IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Interim Order Vacation Application No. 1704 of 2010 Delay Condonation Application No. 5765 of 2010 In Writ Petition No.902 of 2007 (S/S) 1. Pramod Bhagat, S/o Late Sri Ram Dutt Bhagat, aged about 46 years, presently working as Class IVth post on daily wages, State Estate Guest House (Nainital Club) Nainital, District-Nainital. 2. Neeraj Bisht, S/o Late Mohan Singh Bisht, presently working as Class IVth post on daily wages, State Estate Guest House (Nainital Club) Nainital, District, Nainital. 3. Birendra Singh Gusain, S/o Late Chandra Singh Gusain, presently working as Class IVth Employee, Uttaranchal Niwas, New Delhi. 4. Prem Prakash, S/o Late Prem Ram, presently working as Class IVth Employee, Uttaranchal Niwas, New Delhi. …Petitioners Versus 1. State of Uttarakhand through its Secretary, State Estate Department Dehradun, District-Dehradun. 2. Principal Secretary, State Estate Department, Government of Uttarakhand Dehradun, District Dehradun. 3. Senior Management Officer, State Estate Department, State Guest House Nainital Club Nainital, District-Nainital. …….Respondents Mr. Rakesh Thapliyal, Advocate for the petitioners. Mr. J.P.Joshi, Chief Standing Counsel for the State/respondents No.1 to 3. Dated:-10-08-2010 Hon’ble B.S.Verma, J. Heard learned counsel of the parties and perused the record. By means of this writ petition, petitioner has sought the following relief’s:- 1. Issue a writ, order or direction in the nature of mandamus directing to the respondents to give the minimum of pay scale and other consequential benefits to each of the petitioner regularly without any break on the basis of Rs. 2550/- per month and be paid w.e.f. the date when the other similarly situated incumbents are being paid the minimum of pay scale pursuant to an order dated 01.08.2006 i.e. w.e.f. 19.05.2006 within a specified period. 2. Issue any suitable writ, order or direction, which this Hon’ble court may deem fit and proper on the basis of the facts and circumstances of the case. 3. Award the cost of the petition to the petitioners. Briefly stated the facts giving rise to the writ petition are that, according to the petitioner, the petitioner no.1 is working since 1995 and petitioner no.s 2 to 4 are working since 1997 and at least they are entitled to the salary at the lowest cadre. The counter affidavits have been filed by the respondents. It is stated in Para No.5 of counter affidavit that similarly situated employee have approached to the Court and direction was given by this Court to regularize their services in compliance of the services under Estate Department Framed Regularization Rules, 2005. It has been further stated in Para No.9, in view of the Apex Court Judgment Uma Devi (supra) reported in AIR 2006 SC 1806, that the daily wager could not be regularized unless there are some statutory rules framed by the Government. The learned counsel for the petitioner has contended that in the present writ petition the petitioner has sought a writ in the nature of mandamus directing the respondents to give minimum pay scale and other consequential benefits to each of the petitioner regularly without any break and be paid w.e.f. the date when the minimum wages has been granted to other similarly situated employees. Learned counsel for the petitioners has also relied upon Para No.55 Apex Court Judgment Uma Devi (supra) reported in (2006)4 S.C.C. page no.1 which is quoted below:- “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 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 vacantd(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.” This court passed an interim order on 17.07.200, if the petitioners are still working with the department and they have completed more than five years of service, they may be paid a minimum pay scale. In the meantime the state has filed the Special Appeal before the division being of this court. The Special Appeal was dismissed by the division bench of this court on 20.11.2009 and liberty was given to the State to file counter affidavit alongwith the stay vacation application on 26.02.2010. If such stay vacation application is filed, the same shall be considered by the appropriate Court. That the petitioner no.1 and 2 are working on daily wages basis since 29.04.1995 and 15.08.1997 and petitioner no.3 and 4 are working since 01.06.1997 and04.06.1997. There is no denial of this fact by the respondent that the petitioners have also annexed certificate issued by the Senior Management Officer annexed as annexure No.1, annexure No. 2,3 and annexure No. 4 &5 to the writ petition. This fact have not been denied in the supplementary counter affidavit filed by respondent No. 1 &2 that the petitioner are working in the department since, more than ten years. In view of the Para No.55 of the Apex Court judgment the daily wages employee is entitled for daily wages equal to the salary at the lowest cadre of employee of their cadre. It is pertinent to mention that the petitioners have not claimed regularization of service in the present writ petition. It is made clear that they are not entitled for any other allowance being paid to them. The interim order is made absolute, the petitioners be paid minimum pay scale as has been directed above from the date of interim order passed by this court. If any amount already been paid to them pursuant to the interim order that shall be adjusted. With the said direction, the writ petition is allowed. All pending applications stands disposed of. (B.S.Verma, J.) 10-08-2010 JM