Smt. Nisha and others vs State of U.P. and others

Heard learned counsel for the appellants and Sri Jyotinjay Verma for the respondents no. 3 and 4.

This special appeal against the judgment and order passed by the learned Single Judge dated 30.9.2011 assails the action of the respondents in not making the payment of honorarium for the post of Cook, on which post the appellants have been appointed by the Selection Committee in exercise of power vested under the Government Order dated 24.4.2010.

The learned Single Judge dismissed the writ petition, saying that no appointment letter has been brought on record and that it appears that the appellants have been engaged on daily wage basis, therefore, in view of the judgment of the apex court in the case of T.N. Godavarman Thirumulpad Vs. Union of India (UOI) and Others, they do not have any right of regularisation. However, the learned Single Judge observed that honorarium may be paid for the work done, if there is no legal impediment.

Learned counsel for the appellants has drawn our attention to the letter written by the Block Education Officer, Bhiyaon, Ambedkar Nagar dated 5.8.2011 to the Head Master of the school, where the appellants have been appointed, saying that a complaint has been received on behalf of Smt. Shobha Devi, a Scheduled Caste candidate and since no Scheduled Caste candidate has been appointed, therefore, proposal for appointment be sent. It is further submitted that on objection being received, the honorarium has not been paid. The fact remains that the appellants have been engaged for a period of one year and that period has not yet expired and they are still working.

The plea of the appellants that they being engaged as Cook appears to be correct from the documents available on record and in particular, the letter aforesaid written by the Block Eduction Officer.

Learned counsel for the appellants has also submitted that in the given strength of Cooks in the institution in question, no reservation is permissible. However, there is nothing on record to indicate whether reservation would apply in the instant case or not.

Be that as it may, the fact remains that in case the appellants have been engaged for a period of one year or for any other period whatsoever and they are working, they are entitled for honorarium. The appellants cannot be denied honorarium on the ground that appointments were wrongly made or that a Scheduled Caste candidate has not been appointed. If that be so, it would be advisable to the competent authority to take appropriate action and pass appropriate orders in accordance with law, but so long the appellants are allowed to work, they are entitled for honorarium.

We, therefore, set aside the order passed by the learned Single Judge dated 30.9.2011 and direct that so long the appellants are allowed to work, they shall be paid honorarium including arrears. The arrears shall be paid within a period of one month.

The special appeal is allowed. No order as to costs.