IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No.85 of 2004 (S/S) Smt. Kalawati Panchpal. ……Petitioner. Versus State of Uttaranchal and others. …….Respondents. Mr. T.A. Khan, Advocate for the petitioner. Mr. Subhash Upadhyay, Brief Holder for the State-respondents. Hon’ble B.S.Verma, J. Heard learned counsel for the parties and perused the record. By means of this writ petition, the petitioner has sought a writ in the nature of mandamus commanding the respondents to pay the petitioner minimum pay scale and respondents may be directed to regularize the services of the petitioner on the post of Assistant Craft Man. Learned counsel for the petitioner has submitted that the petitioner was posted on 03-10-1980 at the capacity of Junior Craft Man under the control of respondent No.3, thereafter, she was time to time transferred. The petitioner was performing his duties continuously under the control of the respondent No.3 According to the petitioner, at the time of her appointment she was paid a salary of Rs. 300 per month and consequently thereof the salary of the petitioner has time to time increased. The petitioner has time to time moved application to the respondent No.4 for the enhancement of her salary and for the minimum of pay scale as well as for the regularization of her services but the respondent have not taken any decision on it. Learned counsel for the petitioner has relied upon Para No. 53 and 55 of the Apex Court Judgment Secretary, State of Karnataka and others Vs. Umadevi (3) and others 2006(4) SCC 1, the relevant paragraphs are quoted below:- 2 Para No.53- “One aspect needs to be clarified. There may be cases where irregular appointment (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N.Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Government and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six moths from this date. We also clarify that regularization, if any already made, but not sub judice, need not be re opened bases on this judgment, but there should be no further bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.” Para No.55 - “In cases relating to service in the Commercial Taxes Department, the High Court has directed that those engaged on daily wages, be paid wages equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively appointed. The objection taken was to the direction for payment from the dates of engagement. We find that the High Court had clearly gone wrong in directing that these employees be paid salary equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively engaged or appointed. It was not open to the High Court to impose such an obligation on the State when the very question before the High Court in the case was whether these 3 employees were entitled to have equal pay for equal work so called and were entitled to any other benefit. They had also been engaged in the teeth of directions not to do so. We are, therefore, of the view that, at best, the Division Bench of the High Court should have directed that wages equal to the salary that is being paid to regular employees be paid to these daily-wages employees with effect from the date of its judgment. Hence, that part of the direction of the Division Bench is modified and it is directed that these daily-wage earners be paid wages equal to the salary at the lowest grade of employees of their cadre in the Commercial Taxes Department in government service, from the date of the judgment of the Division Bench of the High Court. Since, they are only daily- wage earners, there would be no question of other allowances being paid to them. In view of our conclusion, that the courts are not expected to issue directions for making such persons permanent in service, we set aside that part of the direction of the High Court directing the Government to consider their cases for regularization. We also notice that the High Court has not adverted to the aspect as to whether it was regularization or it was giving permanency that was being directed by the High Court. In such a situation, the direction in that regard will stand deleted and the appeals filed by the State would stand allowed to that extent. If sanctioned posts are vacant (they are said to be vacant) the State will take immediate steps for filling those posts by a regular process of selection. But when regular recruitment is undertaken, the respondents in CAs Nos. 3595-612 and those in the Commercial Taxes Department similarly situated, will be allowed to compete, waiving the age restriction imposed for the recruitment and giving some weightage the age for their having been engaged for work in the Department for a significant period of time. That would be the extent of the exercise of power by this Court under Article 142 of the Constitution to do justice to them”. Learned counsel appearing for the petitioner has contended that the controversy of similar situated persons has been decided in writ petition No.02 of 2010(S/B), Kailash Chandra Vs. State of Uttarakhand and others, wherein the State Government has constituted a committee in terms of decision rendered by the Supreme Court in Secretary, State of Karnataka and others Vs. 4 Umadevi (3) and others, 2006(4) SCC 1 and more particularly in terms of the observation recorded in para No.53 of the said judgment. Learned Brief Holder appearing for the State has submitted that the case of the petitioner may be re-consider. The claim of the petitioner for regularization on the basis of the policy determined by the committee. In view of the above, this writ petition is disposed of without entering into the merits of the controversy. The petitioner would be at liberty to move fresh representation and the respondents shall re-consider the case of the petitioner and pass appropriate order on the representation filed by the petitioner. All pending applications stand disposed of accordingly. (B.S.Verma, J.) 15-07-2010 MK