Gujarat High Court
Shah Samir Bharatbhai vs State Of Gujarat on 5 July, 2023
Author: Rajendra M. Sareen
Bench: Rajendra M. Sareen
C/SCA/11567/2018 JUDGMENT DATED: 05/07/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11567 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN Sd/-
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SHAH SAMIR BHARATBHAI & 17 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MS NAMRATA HARISHBHAI CHAUHAN(6534) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,2,3,4,5,6,7,8,9
MR MEET THAKKAR AGP for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 05/07/2023
ORAL JUDGMENT
1. By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for the following main reliefs :
Page 1 of 37 Downloaded on : Tue Jul 11 20:33:27 IST 2023C/SCA/11567/2018 JUDGMENT DATED: 05/07/2023 "11(A). Your Lordships may be pleased to grant pay scale and other benefits to the petitioners equivalent to minimum of the pay scale of Asst. Professor appointed on Regular basis and to grant them the Pay and Pay-
scales and Annual increments and all other benefits at part with them, with effect from the dates of their initial appointments and to direct the respondents to give all the consequential benefits to the petitioners, including the monetary benefits and arrears in view of principle of "equal pay for equal work"
in State of Punjab. v. Jagjit Singh, (2017) 1 SCC 148.
(B). Your Lordships may be pleased to issue a direction to the Respondents that the Petitioners should be provided the benefit of revised pay scale from time to time.
(C). Your Lordships may be pleased to direct the respondents, their agents and servants not to terminate the services of the petitioners and not to alter their service conditions in any manner adverse to them until all the sanctioned vacancies of Asst. Professor in the Government. Degree Engineering Colleges are duly and fully filled up by the candidates selected and recommended by GPSC.
(D). Your Lordships may be pleased to direct the respondents, their agents and servant to give all the benefits as per the Circulars dated 15/10/ 1992 and 20/7/1999 as are being granted to the Ad Hoc Asst. Professor (E). Your Lordships may be pleased to direct the respondents to give uniform treatment to Page 2 of 37 Downloaded on : Tue Jul 11 20:33:27 IST 2023 C/SCA/11567/2018 JUDGMENT DATED: 05/07/2023 all the Contractual Asst. Professor at par with the Ad Hoc Professor in the matter of issuance of monthly salary-slips, religious holidays, -
quarters, vacations, leaves, permission of higher studies of PHD and other courses and in all other matters; F. Pending the hearing and final disposal of this petition, Your Lordships may be pleased to direct respondent to grant pay scale and other benefits to the petitioners equivalent to minimum of the pay scale of Asst. Professor appointed on Regular basis in view of principle of "equal pay for equal work" as enunciated by Hon'ble Supreme Court in State of Punjab v. Jagjit Singh, (2017) 1 SCC 148."
2. FACTS :
2.1. It is the case of the petitioners that the petitioners herein are appointed as Asst. Professor in Government Engineering Colleges on contractual basis for a period of 11 months or till the vacancies are filled up by GPSC. The petitioners have continued to remain in service for past more than six years in as much as GPSC is not able to make regular appointments of Asst. Professor in Government Engineering Colleges.
2.2. It is the case of the petitioners that all these Petitioners are duly qualified to be appointed on regular basis as Assistant Professor. Some of the petitioners have even cleared GPSC exams and their names were appearing in the waiting list. Despite this, the petitioners herein continue to render services as Contractual employees since past more Page 3 of 37 Downloaded on : Tue Jul 11 20:33:27 IST 2023 C/SCA/11567/2018 JUDGMENT DATED: 05/07/2023 than six years in as much as sanctioned post in their respective discipline at their respective Government Engineering Colleges are not filled by GPSC.
2.3. It is further case of the petitioners that the scope of work and services of the petitioners are identical to that of regular Asst. Professor and/or Ad hoc Asst. Professor.
The petitioners are appointed at same post at same college and hold identical education qualifications to that of regular Asst. Professor and/or Ad hoc Asst. Professor. Despite such facts, petitioners herein are subjected to discriminatory, biased and illegal treatment. It the case of the petitioners that the petitioners are paid fixed pay of Rs. 30,000/- per month. Whereas Asst. Professors appointed on regular basis at the same post and same college, whose scope of work and services are identical to that of the Petitioners are paid much higher amount of Rs. 54236/- including all the perks. Likewise, Asst. Professors appointed on Ad hoc basis at the same post and same college are paid Rs.44540/-.
2.4. It is the case of the petitioners that such unequal pay for equal work is dehors the Constitution of India and various judgments pronounced by this Court as well as Hon'ble Supreme Court of India.
2.5. It is the case of the petitioners that the petitioners herein are not awarded any inflation rise, leave benefits. Not Page 4 of 37 Downloaded on : Tue Jul 11 20:33:27 IST 2023 C/SCA/11567/2018 JUDGMENT DATED: 05/07/2023 only those, the petitioners are working without any kind of rules, regulation, instructions or guidelines. The contract of the petitioners can be terminated at any time by the respondents without any kind of notice or due process of law.
Hence being aggrieved by discriminatory treatment accorded to petitioners in fixing, awarding and granting pay scales of employees that are similarly situated, the petitioners have preferred the present petition praying for the aforesaid reliefs.
3. Submissions of the petitioners :-
3.1. Ms.Namrata Chauhan, learned advocate for the petitioners has submitted that the action/inaction on the part of respondents in not granting equal pay for equal work and treating petitioner indiscriminately is violative of Article 14, 15, 16 and 19(1)(g) of the Constitution of India.
3.2. Ms.Namrata Chauhan, learned advocate for the petitioners has further submitted that it is a settled law that respondent cannot discriminate in the matter of fixing, awarding or granting pay scales to similarly situated employees. It is submitted that differential treatment meted out to employees is violative of Article 14 of the Constitution of India.Page 5 of 37 Downloaded on : Tue Jul 11 20:33:27 IST 2023
C/SCA/11567/2018 JUDGMENT DATED: 05/07/2023 3.3. Ms.Namrata Chauhan, learned advocate for the petitioners has further submitted that the scope of work and services of the Petitioners are identical to that of regular Asst. Professor and/or Adhoc Asst. Professor. The petitioners are appointed at same post at same college and hold identical education qualifications to that of regular Asst. Professor and/or Adhoc Asst. Professor. Under the circumstances, the petitioners ought to have been granted pay scale at par with the regular Asst. Professor.
3.4. Ms.Namrata Chauhan, learned advocate for the petitioners has further submitted that under the circumstances, the petitioners should not be discriminated with respect to Grade Pays, Dearness Allowance, Medical Allowance, Travel Allowance etc despite working on same post, same institute, same department, same appointing authority and having similar qualification. Such a indiscriminately treatment is clearly violative of Article 14, 15, 16 and 19 of the Constitution of India.
3.5. Ms.Namrata Chauhan, learned advocate for the petitioners has relied on the decision of the Hon'ble Supreme Court in the case of State of Punjab v. Jagjit Singh, (2017) 1 SCC 148, more particularly para 54. She has also relied upon the decision of the Hon'ble Supreme Court in the case of U.P. Land Development Corporation and another Vs. Mohammad Khurshed Anwar and Page 6 of 37 Downloaded on : Tue Jul 11 20:33:27 IST 2023 C/SCA/11567/2018 JUDGMENT DATED: 05/07/2023 another, reported in (2010) 7 SCC 739 wherein it is held that if the sanctioned posts are lying vacant, then even a contractual appointee is entitled to the minimum pay scale.
3.6. Ms.Namrata Chauhan, learned advocate for the petitioners has submitted that similar view has been taken by this Court in Special Civil Application No.8152 of 2015 and other allied petitions wherein in the similar facts, this Court has directed that the contractual lecturers shall be paid minimum of pay scale so far as the post of Lecturer is concerned with all other allowances attached to the same with effect from January, 2015. It is further submitted that the aforesaid order of the learned Single Judge was challenged before the Division Bench by filing Letters Patent Appeal No.1159 of 2017 and other allied appeals, however, the Division Bench of this Court dismissed the said appeals and confirmed the order passed by the learned Single Judge.
It is submitted that therefore, similar treatment is required to be given to the petitioners and the petition is required to be allowed.
4. Submissions of the respondents State :
4.1. Mr.Meet Thakkar, learned AGP for the respondents State of Gujarat has vehemently opposed the present petition. He has submitted that no case worth the name is Page 7 of 37 Downloaded on : Tue Jul 11 20:33:27 IST 2023 C/SCA/11567/2018 JUDGMENT DATED: 05/07/2023 made out for the grant of any of the reliefs prayed for in the writ applications. The main plank of submission on behalf of the State Government is that none of the writ applicants have undergone the regular recruitment process. They have not been appointed through the Gujarat Public Service Commission. They have been appointed by the Selection Committee. The Selection Committee is not constituted by the State Government. The Education Department of the Government permits the Commissioner of Technical Education to select the candidates and appoint them on the posts. The C.C.C. is also a must for seeking regular appointment on the post.
4.2. Mr.Meet Thakkar, learned AGP for the respondents State of Gujarat has further submitted that once the mode of appointment changes, the doctrine of "Equal pay, for equal work" would not apply. It is submitted that none of the writ applicants being the regular appointees are governed by the Gujarat Civil Service Rules. He has further submitted that in view of the clear and unambiguous constitutional scheme, the Courts cannot countenance appointments to the public office which have been made against the constitutional scheme. It is submitted that in the backdrop of the constitutional philosophy, it would be improper for the Courts to give directions for regularization of services of the person who is working either as daily wager, ad hoc employee, probationer, Page 8 of 37 Downloaded on : Tue Jul 11 20:33:27 IST 2023 C/SCA/11567/2018 JUDGMENT DATED: 05/07/2023 temporary or contractual employee, not appointed following the procedure laid down under Articles 14, 16 and 309 of the Constitution of India. He would submit that the Court may not frame or direct framing of a scheme for regularization of temporary employees.
4.3. Mr.Meet Thakkar, learned AGP for the respondents State of Gujarat has further submitted that the classification on the basis of mode of selection / recruitment for the purpose of wages is followed and in case of contractual employees, the salary would have to be paid in accordance with the terms and conditions contained in the letter of appointment. He has further submitted that the doctrine of legitimate expectation cannot be invoked by temporary employees to claim that they be made permanent and the fact that in certain cases, the Courts have directed that the employees be made permanent cannot be used to base a claim of legitimate expectation. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection, as recognized by the relevant rules or procedure, such person is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for Page 9 of 37 Downloaded on : Tue Jul 11 20:33:27 IST 2023 C/SCA/11567/2018 JUDGMENT DATED: 05/07/2023 selection and through the Public Service Commission 4.4. Mr.Meet Thakkar, learned AGP for the respondents State of Gujarat has further submitted that the mode of recruitment of the petitioners was different from the mode of recruitment of regular appointee.
Submitting accordingly, he has prayed to dismiss the present petition.
5. Heard the learned advocates for the respective parties at length.
5.1. It is pertinent to note that although the teaching is the last choice in the job market, yet it has become miserable as the Teachers are driven repeatedly to take recourse to unwarranted and fruitless litigation. The approach adopted by the State Government to appoint qualified Lecturers on ad hoc and contract basis for a specified period on a consolidated amount of remuneration against the regular sanctioned vacancies is once again the subject matter of adverse criticism. It is a crying shame and sad state of affairs that fully qualified Lecturers selected by the duly constituted Selection Committee on the basis of a public advertisement and fully qualified at a point of entry are serving as ad hoc and contractual Lecturers past couple of years.
Page 10 of 37 Downloaded on : Tue Jul 11 20:33:27 IST 2023C/SCA/11567/2018 JUDGMENT DATED: 05/07/2023 5.2. The explanation tendered by the State Government that the G.P.S.C. has not been able to undertake the regular recruitment process past couple of years is highly unpalatable. If the G.P.S.C. has no time to undertake the recruitment, then should the qualified Lecturers suffer for no fault on their part. There can be no quarrel about the proposition of law that the State Government has the power and authority to make contractual appointments within the meaning of Article 310(2) of the Constitution of India. However, what is absolutely not appealing is the distinction drawn between the ad hoc Lecturers appointed before the 28th May 2008 and those appointed after 28th May 2008. The status remains the same. The duties and functions remain the same. The qualification remains the same. The mode of appointment remains the same. Then why the discrimination between the two sets of ad hoc Lecturers so far as the salary and other allowances are concerned. I see no good reason or any justifiable legal ground to sustain the same. After the commencement of the Constitution, public employment has come to be recognised as a public property. Therefore, all appointments to the public services are required to be made in accordance with the rules and the equality contained under Articles 14 and 16 of the Constitution. The "doctrine of laissez-faire" is no more recognized in our country after the commencement of the Constitution and the employer, private as well as public, Page 11 of 37 Downloaded on : Tue Jul 11 20:33:27 IST 2023 C/SCA/11567/2018 JUDGMENT DATED: 05/07/2023 does not enjoy absolute freedom to dictate the terms of employment. The fact that short term contract of service is wholly unjust, unconscionable and against the very letter and spirit of the Constitution came to be determined by the Supreme Court in Central Inland Water Transport Corporation vs. Brojo Nath Ganguly and others [1986 (3) SCC 156]. In that case, the question was as to whether the power reserved by the employer to terminate the services of an employee without giving any reason and without giving any notice is void under Section 23 of the Contract Act as opposed to public policy. It was observed that the, "Courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted Page 12 of 37 Downloaded on : Tue Jul 11 20:33:27 IST 2023 C/SCA/11567/2018 JUDGMENT DATED: 05/07/2023 line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. The types of contracts to which the principle formulated above applies are not contracts which are tainted with illegality but are contracts which contain terms which are so unfair and unreasonable that they shock the conscience of the Court. They are opposed to public policy and require to be adjudged void." These observations of the Apex Court came to be made in the wake of the earlier decision in the case of West Bengal State Electricity Board v. Desh Bandhu Ghose [AIR 1985 SC 722=1985(1) SLJ 318 (SC)]. The decision in Brojo Nath Ganguly and another [AIR 1986 SC 1571] was approved by the Supreme Court in Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Ors., AIR 1991 SC 101 = 1991(1) SLJ 56 (SC).
5.3. It is well settled law that where the need is permanent, the practice of appointing a person on ad hoc or contractual basis would not be in consonance with the public policy. If the need is permanent, such action would not only be violative of concept of public policy but would also be violative of Articles 14 and 16 of the Constitution. The mere fact that the petitioners joined the service in terms of the condition would not stand in their way. The doctrine of waiver can have no application to the Page 13 of 37 Downloaded on : Tue Jul 11 20:33:27 IST 2023 C/SCA/11567/2018 JUDGMENT DATED: 05/07/2023 provision of law which have been enacted as a matter of constitutional policy.
5.4. The Supreme Court in the case of Andhra Kesari Education Society vs. Director of School Education and others [JT 1988 (4) SC 431] observed that the teacher is a spark plug or engine of the educational system. He is a principal instrument in awakening the child to cultural values. He is indeed endowed and energised with needed potential to deliver enlightened service expected of him. In State of Maharashtra vs. Vikash Saheb Rao Roundale and others [1992 (5) SSC 175], the Supreme Court observed that the teacher plays a pivotal role in moulding the career, character and moral fibres and aptitude for educational excellence in children. The concept of contractual appointment which may, as a matter of course, be adopted in other services cannot be taken recourse of in the matter of school / college teachers who have pivotal role to play in the society. In my view, they are not even debarred from challenging the inequitable, oppressive and unjustified conditions even though by force of circumstances they had accepted the engagement. I can appreciate that ad hoc or contractual appointments are made pursuant to a scheme framed by any Corporation or statutory body with some object and a decision is taken to discontinue the scheme. In such circumstances, the ad hoc or contractual appointment in the first instance may be Page 14 of 37 Downloaded on : Tue Jul 11 20:33:27 IST 2023 C/SCA/11567/2018 JUDGMENT DATED: 05/07/2023 justified and putting an end to the services also at times may be justified. However, in the case like the posts of Lecturer in the Engineering Colleges why should there be ad hoc and contractual appointment, more particularly, when there are hundreds of sanctioned vacant posts. Once again, at the cost of repetition, the reply of the State Government that it is for the G.P.S.C. to do the needful is not at all reasonable and acceptable. It is too much to say that past two decades, the G.P.S.C. has not been able to find sufficient time to undertake the recruitment. Whatever may have been the reason for not filling up the posts of Lecturers through the G.P.S.C., the same does not appear to be a part of the sound educational policy. It is high time that the administration, in the interest of education, pays immediate attention to this vital aspect of the matter. I do not find any difference between the ad hoc Lecturers appointed before the 28th May 2008 and the writ applicants herein appointed on ad hoc basis after the 28th May 2008. It may not be out of place to state that since 2009, there has been no ad hoc appointment, but only contractual on the fixed pay. The ad hoc Lecturers appointed before 28th May 2008 are receiving all the benefits which a regular Lecturer is receiving as on date, except the status which remans ad hoc. Why should the ad hoc Lecturers appointed after 28th May 2008 not be put on par with the ad hoc Lecturers before 28th My 2008.
Page 15 of 37 Downloaded on : Tue Jul 11 20:33:27 IST 2023C/SCA/11567/2018 JUDGMENT DATED: 05/07/2023 5.5. The above discussion, thus, leads to certain inescapable conclusions; first; that though the Government has the power and authority to make part time, contractual, ad hoc and temporary appointments for a fixed term and on fixed remuneration, yet the appointments of such a nature i.e. for short terms are not conducive to the teacher and taught relationship, as in its very nature, the teaching profession requires a close rapport between the teachers and students and continuity of relationship is a must for effective and useful education; secondly, the short term appointments for a specified period of the Lecturers have been termed as unjust, unfair, oppressive and violative of the constitutional mandate of equality as enshrined in Articles 14 and 16 of the Constitution; thirdly; the unemployed college Lecturers have no bargaining power; they cannot dictate the terms to be incorporated in the contract of employment. It is always the 'Will' of the employer which prevails. A teacher has no role to play in settling the terms and conditions of appointment. They cannot afford to protest against the arbitrary, unconscionable and one sided terms/conditions; on the other hand, their miserable condition and compelling circumstances, leave them with no choice but to accept the dictates of the employer, fourthly, the teachers are not estopped to challenge the arbitrary terms incorporated in Page 16 of 37 Downloaded on : Tue Jul 11 20:33:27 IST 2023 C/SCA/11567/2018 JUDGMENT DATED: 05/07/2023 the letter of appointment and they are entitled to question the validity, legality and propriety of the terms and conditions if a case is made out and are also entitled to seek regularization in service.
5.6. The claim of the Lecturers in the Colleges appointed on ad hoc, part- time, contractual or temporary basis for minimum salary in the scale admissible to the regular teachers has come up for adjudication in a series of decisions. The Supreme Court in the case of Vijay Kumar and others vs. State of Punjab [AIR 1994 SC 265], had the occasion to consider the case of the part-time Lecturers not gainfully employed elsewhere claiming minimum wages of pay scale prescribed for the regularly appointed teachers on the premise that quantitatively and qualitatively, they were performing the same duties as the regular Lecturers. The Supreme Court allowed the part-time Lecturers to draw the salary equivalent to the minimum of the pay scale prescribed for the regularly appointed Lecturers.
5.7. In the case of U.P. Land Development Corporation (supra). In that case, the respondents were employed on contract basis on a consolidated monthly salary of Rs.2000/- under the Million Wells Scheme. They were interviewed by the Selection Committee along with the other eligible persons and were found suitable for the Page 17 of 37 Downloaded on : Tue Jul 11 20:33:27 IST 2023 C/SCA/11567/2018 JUDGMENT DATED: 05/07/2023 job. Their contractual appointment was continued from time to time. Although they were employed on the contract basis, yet the fact was that two posts of the Assistant Engineers and one post of the Junior Engineer were vacant when they were engaged on the contract basis. The High Court held that the respondents were entitled to the regular pay scale on Rs.2,200-4,000/- meant for the posts of Assistant Engineer. The Corporation, being dissatisfied, preferred appeal before the Supreme Court. The Supreme Court, while allowing the appeal in part, took the view that the respondents were entitled to receive the minimum of the pay scale prescribed for the post of Assistant Engineer (as revised from to time) from the date of their appointment till they continued in the employment of the Corporation.
5.8. In Dayanand's case, reported in AIR 2008 SC (Supp) 1177, the Hon'ble Court observed that the ratio of Randhir Singh's case, (AIR 1982 SC 879) has not been followed in later judgments and held that similarity in the designation or quantum of work are not determinative of equality in the matter of pay scales and that before entertaining and accepting the claim based on the principle of equal pay for equal work, the Court must consider the factors like the source and mode of recruitment/appointment, the qualifications, the nature of work, the value judgment, responsibilities, reliability, Page 18 of 37 Downloaded on : Tue Jul 11 20:33:27 IST 2023 C/SCA/11567/2018 JUDGMENT DATED: 05/07/2023 experience', confidentiality, functional need etc. 5.9. In the facts of the case, it would not be proper to say that the writ applicants were appointed without any process of selection. The State Government itself has explained the procedure adopted for appointment on the temporary, ad hoc, contractual basis. The appointment of the ad hoc Lecturers is made by the Selection Committee consisting of the Director of Technical Education, as its Chairman, and the Principal of Engineering or Technical or Pharmaceutical Colleges as an expert. Although the selection had not been made through the Public Service Commission, yet there was a process of selection. It will be too much to say that since the contractual appointees are not through the G.P.S.C., they are not even entitled to receive the minimum of the pay scale prescribed for the post in question with the other allowances. At this stage, I would like to refer to and rely upon the decision of the Supreme Court in the case of State of Karnataka and another v. B. Suvarna Malini and another [(2001) 1 SCC 728]. The Supreme Court in para 3 observes "these cases involve not only a question of law but also a human problem inasmuch as these part time lecturers have served in different colleges for varying period for ten to twenty years and, if they are not regularised and treated as regular servants, then they will not be able to get themselves engaged anywhere else and at Page 19 of 37 Downloaded on : Tue Jul 11 20:33:27 IST 2023 C/SCA/11567/2018 JUDGMENT DATED: 05/07/2023 the same time, their experience in teaching will be a great loss to the student community".
5.10. The principal contention canvassed on behalf of the respondents was that the mode of recruitment of the petitioners was different from the mode of recruitment of the squad teachers inasmuch as the petitioners were appointed locally while the squad teachers were selected by the Subordinate Service Selection Board after competing with the candidates from the various parts of the country. The said contention is not tenable at law in view of settled legal position. In this connection decision of the Supreme Court in the case of Bhagwan Dass, reported in AIR 1987 SC 2049, is required to be considered. In the said decision, the contention of the respondents was that as the mode of recruitment of the petitioners was different, the doctrine of "equal pay for equal work" would not be applicable. The Hon'ble Supreme Court negatived the said contention.
5.11. This Court is of the view that the decision of the Supreme Court in the case of U.P. Land Development Corporation (supra), more particularly, the principles enunciated therein should apply with all force so far as the contractual Lecturers are concerned praying for the minimum of the pay scale with other allowances.
5.12. The Constitutional Bench of the Supreme Court in the Page 20 of 37 Downloaded on : Tue Jul 11 20:33:27 IST 2023 C/SCA/11567/2018 JUDGMENT DATED: 05/07/2023 case of Secretary, State of Karnataka and others vs. Umadevi (3) and others [(2006) 4 SCC 1] clarified that the concept of "equal pay for equal work" is different from the concept of conferring permanency on those who have been appointed on ad hoc basis, temporary basis, or based on no process of selection as envisaged by the rules. The observations of the Supreme Court, as contained in para 44, are relevant. Those are elicited as under:
"The concept of "equal pay for equal work" is different from the concept of conferring permanency on those who have been appointed on ad hoc basis, temporary basis, or based on no process of selection as envisaged by the rules. This Court has in various decisions applied the principle of equal pay for equal work and has laid down the parameters for the application of that principle. The decisions are rested on the concept of equality enshrined in our Constitution in the light of the directive principles in that behalf. But the acceptance of that principle cannot lead to a position where the court could direct that appointments made without following the due procedure established by law, be deemed permanent or issue directions to treat them as permanent. Doing so, would be negation of the principle of equality of opportunity..."
5.13. Full Bench decision of the Punjab and Haryana High Court in the case of Avtar Singh and others vs. State of Punjab and others [(2012) 1 SLR 832]. The said decision of the Full Bench supports the view with one I have Page 21 of 37 Downloaded on : Tue Jul 11 20:33:27 IST 2023 C/SCA/11567/2018 JUDGMENT DATED: 05/07/2023 taken in this matter. After an exhaustive review of the various Supreme Court decisions and the decisions of the High Courts, the Full Bench pronounced as under:
"Keeping in view the ratio of the aforesaid judgments, we hold that daily wagers, ad hoc or contractual appointees are not entitled to minimum of the regular pay scale from the date they were engaged merely for the reason that the physical activity carried out by the daily wager and the regular employee is similar, but such general principle shall be subject to the following exceptions:
(1) A daily wager, ad hoc or contractual appointee against the regular sanctioned posts, if appointed after undergoing a selection process based upon fairness and equality of opportunity to all other eligible candidates, shall be entitled to minimum of the regular pay scale from the date of engagement.
(2) But if daily wagers, ad hoc or contractual appointees are not appointed against regular sanctioned posts and their services are availed continuously, with notional breaks, by the State Government or its instrumentalities for a sufficient long period i.e. for 10 years, such daily wagers, ad hoc or contractual appointees shall be entitled to minimum of the regular pay scale without any allowances on the assumption that work of perennial nature is available and having worked for such long period of time, an equitable right is created in such category of persons.
Their claim for regularization, if any, may have to be considered separately in terms of legally permissible scheme.
Page 22 of 37 Downloaded on : Tue Jul 11 20:33:27 IST 2023C/SCA/11567/2018 JUDGMENT DATED: 05/07/2023 (3) In the event, a claim is made for minimum pay scale after more than three years and two months of completion of 10 years of continuous working, a daily wager, ad hoc or contractual employee shall be entitled to arrears for a period of three years and two months."
5.14. This Court now stands firmly ingrained in constitutional guarantee under Article 14 for equal protection of law that its protecting umbrella reaches all areas of state action which is unreasonable and arbitrary. Arbitrariness is antithesis of equality. I remind myself of what the Supreme Court said while laying bare the far reaching third but hither to undiscovered dimension of the fundamental rights enshrined in Articles 14 and 16, one of the specie of Article 14, said in E.P. Royappa v. State of Tamil Nadu [1974 AIR 555].
"Article 14 is the genus while Article 16 is a species....The basic principle which therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. ....Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and Page 23 of 37 Downloaded on : Tue Jul 11 20:33:27 IST 2023 C/SCA/11567/2018 JUDGMENT DATED: 05/07/2023 constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article
16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment."
5.15. From the aforesaid discussion, it is apparent that the Supreme Court has viewed the continuance of employment on temporary, casual and ad hoc basis to be an act of arbitrariness violative of Articles 14, 16 & 21 of the Constitution read in light of the Directive Principles of State Policy enshrined in Articles 39, 41 & 42 of the Constitution. The test of reasonableness in State action pervades the constitutional scheme particularly with reference to Articles 14 & 21 which confines its positive manifestation and expression in the lofty ideal of social and economic justice which inspires and animates the Directive Principles and that Article 14 strikes at arbitrariness in State action.
5.16. In this connection, following observations from the Supreme Court in Bandhua Mukti Morcha v. Union of India [1984 SCR (2) 67], also invite my attention.
"It is the fundamental right of every one in this country, assured under the interpretation given to Article 21 by this Court in Francis Mullin's case (AIR 1980 SC 849) to live with human dignity free from exploitation. This right to live Page 24 of 37 Downloaded on : Tue Jul 11 20:33:27 IST 2023 C/SCA/11567/2018 JUDGMENT DATED: 05/07/2023 with human dignity enshrined in Article 21 derives its life breath from the Directive principles of State Policy and particularly Clauses (e) and (f) of Article 39 and Articles 41 and 42."
The Court went on to say after observing that the Directive Principles of State Policy contained in Clauses (e) and (f) of Article 39, Article 41 are not enforceable in a Court of law, it may not be possible to compel the State through judicial process to make law "But where legislation is already enacted by the State providing those requirements to the workmen and thus investing their right to live with basic human dignity, with concrete reality and content, the State can certainly be obligated to ensure observance of such legislation for inaction on the part of the State in securing implementation of such legislation would amount to denial of the right to live with human dignity enshrined in Article 256 which provides that, the executive power of every state shall be so exercised as to ensure shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State. The Slate is under a constitutional obligation to see that there is no violation of the fundamental right of any person, particularly when the belongs to the weaker sections of the community and is unable to wage a legal battle against a strong and powerful opponent who is exploiting him. The Central government is therefore bound to ensure observance of various social welfare and labour laws enacted by parliament for the purpose of securing to the workmen a life of basic human dignity in compliance with the Directive Principles of State Policy."
Page 25 of 37 Downloaded on : Tue Jul 11 20:33:27 IST 2023C/SCA/11567/2018 JUDGMENT DATED: 05/07/2023 5.17. Likewise, in Union of India v. Hindustan Development Corporation [1993 SCR (3) 128], on the interplay of Articles 14, 19 and 21 of Part III of the Constitution and Directive Principles of the State Policy, the Court said:
"now coming to the test of
reasonableness which pervades the
constitutional scheme, the Court in several cases particularly with reference to Articles 14, 19 and 21 has considered this concept of reasonableness and had held that the same finds its positive manifestation and expression in the lofty ideal of social and economic justice which inspires and animates the Directive Principles and that Article 14 strikes at arbitrariness in State action."
5.18. It may be noticed that prior to the decision in Royappa's case (supra), the test of reasonableness in Article 14 was confined to examine case of discrimination on the touchstone of reasonableness of classification having a rationale nexus to the object sought to be achieved by such classification. But in Royappa's case, the Apex Court opined the most potent and positivist dimension of the spirit and soul of Article 14 cutting at the roots of arbitrariness, unreasonableness and unfairness in every sphere of State action.
Page 26 of 37 Downloaded on : Tue Jul 11 20:33:27 IST 2023C/SCA/11567/2018 JUDGMENT DATED: 05/07/2023 5.19. It is pertinent to note that there is no room for any doubt, that the principle of 'equal pay for equal work' has emerged from an interpretation of different provisions of the Constitution. The principle has been expounded through a large number of judgments rendered by this Court, and constitutes law declared by this Court. The same is binding on all the courts in India, Under Article 141 of the Constitution of India. The principle of 'equal pay for equal work' has also been extended to temporary employees (differently described as work-charge, daily-wage, casual, ad-hoc, contractual, and the like). The above legal position has been repeatedly declared.
5.20. In our considered view, it is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work, cannot be paid less than another, who performs the same duties and responsibilities. Certainly not, in a welfare state. Such an action besides being demeaning, strikes at the very foundation of human dignity. Any one, who is compelled to work at a lesser wage, does not do so voluntarily. He does so, to provide food and shelter to his family, at the cost of his self-respect and dignity, at the cost of his self-worth, and at the cost of his integrity. For he knows, that his dependents would suffer immensely, if he does not accept the lesser wage. Any act, of paying less wages, as compared to others similarly situate, constitutes an act of exploitative enslavement, emerging out Page 27 of 37 Downloaded on : Tue Jul 11 20:33:27 IST 2023 C/SCA/11567/2018 JUDGMENT DATED: 05/07/2023 of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation.
5.21. As stated above, in case of U.P. Land Development Corporation and another vs. Mohd. Khurseed Anwar and another, (2010) 7 SCC 739, the Hon'ble Supreme Court, after an exhaustive discussion, took the view that if the sanctioned posts are lying vacant, then even a contractual appointee is entitled to the minimum of the pay scale.
5.22. The Co-ordinate Bench of this Hon'ble Court in Special Civil Application No. 8152 of 2015 and other allied petitions, vide judgement and order dated 07.09.2016, under similar facts and circumstances, has also directed that the contractual Lecturers shall be paid the minimum of the pay scale so far as the post of Lecturer is concerned with all other allowances attached to the same with effect from January 2015. Letter Patent Appeal No. 1159 of 2017 and other allied appeals, preferred against the aforesaid order is dismissed by the Division Bench vide judgement and order dated 14.2.2023 and the order of the learned Single Judge has been confirmed by the Division Bench of this Court, wherein the Division Bench has observed and held as under:-
Page 28 of 37 Downloaded on : Tue Jul 11 20:33:27 IST 2023C/SCA/11567/2018 JUDGMENT DATED: 05/07/2023 "20. As stated hereinabove, the constitutional principle of 'equal pay for equal work' has been upheld by the Hon'ble Supreme Court of India with respect to temporary employees' vis-à-vis permanent employees in the government sector.
In the case of the State of Punjab and Ors. v. Jagjit Singh and ors., reported in (2016) SCC, the Hon'ble Supreme Court has ruled that temporary employees performing similar duties and functions as discharged by permanent employees are entitled to draw wages at par with similarly placed permanent employees. The principle must be applied in situations where the same work is being performed, irrespective of the class of employees. 21. In the case of Jagjit Singh( supra), the Hon'ble Supreme Court was examining the conflicting decisions arising from the Punjab Haryana High Court. The High Court had decided on the question as to whether temporary employees (daily-wage employees, adhoc appointees, employees appointed on casual basis, contractual employees and the like) are entitled to the same wages as that of permanent employees, if they discharge similar duties and responsibilities as that of permanent employees. In the case of the State of Punjab & Ors. v. Rajinder Singh & Ors., (LPA No. 337 of 2003, decided on 7.1.2009) took the view that temporary employees would not be entitled to the minimum of the pay-scale as was being paid to similarly placed permanent employees. However, the Court in the case of the State of Punjab & Ors. v. Rajinder Kumar (LPA No. 1024 of 2009, decided on 30.8.2010) took a contrary view and held that temporary employees would be entitled to minimum of the pay-scale, alongwith permissible allowances (as revised from time to time), which were being given to similarly placed permanent employees. The matter was referred to a full bench of the Punjab Page 29 of 37 Downloaded on : Tue Jul 11 20:33:27 IST 2023 C/SCA/11567/2018 JUDGMENT DATED: 05/07/2023 & Haryana High Court in the case of Avtar Singh v. State of Punjab & Ors. The full judge bench while adjudicating upon the issue, concluded that temporary employees are not entitled to the minimum of the regular pay-scale, merely on account of the reason that the activities carried out by daily wagers and permanent employees are similar. However, this rule was subjected to two exceptions, wherein temporary employees would be entitled to wages at par with permanent employees:
1. If the temporary employee has been appointed in a regular sanctioned post after undergoing a selection process based on fairness and equality of opportunity to all other eligible candidates
2. If the temporary employee has been appointed in a post which is not a regular sanctioned post, however, their services have been availed continuously, with notional breaks, for a sufficiently long period.
22. The matter traveled up to Hon'ble Supreme Court where challenge was raised against all the three aforementioned judgments. Analyzing in length the principles laid down by various courts, the Supreme Court observed that the issue at hand necessitated a bird's eye view on the underlying ingredients which govern the principle of 'equal pay for equal work'. The principle has been extensively deliberated in a catena of decisions. In order to make the determination, the hon'ble Supreme Court examined (i) the situations where the principle was extended to employees engaged on a permanent basis and thereafter (ii) the situations in which the principle was extended/declined to Page 30 of 37 Downloaded on : Tue Jul 11 20:33:27 IST 2023 C/SCA/11567/2018 JUDGMENT DATED: 05/07/2023 different categories of temporary employees.
Accordingly, various principles have been discerned and distinguished by the Hon'ble Supreme Court. Analyzing claims by temporary employees under the principle, the Hon'ble Supreme Court observed:
1. Not paying the same wages, despite the work being the same, is violative of Article 14 of the Constitution of India and amounts to exploitation in a welfare state committed to a socialist pattern of society.
2. The right of equal wages claimed by temporary employees emerges, inter alia, from Article 39 of the Constitution.
3. The claim for equal wages would be sustainable where an employee is required to discharge similar duties and responsibilities as permanent employees and the concerned employee possesses the qualifications prescribed for the particular post.
4. In a claim for equal wages, the duration for which an employee remains or has remained engaged, the manner of selection/appointment etc. would be inconsequential, insofar as the applicability of the principle is concerned.
5. Based on the principle flowing from Article 38(2) of the Constitution, the Government cannot deny a temporary employee at least the minimum wage being paid to an employee in the corresponding regular cadre, alongwith dearness allowance and additional dearness allowance, as well as all other benefits which are being extended to casual workers.Page 31 of 37 Downloaded on : Tue Jul 11 20:33:27 IST 2023
C/SCA/11567/2018 JUDGMENT DATED: 05/07/2023
6. The classification of workers (as unskilled, semi-skilled and skilled), doing the same work, into different categories, for payment of wages at different rates is not tenable. Such an act of the employer would amount to exploitation and shall be arbitrary and discriminatory, and therefore, violative of Articles 14 and 16 of the Constitution.
7. If daily-wage employees can establish that they are performing equal work of equal quality, and that all the other relevant factors are fulfilled, a direction by a court to pay such employees equal wages (from the date of filing the writ petition), would be justified.
Thus, the Hon'ble Supreme Court observed that an employee engaged for the same work cannot be paid less than another who performs the same duties and responsibilities and certainly not in a welfare state. Such an action besides being demeaning, strikes at the very foundation of human dignity. The Hon'ble Supreme Court observed that anyone who is compelled to work at a lesser wage does not do so voluntarily - he/she does so to provide food and shelter to his/her family, at the cost of his/ her self-respect and dignity, at the cost of his/her self-worth, and at the cost of his/her integrity. Any act of paying less wages as compared to others similarly situated, constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation. The Hon'ble Supreme Court further observed that India being a signatory to the International Covenant on Economic, Social and Cultural Rights, 1966, Page 32 of 37 Downloaded on : Tue Jul 11 20:33:27 IST 2023 C/SCA/11567/2018 JUDGMENT DATED: 05/07/2023 there is no escape from the obligations thereunder in view of the different provisions of the Constitution. Thus, the principle of 'equal pay for equal work' constitutes a clear and unambiguous right and is vested in every employee, whether engaged on a permanent or temporary basis.
23. Accordingly, the Hon'ble Supreme Court set aside the decisions rendered by the full bench of the Punjab & Haryana High Court in Avtar Singh v. State of Punjab & Ors. and the division bench in State of Punjab & Ors. V. Rajinder Singh while the decision of the division bench in State of Punjab & Ors. v. Rajinder Kumar was upheld, subject to the modification that the concerned employees would be entitled to the minimum of the pay-scale of the category to which they belong.
24. The sole factor that requires our determination is, whether the concerned employees (before this Court), were rendering similar duties and responsibilities, as were being discharged by regular employees, holding the same/corresponding posts. This exercise would require the application of the parameters of the principle of 'equal pay for equal work' as summarized earlier by the Hon'ble Supreme Court. In fact, in our opinion the core factor which governs the entitlement of pay at minimum of pay scale of the regular lectures is concerned, guided by the Article 38(2) of the Constitution of India. The learned Single in para 40 to 43, has extensively referred to relevant observations of the Division Bench of the Bombay High Court in the case of Sachin Ambadas Dawale (supra) while examining the aspect of regularization. We notice that the Page 33 of 37 Downloaded on : Tue Jul 11 20:33:27 IST 2023 C/SCA/11567/2018 JUDGMENT DATED: 05/07/2023 present respondents though contractual appointees are equally eligible and qualified to be appointed on the post of lecturers. Their appointment was made through a open selection process as adopted by the State department by forming a selection committee constituted in terms of the Government resolution dated 20.05.2008 issued by the Education department. The selection committee consisted of the Director of technical education (chairman), Principal of Engineering/ polytechnic/ pharmacy college (member), Expert of the subject (member) and Joint Director technical education. In fact, advertisements were published calling for applications on sanctioned vacant posts, applications of eligible candidates were accepted, written exams were held, qualified candidates were called for interview and a meritorious candidates list was notified and appointment orders were issued. Thus, there cannot be dispute about writ applicants possessing the requisite qualifications as per the statutory recruitment rules prevalent at the relevant time. As rightly pointed out by Mr. Pujara, they are discharging the same responsibilities, teaching to the same students, in the same Government Engineering Colleges and Polytechnics. There is no functional difference pointed out by the State in their work. Hence, in our opinion no discriminatory treatment ought to have been given by State vis- a-vis adhoc letcurers appointed prior to them. The principle of 'equal pay for equal work' will be applicable in such circumstances.
Undoubtedly, Article 309 of the Constitution of India enables the executive to regulate the recruitment and to make recruitment to the government service. But this power is not absolute as it is subjected to the provisions of Page 34 of 37 Downloaded on : Tue Jul 11 20:33:27 IST 2023 C/SCA/11567/2018 JUDGMENT DATED: 05/07/2023 the constitution and statutes enacted by the appropriate legislature. The executive has the power to create and abolish any post under government, however, such powers are not unfettered and subject to provisions of the Constitution, especially articles 14 and 16 and provisions of relevant statutes and statutory rules control this power of the executive. The appointments to government services are made through the prescribed agency. But, exigencies of administration may sometimes call for the making of ad hoc or temporary appointments. The object behind the exercise of this power is ultimately to run smooth administration. In such circumstances, the State having availed their services cannot argue that their appointment is different as compared to ad hoc lecturers. As per Black's Law Dictionary, the term "ad hoc"
means "something which is formed for a particular purpose". It is in terms recorded in the G.R. dated 20.05.2008 that appointment was made to meet the contingency arising on an account of delay in completing the process of regular recruitment to the post through GPSC and it was not possible to leave the post vacant till then, and to meet that contingency an appointment was made, in such circumstances, it could appropriately be identified as a "stop gap arrangement" and appointing in the post as "ad hoc". The G.R. of the Education department itself refer such appointments as ad hoc in nature. Thus, we do not find any substance in the ground raised by the State that their source of appointment being different would have effect on their entitlement of benefits as compared to adhoc lecturers appointed before / after May 2008. 25. Now, the relief sought for by writ applicants as regards regularization is concerned, we are bound by the ratio of the Hon'ble Supreme Court in the case of the State Page 35 of 37 Downloaded on : Tue Jul 11 20:33:27 IST 2023 C/SCA/11567/2018 JUDGMENT DATED: 05/07/2023 of Karnataka vs. Umadevi, reported in (2006) 4 SCC 1, the Hon'ble Supreme Court held that the Courts are not expected to issue any direction for absorption/regularization or permanent continuance of temporary, contractual, casual, daily-wage or ad hoc employees. The Court held that such directions issued could not be said to be inconsistent with the constitutional scheme of public employment. The Court held that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged in relevant rules. In view of the law laid down by this Court, the directions sought for by the appellants cannot be granted. But at the same time we deem it fit to reiterate that if the employees who were entitled to be considered in terms of Para-53 of the decision in case of Umadevi (supra), will not lose their right to be considered for regulairstion. The Hon'ble Supreme Court has in the case of State of Karnataka v. M.L. Kesari , reported in (2010) 9 SCC 247, while clarifying the illegal appointment as against irregular appointments has held that considering the exceptions carved out in case of Umadevi (supra), as a one time measure State can consider for regularisation of services in case of irregular appointments."
5.23. In view of the aforesaid facts of the case and the ratio laid down in the aforesaid decisions and in light of the observations made by the Co-ordinate Bench of this Court in Special Civil Application No.8152 of 2015 and other allied Page 36 of 37 Downloaded on : Tue Jul 11 20:33:27 IST 2023 C/SCA/11567/2018 JUDGMENT DATED: 05/07/2023 petitions, confirmed by the Division Bench of this Court in Letters Patent Appeal No.1159 of 2017 and other allied appeals, present petition is required to be allowed.
6. In the result, present petition is allowed. The respondents are directed to grant pay scale and other benefits to the petitioners equivalent to minimum of the pay scale of Asst. Professor appointed on Regular basis and to grant them the Pay and Pay-scales, Annual increments and all other benefits at part with them, with effect from the dates of their initial appointments and give all the consequential benefits to the petitioners, including the monetary benefits, arrears etc. The respondents are also directed to pay benefit of revised pay scale to the petitioners from time to tile. The respondents are directed to to give all the benefits as per the Circulars dated 15/10/ 1992 and 20/7/1999 as are being granted to the Ad Hoc Asst. Professor and give uniform treatment to the petitioners at par with the Ad Hoc Professor. Rule is made absolute accordingly. No costs.
Sd/-
(RAJENDRA M. SAREEN,J) R.H. PARMAR Page 37 of 37 Downloaded on : Tue Jul 11 20:33:27 IST 2023