- (1.) S. N. Srivastava, J. This petition and other connected petitions have been filed for the relief of a writ of mandamus commanding the respondents to regularise the service of the petitioners who are languishing in the department in the uncertainty of adhocism for years together.
(2.) ALL the petition may be different in factual aspect but the subject-matter of impugnment in this batch of the petition i. e. the order dated 22-8-2002 passed by the Chief Engineer, (Personnel), U. P. Jal Nigam, Lucknow is identical by which earlier order dated 12-10-2001 passed by Managing Director was rescinded on the ground that the earlier order aforestated granting minimum of the wages at par with regular employees militated against the mandate embodied in the decision of the apex Court in Civil Appeal No. 3634 of 1995, State of U. P. v. Putti Lal, and by an incompetent authority. The factual matrix of the present case in writ petition No. 15617 of 2003 is that the petitioner entered the service on 1-4-1989 as Runner/chaukidar and in the course of time, he represented to the authorities on several dates seeking regularisation of his service in one of the vacant posts in the department. Ultimately, certain employee invoked the extra-ordinary jurisdiction of this Court in Lucknow Bench and pursuant to the directions issued by the Lucknow Bench of this Court, minimum of pay-scale to all muster roll employees was granted vide memorandum dated 12-10-2001. Subsequently, on the basis of decision of the apex Court in Putti Lal, the aforestated office memorandum was rescinded and the muster roll employees were relegated to status quo ante. It is in this background that the petitioner has preferred the instant petition for relief of mandamus. Heard learned counsel and perused the materials on record. The learned counsel for the petitioner premised his argument by submitting that the impugned order thereby earlier order granting minimum of the wages admissible to a regular employee was rescinded without affording opportunity of hearing and the petitioners were entitled to hearing. It was submitted by the learned counsel that under the order dated 12-10-2001 issued by the Chief Engineer (Personnel), Uttar Pradesh Jal Nigam, Head Office, Lucknow petitioners were given minimum of the pay scale alongwith other allowance admissible to the regular employees with effect from 1-10-2001 and that this order was given effect to in respect of all the muster roll employees on the rolls of Jal Nigam since long. It was further submitted that the impugned order has the effect of affecting their salaries and as a consequence thereof their status and livelihood have also come to suffer and without opportunity of hearing no such order could be passed. It was also canvassed that the impugned order was its foundation in three grounds - (1) The Judgment of apex Court in State of U. P. v. Putti Lal, (2002) 2 UPLBEC 1595, by which Apex Court has held that before regularization no employee could be given minimum pay scale and as such the order dated 12-1-2001 was contrary to the terms of the Judgment of Apex Court (2) it has not been issued with prior approval of the State and the competent authority and (3) order dated 12-10-2001 has not been issued in accordance with law and submitted that none of the grounds cited in the impugned order were potent enough to warrant cancellation of earlier office order in as much as in State of U. P. v. Putti Lal, (supra) the apex Court had directed to pay minimum of the pay scale to the employees who are working for a long time and are discharging similar functions as regular employees and further that the direction given by the office order dated 12-10-2001 to pay allowance in addition to the minimum of the pay scale received reinforcement from various other decisions of the Apex Court. It was lastly canvassed that in order to effectuate the order dated 12-10-2001 the competent authority had sanctioned various funds which was released by the Government and it has no grounding in the fact to say that the order had not received approbation of the competent authority or the State Government and as such the order dated 12-10-2001 lacked in validity and the impugned order is vitiated in law.
(3.) IN reply to the same Sri A. K. Misra, learned counsel for opp. parties relying upon counter-affidavits filed in some of the writ petitions including writ petition No. 47316 of 2002 contended that the Jal Nigam was established by the State of Uttar Pradesh under Section 3 of the U. P. Water Supply and Sewerage Act, 1975 (hereinafter referred to as the Act ). It was further contended that Sections 8 and 89 of the Act envisaged that the Nigam may appoint such employees as it may consider necessary provided the appointment of such employees shall specify their terms and conditions determined with the approval of the State Government as a matter of policy and in case if any question arises whether any matter is or is not a matter as respects which the State Government may issue a direction under sub- section (1) the decision of the State Government shall be final. He further contended that under the policy of the State of Uttar Pradesh, U. P. Jal Nigam framed a scheme to regularize its work charge employees who had completed the span of five years of service in unbroken continuity in U. P. Jal Nigam on 1-4-1985. The State Government accepted this scheme and 2163 posts were further created. Subsequently, on 3-12-1988 2500 posts created to regularize services of daily wage/workcharge employees who had completed five years of service in Jal Nigam and the Board in the meeting dated 18- 11-1989 created 5918 posts for regularization of daily wage/muster roll/workcharge employees. Thus, total 10, 581 posts were created by the U. P. Jal Nigam for regularization of daily wage/muster roll/workcharge employees who have completed five years of service until 31-3-1989. 9642 muster roll/workcharge employees service were regularized. Subsequently those persons were also allowed revised pay scale subject to the condition that they fulfill requisite qualification. It has been pointed out that matter is still sub-judice. He further contended that the provisions of notification dated 21-12-2001 providing regularization cannot be called in aid for applicability to U. P. Jal Nigam as this Regularisation Rule is intended for application to the daily wage employees of the State Government and not daily wage employees of U. P. Jal Nigam. The learned counsel further canvassed that the decision in State of U. P. v. Putti Lal (supra) relates to the workers of Forest department and orders passed relating to the Forest department cannot be imported for application on the ground of parity with the employees of U. P. Jal Nigam which is a separate and district entity different from the State Government. He drew a distinction stating that petitioners have been harnessed to work on particular projects run under U. P. Jal Nigam in the workcharge establishment and since wages are paid from the funds allocated for a particular project, it cannot be assumed that the work of workcharge employee employed for a particular project is of permanent nature and consequently by reason of being a muster roll employee, they are not entitled to get salary at per with the regular employee of the Jal Nigam. Since some of the works allotted to the petitioners, proceeds the submission, include installation of the hand pump, management of drinking water in the pilot districts of U. P. from the U. P. Jal Nigam has now been assigned to the U. P. Gramin Paye Jal Mission Jal Nigam constituted by the State governments. Similarly by Government Order dated 5-1-2002 work of water supply and sanitation mission has been taken over from Jal Nigam and has been entrusted to Swajal Pariyojana Prabandhan Unit, U. P. Theatre and work of installation of hand-pump in all the 70 districts of Uttar Pradesh was decentralized and entrusted to Gramin Panchayats of the State and 10% work of installation of hand pumps under the Government Order dated 7-1-2002 has been entrusted to U. P. State Agro INdustrial State Corporation. It is in the backdrop of the above submissions learned counsel for opp. Parties propounded that the petitioners are not entitled to be regularized. I have scanned the submissions made across the bar in all its pros and Sons. From the facts stated above it is clear that according to stand taken in the counter-affidavit of the U. P. Jal Nigam, 10, 581 posts were created from time to time for regularization of the workcharge/muster roll employees out of which only 9642 have been regularized and they are being paid regular pay scales. Certain posts out of the posts created are still vacant with the department. From the perusal of the counter-affidavit it is manifestly clear that U. P. Jal Nigam was brought into being to resolve problem of drinking water in small townships below 2002 population under the five-year plan while the urban water supply schemes are financed by the State and Central Government. It brooks no dispute that Ganga Action Plan-I and Ganga Action Plan-II are also run by U. P. Jal Nigam and these schemes are perpetual and permanent in nature. Similarly rural drinking water scheme and human resource development are also being run by the U. P. Jal Nigam. All these schemes are of permanent of nature.;