allowed with a direction to the respondents to grant similar treatment to the appellants herein as well and grant regularization to them with effect from the date of completion of 10 years of service.”
Therefore, after consideration of the entire facts and legal issues involved in this case, the respondent no.3 is directed to grant notional promotion to the petitioner with effect from the date when his immediate junior, Sri Mahesh Chandra Agnihotri, was regularized on the post of Junior Clerk and subsequently to the higher posts of Clerk, Head Clerk, etc. The petitioner has also stated that his junior employees, Sri Triveni Prasad Dubey, Sri Subhash Chandra Pandey and Paras Nath Gupta were promoted to the post of Office Superintendent on 31.05.2014, when the petitioner retired from service on 31.07.2016, while working on the post of Head Clerk only. The notional benefits of the post of Office Superintendent shall also be calculated and paid to the petitioner. All the notional benefits shall be calculated and paid to the petitioner within a period 2 months from the date of presentation of the certified copy of this order before the respondent no.3.
With the aforesaid observations, this writ petition stands allowed. No order as to costs.
Order Date :- 30.03.2018 SS