STATE OF U.P. AND ORS.versusU.P. MADHYAMIK SHIKSHA PARISHAD SHRAMIK SANGH

                STATE OF U.P. AND ORS.                                          A
                          v.
                                        •
   U.P. MADHYAMIK SHIKSHA PARISHAD SHRAMIK SANGH
                      ANDANR.

                           NOVEMBER 6, 1995
                                                                                B
              [K. RAMASWAMY AND B.N. KIRPAL, .J.l.j

      S eroice Law : .

      Daily Wagen-Claim for equal pay for equal work and regulmisa-
tion-High Cowt allowing the claim and directing State Govemment to
                                                                                c
regulmise claimants by creating appropliate post;-Held, order of High Cowt
not justified-Creation of posts is an adniinistrative procedure and a 1natter
of executive policy-Approp1iate course would be to consider daily wager.< for
regula1isation on the basis of their senio1ity and pe1fol1nance as and when
regular posts are created or fall vacant---Ordered accordingly.                 D
      The U.P. Madhyamik Shiksha Parishad engaged daily wagers in
class-IV sen·ice for doing the manual work during the examinations con-
ducted by it. The respondent-Union filed a writ petition before the High
Court claiming regularisation of daily wagers and pay emol•1ments to them
equal to regular class IV employees. The High Court allowed the writ            E
petition. Aggrieved, the State Government filed the appeal by special leave.

      Allowing the appeal, this Court

      HELD : I. The High Court was not justified in directing the appel-
lants to pay _equal 'pay fcir ·equal work and also regularisation of the        F
services of the daily wagers by creating appropriate posts. [782-F]

      2.1. It is an administrative procedure that creation of a post is a
condition for filling up the post on permanent basis. The exigencies 9f the
administration and the need for the creation of number of posts are G
matters of executive policy by the appropriate government. [782-G]

       2.2. Unless the posts are created, the daily wagers are not entitled to
be fitted into any regular post nor are they entitled to equal wages though
the performance of the manual duty may be like the duty of regular class
IV employees. [783-A]                                                          H
                                      781
    782                      SUPREME COURT REPORTS [1995] SUPP. 4 S.C.R.

A         2.3. In the circumstances, the appropriate course would be that as
    and when regular posts are created or posts ran vacant, the daily wage
    employees, on the basis of their seniority, length of service and performance
    of work, may be considered for regularisation according to appellant 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
B determined by the District Magistrate from time to time. (783-D-E]

            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 10282 of
    1995.


c Court From  the Judgment and Order dated 20.5.93 of the Allahabad High
        in C. Misc. W.P. No. 14781 of 1990.

            D.V. Sehgal and R.B. Misra for the Appellants.

            R.D. Upadhyay for the Respondents.
D           The following Order of the Court was delivered :

            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
E
    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 regularisa-
F   tion of their services by creating appropriate posts, we think 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 administra-
G   tion 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 envelops and shifting of answer books etc. the
    daily wagers are engaged and a sum of Rs. 25 per day was being paid as
H   fixed by the Dist!. Magistrates of Allahabad under the Minimum Wages
               STAIB v. U.P. MADHYAMIKSHIKSlIA PARISHAD SHARMIKSANGH.          783

..._,   Act, Unless the posts are created, they are not entitled to be fitted into any A
        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 vacaµt posts available in Class IV and they are
        filled up by appointing them to these posts on daily wages performing the B
        same duties of regular employees, perhaps there may be justification for
        issuing directions for regularisation of their services according to relevant
        rules and payment of the salary 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.                                                                C
               It is stated in paragraph S(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 D
        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 perfor-
        mance of work, may be considered for 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 E
        determined by the District Magistrate from time to time.

               The appeal is accordingly allowed. No costs.

        R.P.                                                      Appeal allowed.