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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.