JUDGMENT Tarun Agarwala, J.
1. By means of the present writ petition, the petitioners have prayed that a writ of mandamus be issued to the respondents to regularise their services under the U.P. Regularisation of Daily Wagers Appointment on Group 'D' Posts Rules, 2001 and to grant all consequential benefits as admissible under law. The petitioners alleged that they have been engaged since 1985-86 as daily wage employees and are working as Malis [Gardeners] in Rajkiya Udyan [Company, Bagh], Government Garden, Allahabad and are currently deployed to work in the lawns of i the High Court. The petitioners have submitted that they have been appointed against the substantive- posts, but they are not being regularised for the reasons best known to the respondents. The petitioners further submitted that they have the requisite qualifications for being regularised on the post of Maalies. and that in any case, they have gained the requisite experience and expertise of the work of a Mali on account of having worked continuously for more than 10 years. The petitioners have further alleged that the services of the similarly situated persons working on daily, wages as Maalies with the same respondents, have been reguirised. The petitioners contended that similarly situated persons working as Maalies on daily wage basis approached this Court and filed Civil Misc. Writ Petition No. 30457 of 1997 in which this Court-by an order dated 15.9.97 directed the respondents to regularise the services of the petitioners on the ground that they had been working for the last 14 years. In Civil Misc. Writ Petition No. 44466 of 1997, this Court by an order dated 7.1.1998 directed the respondents 10 consider the case of the petitioners working as Maalies and pass appropriate orders for the regularisation of their services. In Civil Misc Writ Petition No. 13994 of 1991, this Court by an order dated 14.9.1993 directed the respondents to pay the salary to the petitioners, as was being paid to a regular employee. In Civil Misc. Writ Petition No. 27020 of 1990, this Court by an order dated 28.3.97 directed the respondents to regularise the services of the daily wagers working as Maalies in the Rajkiya Udyan [Company Bagh], Against the aforesaid order dated 28.3.1997, the State Government preferred a Special Appeal, which was dismissed by judgment dated 12.4.2001. The State Government thereafter, filed Special Leave Petition before the Supreme Court, which was als6 rejected by judgment dated 23.9.2002.
2. The petitioner submitted, that in view of the aforesaid orders passed by this Court, the services of those daily wages, who had approached this Court, were regularised by the respondents. The petitioners also filed a supplementary affidavit stating therein that this Court by a judgment dated 4.8.2004 passed in Civil Misc, Writ Petition No. 27411 of 1999, directed the respondents to regularise the services of the daily wagers, who were employed as Maalies in the Rajkiya Udyan [Company Bagh] at Allahabad, on the ground that they had been working since long for more than 20 years. The petitioners alleged that some of the petitioners in that writ petition were junior to the petitioners and in this [regard also filed a seniority list showing that the petitioners were senior to: some of the daily wagers, who were petitioners in Civil Misc. Writ Petition No. 27411 of 1991. The petitioners submitted, that pursuant to the aforesaid orders, the respondents issued an order dated 23.11.2003 granting minimum pay scale to the daily wagers, who had applied, for regularisation of their services. The petitioners further submitted that similarly situated persons filed Civil Misc. Writ Petition No. 6922 of 2003 in which they prayed that their services as Maalies be regularised and in that writ petition the Additional Advocate General appeared and made a statement to the effect that the respondents will not ready to regularise the services of 12 petitioners. In view of the statement made by the Additional Advocate General, the said writ petition! was disposed of by a judgment dated 31.3.2003 directing the respondents to regularise the services of those persons. The learned counsel for the petitioners submitted that in view of the aforesaid directions, the services of the aforesaid 12 petitioners in the aforesaid writ petition were regularised.
3. The respondents in their counter affidavit have stated that the petitioners were not appointed on any sanctioned post and that: they were appointed as part time Mazdoors on account of the exigencies of work and that they were appointed on daily wage basis and were only engaged to do the work of weeding, cleaning and hoeing. The respondents submitted that the petitioners were never appointed on the post of Maalies nor have submitted any certificate showing that they have the experience of working as a Mali The respondents further submitted that pursuant to the interim orders passed by this Court, the services of the similarly situated persons were regularised, but after the promulgation of the U.P.Regularisation of Daily Wagers Appointment on Group 'D' Posts Rules, 2001, various persons have been regularised, but the services of the petitioners were not regularised, as they had made an agitation and sat on a DHARNA and, therefore, their case could not considered The respondents further alleged that no past of Mali exist at the moment.
4. The petitioners in the rejoinder affidavit have stated that pursuant to the promulgation of the U.P. Regularisation of Daily Wagers Appointment on Group 'D' Posts Rules, 2001, they had applied for the regularisation of their services, but the respondents did not call them for interview and only considered those cases in which orders were issued by this Court.
5. In the counter affidavit, the respondents have placed a judgment dated 25.8.2003 passed in Civil Misc. Writ Petition No. 21791 of 1997 in which it has been recorded that there are 92 posts of Maalies and that in view of the order dated 29.3.1997 passed in Civil Misc. Writ Petition No. 27020 of 1990 and order dated 25.4.1997 passed, in Civil Misc. Writ Petition No. 13992 of 1991, the cases of the petitioners in the aforesaid two writ petitions, were considered against the vacant posts and their services were regularised. The petitioners in their supplementary affidavit further fortified their submissions that the petitioners in Writ Petition No. 27411 of 1997 who were also regularised were junior to the petitioners. Despite time being granted no counter Affidavit to the supplementary affidavit was filed and therefore, the facts stated in the supplementary' affidavit remained unrebutted.
6. Heard Sri R.N. Yadav, the learned counsel for the petitioners and the learned standing counsel appearing for the respondents.
7. From the record of the writ petition, it is clear that the petitioners have been working continuously on daily wages for the last 15 to 20 years, and the petitioners are performing the same functions and duties, which are performed by the regular Mails. The attempt made by the respondents, that the petitioners are performing different, kind of duties is incorrect. A regular Mali also does the work of weeding, cleaning and hoeing and in addition to the aforesaid he also does the work of grafting and production of saplings. The work of grafting and production of saplings can also be done by the petitioners, who have gained experience by working in this field for the last 15 to 20 years. In any case, this kind of work does riot require any specialization, which comes by working for a continuous period of time. Therefore, the attempt made by the respondents that the petitioners are performing different kind of work is incorrect.
8. In Bhagwati Prasad v. Delhi State Mineral Development, [1990] 1 SCC 361. The Supreme Court held-
" The main controversy centres round the question whether some petitioners are possessed of the requisite qualifications to hold the posts so as to entitle them to, be confirmed in the respective posits held by them. The indisputable facts are that the petitioners were appointed between the period 1983 and 1986 ever since, they have been working and have gained sufficient experience in the actual discharge of duties attached to the posts held by them. Practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial entry into the service. Once the appointments were made as daily rated workers and they, were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualifications. In our view three years' experience, ignoring artificial break in service for short period/periods created by the respondent in the circumstances would be sufficient for confirmation."
9. In my view, the aforesaid judgment squarely applies to the facts and circumstances of the present case. It is also clear that there is a continuous requirement of the work of a Maali. The fact that they are working continuously for the last 15 to 20 years is indicative of the fact that the requirement is neither casual nor seasonal in nature. The fact that the petitioners have been working for the last 15 years to 20 years continuously means that the work of Mali is required on a permanent basis. Therefore, the engagement of the petitioners on daily wages without giving them a job security and without paying the wages equivalent to that paid to a regular employee is wholly arbitrary and unreasonable. The respondents, being a 'State' are required to act as model employers and cannot run the department by hiring daily wagers. Such action of the respondents is clearly arbitrary and violative of Articles 14 and 16 of the Constitution, which guarantees equality before Saw and equal protection of the laws.
10. In paragraph 17 of the writ petition, the petitioners have categorically stated that pursuant to the promulgation of the U.P. Regularisation of Daily Wagers Appointment on Group 'D' Posts Rules, 2001 the services of the similarly situated, persons were regularised and that the petitioners were not called for the regularisation of their services. This fact has not been controverted by the respondents sin paragraph 11 of their counter affidavit. In paragraph 18 of the writ petition, the petitioners have alleged that only those persons were called for regularisation, who have obtained interim orders from this Court. The respondents in paragraph 12 of the counter affidavit have alleged that the petitioners were called for the interview by oral orders and that the petitioners did not appear and sat on a DHARNA and therefore, their cases were not considered.
11. From the aforesaid, it is clear that the respondents had adopted a policy of pick and choose and regularised the services of those persons, who had obtained an order from the High Court. The petitioners have also alleged that juniors have been regularised, which has also not been denied by the respondents. Therefore, in my view, the action of the respondents in this regard is clearly arbitrary and discriminatory.
12. The Supreme Court in State of Haryana v. Piara Singh, A.I.R. 1992 SC 2130 has held as under -
" Ordinarily speaking, the creation and abolition of a post is the prerogative of the Executive. It is the Executive again that lays down the conditions of service subject, of course, to law made by the appropriate legislature. This power to prescribe the conditions of service can be exercised either by making Rules under the proviso to Article 309 of the Constitution or [in the absence of such Rules] by issuing Rules/instructions in exercise of its executive power. The Court comes into the picture only to ensure observance of fundamental rights, 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 family 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 helplessness and misery of either the unemployed person 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 adhoc status for long. Where a temporary or adhoc appointment is continued for long the Court presumes that there is need and warrant for a regular pots and accordingly directed regularization."
13. Based on the aforesaid, it is clear that the petitioners are working since long and are, therefore, entitled for regularization. The action of the respondents in not regularizing the services of the petitioners is violative of Article 14 of the Constitution.
14. In Daily Rated Casual Labour v. Union of India, AIR 1987 SC 342 the Supreme Court held that the denial of minimum pay of the pay scale paid to the regular employed workers to the casual labourers working since long and doing the same kind of work amounts to exploitation of labour. The Supreme Court held that the casual labourers in the given circumstances were entitled to the rates equivalent to the minimum pay in the pay scale of regularly employed workers in the corresponding cadres, but without any increment. The Supreme Court further directed the respondents to prepare a scheme for absorbing the casual labourers in the Post and Telegraph Department.
15. In the present case, the U.P.Regularisation of Daily Wagers Appointment on Group 'D' Posts Rules, 2001 have already been promulgated, which fully applies to the petitioner's case, as they have been working prior to the year 1991. However, the respondents stated that at the present moment there are no vacancy and therefore, they cannot be regularised under the U.P.Regularisation of Daily Wagers Appointment on Group 'D' Posts Rules, 2001. Be that it may, the petitioners cannot be denied the benefit of regularisation and cannot remain in a state of uncertainty and insecurity merely on the ground that the vacancies are not existing coupled with the fact that the juniors to the petitioners have been regularised earlier which is not only arbitrary, but is also discriminatory. Therefore, the petitioners are entitled to be regularised.
16. In view of the aforesaid, the writ petition is allowed. A mandamus is issued to the respondents to regularise the services of the petitioners within three months from today. The respondents are directed to take steps for the regularisation of the services of the petitioners in the existing vacancies on the post of Maalies. In the event, there are no vacancy on the post of Maalies, in that even, the Superintendent, Rajkiya Udyan [Company Bagh], Allahabad, respondent No. 4, is directed to place the matter before the Director of Udyan Bhawan, U.P. Lucknow, respondent No. 2 within three weeks from today, who in turn will place the matter before the Secretary, Department of Horticulture, Government of U.P., respondent No. 1 immediately thereafter, for creating the post of Maalies. The State Government will thereafter, create the post of Maalies within one month. Upon the creation of the posts, the respondents shall pass consequential orders, absorbing and regularising the services of the petitioners. It is made clear that the entire process shall be completed within three months from the date of production of the certified copy of this judgment before the respondent No. 4. It is further directed that during the aforesaid period, the petitioners would be entitled to the wages, as paid to regular employees.