WPSS/79/2006 of PRATAP SINGH Vs SECRETARY PUBLIC WORKS DEPARTMENT

HIGH COURT OF UTTARANCHAL AT NAINITAL (Court’s order whether the case is or not approved for reporting)(Chapter VIII Rule 32 (2)(b) Description of the case. WP S/S No. 79/06 Pratap Singh vs Secretary Public Works Department & others Approved for reporting ____________________ Not approved for reporting Date of decision 30.3.2006 Initial of Judge

HIGH COURT OF UTTARANCHAL AT NAINITAL

Writ Petition no. 79 of 2006 (SS)

Pratap Singh s/o Sri Kitar Singh Village Uthadukh P.O. Syakot, District Bageshwar

…………. Petitioner

Versus

1.Secretary Public Works Department, Govt. of

Uttaranchal

2.Chief Engineer/Engineer in Chief, Dehradun 3.Chief Engineer (Parvatiya Samanvya) P.W.D. Almora 4.Executive Engineer Prantiya Khand P.W.D. Pithoragarh …………. Respondents 3.Chief Engineer (Parvatiya Samanvya) P.W.D. Almora 4.Executive Engineer Prantiya Khand P.W.D. Pithoragarh …………. Respondents

…………. Respondents

Writ Petition no. 496 of 2002 (SB)

Doobar Singh s/o Sri Laxman Singh & 49 others, Beldar Sinchai Khand, Haldwani

…………. Petitioners

Versus

1.State of Uttaranchal

2.The Chief Engineer, Uttaranchal Irrigation Department, Irrigation Bhawan, Dehradun Irrigation Bhawan, Dehradun

3.Chief Engineer, North Irrigation Department, Uttaranchal, Haldwani Uttaranchal, Haldwani

4.Superintending Engineer, Irrigation Works Circle, Nainital Nainital

5.Executive Engineer, Irrigation Division, Rudrapur

6.Executive Engineer, Irrigation Division,Haldwani

7.Executive Engineer, Tarai Irrigation Division, Nainital ………… Respondents ………… Respondents

Writ Petition no. 322 of 2004 (SS)

Prantiya Sinchai Niyamati Karya Prabhari Dainik Shramik Mahaparisar, Uttaranchal through Its General Secretary Sesh Nath yadav Kulhal,

Dehradun

…………. Petitioners

Versus

1.Secretary Irrigation Department, uttaranchal

2.Chief Engineer & Head of the Department, Irrigation Department, Uttaranchal Department, Uttaranchal

3.Chief Engineer, Yamuna Pariyojna, Dehradun 4.Executive Engineer Surang Evam Vidyut Grah Div. I, Dakpathar, Dehradun 4.Executive Engineer Surang Evam Vidyut Grah Div. I, Dakpathar, Dehradun

5. Executive Engineer Dakpathar Basti Evam Sanchar Khand Dakpathar, Dehradun Khand Dakpathar, Dehradun

6.Executive Engineer, Yamuna Nirman Khand I Dehradun 7.Executive Engineer, Lakhwar Colony Khand Dakpathar, Dehradun 7.Executive Engineer, Lakhwar Colony Khand Dakpathar, Dehradun

8.Executive Engineer, Shakti Nahar Nirman Khand II Dekpathar, Dehradun Dekpathar, Dehradun

9.Executive Engineer Koti Awas Evam Sanchar Khand, Dakpathar Dehradun Dakpathar Dehradun

10.Executive Engineer, Anusandhan Evam Niyojan Khand Badkot, Dehradun …………. RespondentsBadkot, Dehradun …………. Respondents

Writ Petition no. 1689 of 2002 (SB)

Mani Prasad s/o Sri Dhan Prasad & 67 others, Beldar Sinchai Khand, Haldwani …………. Petitioners

Versus

1.State of Uttaranchal

2.The Chief Engineer, Uttaranchal Irrigation Department, Irrigation Bhawan, Dehradun Irrigation Bhawan, Dehradun

3.Chief Engineer, North Irrigation Department, Uttaranchal, Haldwani Uttaranchal, Haldwani

4.Superintending Engineer, Irrigation Works Circle, Nainital Nainital

5.Executive Engineer, Irrigation Division, Rudrapur

6.Executive Engineer, Irrigation Division, Haldwani

7.Executive Engineer, Tarai Irrigation Division, Nainital 8.Superintending Engineer, Irrigation Works Circle Haldwani 8.Superintending Engineer, Irrigation Works Circle Haldwani

9.Executive Engineer, Irrigation Division Almora 10.Executive Engineer, Irrigation, Kashipur 10.Executive Engineer, Irrigation, Kashipur

11.Executive Engineer, irrigation Division, Pithoragarh

12.Executive Engineer, Kosi Nirman Khand II, Ramnagar

13.Executive Engineer Jamrani Nirman KhandI Dhamvadhunga, Kathgodam, Haldwani Dhamvadhunga, Kathgodam, Haldwani 14.Executive Engineer Jamrani Nirman Khand III Dhamvadhunga, Kathgodam, Haldwani Dhamvadhunga, Kathgodam, Haldwani

…………. Respondents

Writ Petition No. 1384 of 2005 (SS)

1.Sabhal Singh s/o Sri Maya Ram, Nirman Khand, P.W.D. Barakot P.W.D. Barakot

2.Chandra Bahadur s/o Sri Nanhi, Nirman Khand,

P.W.D. Barkot

………. Petitioners

Versus

1.State of Uttaranchal

2.Chief Engineer Grade I P.W.D. Uttaranchal

3.Chief Engineer, Level II P.W.D. Garhwal

4.Superintending Engineer, P.W.D. Dehradun

5.Executive Engineer, Prantiya Khand 13thCircle P.W.D.

Uttarkashi

6.Executive Engineer, Nirman Khand P.W.D. Barkot

…………… Respondents

Writ Petition No. 1388 of 2004 (SS)

1.Jaman Singh s/o Sri Kharak Singh

2.Pan Singh son of Sri Jaman Singh

3.Mohan Singh s/o Sri Pratap Singh

4.Ramesh Chandra son of Sri Chandra Ballahbh All Beldar in P.W.D. Provincial Division, Nainital All Beldar in P.W.D. Provincial Division, Nainital

…….... Petitioners

Versus

1.State of Uttaranchal

2.Chief Engineer Grade I P.W.D. Uttaranchal

3.Executive Engineer, P.W.D. Nainital

4.State of U.P. through Principal Secretary, P.W.D. Lucknow Lucknow

5.Executive Engineer, Prantiya Khand 13thCircle P.W.D. Uttarkashi Uttarkashi

…………… Respondents

Writ Petition No. 1812 of 2005 (SS)

Mahesh chandra Tiwari s/o Jay Dutt Tewari Village Farsali, P.O. Farsali, District Bageshwar

Petitioners

Versus

1.State of Uttaranchal

2.Chief Engineer Grade I P.W.D. Uttaranchal

3.Chief Engineer, Kumaon Region, Almora

4.Executive Engineer, Nirman Khand P.W.D. Bageshwar ……… Respondents

Writ Petition No. 7168 of 2001 (SS)

Dinesh Chandra Purohit s/o Sri Moti Ram Purohit & 13 others employees of Sinchai Khand, Chamoli

……… Petitioners

Versus

1.State of Uttaranchal

2.Chief Engineer Uttaranchal, Irrigation Department, Dehradun Dehradun

3.Chief Engineer, Ganga Ghati Irrigation Department, Dehradun Dehradun

4.The Finance Secretary, Finance Department, Secretariat Dehradun Dehradun

5.Executive Engineer, Irrigation Karya Mandal, Srinagar

6.Executive Engineer, Sinchai Khand, Chamoli, District Chamoli …………. Respondents

Writ Petition No. 1023 of 2004 (SS)

1.Indrasan Kushwaha son of sri Ram Ji Kushwaha

2.Pooran Chandra Bhatt s/o Sri Jai Dutt

3.Devki Nandan Dalakoti s/o Heera Ballabh Dalakoti

All are work charge employees of P.W.D. Almora

4.Balwant s/o Late Jeet Singh

……….. Petitioners

Versus

1.State of Uttaranchal

2.Chief Engineer Grade I P.W.D. Uttaranchal

3.Executive Engineer Construction Division, P.W.D. Almora

4.State of U.P. through Principal Secretary P.W.D. U.P.

…………. Respondents

Sri Manoj Tewari, Advocate, Sri M.C. Pant, Advoate, Ganesh Kandpal, Advocate, Sri Alok Mehra, Advocate, Sri Ashish Rawat, Advocate, Sri J.C. Joshi, Advocate, Sri Anil Bisht, Advocate for the petitioners

Standing Counsel for the respondents.

Dated:30.3.2006

Hon’ble Rajesh Tandon, J.

Heard the learned counsel for the parties at length.

By the present writ petitions the petitioners have prayed for the issue of writ, order or direction in the nature of Mandamus directing the respondents not to impose ceiling on dearness allowance payable to the petitioners.

Briefly stated the petitioners are work charge employees

of Irrigation Department and Public Works Department. The

Government vide order dated 26.8.99 imposed ceiling on dearness allowance payable to the petitioners. Relevant paragraph of the said G.O. is quoted below:

fuEu izdkj iquZjhf{kr fd;s tkus dh Jh jkT;Ikky egksn; lg’kZ Lohd`fr iznku djrs gSaA

Further by order dated 1.2.01 while granting dearness allowance

the following ceiling was imposed:

&&a&&'kk0 la0 5892@9927fl788 22@91 fnukad 26-8-99 }kjk fu/kkZfjr lagr osru dh vf/kdre lhek ds vUrZxr gh dk;ZizHkkjh deZpkfj;ksa dks osru lhfer j[kk tk;sxkA

Similar ceiling was also imposed regarding payment of bonus to the work charge employees. Relevant paragraph of G.O. dated 1.3.2001 is quoted below:

dk;ZizHkkfjr deZpkfj;ksa dks nSfud osru Hkskxh deZpkfj;ksa dh HkkWfr cksul vuqeU; &gS vr% dk;ZizHkkfjr deZpkfj;ksa ds fy, ekfld ifjyfC/k;ksa 1200@izfrekg ekuh

tk;sxhA pkgs mudh okLrfod ifjyfC/k;kW tks Hkh gks bu deZpkfj;ksa dks ns; cksul dh /kujkf’k :0 1200 30@30-4vFkkZr :01181@ iw.kkZfdr gksxhA

The petitioners have submitted that ceiling imposed as mentioned above is in contravention of Articles 14 and 21 of Constitution of India and the same is liable to be declared as ultra virus to the Constitution of India.

The Division Bench of this Court has passed order on

10.5.2002 in Writ Petition No. 392 (SB) of 2002 to the following effect:

“Notice on behalf of the opposite parties has been accepted by the Chief Standing Counsel, who prays for and allowed four weeks time to file counter affidavit, list thereafter.

In the mean time, the opposite parties shall make payment of salary to the petitioners from the current month ignoring the ceiling prescribed.”

The purpose of dearness allowance is to neutralize increase in the costs of living due to rise in the price. Apex Court in the case of C.V.K.U. Sahakari Mandli vs. G.S. Barot, AIR 1980 SC 31, has defined the purpose of grant of dearness allowance. The observations are quoted below:

The law thus clear that dearness allowance is intended to neutralise portion of the increase in the cost of living. Though

100 per cent neutralisation is not advisable as it will lead to inflation, full neutralisation may be permissible only in the case of the lowest class of employees. The management is entitled to complain if the neutralisation is more than 100 per cent.

The dearness allowance cannot be clubbed with the pay. Pay is not bounty but it is right under Article 21 of the Constitution of India and it is also covered under Article 21 from the judgment of the Apex Court in the case Kapila Hingorani (supra).

The petitioners’ counsel also drew the attention of the Court towards the Government Order dated 1.1.2000 issued by the State of U.P. by which restriction imposed with regard to ceiling on dearness allowance on the work charge employees have been withdrawn. The Government order reads as under:

v/kksgLrk{kjh dks ;g dgus dk funsZ’k gqvk gS fd osru lfefr dh laLrqfr;ksa ij 'kklu }kjk le;d fopkjksijkUr ;g fu.kZ; fy;k x;k gS fd foRRkh; fu;e laxzg [k.M &6 ds izLrj 667] 668 o 669 esa dk;ZHkkfjr vf/k"Bku ls lEcfU/kr fu;qfDRk dh O;oLFkk dks lekIr fd;k tk,A vr% jkT;iky egksn; foRrh; fu;e laxzg [k.M &6 ds mDr izLrj 667] 668 o 669 dh O;oLFkk dks rkRdkfyd izHkko ls lekIr fd;s tkus dh Lohd`fr iznku djrs gSaA

Clause 668 of Work- charged Establishment Condition of

Employment reads as under:

668. In all cases previous sanction of the competent authority as laid down in Volume I of the Handbook or in the departmental manuals of orders is necessary which should specify in respect of each appointment (1) the consolidated rate of pay (2) the period of sanction, and (3) the full name (as given in the estimate) of the work and the nature of the duties on which the person engaged would be employed.”

The petitioner has also argued that there cannot be arbitrariness in the salary in as much as any curtailment of pay will amount to unequal treatment as held in the case of Kumari Shrilekha Vidyarthi etc. vs. State of U.P. & others AIR 1991 SC 537. The Apex Court has observed as under:

“The preamble of the Constitution of India resolves to secure to all its citizens Justice, Social economic and political and Equality of status and opportunity. Every State action must be aimed at achieving this goal. Part IV of the Constitution contains ‘Directive Principles of State Policy’ which are fundamental in the governance of the country and are aimed at securing social and economic freedoms by appropriate State action which is complementary to individual fundamental rights guaranteed in Part III for protection against excesses of State action, to realise the vision in the Preamble. This being the philosophy of the Constitution, can it be said that it contemplates exclusion of Art. 14 –non-arbitrariness which is basis rule of law- from State actions in contractual field when all actions of the State are meant for

public good and expected to be fair and just? We have no doubt that the Constitution does not envisage or permit unfairness or unreasonableness in State actions in any sphere of its activity contrary to the professed ideals in the Preamble. In our opinion, it would be alien to the Constitutional Scheme to accept the argument of exclusion of Art.14 in contractual matters. The scope and permissible grounds of judicial review in such matters and the relief which may be available are different matters but that does not justify the view of its total exclusion. This is more so when the modern trend is also to examine the unreasonableness of term in such contracts where the bargaining power is unequal so that these are not negotiated contracts but standard form contracts between unequal”

Apex Court in the case Kapila Hingorani vs. State of Bihar 2003 (7) AIC 18 SC has held that right to get salary is fundamental right and there cannot be any curtailment upon it. The Apex Court has held as under:

“The right to development in the developing countries is

itself human right. The same has been made part of WTO and GATT. In the Word Trade Organisation, Law, Practice, and Policy (Oxford) by Mathusushitaq Schoenbaum and Mauroidis at page 389, it is stated:

The United Nations has proclaimed the existence of human right to development. This right refers not only to economic growth but also to human welfare, including

health, education, employment social security, and wide-range of other human needs. This human right to development is vaguely defined as so-called third-generation human right that cannot be implemented in the same way as civil and political human rights. Rather, it is the obligation of states and intergovernmental organizations to work within the scope of their authority to combat popery and misery in disadvantaged countries.

The matter may be considered from another angle. While the State expects the industrial houses and multi national companies to take such measures which would provide decent file to the persons living in the society in general and to their employees in particular and in that premise it too much to ask the State to practice what it preaches ? This gives rise to another question. Can the State be so insensitive to the plight of its own citizens in general and the employee of the public Sector undertaking in particular ?

The Court in situation of this nature is obligated to issue necessary directions to mitigate the extreme hardship of the employees involving violation of human rights of the citizens of India at the hands of the State of Bihar and the government companies and corporations fully owner or

controlled by it. right to carry on business is subject to compliance of constitutional obligations as also limitations provided for in the Constitution.

Financial stringency may not be ground for not issuing

requisite directions when question of violation of fundamental right arises. This Court has been highlighting this aspect in the matters concerning fundamental rights and maintenance of ecology. See Rural Litigaton and Entitlement Kendra and others vs. State of Uttar Pradesh and others, AIR 1987 SC 359 Municiap Council Ratlam (1980)4 SCC 162 and B.L. Wadhera vs. Union of India AIR 1996 SC 2969. In All India Imam Organization and others vs. Union of India and others 1993 (3) SCC 584 this Court held:

…..Much was argued on behalf of the Union and the Wakf Boards that their financial position was not such that they can meet the obligations of paying the Imams as they are being paid in the State of Punjab. It was also urged that the number of mosques is so large that it would entail heavy expenditure which the Boards of different States would not be able to bear. We do not find any correlation between the two. Financial difficulties of the institution cannot be above fundamental right of citizen. If the Boards have been entrusted with the

responsibility of supervising and administrating the wakf then it is their duty to harness resources to pay those persons who perform the most important duty namely of leading community prayer in mosque the every purpose for which it is created.

………… ……………… ………………

The States of India are welfare States. They having regard to the constitutional provisions adumbrated in the Constitution of India and in particular Part IV thereof laying down the Directive Principles of the State Policy and Part IVA laying down the Fundamental Duties are bound to preserve the practice to maintain the human dignity.”

In the case Secretary, Haryana State Electricity Board vs. Suresh and others, 1999 (2) SLR 1, the Apex Court has held as under:

“In this context reference to the Constitution Bench decision of this Court in Nakara’s case (D.s. Nakara and others vs. Union of India, AIR 1983 SC 130, seems to be rather apposite. This Court stated that democratic socialism aims to end poverty, ignorance, disease and inequality of opportunity. The primary impact of socialism as matter of fact is to offer and provide security of life so that the citizens of the country may have two square meals day, and maintenance of

minimum standard of life, it is expected, would lead to the abridgement of the gap between the have-s and have not-s. The feudal exploitation and Draconian concept of law ought not to outweigh the basic structure of the Constitution, or its socialistic status.

Ours is socialist State as the Preamble depicts and the aim of socialism, therefore, ought to be to distribute the common richness and the wealth of the country in such way so as to sub-serve the need and the requirement

of the common man. Article3 39 is pointer in that direction. Each clause under the Article specifically fixes certain social and economic goal so as to expand the horizon of benefits to be accrued to the general public at large. In particular reference to Article 39 (a) it is seen that the State ought to direct its policies in such manner so that the citizens men and women equally, have the right of an adequate means of livelihood and it is in this perspective again that the enactment in the statute book as noticed above (The Contract Labour (Regulation & Abolition) Act 1970) ought to be read and interpreted so that social and economics justice may be achieved and the constitutional directive be given full play.”

Division Bench of Uttaranchal High Court in the case State of Uttaranchal and others vs. Pushkar Bhatt and others, 2006 (1) Uttaranchal Decision 587 has also held as under:

“In view of the logic and concept for payment of dearness allowances as laid down by the Hon’ble Apex Court quoted above, no ceiling limit can be fixed on the dearness allowance and since the Government has taken decision to pay the dearness allowance to the work charge employees, then it cannot fix ceiling limit thereon. Thus, the Government Order dated 26.8.1999 fixing the ceiling limit is contrary to the law laid down by the Hon’ble Apex Court which is law of the land under Article 141 of the Constitution of India and cannot be sustained.”

In view of the aforesaid facts and circumstances, writ of certiorari is issued quashing the Government order dated 26.8.1999 so far as it relates to the imposition of ceiling on dearness allowance and the respondents are directed to pay salary to the petitioners ignoring the ceiling prescribed.

Accordingly, writ petitions are allowed. There will be no order as to costs.

Dated: 30.3.2006 Rajesh Tandon, J.*Dhyani