Siya Devi vs Bihar State Tourism Development Corporation and Others

Aftab Alam, J.—The Petitioner seeks a direction to the Bihar State Tourism Development Corporation and its Managing Director to regularize her in the service of the Corporation or alternatively to give her at least the time scale of pay. The Petitioner is working as a Class IV employee in the Corporation from April, 1991. At present, she is being paid her wages on the basis of what is described as ''voucher payment'' but before proceeding to examine the material facts of the Petitioner''s case it would be appropriate to take note of certain facts concerning the Corporation itself.

There seems to be something fundamentally wrong in the personnel policy of the Corporation. A large number of persons are working in the Corporation, for long years on daily wages and perhaps it may not be an exaggeration to say that the officer(s) and units of the Corporation are practically being run by the staff on daily wages. In C.W.J.C. No. 12080 of 2001 this Court came across a case of one Sita Ram Yadav who was working in the Corporation as a booking clerk from 23.5.1983 on daily wages. Sita Ram Yadav worked on a Class III post with a regular designation and yet he was kept on daily wages for about 17 years. He came to this Court in C.W.J.C. No. 7421 of 2001 seeking a direction for regularization in service. In that writ Petition this Court directed him to be placed at the minimum of time scale of pay admissible to the post of Booking Clerk and further to be given dearness allowance but no other allowances or any annual increments. From the order passed in C.W.J.C. No. 7421 of 2001 it appears that Sita Ram Yadav was not alone in his plight and there were a number of others who were similarly working for long years on regular designations, but on daily wages. Further, in support of the relief claimed by the present Petitioner Mr. Swaraj Ghosh has also relied upon certain orders passed by this Court in which directions were made to give the Petitioners of those cases time scale of pay under similar circumstances.

In this regard the court also appreciates the fairness shown by Mr. P.K. Shahi appearing for the Corporation who volunteered the information to the court that in one of the appeals (L.P.A. arising from an order passed by a learned Single Judge, directing an employee of the Corporation to be given the time scale of pay) this Court had directed the Corporation to make a reasonable appraisal of its requirements and to identify the posts on need basis and to frame a scheme for regularization of its employees working on daily wages in such numbers as may be accommodated against the need based posts. Mr. Shahi stated that in pursuance of the direction given by this Court the Corporation had identified the posts and had sought the sanction of the State Government for creation of those posts. The matter had gone to the State Government and there it rested without any response to the Corporation. Mr. Shahi further stated that the Corporation on its own was not competent to create posts without the prior sanction of the State Government and unless sanction came from the Government the Corporation was not in a position to fully comply with the direction of this Court. It is in this background that the case of the present Petitioner is to be considered.

Before the Petitioner, her husband worked in the Corporation as a driver of passenger bus, on daily wages. He was engaged to work on 1.6.1988. On 9.7.1990 he was killed by some miscreants in the office premises of the Corporation. Having regard to the place and the manner of killing, the matter assumed some sensitivity and in those circumstances the Corporation decided to engage the Petitioner in his place on daily wage basis. The Petitioner was, accordingly, engaged as a Peon on 18.4.1991. On 18.4.1992 an office order was issued by the Managing Director by which 7 persons named in that order, including the Petitioner whose name figured at serial No. 4, were regularized on the post of Orderly on a temporary basis in the pay scale of Rs. 775-1025. This order, however, was not given effect to; according to the case of the Corporation, because the order was issued by the Managing Director who was in office at that time unauthorized and in violation of the rules and when the matter came to light the order was recalled on the direction of the State Government. Later on, the Corporation was told by the government that since the husband of the Petitioner worked on daily wages she was not covered by the scheme of death in harness and she could not be appointed under the scheme of compassionate appointments. Thereafter though she was not disengaged, she was relegated to an even lower position than a daily wager. Her engagement w.e.f. 18.4.1992 was made on ''voucher payment''.

Mr. Shahi explained the difference between payment on daily basis and ''voucher payment''. He stated that the daily wagers were paid wages for 26 days in a month regardless of any intervening holidays etc. They were also entitled to the benefit of the Employees'' Provident Fund Scheme. But in case of voucher payment the employee was paid wages for the days on which he or she actually worked; no payment was made for weekly or other holidays and the employee was also not given the benefit of the Employees'' Provident Fund Scheme.

It is thus to be seen that the Petitioner is working continuously and uninterruptedly now for a period of over 12 years and for the past 10 years she is getting her wages on ''voucher payment'' basis. In the aforesaid facts and circumstances if she cannot be regularized in service, this Court fails to see how she could be denied the lesser claim for being given the time scale of pay. But Mr. Shahi maintained that to issue such a direction, in exercise of its jurisdiction under Article 226 of the Constitution is beyond the powers of this Court. Mr. Shahi submitted that under appropriate circumstances this Court could direct the State or State owned Corporation to frame a scheme for regularization of services off daily wagers but it was not open to the court to issue a direction for payment of salary of an employee in the time scale of pay in place of daily wage basis or on ''voucher payments'' basis. In support of his submission he relied upon certain decisions/orders passed by the Supreme Court and this Court.

Having regard to the facts and circumstances of this case the submission made by Mr. Shahi does not appeal to me. As noted above, it was Mr. Shahi himself who apprised the court regarding the direction already given to the Corporation to frame a scheme for regularization of services of its employees working on daily wages. Mr. Shahi also explained as to the fate of the direction given by this Court and how the matter lay in the bog of the State Government departments. In those circumstances what course should this Court take? It is true that for failure to comply with the direction issued earlier, it is open to the court to initiate a contempt proceeding suo moto. But that would only add one more number to the more than 7,000 contempt Petitions against the State Government and its officials already pending before this Court. And when the contempt petition would be listed after months or may be one or two years the court may find it practically impossible to fix the culpability and the consequent liability of any individual. In the meanwhile at least half a dozen officers would have changed both in the Corporation and in the concerned government departments. This course can hardly be expected to lead to any tangible or concrete results and in the meanwhile the employees of the Corporation would continue to suffer for no fault on their part. But arguments and reasoning''s apart, it has to be seen whether on the basis of the decisions and orders relied upon by Mr. Shahi it can be said that this Court is powerless to issue a direction, in appropriate cases, for giving an employee a time scale of pay.

Mr. Shahi first relied upon an order dated 3.10.2000 passed by the Supreme Court in Special Leave to Appeal (Civil) No. 18164 of 1999. The appeal before the Supreme Court had arisen from an order passed by me, sitting singly, in C.W.J.C. No. 3510 of 1997 filed at the instance of some daily wagers working in the department of Irrigation, Government of Bihar. In that case it was stated on behalf of the government that a scheme was framed for regularization of the workers working on daily wages. The writ petition was disposed of by asking the Government to regularize the services of the daily wage employees in terms of the scheme but to start giving them the minimum grade in the time scale of pay even without waiting for their regularization which might have taken same time having regard to the provisions of the scheme. L.P.A. No. 939 of 1999 filed against that order was rejected on the ground of limitation and finally the matter reached the Supreme Court. The Supreme Court by order, dated 30.10.2000 set aside the direction for giving the daily wage workers the minimum grade in the time scale till their regularization in service and the relevant portion from the order is reproduced below:

Learned Single Judge in his judgment while directing implementation of the scheme of regularization, gave a further direction for payment of the minimum of the time scale of the pay even before the regularization of services. The State of Bihar is aggrieved by the said direction given by the learned Single Judge that the minimum of the time scale is to be paid even before the regularization of those persons.

According to the State, there are only 274 posts while the daily wagers are large in number. This is, however, denied in the counter filed by the Respondent. The State has further pointed out that under the Scheme, there should be an advertisement and the reservation system has also to be followed. Details of the Scheme have been set out in the counter. Paragraphs 3 to 8 of the Scheme refer to the conditions subject to which regularization can be done by a duly constituted committee.

We are of the view that the regularization of the writ Petitioners should be done in accordance with the procedure indicated in the Scheme dated 18.6.93 and it should apply to the persons who satisfy all the conditions mentioned in the Scheme.

The direction given by the learned Single Judge that pending regularization of these daily wage workers, they should get the minimum of the pay scale, is set aside.

The State of Bihar will take steps to constitute necessary Committees and will take expeditious steps to implement the Scheme depending upon the number of vacancies available from time to time.

With the above directions, the SLP is disposed of.

All that can be said on the basis of this order is that in the facts of that case the Supreme Court found that the direction for giving the time scale of pay even without waiting for regularization of service was not proper and valid but the order can hardly be construed as imposing limitation on the exercise of the powers of this Court under Article 226 of the Constitution.

Mr. Shahi then brought to my notice an order passed in LPA No. 1532 of 1999. The LPA arises from the judgment in C.W.J.C. No. 1635 of 1998 by which a learned single Judge gave the direction for giving the Petitioner of that case the time scale of pay. The Division Bench while admitting the appeal merely stayed the operation of the impugned judgment and order. The order passed in the L.P.A. can, therefore, be hardly taken as a binding precedent and an authority for the proposition that a writ court cannot given a direction for giving time scale of pay under any circumstance.

Mr. Shahi then cited a decision of the Supreme Court in State of Haryana and Others Vs. Jasmer Singh and Others, and this was in fact the sheet-anchor of his submission. In that case the High Court had directed for giving same salary and allowances as admissible to the regular employees who were working on daily wages on the plea of equal pay for equal work. The Supreme Court on an analysis of the material facts and circumstances pointed out that the daily wagers were not comparable to the regular employees either in job content or mode of recruitment, requisite qualifications etc. and, therefore, set aside the order by which the daily wagers were directed to be given the same salary and allowances as the regular employees. This decision also, to my mind, does not lay down the proposition that a writ court can, under no circumstance, issue a direction for giving a workman time scale of pay.

Mr. Shahi also relied upon a Constitution bench decision of the Supreme Court in Ashwani Kumar and Others Vs. State of Bihar and Others, In that decision it was primarily held that persons taken in employment irregularly could not claim regularization as a matter of right.

As against this Mr. Ghosh submitted that there was no limitation on the powers of this Court to give direction in appropriate circumstances for putting an employee in the time scale of pay. He relied upon a Supreme Court decision In the The Dharwad Distt. P.W.D. Literate Daily Wages Employees Association and others, etc. Vs. State of Karnataka and others etc., He also brought to my notice a number of orders passed both by Division Benches and learned Single Judges of this Court in which some or similar directions were issued by this Court. He produced orders, dated 21.12.1999 in L.P.A. No. 6 of 1999, 2.3.2000 in L.P.A. No. 15 of 2000(R), dated 22.6.2001 in L.P.A. No. 549 of 2001 and dated 23.4.2002 in L.P.A. No. 811 of 2001 and other analogous cases. It is significant to note that all the Division Bench orders in the aforesaid L.P. As. were passed in similar matters arising from the same Corporation.

In these facts and circumstances I am unable to accept Mr. Shahi''s contention that for a writ court it is not permissible to issue a direction for putting an employee in a time scale of pay under any circumstance. I am further of the view that in the facts of this case the Petitioner is fully entitled to such a direction.

It is accordingly directed that the Petitioner must be paid her salary at the minimum grade of the time scale of pay admissible to a peon. Apart from the basic pay she will also get Dearness Allowance but no other allowances or any annual increments.

In the result, this writ Petition is allowed subject to the directions indicated above but with no order as to costs.