(S/S) Diwan Singh & Ors. v. State of Uttarakhand & Ors.

Heard Sri M. C. Kandpal, Senior Advocate assisted by Sri Yogesh Shah, the learned counsel for the petitioners and Sri Subhash Upadhyaya, the learned Brief Holder for the State.

2. The Director, Horticulture & Food Processing Department, Ranikhet is present in person before this Court.

3. The present petitioners are working as Maalies for several years in Raj Bhawan at Nainital where the Governor resides. The petitioners had earlier approached the writ court on several occasions and have approached again for the quashing of the order dated 16th September 2009 issued by the Director, Horticulture & Food Processing Department, Ranikhet by which their services were dispensed with a further direction to vacate the quarters in which they were residing.

4. The brief facts leading to the filing of the writ petition is that the petitioners have been working as Maalies in the Raj Bhawan at Nainital for almost 20 years on daily wage basis. Some of the petitioners had earlier filed a writ petition for the regularization of their services in which an order was passed that the department may consider their case for regularization. In another writ petition filed by some of the writ 2 petitioners, an order was passed for giving them the minimum wages in the minimum pay scale, on the basis of which, these petitioners were being paid the minimum of pay scale, but, upon the dismissal of the said writ petition, the Director by the impugned order dated 16th September 2009 passed an order that henceforth the petitioners would not be paid the minimum wages in the minimum pay scale and, would be paid the wages on a daily rated basis.

5. It has also come on record that there are 23 posts of Maalies existing in District Nainital. An advertisement dated 21st May, 2006 was issued. The said advertisement was challenged by some of the petitioners with respect to the condition imposed in the advertisement, which was disposed of by an order dated 23.11.2006 directing that if the petitioners are qualified under the Rules, they would be allowed to participate in the selection process.

6. In the counter affidavit, it has come on record that pursuant to the aforesaid selection process, the petitioners participated, but, could not qualify and some of the daily rated workers, who were more meritorious to the petitioners, were selected on the existing vacancies.

7. On 28.11.2008, the respondents again issued an advertisement to fill up 23 posts of Maalies in Raj Bhawan, Nainital. In this advertisement, a condition was imposed that candidates were required to have one year training from the Horticulture Department, Ranikhet. This condition was challenged on the ground that under the Rules no such condition existed. This Court in Writ Petition No.1229 of 2008 (S/S) stayed the selection process by an order dated 05.12.2008. In the counter affidavit, it has come on record that the advertisement has been cancelled. Another group of similarly situated petitioners have filed the Writ Petition No.1219 of 2008 (S/S) before this Court praying for the regularization of their services since they had put in several years of service. 3

8. The respondents have filed a counter affidavit and supplementary counter affidavit admitting that the petitioners are working as Maallies for several years and that pursuant to an interim order of the court, the minimum wages were being paid to the petitioners, but, subsequently on account of the dismissal of the writ petition, the State Government passed an order for withdrawing the order for payment of minimum wages pursuant to which, the Director had passed the impugned order dated 16th September, 2009.

9. It has also been brought on record that even though the petitioners have filed the present writ petition questioning the impugned order of the Director and no interim order was granted, nonetheless, the petitioners were allowed to continue to work in Raj Bhawan, Nainital on a daily rated basis. It has also come on record that inspite of the order for vacating the official quarters, no steps were taken by the respondents to vacate the said quarters, but when the Court called the Director to be present in Court, the petitioners have been forcibly evicted from their official quarters even though they are still working as Maalies in the Raj Bhawan, Nainital.

10. From a perusal of the counter affidavit and other affidavits being brought on record, the court finds that some of the petitioners were appointed on compassionate grounds under the Dying in Harness Rules and that they have been working for several years, but, are being treated as daily wagers. In Writ Petition No.1219 of 2008 (S/S), the petitioner No.1 Parwati Devi is alleged to have been appointed on compassionate grounds. This fact has not been denied in paragraph 5 of the counter affidavit. Similarly, in paragraph 5 & 6 of the writ petition it has been alleged that the petitioner no.4 Lila Devi and petitioner no.5 Gopal Singh were appointed on compassionate grounds, which has not been denied by the respondents in paragraph 8 and 9 of the counter affidavit.

11. In the light of the aforesaid, the admitted position, which can be culled out is that the petitioners are working as Maalies for more than 10 to 15 year uninterruptedly without any break in service and they are 4 being paid on a daily rated basis. Pursuant to an order of the court, they were being paid the minimum wages in the minimum of pay scale, but subsequently, upon the dismissal of their writ petition, the order for minimum wages in the minimum pay scale has been withdrawn. Some of the petitioners have been dispensed with by an order dated 16th September, 2009, but, they are still continuing in service on daily rated basis. Some of the petitioners have been forced to vacate the official quarters, which was allotted to them. Some of the petitioners have been appointed on compassionate grounds under the relevant Dying in Harness Rules, but, are being treated as daily wagers. Further, 23 posts of Maalies are still vacant. An advertisement was issued in the year 2008, which was challenged because it contained certain conditions, which were against the rules and, subsequently, the State Government has cancelled the said advertisement. The respondents admit that the vacancies are existing.

12. In the light of the aforesaid, the Court finds that the petitioners are working on the post of Maalies for more than a decade and they must have gained the requisite experience and knowledge, which is required in the field of Horticulture. A Maali gets the expertise and knowledge by working day in and day out for several years. It also gives them the experience. The court finds that 23 vacancies of Maalies are existing and no plausible explanation has come forward as to why these posts are not being filled up. An effort was made to fill up these posts by imposing onerous conditions, which were in violation of Group (cid:145)D(cid:146) Employees Service Rules, 2004. The State Government or the relevant department has not come forward to issue a fresh advertisement. On the other hand, the action of the respondents in allowing the petitioners to continue to work on daily rated basis amounts to unfair labour practice. The daily rated workers are only engaged for exigencies of work on emergency purposes or where certain set of work is required to be done within a short span of time or to replace a permanent or a temporary employee. But, allowing the petitioners to work on daily rated basis for more than a decade itself shows that the requirement of work was permanent in nature and 5 allowing these workers to continue only on daily rated workers is nothing but an unfair labour practice, which is wholly unwarranted. The respondents must be reminded that the State Government is a welfare State and is required to look after its employee and should not adopt unfair labour practice.

13. This Court further finds that the action of the respondents in treating the petitioners, who were appointed on compassionate grounds, as daily rated workers is wholly arbitrary. An appointment on compassionate grounds is substantive in nature and such persons appointed on compassionate grounds has to be given regular salary which is payable on that post. A Division Bench of Allahabad High Court in the case of Ravi Karan Singh Vs. State of U.P. & others 1999 (3) UPLBEC 2263 has held the appointment on compassionate grounds are substantive in nature. Consequently, the action of the respondents in treating the workers on daily rated basis is wholly arbitrary and cannot be sustained.

14. Since the petitioners have been working for more than a decade and no irregularities were found in their performance, the action of the Director by issuing the order dated 16th September, 2009 dispensing their services was wholly arbitrary, especially, when vacancies are existing and there is a permanent requirement of work. It has come on record that after passing the impugned order, the respondents have engaged eight workers on daily rated basis in the Raj Bhawan, Nainital in January, 2010 as averred in paragraph 8 of the supplementary affidavit dated 19th April, 2010.

15. In the light of the aforesaid, the impugned order dated 16th September, 2009 is not only arbitrary, but, has also been passed in violation of the principles of natural justice, namely that the impugned order was passed without affording an opportunity of hearing to the petitioners, and therefore cannot be sustained. Further, the direction that the petitioners would only be paid daily rated basis and not the minimum wages in the minimum pay scale is also arbitrary. Once it is 6 known that the nature of work is perennial, the question of wages on daily rated basis is wholly unfair which amounts to unethical practice at the behest of the State Government. In the light of the aforesaid, the Writ Petition No.933 of 2009 (S/S) is allowed. The impugned order dated 16th September, 2009 is quashed. The petitioners would continue in service as Maalies and would be paid the minimum wages in the minimum pay scale i.e. applicable on a Class IV post w.e.f. today. The respondents will reconsider the decision for allotting the official quarters in which the petitioners were residing prior to their eviction. Such decision would be taken within two weeks from the date of production of the certified copy of this order. In so far as the Writ Petition No.1219 of 2008 (S/S) is concerned, the same is also allowed and a writ of mandamus is issued directing the respondents to treat such petitioners, who have been engaged on compassionate grounds, to be regular in service since their appointments are substantive in nature and shall be paid the regular salary, which is payable on that post. In so far as the remaining petitioners in this petition are concerned, they shall be paid the minimum wages in the minimum pay scale w.e.f. today. The Writ Petition No.1229 of 2008 (S/S) has been rendered infructuous since the advertisement has been withdrawn by the State Government.

16. Payment of minimum wages in the minimum pay scale is not the ultimate solution. The matter should come to a rest once and for all and a finality has to be achieved provided vacancies are filled up. The respondents are consequently directed to issue an advertisement inviting applications to fill up the posts of Maalies. Such exercise should be made by the respondents within two months from today. Upon issuance of the advertisement, which should be as per the Group (cid:145)D(cid:146) Employees Service Rules, 2004. The petitioners would be allowed to participate and, in the event, the petitioners are found to be overage, their applications would be considered and their age would be waived. The posts should be filled up pursuant to the said advertisement within three months from the date of issuance of the said advertisement. (Tarun Agarwala, J.) 7 Dated 21.04.2010 LSR