REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3740   of 2019 (ARISING OUT OF S.L.P (C) NO. 15358 OF 2018)

SHRI N.K. JANU, ........APPELLANTS DEPUTY DIRECTOR      SOCIAL FORESTARY DIVISION,  AGRA AND OTHERS              

             Versus

LAKSHMI CHANDRA                          ........RESPONDENT

J U D G M E N T

Hemant Gupta, J.

Leave granted.

2. The  challenge  in  the  present  appeal  is  to  an  order  dated

16.02.2018  whereby  an  application  for  recall  of  the  order  dated

06.12.2017 dismissing the Review Application in default was dismissed.

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3. The case has a chequered history. The respondent initially filed a

Civil Misc. Writ Petition No. 36896 of 1992.  The said Writ Petition was

disposed  of  in  terms  of  the  judgment  of  the  Division  Bench  of

Allahabad High Court reported as State of U.P. and Others vs. Putti

Lal1.  The said judgment has been affirmed by this Court in State of

U.P and Others. vs. Putti Lal2 decided on 21.02.2002. This Court

held that the daily  wagers are entitled to minimum pay scale as is

being received by their counter-parts in the Government and would not

be  entitled  to  any  other  allowances  or  increment  so  long  as  they

continue as daily wagers. It was further ordered that since statutory

Rules,  namely,  the  Uttar  Pradesh  Regularisation  of  Daily  Wages

Appointments  on  Group  'D'  Posts  Rules,  20013 have  been  framed,

therefore, question of framing any further scheme by the State does

not arise.

4. The respondent again filed Civil Misc. Writ Petition No. 43443 of

2004 after  the  said  order  was  passed  by  this  Court.  The  said  Writ

Petition was disposed of on 23.10.2008 with the following directions:

“Rule  4  of  the  Uttar  Pradesh  Regularisation  of Daily  Wages  Appointments  on  Group  ‘D’  Posts Rules, 2001 has been interpreted by this Hon’ble Court  in  the  case  of  Visheshwar  Vs.  Principal Secretary, Forest Anubbhag-3 and this Court in the said case has held that in case the employee is working on the cut off date and is continuing as such  on  daily  wage  post  on  the  date  of

1 (1998)1UPLBEC 313 2 (2006) 9 SCC 337 3 Rules 2001

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proclamation  of  the  notification  of  the  aforesaid Rules,  he is  entitled for  regularisation,  inspite of the fact that the employee worked intermittently. In the instant case, the petitioner, as stated by the counsel  for  the  petitioner,  has  been engaged in the year 1983, though has worked intermittently, but regularly till  2001 and as such he is entitled consideration for  regularisation of  his  Service,  in view of  the  provision  of  Rule  4  of  the  aforesaid Rules as interpreted by this Court in the Case of Visheshwar Vs. Principal Secretary, Forest (Supra). In view of above, without going into the merits of the case the Opp. Parties are directed to consider the case of the petitioner in accordance with the provision  of  the  Uttar  Pradesh  Regularisation  of Daily  Wages  Appointments  on  Group  ‘D’  Posts Rules, 2001 for regularisation of his Services and with  regard  to  the  payment  of  minimum of  the regular pay scale in accordance with law as well as the law laid down by the Apex Court and by this Court  expeditiously,  preferably  within  three months from the date of presentation of a certified copy of this order.”

5. In  terms of  such order,  the Divisional  Director,  Social  Forestry

Division Agra, passed an order on 19.11.2008 that the respondent is

not eligible for regularisation/equal pay.  The relevant extract of the

order reads as under:  

“Because,  the  aforesaid  daily  wager  was  not found working continuously. Therefore, Sri Lakshmi Chandra  does  not  come  under  the  category  of eligibility  for  regularisation/equal  pay.  There  is  a clear cut direction in S.L.P No. 3393/1999, SLP No. 91/03,  01/95(Secretary  of  State  of  Karnataka  & Others Vs. Uma Devi) of Hon’ble Supreme Court, order dated 10.04.2005 that those persons whose appointment has been made without any selection procedure,  cannot  be  eligible  for  regularisation against permanent post.

Therefore,  after  due  consideration  the undersigned has decided that Sri Lakshmi Chandra

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S/o  Sri  Pati  Ram  is  not  found  eligible  for regularisation/equal  pay  and the  benefits  of  U.P. Daily  Wager  Appointment  Rules  2001  Group-D cannot be accrued to him.

Therefore,  his  representation  dated 06.11.2008 is hereby disposed off.”

6. The respondent instead of challenging the above order declining

the  claim  for  regularisation  and/or  minimum  of  pay  scale  filed  a

Contempt Application (C) No. 1632 of 2009.  In such Contempt Petition,

a notice was issued to the present appellants when the following order

was passed on 08.05.2009:  

“It  is  alleged  that  the  order  dated  23.10.2008 passed  by  this  Court  has  been  violated.  From perusal of the petition, a prima facie case is made out.

Issue notices to the opposite parties within a week  returnable  within  six  weeks.  The  opposite parties need not appear in person at this stage.

The counter affidavit may be filed within the aforesaid periods of else charges may be framed after summoning the notice.

However, one more opportunity is granted to the  opposite  parties  to  comply  with  the  order within a month, with the notices fixing a date after six weeks.”

7. It  is  thereafter,  on  29.06.2009  an  order  was  passed  by  the

appellants that Rs. 2550/- as minimum of pay scale of Rs.2550 – 3200/-

has  been  sanctioned  to  the  respondent.   Thereafter,  an  order  on

31.08.2009 was passed by the Court as to why the respondent is being

paid  minimum  monthly  wages  at  the  rate  of  Rs.  2550/-  though,

minimum pay scale of Group ‘D’ employees has been fixed to   Rs.

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6050/-.   Thereafter numerous orders were passed from time to time

seeking personal presence of the officers of the State.  An order was

passed  on  03.12.2009,  directing  the  Principal  Chief  Conservator  of

Forests,  U.P.  to  ensure  that  accurate  eligibility  and  seniority  list  be

drawn  up  in  all  the  divisions  and  be  finalised  after  hearing  the

incumbents. The said order reads as under:  

“ Heard learned counsel for the parties. The Principal Chief Conservator of Forests, U.P.

and  Principal  Secretary  (Forest)  are  present  in person.

The  Forest  Department  of  the  State  use  to employee daily wagers for execution of its work in various schemes and projects  and they continue for  decades  together.  The  issue  of  their regularisation  was  decided  by  this  Court  and affirmed by the Supreme Court which directed the State to frame a scheme for regularisation of such daily  wagers.  In  pursuance  thereof,  the Government  enacted  U.P.  Regularisation  of  Daily Wages  Appointments  on  Group  ‘D’  Posts  Rules, 2001.  Under  the  Rules  the  Authorities  were directed to draw an eligibility and seniority list for the  purposes  of  regularisation  and  the  selection committee was to take decision on its basis.

Issue of break in service was also considered by this Court in various writ petitions and it was held that if the incumbent has been working from the  cut  of  date  till  the  invoking  of  the  Rules  of 2001, though with breaks, he should be considered in  accordance  with  the  directions  given.  Large number  of  writ  petitions  had  been  filed  and allowed on the basis of the aforesaid Rules and the judgments. However, the Court has been flooded with  contempt  applications  alleging  non- compliance  in  letter  and  spirit.  In  various  cases this  Court  has  come  across  where  either compliance has been refused on imaginary ground or on the basis of fake seniority and eligibility list and even if compliance was made, citing paucity

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of  posts,  the  employee  was  given  only  the minimum scale.

This petition has been heard at length and on pointed  queries  the  officers  present  admit  that seniority and eligibility list has not been prepared in various divisions.  It  has also been brought on record that persons who had never worked in the department  have  also  been  appointed  and regularized:

The Principal Chief Conservator of Forests, U.P. shall ensure that accurate eligibility and seniority list is drawn up in all the divisions and be finalized after  hearing the incumbents and Court  be duly informed  on  the  next  date.  Reply  of  rejoinder affidavit be also filed.

List for further orders on 25.2.2010.”

8.    The said order was challenged by the appellants in Special Appeal

No.  215 of  2010 in  the  High  Court  of  Judicature  at  Allahabad.  The

Special Appeal No. 215/2010 was dismissed. The orders passed by the

High Court became subject matter of challenge before this Court.  This

Court in a judgment reported as Deputy Director, Social Forestry

Division and Another vs. Lakshmi Chandra4 directed the Principal

Secretary  to  the  Department  of  Forests,  U.P.  and  Principal  Chief

Conservator of Forests to file separate affidavits before the High Court

on the implementation of the orders to ensure that the wages are paid

to the workmen in terms of orders passed within three months. This

Court also requested the High Court to take into consideration all the

subsequent developments to reach a logical conclusion in terms of the

orders passed by this Court. The parties were directed to appear before

the High Court on 17.02.2016.

4 (2016) 4 SCC 721

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9.    The Contempt Application (C) No. 1632 of 2009 was again taken

up for hearing by the High Court on 30.3.2016. It was ordered that it is

no longer open to the Department to take plea that all the daily wage

employees, whether they have been considered for regularization or

not, are not entitled to the minimum of the pay scale. The plea of the

Department on the strength of Division Bench judgment in  State of

U.P. and Others vs. Chhiddi and Others5 may not be available in

view of the order of this Court.  

10. The  said  order  was  challenged  by  the  appellants  before  the

Division Bench in Special Appeal No. 261 of 2016 –  N.K. Janu and

Others vs. Lakshmi Chandra. The Court observed that the order in

Chhiddi’s  case  (supra)  is  contrary  to  another  Division  Bench

judgment  in  Chanchal  Kumar  Tiwari  and  Others  vs.  Shri  Hari

Shankar6 and that there is no occasion for the Court to intervene in

the matter now on the strength of order in Chhiddi’s case (supra) in

view of the order of the Supreme Court in Lakshmi Chandra’s case

(supra). It was observed that it is open to the State to approach this

Court to seek clarification. The Court observed as under:  

“The  Order  passed  by  Apex  Court  dated 02.02.2016, in effect clearly reflects for ensuring enforcement of orders passed on earlier occasion, in view of this in our considered opinion it is true that  there is  a  Division Bench judgement in  the case  of  State  of  U.P.  Vs.  Chhiddi  and  others, Special  Appeal  No.  1530  of  2007  that  takes altogether  contrary view to the judgment  in the case of Special Appeal No. 1205 of 2010, Chanchal

5  2016 (1) ALJ 226 (Special Appeal No. 1530 of 2007 decided on 24.09.2015) 6  (2011) ILLJ 581 All

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Kumar Tiwari Vs. State of U.P. In normal course of business, in case there are two judgments on the same subject  matter  holding  altogether  contrary directions, the matter would have been referred to Full  Bench  for  reconciliation  of  the  situation  but here fact of the matter is that matter is emanating out  of  an  order  passed  by  Apex  Court  dated 02.02.2016.

In view of this in the facts of the case once reliance  has  been  placed  by  the  State  on  the orders passed by Division Bench of this Court  in Special Appeal No. 1530 of 2007 to which it has been informed by Sri Pankaj Srivastava, Advocate that  review  application  has  already  been  filed. Once the order passed by learned Single Judge is in tune with the order passed by Apex Court,  in Civil Appeal No. 879-883, then there is no occasion for us to intervene with the said order,  and it  is always  open  to  the  State  and  its  agencies  to approach  Apex  Court  alongwith  clarificatory application in the light of the judgment passed by Division Bench on subsequent occasion in Special Appeal No. 1530 of 2007 so that situation may be reconciled.”

11. In terms of the liberty granted, the State filed IA 29-33 of 2016 in

Lakshmi  Chandra’s  case  (supra).  The  said  applications were

withdrawn on 25.07.2016. It is thereafter, the appellants filed Special

Leave to Appeal (C) No……. /2016 CC No. 25207 of 2016. The Special

Leave to Appeal was dismissed as withdrawn with liberty to approach

the High Court by filing Review Petition. The order reads as under:  

“After  some  arguments,  Mr.  Harin  P.  Raval, learned  Senior  Counsel  appearing  for  the petitioners,  seeks  permission  to  withdraw  this petition with liberty to approach the High Court by way of filing review petition to establish that the respondent  was not  continuously employed from 1992 to 2001.

Permission, as sought for, is granted.

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Accordingly,  the  special  leave  petition  is dismissed as withdrawn with the aforesaid liberty.”

12.   It  is thereafter, appellants filed a Review Petition No. 313796 of

2017 in the High Court of Judicature at Allahabad against the order dated

07.04.2016  passed  in  Special  Appeal  No.  261  of  2016.   The  Review

Petition along with an application for condonation of delay in filing of the

Review Petition was dismissed by the Allahabad High Court for want of

prosecution on 06.12.2017. It is the said application for recall of order

dated  06.12.2017  which  remained  unsuccessful  which  is  the  subject

matter of the challenge in the present appeal.  

13.     Learned  Senior  Counsel  for  the  appellants  argued  that  the

respondent has been paid minimum of pay scale and that he attained

the  age  of  superannuation  on  31.7.2018  and  stands  retired.  It  is

contended that  the  direction  of  this  Court  is  in  two parts-  (i)  to  pay

minimum of pay scale to all  daily wagers as per the direction of this

Court in Putti Lal’s case (supra) and (ii) to consider regularization of

the workers in terms of statutory Rules framed. Since the minimum of

pay scale stands paid to the respondent,  the dispute in such respect

does not survive.   

14.   However, in respect of regularization of the services, it is argued

that there is no evidence that the respondent has worked on daily wages

from  the  year  1994  to  2000  i.e.  for  approximately  seven  years.

Thereafter, he has worked intermittently from 2001 to 2003 as a daily

wager and that there is no record available that the respondent worked

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from December  2003.  Therefore,  his  claim for  regularization  was  not

accepted when an order was passed on 19.11.2008.  

15.    Once an order has been passed by the Department, it was open to

the respondent to challenge the said order by way of a Writ Petition, but

the Contempt Jurisdiction could not be invoked.  The Contempt Court is

to ensure that the order of the Court is complied with.  The order of the

Court  on  23.10.2008 was  to  consider  the  case of  the respondent  for

regularization of his services and for payment of minimum regular pay

scale.

16.     Since the appellants have considered the claim of regularization

and/or  payment  of  minimum  of  pay  scale,  the  only  remedy  of  the

respondent  was  by  way  of  the  Writ  Petition.   The  High  Court  has

exceeded the Contempt Jurisdiction to compel the officers of the State to

appear in court and in fact, the High Court travelled much beyond the

orders passed by the Single Bench on 23.10.2008.   

17.   It is contended by the learned Senior Counsel for the appellants

that the question of regularization has been considered by the Division

Bench  of  the  High  Court  in  a  judgment  in  Chhiddi’s  case  (supra)

wherein,  issue of  minimum of  pay scale  as  well  as  artificial  break  in

service was examined in the matter of regularization of the services in

terms of the Rules framed.  In respect of break in service the Court held

as under:  

“Thus,  for  all  the  reasons  stated  above,  the directions  issued  by  the  learned  Judge  on  17

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October  2005  to  the  State  Government,  while partly allowing the writ petitions, to reconsider the cases of the writ  petitioners for regularisation of their  services  by  ignoring  the  minimum educational  qualifications  or  the  physical endurance requirement prescribed in the service rules with a further direction that until then all the petitioners  who  were  still  working  should  be allowed to continue on a daily wage basis and be paid  the  minimum  of  the  pay-scale,  cannot  be sustained  and  are,  accordingly,  set  aside.  The State Government shall consider the cases of the daily wagers in the light of the observations made above and by ignoring the artificial breaks in their engagement as daily wagers.”

18.    Still  further,  Allahabad  High  Court  in  a  judgment  reported  as

Surendra Singh and Another vs. State of U.P. and Others7 held

that period of two years cannot be treated as an artificial break which

can be overlooked for the purpose of claim of regularization.  The Court

held as under:  

“The learned Judge found that in the chart giving details of the engagement of the writ petitioners as daily wagers, the column relating to working in the year 2001-02 was left blank and against the year  2013,  it  was  mentioned  that  both  the  writ petitioners were working from February 2003 and July  2003  respectively.  The  learned  Judge  also recorded  a  finding  that  the  writ  petitioners  had failed to discharge the burden of establishing that they were  working on daily  wages  in  the  Forest Department  during  the  relevant  period  and  the contention  of  the  writ  petitioners  that  they  had been working without payment of any wages was also  not  accepted  for  the  reason  that  it  was difficult to believe that the writ petitioners would be actually working for two years without payment of wages.

7 Special Appeal No. 1016 of 2005 decided on 24.9.2015

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Learned  counsel  for  the  appellants  has submitted that even if the writ petitioners had not worked for some period, then too the break should be treated as artificial break and should have been overlooked  for  the  purpose  of  considering  their claim for regularisation.

In the present case,  the writ  petitioners  had not worked on daily wage basis for a long period of two years. This break cannot be treated to be an artificial break in the service. The writ petitioners did  not  satisfy  the  essential  requirements contained in the 2001 Rules. They were, therefore, not  entitled  for  regularisation  under  the  2001 Rules.”

19.    The learned Single Bench of Allahabad High Court passed an order

reported as Visheshwar vs. Principal Secretary Forest Anubhag-3

and Others8,  wherein,  it  was held that artificial break in the case of

regularization has to be ignored.  The Court held as under:

“In all these cases, I find that the consideration for regularisation  was  denied  by  the  Selection Committee  on  the  ground  of  short  breaks  in service.   According  to  the  stand  taken  in  the counter  affidavit,  a  policy  was  adopted  at  the Divisional Level to exclude all those persons, who had  not  contemplated  240  days  of  work  in  one calendar  year.  This  consideration  in  my  opinion was wholly arbitrary as we are not dealing with the question  of  retrenchment  under  the  Industrial Disputes Act, 1947.  On the contrary I find that in Allahabad  Division  the  Conservator  of Forest/Regional  Director,  Social  Forestry,  U.P. Allahabad in the matter of similarly situate persons for regularisation ignored this policy and directed that  in  interpreting  the  word  ‘continuing  in service’, any short beak may be ignored with the condition  that  the  person  has  been  employed subsequent on daily wages.  Sri M.C. Chaturvedi, Additional chief Standing Counsel submits that this order  was  immediately  recalled.  Sri  Pankaj

8 Civil Misc. Writ Petition No. 47568 of 2002 decided on 29.11.2004

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Srivastava submits that even alien recalling of the order,  the  regularisation  obtained  with interpretation  given  in  the  order  were  not cancelled. Be that as it may, since I am the holding that an artificial break in case of regularisation has to be ignored I need not to decide this question.”

20.     The said order was also a subject-matter of challenge in Special

Appeal  No.  305 of  2015.  The Court  allowed the  appeal  in  respect  of

payment  of  minimum pay  scale  but  upheld  the  finding  in  respect  of

break in service.  The relevant extract from the order reads as under:

“The writ petitioner had contended that there was no  justification  for  excluding  his  case  for regularisation under the Rules only for the reason that  there  were  some  breaks  in  service  while working as daily wagers. The learned Judge held that  artificial  breaks  have  to  be  ignored  and, therefore, directed the respondents to consider the case of the writ petitioner for regularisation afresh. It was further directed that in case the petitioner was still  in employment, he should be continued and should be paid the minimum of the pay scale till his case was considered as had been directed by the Supreme Court in State of U.P & Ors. Vs. Putti Lal.

Learned Additional  Advocate  General  for  the appellants has stated that the appellants are not aggrieved by the direction issued for ignoring the artificial breaks in the service but the direction by the learned Judge to pay the minimum of the pay scale to the writ petitioner should be set aside.”

21.    Thus, we find that the grievance regarding regularization of the

service on account of a break in service could not have been taken up in

Contempt proceedings, when such issue has attained finality in the High

Court.   

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22.     Having said so, we find that the High Court was not justified in

passing orders from time to time to secure presence of the officers. The

officers of the State discharge public functions and duties.  The orders

are  generally  presumed  to  be  passed  in  good  faith  unless  proved

otherwise.   The officers  pass  orders  as  a  custodian of  public  money.

Therefore, merely because an order has been passed, it does not warrant

their  personal  presence.  The  summoning  of  officers  to  the  court  to

attend proceedings, impinges upon the functioning of the officers and

eventually it is the public at large who suffer on account of their absence

from the duties assigned to them. The practice of summoning officers to

court is not proper and does not serve the purpose of administration of

justice in  view of  the  separation  of  powers  of  the  Executive  and the

Judiciary. If an order is not legal, the Courts have ample jurisdiction to set

aside such order and to issue such directions as may be warranted in the

facts of the case.

23.       In  view  of  the  above  discussion,  we  find  that  the  entire

proceedings  in  Contempt  Application  No.  1632  of  2009  are  wholly

unjustified and in excess of jurisdiction vested with the Contempt Court.

Consequently,  the  appeal  is  allowed and the Contempt  Application  is

dismissed.  

……..….…………………………………J. (SANJAY KISHAN KAUL)

….………….…………………………..J.     (HEMANT GUPTA)

New Delhi April 10, 2019.

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