Full Judgment Text
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PETITIONER:
STATE OF U.P. & ORS.
Vs.
RESPONDENT:
U.P. MADHYAMIK SHIKSHA PARISHADSHRAMIK SANGH & ANR.
DATE OF JUDGMENT06/11/1995
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
KIRPAL B.N. (J)
CITATION:
1996 AIR 708 1996 SCC (7) 34
JT 1995 (9) 132 1995 SCALE (6)434
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Leave granted.
Having heard the learned counsel on both sides, we
think that it is a fit case for our interference under Art,
136. It would appear that the respondent is representing
daily wagers in class IV service working with the U.P.
Madhyamik Siksha Parishad, U.P. Though the High Court had
found that they have been regularly working for over 15
years doing similar work on par with the regular Class IV
employees and consequentially directed the appellants to pay
equal pay for equal work and also regularisation of their
services by creating appropriate posts, we thin that the
directions given do not appear to be correct.
It is an administrative procedure that creation of a
post is a condition for filling up the post on permanent
basis. The exigencies of the administration and the need for
the creation of number of posts are matters of executive
policy by the appropriate government. It is stated in the
Special Leave Petition filed in this court that during the
examinations conducted by the Board, when the exigencies
demand for doing the manual work like lifting of bundles,
pasting of envelopes and shifting of answer books etc. the
daily wagers are engaged and a sum of Rs.25/- per day was
being paid as fixed by the dist. Magistrates of Allahabad
under the Minimum Wages Act. Unless the posts are created,
they are not entitled to be fitted into any regular post.
The performance of the manual duty may be like the duty of
regular class IV employees. However, they are not entitled
for the payment of equal wages so long as there are no posts
created in that behalf. We can understand that if there are
vacant posts available in Class IV and they are filled up by
appointing them to these posts on daily wages performing the
same duties of regular employees, perhaps there may be
justification for issuing directions for regularisation of
their services according to rules and payment of the salary
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to the post to which they are fitted. But in view of the
fact that no posts are created or existing, we cannot uphold
the direction issued by the High Court to pay equal wages or
to regularise their services.
It is stated in paragraph 5(h) of the S.L.P. that the
Board has been regularising daily wagers in class IV service
as and when the post is created or falls vacant, on the
basis of length of engagement of the daily wagers and
performance of the work. The procedure so adopted is fair.
Under these circumstances, we think that the appropriate
course would be that as and when regular posts are created
or posts fall vacant, these daily wage employees, on the
basis of their seniority, length of service and performance
of work, may be considered for regularisation according to
rules and rules of regularisation according to rules and
rules of reservation in vogue. Until then their services
will be taken as and when exigencies would arise and payment
of daily wages made as determined by the District Magistrate
from time to time.
The appeal is accordingly allowed. No costs.