- (1.) M. C. Agarwal, J. By this petition under Article 226 of the Constitution of India, the petitioner, a Union of Class IV employees of the Irrigation Department of the Government of U. P. and several of the members have sought a writ of man damus directing the respondents to regularise the service of the petitioners and to pay equal wages and other benefits to the petitioners as are admissible to the permanent Class IV employees of the Ir rigation Department. A further writ of mandamus is sought to declare the petitioners as permanent employees of the Department for having worked for more than 2 to 7 years on their respective posts.
(2.) COUNTER and rejoinder-Affidavits have been exchanged. I have heard Sri Swaraj Prakash, learned Counsel for the petitioner and Sri C. P. Gupta, learned Standing Counsel for the respondents. The case pf the petitioners is that its members who have been mentioned in the title of the writ petition numbering 20, have been working on the posts of Chaukidar, Dhawak (Runner), Cook-cum- Bearer, Beldar, Seenchpal, Driver, Supervisor, Helper, Typist etc. in the Ir rigation Divisions I, II, III, IV and V from various dates mentioned in paragraph 3 of the writ petition. Udaibir Singh, Prem Chand and Ramjit Yadav mentioned at serial Nos. 1, 2 and 4 were stated to be working from 10-6-1982, 5-7- 1982 and 15-3-1982, respectively, till the filing of the writ petition. Pancham Das at serial No. 8, Kallu at serial No. 12 and Ayodhya Prasad at serial No. 18 were stated to be working continuously from 1-8-1980, 1-8- 1981 and 1-7-1979. The rest are also stated to have been working from various dates men tioned against their names. They were all muster roll employees on daily wage basis and had not been granted leave even on National Holidays or festivals. It was claimed that each of them has worked for more than 240 days in a calendar year. It was claimed that the said Irrigation Divisions are permanent Irrigation Division of the Irrigation Department, under the State of U. P. and many other persons have been appointed on per manent basis in the Department for doing similar work. The performance of the petitioners was claimed to have been satis factory and they were given assurance for regularisation and in some cases some of the petitioners were recommended for regularising their services. The petitioners state the rates of wages being paid to the various categories of employees, referred to above, on day-to- day basis which ranges from Rs. 13. 50 p. per day for a chaukidar to Rs. 32. 50 for Driver and Supervisor. The regular employees of the Department are paid salaries on monthly basis and their daily salary comes to about Rs. 45/- per day. The petitioners assert a right of equal pay for equal work. It was claimed that a representation has been made on 27-9-1988 on behalf of the Union claiming that persons who have been working for more than three years should be made per manent. It was claimed that the kind of work the petitioners are doing is of a per manent nature and hence the petitioners should have been regularised and con firmed in their posts. It is claimed that the petitioners are being subjected to dis crimination and unfair labour practice.
(3.) IN the counter-affidavit filed on behalf of the respondents and sworn by Sri Kailash Nath, an Executive Engineer, it has been denied that the petitioners are in continuous employment of the various of fices. It is averred on behalf of the respondents that the petitioners were engaged as per requirement for different spells of times as casual labourers in muster roll. A statement showing the period of working of the petitioners is annexed to the counter-affidavit as Annexure CA-1 which shows that most of the petitioners were not in current employments of the Government when this writ petition was filed. According to the chart contained in Annexure CA-1, the above named Udaibir Singh worked during August, 1982 to March 1983 for different spells of time. IN 1983-84 he worked for various spells of time between April 1983 to August 1984. He worked in December, 1985 and did not work at all during the years 1986-87 and 1987-88. Ramjeet Yadav is shown to have worked only in December 1985, Lallan Prasad and Prem Chandra are not shown to have worked at all. Chhotey Lal, Babu Lal and Sada Shiv are also mentioned not to have worked at all and so is the case of Sangam Lal Misra. According this chart, none of the petitioners has worked con tinuously as alleged. IN the rejoinder-af fidavit a vague allegation has been made that the counter-affidavit does not dis close the correct state of affairs of the working of the petitioners. No material has been placed on record to establish the allegation that the petitioners are in con tinuous employment, as alleged by them, even at the time of the filing of the writ petition. IN any case this being a disputed question of fact could not have been inves tigated and determined in writ jurisdiction under Article 226 of the Constitution of INdia. Learned Counsel for the petitioners placed reliance on a judgment of a Division Bench of this Court in State of U. P. v. Puttilal, 1998 (1) UPLBEC313, by which a large number of matters relat ing to the claim of regularisation of daily wages and muster roll employees of the Forest Department of the State of U. P. were decided. The Division Bench noticed that the position of law, as regards the regularisation of Daily Wagers/muster Roll employees, is settled, according to which there cannot be regularisation of their services unless there are posts/vacan cies and that in this connection it will be sufficient to refer to Ashwani Kumar and Ors. v. State of Bihar and Ors. , 1977 (2) SCC 1, only where the Supreme Court lays down that service of the Daily Wagers can not be regularised unless the posts/vacan cies are available for their absorption. (See paragraph 8 ). The Division Bench observed that the real question is whether the Government can run its Department primarily by Daily Wagers/muster Roll employees at Class III and Class IV level without giving them job security and without paying them the wages/salary equivalent to that which is paid to the regular employees belonging to those Classes. The Division Bench took note of the long periods during which the petitioners in those cases had been in employment and the various cases decided by this Court and directions given. It was observed as under: "in pursuance of the directions issued by this Court pending these cases the Government of U. P has submitted more than one Scheme for regularisation of the petitioners, but those Schemes hardly contain any hope for their regularisation. It has been stated therein that the petitioners can be considered for regularisa tion against available vacancies after amending service rules. Available vacancies being few no substantial help can be expected from them. That apart, the Government while framing those Schemes has not applied its mind to the questions dealt with herein above. These are aspects which are to be considered by the Government before framing Scheme for ab sorption of the petitioners. In the present case the appropriate pleadings are also not there so as to declare the employment of the petitioners as daily wager for considerable long period as "unfair labour practice". We, are, therefore, not expressing and final opinion on this Question also. The questions dealt with hereinabove are to be considered and decided by the Govern ment before framing the Scheme for regularisa-tion/absorption of the petitioners and other similarly placed employees. " Ultimately the following order was passed: "for the reasons given above, these writ petitions and the Appeals are partly allowed. The judgments impugned in the Appeals are set aside. The Government of U. P is directed to appoint a Committee consisting of Secretaries of Finance and Forest Departments and the Legal Remembrancer or their nominees within a month of production of certified copy of this judgment before the Secretary Forest Depart ment, Uttar Pradesh. The Committee to be ap pointed will consider the question of framing Scheme for regularisation/absorption of the petitioners and other similarly placed employees working in the Forest Department and the Schemes undertaken by the said Department. The Committee will pass speaking order and will submit its report within a period of three months of the date of its constitution by the Gverment. It will be open to the Association Union of the petitioners to make representation contain ing all their grievances in this regard before the Committee and if such a representation is made the same shall also be decided by speaking order by the said Committee within the same time specified above. The Government will there after pass appropriate order taking into con sideration the report of the Committee and material available on record, within one month of the receipt of the report of the Committee. The whole exercise by the Committee as well as by the Government should be completed within six months from the date of production of cer tified copy of this judgment before the Govern ment. Till then the parties shall maintain status quo. ";