TMI Blog2009 (8) TMI 1270X X X X Extracts X X X X X X X X Extracts X X X X ..... eunder the writ petition filed on behalf of the respondents has been allowed. 3. Respondents herein were appointed in different capacities by the Public Health Department of the State of Punjab. They were admittedly appointed as daily wager. Only some of them were appointed after their names were requisitioned from the Employment Exchange. No recruitment process was followed. Constitutional norm of equality contained in Articles 14 and 16 of the Constitution of India had not been adhered to. They were paid wages in terms of the offer of appointment made to them. Their names were being maintained in the Muster Roll. 4. Inter alia, on the premise that the respondents have put in a number of years of service and they were entitled to the benefit of equal pay for equal work, they filed several writ applications. 5. By reason of the impugned judgment, the said writ applications were allowed. 6. Relying on or on the basis of a Full Bench decision of the said Court in Ranbir Singh v. State of Haryana 1998 (2) SCT 189, the High Court opined: In view of the fact that petitioners who are similarly situated like the present petitioners have been granted the relief, we see no re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equal identity of group but also the complete and wholesale identity. 8. Mr. Manoj Swarup and Mr. Nidhesh Gupta, learned Counsel appearing on behalf of the respondents, on the other hand, urged that the respondents having worked for a long time and as their counter-parts in different departments who were absolutely similarly situated had filed the writ applications and they have been granted reliefs, there is absolutely no reason as to why they should be differently treated. . 9. In this connection, our attention has been drawn to the order dated 18.4.2009 passed by a Division Bench of the High Court of Punjab Haryana passed in civil Writ Petition No. 6162 of 1995 [Gurcharan Singh Kahlon and Ors. v. State of Punjab and Anr.], wherein it was held as under: For the aforementioned reasons, we allow the writ petition and direct the respondents to pay to the petitioners salary in the regular pay scale by fixing their pay at the minimum of that pay scale with effect from the date of the filing of this writ petition i.e. 26.4.1995. The petitioners shall get the benefit of dearness allowance on the minimum of regular pay scale. Arrears shall be paid to the petitioners within fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision in the case of Secretary, State of Karnataka and Ors. v. Uma Devi (3) and Ors. (2006) 4 SCC 1, scheme has been prepared and by virtue of that scheme now the services of those persons who have put in 10 years of service as on 10.4.2006 shall be regularized; the employee fulfils the minimum basic qualifications for the post against which he was appointed, it shall be certified by the competent authority that no supernumerary posts were created to retain the employees in service; and it shall be the duty of the Administrative Department that while considering the case of each employee, the orders passed by this Court to be implemented that no further appointment shall be made except in accordance with law. Since the scheme has now been framed and the State of Punjab has started considering the regularization of all those persons who have put in 10 years of service as on 10.4.2006, therefore, no useful purpose will be served by interfering with the impugned order. More so, these persons are already getting minimum pay scale from 1996. It will not be proper to put the clock back. However, learned Counsel has invited our attention to the decision of this Court in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for fixing different pay scale. Where the mode of recruitment, qualification and promotion are totally different in the two categories of posts, there cannot be any application of the principle of equal pay for equal work. 13. In a given case, mode of selection may be considered as one of the factors which may make a difference. {See State of Haryana v. Charanjit Singh (2006) 9 SCC 321 Para 15}. (2) Daily wager working for a long time should be granted pay on the basis of the minimum of a pay scale. Reliance in this behalf has been placed on Secretary, State of Karnataka and Ors. v. Uma Devi (3) and Ors. (2006) 4 SCC 1. It was furthermore urged that this Court should follow the principle laid down by the Constitution Bench in Uma Devi as such a relief had been granted by it in respect of daily wagers of the Commercial Taxes Department. 14. The learned Counsel submitted that this Court lately, although made a distinction between a direction to regularize the employees who had been working for some time, but keeping in view the constitutional mandate contained in Article 39A of the Constitution of India directed grant of a salary on a scale of pay, particularly in cases wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se that their duties and functions are similar to those performed by regular employees. In the opinion of the High Courts, similarity in the nature of work of the company- paid staff on the one hand and regular employees on the other hand, is by itself sufficient for invoking the principle of equal pay for equal work. In our view, the approach adopted by the High Courts is clearly erroneous and directions given for bringing about parity between the company-paid staff and regular employees in the matter of pay, allowances, etc. are liable to be upset. 17. Upon noticing the history, it was opined: 100. As mentioned earlier, the respondents were employed/engaged by the Official Liquidators pursuant to the sanction accorded by the Court under Rule 308 of the 1959 Rules and they are paid salaries and allowances from the company fund. They were neither appointed against sanctioned posts nor were they paid out from the Consolidated Fund of India. therefore, the mere fact that they were doing work similar to the regular employees of the Offices of the Official Liquidators cannot be treated as sufficient for applying the principle of equal pay for equal work. Any such direction will c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lerk etc. as is required by the regular employees, this Court may issue similar directions as was done by the Constitution Bench in Uma Devi. 21. In any event, Mr. Gupta contended that a circular letter having been issued by the State itself that any direction issued by the High Court to grant pay on a regular pay scale should be implemented across the board, there was no reason as to why the State would refrain from applying the said principle in the case of the respondents. 22. Mr. Kapoor, appearing for the appellants in CA No. 7466 had also drawn our attention to the fact that although the writ petition has been dismissed, still a special leave petition has been filed. 23. In our constitutional scheme, the doctrine of `equal pay for equal work' has a definite place in view of Article 39(d) of the Constitution of India read with Article 14 thereof. Although as an abstract principle the existence of the applicability of the said doctrine cannot be ignored, the question which arises for our consideration is as to whether the said doctrine could have been mechanically applied as has been done by the High Court in the instant case. 24. We must also place on record the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity, educational qualification, mode of appointment, etc. and it has a cascading effect. Hence, in subsequent decisions of this Court the principle of equal pay for equal work has been considerably watered down, and it has hardly ever been applied by this Court in recent years. X X X 35. In our opinion fixing pay scales by courts by applying the principle of equal pay for equal work upsets the high constitutional principle of separation of powers between the three organs of the State. Realising this, this Court has in recent years avoided applying the principle of equal pay for equal work, unless there is complete and wholesale identity between the two groups (and there too the matter should be sent for examination by an Expert Committee appointed by the Government instead of the court itself granting higher pay). 26. The Bench in arriving at the said finding specifically relied upon a three Judge Bench decision of this Court in Charanjit Singh (supra), wherein it was held: 9. In State of Haryana v. Tilak Raj it has been held that the principle of equal pay for equal work is not always easy to apply. It has been held that there are inherent difficulties in comparing and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ork is not an abstract doctrine and is capable of being enforced in a court of law. But equal pay must be for equal work of equal value. The principle of equal pay for equal work has no mechanical application in every case. Article 14 permits reasonable classification based on qualities or characteristics of persons recruited and grouped together, as against those who were left out. Of course, the qualities or characteristics must have a reasonable relation to the object sought to be achieved. In service matters, merit or experience can be a proper basis for classification for the purposes of pay in order to promote efficiency in administration. A higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues is also an acceptable reason for pay differentiation. The very fact that the person has not gone through the process of recruitment may itself, in certain cases, make a difference. If the educational qualifications are different, then also the doctrine may have no application. Even though persons may do the same work, their quality of work may differ. Where persons are selected by a Selection Committee on the basis of merit with due regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t which will govern the terms and conditions of service. In State of Haryana v. Surinder Kumar persons employed on contract basis claimed equal pay as regular workers on the footing that their posts were interchangeable. It was held that these persons had no right to the regular posts until they are duly selected and appointed. It was held that they were not entitled to the same pay as regular employees by claiming that they are discharging the same duties. It was held that the very object of selection is to test the eligibility and then to make appointment in accordance with the rules. It was held that the respondents had not been recruited in accordance with the rules prescribed for recruitment. 27. This Court, in particular, noticed a decision of another three Judge Bench in Government of W.B. v. Tarun K. Roy and Ors. (2004) 1 SCC 347 in which one of us (S.B. Sinha, J.) was a Member, to hold: 36. It is well settled by the Supreme Court that only because the nature of work is same, irrespective of educational qualification, mode of appointment, experience and other relevant factors, the principle of equal pay for equal work cannot apply vide Govt. of W.B. v. Tarun K. Roy. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ranjit Singh (supra). The High Court in the impugned judgment even refused to consider this aspect of the matter and chose to adopt a short cut. 32. Mr. Swarup may or may not be entirely correct in projecting three purported different views of this Court having regard to the accepted principle of law that ratio of a decision must be culled out from reading it in its entirety and not from a part thereof. It is no longer in doubt or dispute that grant of the benefit of the doctrine of `equal pay for equal work' depends upon a large number of factors including equal work, equal value, source and manner of appointment, equal identity of group and wholesale or complete identity. 33. This Court, even recently, in Union of India and Anr. v. Mahajabeen Akhtar (2008) 1 SCC 368, categorically held as under: 9. The question came to be considered in a large number of decisions of this Court wherein it unhesitantly came to the conclusion that a large number of factors, namely, educational qualifications, nature of duty, nature of responsibility, nature of method of recruitment, etc. will be relevant for determining equivalence in the matter of fixation of scale of pay. (See Secy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Technology v. Manoj K. Mohanty and Govt. of W.B. v. Tarun K. Roy has reiterated that the doctrine of equal pay for equal work is not an abstract doctrine and is capable of being enforced in a court of law. Inter alia, observing that equal pay must be for equal work of equal value and that the principle of equal pay for equal work has no mathematical application in every case, it has been held that Article 14 permits reasonable classification based on qualities or characteristics of persons recruited and grouped together, as against those who are left out. Of course, the qualities or characteristics must have a reasonable relation to the object sought to be achieved. Enumerating a number of factors which may not warrant application of the principle of equal pay for equal work, it has been held that since the said principle requires consideration of various dimensions of a given job, normally the applicability of this principle must be left to be evaluated and determined by an expert body and the court should not interfere till it is satisfied that the necessary material on the basis whereof the claim is made is available on record with necessary proof and that there is equal work o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inued to give employment, specifically interdicted by the orders issued by the executive. Some of the appointing officers have even been punished for their defiance. It would not be just or proper to pass an order in exercise of jurisdiction under Article 226 or 32 of the Constitution or in exercise of power under Article 142 of the Constitution permitting those persons engaged, to be absorbed or to be made permanent, based on their appointments or engagements. Complete justice would be justice according to law and though it would be open to this Court to mould the relief, this Court would not grant a relief which would amount to perpetuating an illegality. X X X 53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Constitutional scheme is wholly impermissible, the Court had issued certain directions relating to the employees in the services of Commercial Taxes Department as noticed hereinbefore. The employees of the Commercial Taxes Department were in service for more than 10 years. They were appointed in 1985-1986. They were sought to be regularized in terms of a scheme. Recommendations were made by the Director, Commercial Taxes for their absorption. It was only when such recommendations were not acceded to, the Administrative Tribunal was approached. It rejected their claim. The High Court, however, allowed their prayer which was in question before this Court. It was stated: It is seen that the High Court without really coming to grips with the question falling for decision in the light of the findings of the Administrative Tribunal and the decisions of this Court, proceeded to order that they are entitled to wages equal to the salary and allowances that are being paid to the regular employees of their cadre in government service with effect from the dates from which they were respectively appointed. It may be noted that this gave retrospective effect to the judgment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... That would be the extent of the exercise of power by this Court under Article 142 of the Constitution to do justice to them. 39. We, therefore, do not see that any law has been laid down in paragraph 55 of the judgment. Directions were issued in view of the limited controversy. As indicated, the State's grievances were limited. 40. Reliance placed by Mr. Gupta on Haryana State Minor Irrigation Tubewells Corpn. v. G.S. Uppal (2008) 7 SCC 375 at 384 is equally meritless. In that case, the question involved was application of the recommendations of the Pay Revision Committee. As a discriminatory treatment was meted out to the appellants therein, this Court interfered opining that the decision of the Government is unreasonable, unjust and prejudicial. 41. Further contention of Mr. Gupta is that his clients had been appointed upon undertaking the due process of recruitment. It was not so, as while making appointments, the recruitment rules had not been followed. There had been no advertisement. How and in what manner the names were called from the employment exchange has not been disclosed. Ordinarily a large number of people would not be interested in applying for appoint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the regularly appointed persons which having not been specifically controverted opined as under: However, no material has been placed before this Court to show as to what is the real difference between the duties being performed by the petitioners (daily wagers) and regular employees. The statement containing the date of joining of the petitioners shows that all of them have rendered service between one to eleven years as on the date of the filing of the petition. The fact that they are continuously in service has not been controverted by the respondents. therefore, merely because 64 petitioners have remained absent for different durations cannot be a ground for taking the view that all the 973 petitioners are discharging duties without proper responsibility. Absence from duty may constitute a misconduct but that by itself cannot lead to an inference that whole body of employees does not discharge its duties with responsibility. In fact on a query made by the court, learned Deputy Advocate General stated at the bar that the Government is not in a position to dispense with the services of the petitioners because the same are necessary for maintaining the distribution and supply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... criticized by this Court in Official Liquidator (supra). We are bound by the law laid down therein. 49. We, therefore, are of the opinion that the interest of justice would be subserved if the State is directed to examine the cases of the respondents herein by appointing an Expert Committee as to whether the principles of law laid down herein, viz., as to whether the respondents satisfy the factors for invocation of the decision in Charanjit Singh (supra) in its entirety including the question of appointment in terms of the recruitment rules have been followed. It has a positive concept. 50. We would, however, before parting make an observation that the submission of the learned Counsel that only because some juniors have got the benefit, the same by itself cannot be a ground for extending the same benefit to the respondents herein. It is now well known that the equality clause contained in Article 14 should be invoked only where the parties are similarly situated and where orders passed in their favour is legal and not illegal. It has a positive concept. 51. However, as writ petition No. 14045 of 2001 was dismissed as it had become infructuous, the special leave petition ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
