Gujarat High Court
Arjanbhai Merambhai Mori vs State Of Gujarat on 7 March, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/1831/2021 JUDGMENT DATED: 07/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1831 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 6002 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 6124 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 6127 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 6130 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 6133 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 6135 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 6137 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 6138 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 6152 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 6439 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 6440 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 6531 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 6592 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV Sd/-
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1 Whether Reporters of Local Papers may be No
allowed to see the judgment ?
2 To be referred to the Reporter or not ? No
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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ARJANBHAI MERAMBHAI MORI
Versus
STATE OF GUJARAT
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Page 1 of 43
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C/SCA/1831/2021 JUDGMENT DATED: 07/03/2022
Appearance:
MRS KRISHNA G RAWAL(1315) for the Petitioner(s) No. 1
MR TUSHAR L SHETH(3920) for the Respondent(s) No. 4
MR MEET M. THAKKAR, AGP for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 07/03/2022
COMMON ORAL JUDGMENT
1. Rule returnable forthwith. Mr. Meet Thakkar, learned Assistant Government Pleader waives service of notice of Rule for respondent Nos.1 to 3 as well as Mr. Tushar L. Sheth, learned counsel waives service of notice of Rule for respondent No.4.
2. With the consent of the learned advocates for the respective parties, all these petitions are taken up for final hearing today.
3. These petitions, under Article 226 of the Constitution of India have been filed by Daily Wage Employees of the Sutrapada Nagarpalika for a prayer that the petitioners be given the minimum of pay scale in the respective posts on which they are working for over a period of more than ten years. In Page 2 of 43 Downloaded on : Sat Dec 24 12:20:08 IST 2022 C/SCA/1831/2021 JUDGMENT DATED: 07/03/2022 some cases, the petitioners have been working for about two decades. The details of the posts on which the petitioners are working together with the year of appointments read as under:
Sr. Petitioner/s of Year of
No. SCA Number Appointment
1 1831/2021 2007
2 6002/2021 2009
3 6137/2021 2003
4 6138/2021 2007
5 6152/2021 2007
6 6439/2021 2007
7 6440/2021 2007
8 6531/2021 2007
9 6592/2021 2007
10 6124/2021 2008
11 6127/2021 2010
12 6130/2021 2003
13 6133/2021 2003
14 6135/2021 2007
4. The case of the petitioners as argued by Ms. Krishna Raval, learned advocate for the petitioners is that they were working on a daily wage basis on the posts sanctioned in the set up of the Municipality.
They were appointed by virtue of Resolution of General Body of the Nagarpalika. It is the case of Page 3 of 43 Downloaded on : Sat Dec 24 12:20:08 IST 2022 C/SCA/1831/2021 JUDGMENT DATED: 07/03/2022 the petitioners that they made a representation in the year 2017 to absorb them on the setup with a regular pay scale. The representations were then forwarded to the Regional Commissioner and the Collector. In absence of any positive action, the petitioners once again made a representation to the Chief Office of Municipality on 8.3.2021.
5. Ms. Krishna Raval, learned counsel for the petitioners would submit that the State has framed a policy vide Resolution dated 22.1.2004 for a minimum setup of all types of Nagarpalika. The Resolution further stated that in case the Nagarpalikas needed an additional setup, proposal could be forwarded by such Nagarpalikas to the Commissioner of Municipality. The minimum setup was thereafter revised by a Resolution dated 1.6.2010 and 6.2.2010 wherein the setup of the Municipalities were sought to be increased. It is the case of the petitioners that above the minimum setup the government has sanctioned additional Page 4 of 43 Downloaded on : Sat Dec 24 12:20:08 IST 2022 C/SCA/1831/2021 JUDGMENT DATED: 07/03/2022 posts, by virtue of a request made by the Sutrapada Municipality vide Resolution dated 30.1.2013.
6. Even the State, according to Ms. Raval framed a policy by a Circular dated 18.1.2017 to regularize the services of fixed pay / daily wage employees who had completed five years of service. Against the minimum fixed pay which the Government employees are getting pursuant to the policy i.e. Rs.19,950/-, the petitioners are being paid a fixed amount of Rs.9,000/-. This is despite the fact that the policy has been made applicable to the Municipalities.
6.1. Ms. Raval would rely on the decision in the case of Manubhai Dahyabhai Vanand v. Gujarat State Land Development Corporation reported in 2019(JX) GUJ 1141, wherein, a coordinate Bench of this Court considering the decisions of the Hon'ble Supreme Court directed the respondents to place the petitioners in the minimum of the pay scale Page 5 of 43 Downloaded on : Sat Dec 24 12:20:08 IST 2022 C/SCA/1831/2021 JUDGMENT DATED: 07/03/2022 which is to be granted to regular employees holding the same post. However, such benefits were to be given to such petitioners on completion of ten years of service.
6.2. Ms. Raval would also rely on the decision of the Division Bench which dismissed the appeal of the Land Development Corporation against the judgment referred to.
7. According to the learned counsel for the petitioners, the petitioners have been serving at least for a period ranging from almost ten years to twenty years on the sanctioned setup of the Municipality and with passage of time, they have crossed the age qualification for fresh appointment. They have been continued by the Nagarpalika without a break and the petitioners therefore in accordance with the decisions in the case of State of Karnataka v.
Umadevi reported in 2006(4) SCC 1 would otherwise be entitled for regularization. Ms. Raval Page 6 of 43 Downloaded on : Sat Dec 24 12:20:08 IST 2022 C/SCA/1831/2021 JUDGMENT DATED: 07/03/2022 would also rely on the decision in the case of State of Punjab v. Jagjit Singh and others reported in 2017(1) SCC 148 in the context of granting of the minimum of the pay scale to the daily wagers engaged by the Nagarpalika.
8. Mr. Tushar Sheth, learned counsel appearing for the respondent - Municipality would submit that the petitioners are not entitled to the benefit of regularization and / or the benefit of granting of the minimum pay scale. The petitioners were working purely on adhoc basis and, therefore, not on the sanctioned posts. They are therefore not entitled to the benefit of the minimum of the pay scale of regular posts. He would submit that no posts in the Nagarpalika are on the regular establishment and, therefore there is no way that the Municipality can extend the benefit of minimum pay scale, when no employees on a regular setup exist in the Municipality in order to extend such a similar benefit to the petitioners.
Page 7 of 43 Downloaded on : Sat Dec 24 12:20:08 IST 2022C/SCA/1831/2021 JUDGMENT DATED: 07/03/2022 8.1. Mr. Sheth would further submit that it is not for this Court in exercise of powers under Article 226 of the Constitution of India to exercise jurisdiction and the appropriate forum is that of the Tribunal under Industrial Disputes Act.
8.2. Mr. Sheth would submit that the appointments were made of the petitioners by way of passing of a simple resolution by the General Body and they were appointees who were back door entries. Their appointments were illegal and as extensively held by the decision of the Supreme Court in the case of Umadevi (Supra), the petitioners' appointments are illegal and, therefore, they are not entitled for the benefits prayed for.
8.3. Mr. Sheth would submit that the GR dated 18.1.2017 will not be applicable to the Municipalities as is evident from the Resolution dated 16.2.2006 and 1.8.2006 produced with the affidavit in reply.
Page 8 of 43 Downloaded on : Sat Dec 24 12:20:08 IST 2022C/SCA/1831/2021 JUDGMENT DATED: 07/03/2022 8.4. Mr. Sheth would further submit that in absence of pleadings in the petition to show as to how the petitioners were performing duties of a similar nature like the employees who otherwise would perform similar duties and in absence of any pleadings showing a comparison thereto, merely on a bare statement in the petition, the petitioners cannot establish their rights for being given the benefit of equal pay for equal work. He would submit that in the year 2018, the establishment expenses of Nagarpalika were around 45% and if the regular pay scale is extended the establishment expenses would exceed 48% and, therefore, the Municipality would be saddled with heavy financial burden.
8.5. Mr. Sheth would rely on the decision by extensively reading the paragraphs thereof in the case of State of Bihar v. Bihar Secondary Teachers Struggle Committee reported in 2019 (18) SCC 301. He would read paragraph Nos.96 to Page 9 of 43 Downloaded on : Sat Dec 24 12:20:08 IST 2022 C/SCA/1831/2021 JUDGMENT DATED: 07/03/2022 101 and paragraph No.104 thereof to submit that `Equal Pay For Equal Work' is not a doctrine and cannot be applied in a mechanical manner. The court before entertaining and accepting the claim based on the principle of equal pay for equal work must consider the factors like source and mode of recruitment. He would submit that after considering the decision in the case of Jagjit Singh (Supra), the Court opined that the case of Jagjit Singh (Supra) did not take into account the earlier decisions rendered by the Supreme Court in the case of State of Punjab v. Joginder Singh reported in AIR 1963 SC 913 and Zabar Singh v. the State of Haryana reported in 1972 (2) SCC 275. Reliance therefore by the learned counsel for the petitioners in the case of Jagjit Singh (Supra) is no longer a valid law and, therefore, the petitioners are not entitled to the benefits of equal pay for equal work.
8.6. Mr. Sheth would submit that it is open for the State to have two distinct cadres and therefore if Page 10 of 43 Downloaded on : Sat Dec 24 12:20:08 IST 2022 C/SCA/1831/2021 JUDGMENT DATED: 07/03/2022 a pay structure is involved keeping in mind method of recruitment, what is evident is that the petitioners have not been recruited through the regular mode of appointment. Their appointments are therefore contrary to law and, therefore they would not get the benefit of equal pay for equal work.
8.7. Mr. Sheth would extensively read paragraph Nos.48, 49, 50, 53 and 55 of the decision in the case of Umadevi (Supra) and submit that those who are working as daily wagers form a class by themselves, therefore, they cannot claim that they have been discriminated against those who have been regularly recruited. They cannot be said to be holders of the posts since a regular appointment can be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution of India. He would submit that the High Court therefore cannot impose an obligation on the State for equal pay for equal work when the daily wagers are not entitled to Page 11 of 43 Downloaded on : Sat Dec 24 12:20:08 IST 2022 C/SCA/1831/2021 JUDGMENT DATED: 07/03/2022 such benefits.
9. Having considered the submissions made by the learned advocates for the parties, the question of law and the entitlement of the petitioners vis-a-vis the position of law as contended by the learned counsel for the respective parties is based on the analysis of the two decisions of the Supreme Court relied by the respective parties. While Ms. Raval would contend that the decision in the case of Jagjit Singh (Supra) holds the field, Mr. Tushar Sheth would rely on the decision of the Bihar Secondary Teachers Struggle Committee (Supra) and submit otherwise.
10. The decision in the case of Bihar Secondary Teachers Struggle Committee (Supra) relied upon by Mr. Sheth extensively deals with the concept of equal pay for equal work. Considering the facts before the Supreme Court in the case of Bihar Secondary Teachers Struggle Committee Page 12 of 43 Downloaded on : Sat Dec 24 12:20:08 IST 2022 C/SCA/1831/2021 JUDGMENT DATED: 07/03/2022 (Supra) what is evident is that there were two categories of teachers that is Government Teachers and Nijoyit Teachers who were imparting instructions in the same nationalized schools.
Despite this, there were considerable difference in the emoluments paid to Niyojit Teachers. The Division Bench of the High Court came to the conclusion that when both teachers were discharging the same responsibility and teaching the same syllabus, there was no difference in the performance of their duties and responsibilities and the distinction of pay therefore was unreasonable.
This was a decision based on reliance placed on the case of Jagjit Singh (Supra). The defence of the State therein was that the teachers who were known as Niyojit teachers were appointed under the provisions of 2006 Rules and therefore could not challenge the validity of Rules under which they were appointed. The teachers who were getting a better pay scale were appointed before 2006 on the recommendation of Vidhyalaya Seva Board or the Page 13 of 43 Downloaded on : Sat Dec 24 12:20:08 IST 2022 C/SCA/1831/2021 JUDGMENT DATED: 07/03/2022 Public Service Commission, whereas, the Niyojit teachers were appointed under a different set of rules. What was also specifically held that no fresh appointments of Niyojit teachers were being made and therefore it was a dying or a vanishing cadre and, therefore, they could not claim parity in pay scale. It is in the facts of those cases that on a conceptual difference of citations relied upon by the respective parties namely that in the case of State of Punjab v. Joginder Singh reported in AIR 1963 SC 913 and Zabar Singh v. the State of Haryana reported in 1972 (2) SCC 275 by the employer - State of Bihar and on the reliance placed by the teachers in the case of Bhagvandas V. State of Harynana 1987 (4) SCC 634 that the issue of equal pay for equal work was discussed. Considering the legal chronology of decisions in paragraph No.96 of the decision, the Court framed and accepted the limitation of qualification to the applicability of doctrine for equal pay for equal work. It will be relevant to reproduce paragraph Nos.96, 97, 98, 99 Page 14 of 43 Downloaded on : Sat Dec 24 12:20:08 IST 2022 C/SCA/1831/2021 JUDGMENT DATED: 07/03/2022 and 100.1 to 104 thereof.
96. Analysis of the decisions referred to above shows that this Court has accepted following limitations or qualifications to the applicability of the doctrine of 'equal pay for equal work':-
i) The doctrine of 'equal pay for equal work' is not an abstract doctrine.
ii) The principle of 'equal pay for equal work' has no mechanical application in every case.
iii) The very fact that the person has not gone through the process of recruitment may itself, in certain cases, makes a difference.
iv) The application of the principle of 'equal pay for equal work' requires consideration of various dimensions of a given job.
v) Thus normally the applicability of this principle must be left to be evaluated and determined by an expert body. These are not matters where a writ court can lightly interfere.
vi) Granting pay scales is a purely executive function and hence the court should not interfere with the same. It may have a cascading effect creating all kinds of problems for the Government and authorities.
vii) Equation of posts and salary is a complex matter which should be left to an expert body.
viii) Granting of pay parity by the court may result in a cascading effect and reaction which can have adverse consequences.
ix) 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.
x) In a given case, mode of selection may be considered as one of the factors which may make a difference.
97. The latest decision on which heavy reliance was placed on behalf of Niyojit Teachers is the one rendered by a Bench of two Judges in State of Punjab and others vs. Jagjit Singh and others2. The issues that arose for consideration were set out in para 5 as under:-
"5. The issue which arises for our consideration is: whether temporarily engaged employees (daily-wage employees, ad hoc appointees, employees appointed on casual basis, contractual employees and the like), are entitled to minimum of the regular pay scale, along with dearness allowance (as revised from time to time) on account of their performing the same duties which are discharged by those engaged on regular basis, against sanctioned posts?The Full Bench (Avtar Singh vs. State of Punjab, 2011 SCC Online P & H 15326) of the High Court, while adjudicating upon the above controversy had concluded, that such like temporary employees were not entitled to the minimum of the regular pay scale, merely for reason, that the activities carried on by daily wagers and the regular employees were similar. However, it carved out two exceptions, and extended the minimum of the regular pay to such employees. The exceptions recorded by the Full Bench of the High Court in the impugned judgment are extracted hereunder: (Avtar Singh case, SCC OnLine P&H para 37) Page 15 of 43 Downloaded on : Sat Dec 24 12:20:08 IST 2022 C/SCA/1831/2021 JUDGMENT DATED: 07/03/2022 "(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 regularisation, if any, may have to be considered separately in terms of legally permissible scheme. Civil Appeal No...... of 2019 @ SLP(C)No.20 of 2018 etc. 122 State of Bihar and Ors. vs. The Bihar Secondary Teachers Struggle Committee, Munger & Ors. (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."
98. While considering the aforesaid issue this Court had noted all the decisions on the point of pay parity from Randhir Singh vs. Union of India31 and then in para 42 arrived at conclusions. The limitations or qualifications to the application of doctrine of 'equal pay for equal work' were also considered in para 42 and from para 43 onwards, Claim for pay parity raised by temporary employees (differently designated as workcharge, daily-wage, casual, ad hoc, contractual and the like) was also considered. After discussion on the point, the matter was concluded thus:-
"57. 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 parameters of the principle have been summarised by us in para 42 hereinabove. The principle of "equal pay for equal work"
has also been extended to temporary employees (differently described as workcharge, daily wage, casual, ad hoc, contractual, and the like). The legal position, relating to temporary employees has been summarised by us, in para 44 hereinabove. The above legal position which has been repeatedly declared, is being reiterated by us yet again."
99. The qualifications to the applicability of the doctrine of 'equal pay for equal work' which have long been recognised and acknowledged in the decisions referred to above are well established. The decision in Jagjit Singh2 again reiterated some of those qualifications. These limitations or qualifications have not been diluted but stand re-inforced.
100. We may, at this stage, deal with the submission advanced on behalf of the State that the decision in Jagjit Singh did not take into account the earlier decisions rendered by this Court in State Page 16 of 43 Downloaded on : Sat Dec 24 12:20:08 IST 2022 C/SCA/1831/2021 JUDGMENT DATED: 07/03/2022 of Punjab vs. Joginder Singh28 and Zabar Singh vs. The State of Haryana29 and others.
100.1 In the first case, Respondent Joginder Singh was working as a teacher in a District Board High School in Hoshiarpur before 1.10.1957. By reason of government decision taken in September, 1957, which came into effect on 1.10.1957 all teachers like Respondent Joginder Singh, employed in District Board and Municipal Board Schools, became State employees. Before such decision was taken, the State had decided to have two categories of teachers working in the State service. 15% of the total strength of teachers were put in a middle scale of a salary scale while the rest of 85% were put in a lower scale. The former, thus, had better chances of promotion to further levels. After taking over the schools run by District Board and Municipal Boards, which was called 'provincialization' the teachers like Respondent Joginder Singh, though became State employees, were part of cadre of provincialized teachers which was distinct from the cadre of State teachers. A decision was also taken not to make any further appointments in the provincialized cadre and thus said cadre was to be a dying or vanishing cadre. It was also decided that the provincialized cadre would stand bifurcated on the same pattern of 15:85 as was done in the State cadre but any retirements in the provincialized cadre would not result in fresh appointments in that cadre but the appropriate number would get added to the State cadre and fresh appointments would be made only in the State cadre. It must be noted that the employees in both the cadres were given the same pay-scale but their chances of promotion were completely different. The submission that with the passage of time, the strength of provincialized cadre would keep reducing and as such, the chances of promotion and being part of 15% group would keep diminishing and as such the employees in provincialized cadre would be put to prejudice was accepted by the High Court. It was observed by this Court in State of Punjab vs. Joginder Singh28 as under:-
"21. It now remains to consider a point which was raised that the State cannot constitute two Services consisting of employees doing the same work but with different scales of pay or subject to different conditions of service and that the constitution of such services would be violative of Article 14. Underlying this submission are two postulates: (1) equal work must receive equal pay, and (2) if there be equality in pay and work there have to be equal conditions of service. So far as the first proposition is concerned it has been definitely ruled out by this Court in Kishori Mohanlal v. Union of India (1962 SC AIR 1139) Das Gupta, J. speaking for the Court said:
"3. The only other contention raised is that there is discrimination between Class I and Class II officers inasmuch as though they do the same kind of work their pay scales are different. This, it is said, violates Article 14 of the Constitution. If this contention had any validity, there could be no incremental scales of pay fixed dependent on the duration of an officer's service. The abstract doctrine of equal pay for equal work has nothing to do with Article
14. The contention that Article 14 of the Constitution has been violated, therefore, also fails."
The second also, is, in our opinion, unsound. If, for instance, an existing service is recruited on the basis of a certain qualification, Page 17 of 43 Downloaded on : Sat Dec 24 12:20:08 IST 2022 C/SCA/1831/2021 JUDGMENT DATED: 07/03/2022 the creation of another service for doing the same work, it might be in the same way but with better prospects of promotion cannot be said to be unconstitutional, and the fact that the rules framed permit free transfers of personnel of the two groups to places held by the other would not make any difference. We are not basing this answer on any theory that if a government servant enters into any contract regulating the conditions of his service he cannot call in aid the constitutional guarantees because he is bound by his contract. But this conclusion, rests on different and wider public grounds viz. that the government which is carrying on the administration has necessarily to have a choice in the constitution of the services to man the administration and that the limitations imposed by the constitution are not such as to preclude the creation of such services. Besides, there might, for instance, be a temporary recruitment to meet an exigency or an emergency which is not expected to last for any appreciable period of time. To deny to the Government the power to recruit temporary staff drawing the same pay and doing the same work as other permanent incumbents within the cadre strength but governed by different rules and conditions of service, it might be including promotions, would be to impose restraints on the manner of administration which we believe was not intended by the Constitution. For the purpose of the decision of this appeal the question here discussed is rather academic but we are expressing ourselves on it in view of the arguments addressed to us.
22. Besides the disparity in the chances of promotion between teachers of the provincialised and the State Cadre created by Rule 3 of the impugned rules, the learned Judges of the High Court have held that there was a further disparity by reason of the teachers of the State Cadre being borne on a Divisional list, while under the rules the inter se seniority and promotions of "provincialised" teachers was determined districtwise. It was pointed out by the learned Solicitor-General for the appellant that the State Cadre was kept on a Divisional basis because of the very small number of the members of that Service, whereas it was found administratively inconvenient to have a similar geographical classification of members of the provincialised service and for that reason and no other, districtwise seniority, promotion and transfers was laid down for provincialised teachers. Learned counsel for the respondent did not rely on this reasoning of the learned Judges of the High Court in deciding the case now under appeal. We therefore do not consider it necessary to make any further reference to it.
23. As we have stated already, the two services started as independent Services. The qualifications prescribed for entry into each were different, the method of recruitment and the machinery for the same were also different and the general qualifications possessed by and large by the members of each class being different, they started as two distinct classes. If the Government Order of September 27, 1957 did not integrate them into a single service, it would follow that the two remained as they started as two distinct services. If they were distinct services, there was no question of inter se seniority between members of the two services, nor of any comparison between the two in the matter of promotion for founding an argument based upon Article 14 or Article 16(1). They started dissimilarly and they continued dissimilarly and any dissimilarity in their treatment would not be a denial of equal opportunity, for it is common ground that within Page 18 of 43 Downloaded on : Sat Dec 24 12:20:08 IST 2022 C/SCA/1831/2021 JUDGMENT DATED: 07/03/2022 each group there is no denial of that freedom guaranteed by the two articles. The foundation therefore of the judgment of the learned Judges of the High Court that the impugned rules created two classes out of what was formerly a single class and introduced elements of discrimination between the two, has no factual basis if, as we hold the order of September 27, 1957 did not effectuate a complete integration of the two Services. On this view it would follow that the impugned rules cannot be struck down as violative of the Constitution.
24. Before concluding it is necessary to point out that, as explained earlier, the source of the prejudice caused by the impugned rules to the "provincialised" teachers lies not in the fact that the two cadres were kept separate but on account of the fact that the "provincialised" cadre was intended to be gradually extinguished. The real question for consideration would therefore be whether there was anything unconstitutional in the Government decision in the matter. In other words, had the respondent and his class any fundamental right to have their cadre strength maintained undiminished?
This is capable of being answered only in the negative. If their cadre strength became diminished, the proportion thereof who could be in the grade viz. 15% of the total strength being predetermined, there must necessarily be a progressive reduction in the number of selection posts. In other words a mere reduction of the cadre strength would bring about that result and unless the respondent could establish that the Government were bound in Law to fill up all vacancies in the provincialised cadre by fresh recruitment to that cadre and thus keep its strength at the level at which it was on October 1, 1957, he should fail. It is manifest that such a contention is obviously untenable." 100.2 In the second decision it was contended that the decision of the Constitution Bench in Joginder Singh's case required reconsideration and as such a Bench of seven Judges was constituted which dealt with the matter in Zabar Singh and others vs. The State of Haryana and others29. The discussion in paragraphs 27 to 30, 32 to 33 and 35, 36 and 40 was as under:-
"27. The position which emerges from the aforesaid analysis is that prior to October 1, 1957, the two categories of teachers, those serving in the local bodies schools and those in government schools were distinct. Though the minimum qualifications and scales of pay might have been uniform, there were differences in other matters such as methods of recruitment, retiral benefits, rules for determining seniority, etc. It is also clear that whereas a government school teacher was liable to be transferred to any place throughout the Commissioner's division, a local body teacher could only be transferred within the territorial limits of that body. Appointments in Local Bodies schools, no doubt, were made by Inspectors appointed by government, but they could do so only in consultation with the Chairman or President of such a body. That was the position also in regard to disciplinary matters. Further, although the prescribed minimum qualifications were the same, in point of fact 50% or more of the Local Bodies teachers were non-matriculates and quite a number of such non-matriculate teachers were also without the qualification of Basic Training as against a few non-matriculates and none without such Basic Training in the Government schools. In any event the mere fact that minimum qualifications and scales of pay were the same could Page 19 of 43 Downloaded on : Sat Dec 24 12:20:08 IST 2022 C/SCA/1831/2021 JUDGMENT DATED: 07/03/2022 not mean, in view of other dissimilar conditions of service, that the two categories of teachers formed one class. Indeed, Mr Tarkunde conceded, as is even otherwise clear, that prior to October 1, 1957, teachers in local bodies and in government schools did not form one class.
28. So far as the position on October 1, 1957, is concerned, as already noticed, the Government schools teachers were and continued to be governed by the Rules of 1955, which, no doubt, came into force with effect from May 30, 1957 and which prescribed the minimum qualifications as Matriculation in addition to Basic Training. Government school teachers who, under the 1937-Rules, were recruited by the Director of Public Instruction, were since 1954 selected by the Selection Board after their initial pay had been raised from Rs 47½ to Rs 50 per month. The Local Bodies teachers, on the other hand, were recruited by Inspectors in consultation with the Presidents or Chairmen of those bodies till July 1957 when fresh appointments in vacancies falling in those schools were stopped. Under the new Rules of 1955, Government provided for a selection grade for 15% posts. In fact, such a grade was given to them even before 1955- Rules were framed and the new rules merely continued that benefit. Broadly speaking, the position on October 1, 1957, was that the two categories of teachers formed distinct classes. Though they were performing similar duties, they could not be said to form one integrated class.
29. The question then is, whether in spite of the Government school teachers and the provincialised teachers forming two distinct classes on October 1, 1957, they were, during the period between that date and February 13, 1961, integrated into one class, which was split up into two cadres by those Rules? It would perhaps appear from the statement of the Education Minister made at the Press Conference on the eve of provincialisation that Government had in the beginning the idea of bringing about integration between the two types of teachers. But no such concrete decision was ever taken. A few dates at this stage may clarify the position. As aforesaid, the decision to provincialise the local bodies schools was taken on July 19, 1957. In pursuance of that decision. Government on August 2, 1957, placed a ban against any fresh recruitment of teachers in the Local Bodies schools. On September 27, 1957, the Governor sanctioned the scheme of provincialisation and at the same time sanctioned 20,000 and odd new posts to absorb the existing staff of the provincialised schools. Simultaneously with the provincialisation, the Government on October 1, 1957, gave the same scales of pay to the provincialised teachers as were available to government schools teachers. The problem, however, was how to fix and adjust the provincialised teachers in government service and fix their inter se seniority as also their seniority vis-a-vis the government schools teachers.
30. It is fairly clear from the memorandum published along with 1961-Rules that Government was seeking to discover a proper formula to solve these questions. This process was, it appears, going on since November 23, 1959, when alternative proposals were framed for discussion and those proposals were communicated to the recognised associations of the teachers. Since no agreed consensus was forthcoming from the teachers themselves, Government formed its own decisions as formulated by the Secretary, Education Department in his letter of January 27, 1960, to the Director of Public Instruction. These decisions were made around three basic principles:Page 20 of 43 Downloaded on : Sat Dec 24 12:20:08 IST 2022
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(i) that the two cadres will continue to be separate as before;
(ii) that the provincialised cadre would be a diminishing cadre; and
(iii) following upon
(i) and
(ii), vacancies arising as a result of promotions, retirements, resignations, etc., in the provincialised cadre should be transferred to the State cadre so that ultimately after about thirty years the provincialised cadre would vanish altogether leaving the State cadre alone in the field.
These events leave no doubt that at no time after October 1, 1957, any decision for integrating the two categories of teachers was taken although after October 1, 1957, new teachers were appointed and posted in both the provincialised as well as government schools who carried out the same duties and were given the same scales of pay as the provincialised teachers. But such new teachers had to be deemed to have been appointed in the State cadre by reason of the two principles decided upon by the Government,
(i) the diminishing character of the provincialised cadre, and
(ii) that cadre having been frozen from even before October 1, 1957.
Thus, the two categories continued to be separate and were never integrated. The Government schools teachers and those appointed after October 1, 1957, were governed by 1955- Rules while the provincialised teachers continued to be presumably governed by the District Boards' Rules until new rules were framed for them by Government. Thus the Rules of 1961 could not be said to have split up the teachers, who formed one integrated cadre into two new cadres. These Rules had to be made as the inter-seniority among provincialised teachers appointed by different local bodies in different districts had to be determined and their position in the service had to be adjusted. The Rules were framed on the principles formulated in the decisions taken by Government on July 27, 1960.
... ... ...
32. It will be observed that though the provincialised teachers were given the same scales of pay as the teachers in the State cadre, the Rules provided that unlike the latter they could be transferred only within the District where they were serving. Those who were already confirmed prior to the provincialisation were also deemed to be confirmed under these Rules. That meant that for purposes of their seniority their entire service, including service before such confirmation would be taken into account, except that inter se seniority of those promoted to the selection grade was to be determined from the date of their confirmation in that grade.
33. Thus, although the teachers in both the cadres were given the same scales of pay and did the same kind of work and those appointed after October 1, 1957, were posted and worked in the same provincialised schools as teachers in the provincialised cadre, the fact was that the State cadre teachers were and continued to be governed by 1955-Rules while the provincialised Page 21 of 43 Downloaded on : Sat Dec 24 12:20:08 IST 2022 C/SCA/1831/2021 JUDGMENT DATED: 07/03/2022 teachers were governed by 1961-Rules. This fact, coupled with the fact that one was a district and the other a divisional cadre, meant that the two cadres continued to be separate cadres as before. The principal effect of the new Rules, however, was that the number of posts in the cadre would gradually diminish and together with that the total number of posts in the selection grade, despite the percentage of fifteen remaining intact. But that was the inevitable result of the freezing of the cadre, on the one hand, and its being a diminishing cadre on the other. The State cadre became correspondingly an expanding cadre, the total number of posts for all the schools, Government and provincialised, remaining more or less constant. ... ... ...
35. The controversy thus really turns on the question whether Government was bound to integrate the two categories of teachers into one and not to continue them as separate cadres as before, and whether its refusal to do so meant violation either of Article 14 or Article 16. It is true that notwithstanding this Court upholding the validity of the 1961-Rules in Punjab v. Joginder, the then Government of Punjab in 1965 adopted a uniform running scale for both the cadres of Rs 60-Rs 175 with a common 15% for higher grade posts. But that decision has nothing to do with the question of the validity of 1961-Rules, and if those Rules were valid, with the validity of the decision of the new State of Haryana to implement those Rules instead of the common running scale adopted by Punjab State.
36. The principles on which discrimination and breach of Articles 14 and 16 can be said to result have been by now so well settled that we do not think it necessary to repeat them here once again. As already seen, ever since 1937 and even before, the two categories of teachers have always remained distinct, governed by different sets of rules, recruited by different authorities and having, otherwise than in the matters of pay-scales and qualifications, different conditions of service. This position remained as late as February 13, 1961. On that day whereas the State cadre teachers were governed by 1955-Rules, rules had yet to be framed for the provincialized teachers. The two cadres thus being separate, Government was not bound to bring about an integrated cadre especially in view of its decision of making the provincialized cadre a diminishing one and bringing about ultimately through that principle one cadre only in the field in a phased manner. If through historical reasons the teachers had remained in two separate categories, the classification of the provincialized teachers into a separate cadre could not be said to infringe Article 14 or Article 16.
It was also not incumbent on the Government to frame the 1961- Rules uniformly applicable to both the categories of teachers, firstly, because a ruleframing authority need not legislate for all the categories and can select for which category to legislate (See Sakhawat Ali v. State of Orissa (1955) 1 SCR 1004 ; Madhubhai Amathalal Gandhi v. Union of India (1961) 1 SCR 191 and Vivian Joseph Ferreira v. Municipal Corporation of Greater Bombay (1972) 1 SCC 70) and secondly, because it had already come to a decision of gradually diminishing the provincialized cadre so that ultimately only the State cadre would remain in the service. That was one way of solving the intricate difficulty of inter- seniority. There can be no doubt that if there are two categories of Page 22 of 43 Downloaded on : Sat Dec 24 12:20:08 IST 2022 C/SCA/1831/2021 JUDGMENT DATED: 07/03/2022 employees, it is within Government's power to recruit in one and not recruit in the other. There is no right in a government employee to compel it to make fresh appointments in the cadre to which he belongs.
It cannot also be disputed that Government had the power to make rules with retrospective effect, and therefore, could provide therein that appointments made between October 1, 1957 and February 13, 1961, shall be treated as appointments in the State cadre. That had to be done for the simple reason that the provincialized cadre was already frozen even before October 1, 1957 and Government had decided not to make fresh appointments in that cadre since that cadre was to be a diminishing one. ... ... ...
40. Regarding Respondents 37 to 96, all of them were appointed after provincialisation. They are junior in service than the petitioners and some others in the provincialised cadre. But their case is not comparable, for, they were appointed under 1955-Rules and through the recruitment authorities prescribed under those rules i.e. the Selection Board. Obviously, they could not be appointed in the provincialised cadre as that had been frozen even before October 1, 1957. They may have been posted in the provincialised schools but that cannot mean that they were appointed in that cadre. Their appointment being in a separate cadre, it is impossible to say that they were similarly situated. By reason of their recruitment in the State cadre, their conditions of service, including their promotional chances and their seniority would be governed by 1955-Rules and would only be comparable to those in that cadre only."
101. Heavy reliance was placed on the aforesaid decisions by the learned Attorney General and the learned counsel who appeared for the State. It was submitted that though the teachers in provincialized cadre and the State cadre were doing similar duties and discharging identical responsibilities and though, they were as a matter of fact drawing similar pay and emoluments, the services were considered to be distinct and different. The feature that one of the cadres was to be a dying or vanishing cadre was also present in those cases.
It was accepted by this Court that the State was within its Rights to let a particular service or cadre be a dying or vanishing cadre and keep making appointments in other service while maintaining distinct identities of both the services, even when the teachers coming from the both the cadres were doing identical jobs. Though, strictly speaking, those two matters did not involve concept of 'equal pay for equal work', these cases do point that the State can validly make such distinction or differentiation. The learned Attorney General and the learned counsel appearing for the State were, therefore, justified in placing reliance on these two decisions. It is also evident that the subsequent judgments have not noted the decisions of this Court in Joginder Singh28 and Zabar Singh29.
For the purposes of present discussion, we will proceed on the basis that even when the teachers from both the cadres were discharging similar duties and responsibilities, the decision of the State government to maintain different identities of these two cadres was not found objectionable by this Court and further there could be inter se distinctions between these two cadres. It is true Page 23 of 43 Downloaded on : Sat Dec 24 12:20:08 IST 2022 C/SCA/1831/2021 JUDGMENT DATED: 07/03/2022 that both the cadres were enjoying same pay structure but the submission that the chances of promotion ought to be similar was not accepted by the Court.
102. We must also consider observations of this Court in paragraph 12 in its decision in Secretary, Finance Department and others vs. West Bengal Registration Service Association and others8, which bring out how a 'pay structure' is evolved. The relevant portion of said paragraph was:-
12. ... ... Ordinarily a pay structure is evolved keeping in mind several factors, e.g.,
(i) method of recruitment,
(ii) level at which recruitment is made,
(iii) the hierarchy of service in a given cadre,
(iv) minimum educational/technical qualifications required,
(v) avenues of promotion,
(vi) the nature of duties and responsibilities,
(vii) the horizontal and vertical relativities with similar jobs,
(viii) public dealings,
(ix) satisfaction level,
(x) employer's capacity to pay, etc. We have referred to these matters in some detail only to emphasise that several factors have to be kept in view while evolving a pay structure and the horizontal and vertical relativities have to be carefully balanced keeping in mind the hierarchical arrangements, avenues for promotion, etc. Such a carefully evolved pay structure ought not to be ordinarily disturbed as it may upset the balance and cause avoidable ripples in other cadres as well. ... ..."
103. We, therefore, have to proceed on the following basic premise:-
103.1 It was open to the State to have two distinct cadres namely that of 'Government Teachers' and 'Niyojit Teachers' with Government Teachers being a dying or vanishing cadre. The incidents of these two cadres could be different. The idea by itself would not be discriminatory.
103.2 The pay structure given to the Niyojit Teachers was definitely lower than what was given to Government Teachers but the number of Government Teachers was considerably lower than the number of Niyojit Teachers. As stated above, presently there are just about 66,000 Government Teachers in the State as against nearly 4 lakh Niyojit Teachers. There is scope for further appointment of about 1 lakh teachers which could mean that as against 5 lakh teachers the number of State Teachers would progressively be going down.
103.3 The parity that is claimed is by the larger group with the lesser group as stated above which itself is a dying or a vanishing cadre.
103.4 The mode of recruitment of Niyojit Teachers is completely different from that of the Government Teachers as stated above.
104. If a pay structure is normally to be evolved keeping in mind factors such as "method of recruitment" and "employer's capacity Page 24 of 43 Downloaded on : Sat Dec 24 12:20:08 IST 2022 C/SCA/1831/2021 JUDGMENT DATED: 07/03/2022 to pay" and if the limitations or qualifications to the applicability of the doctrine of 'equal pay for equal work' admit inter alia the distinction on the ground of process of recruitment, the stand taken on behalf of the State Government is not unreasonable or irrational. Going by the facts indicated above and the statistics presented by the State Government, it was an enormous task of having the spread and reach of education in the remotest corners.
Furthermore, the literacy rate of the State which was lagging far behind the national average was also a matter which required attention.
The advances made by the State on these fronts are quite evident. All this was possible through rational use of resources. How best to use or utilise the resources and what emphasis be given to which factors are all policy matters and in our considered view the State had not faltered on any count. As laid down by this Court in the decisions in Joginder Singh28 and Zabar Singh29, the State was justified in having two different streams or cadres. The attempt in making over the process of selection to Panchayati Raj Institutions and letting the cadre of State Teachers to be a dying or vanishing cadre were part of the same mechanics of achieving the spread of education. These issues were all part of an integrated policy and if by process of judicial intervention any directions are issued to make available same salaries and emoluments to Niyojit Teachers, it could create tremendous imbalance and cause great strain on budgetary resources."
11. What needs to be noted is that while considering the decision of the Bench of Two Judges in the case of Jagjit Singh (Supra), where in context of the issue whether temporarily engaged employees (Daily Wage Employees, adhoc appointees, employees appointed on casual basis, contractual employees and like) are entitled to the minimum of the regular pay scale, the Court in the above referred case considered the decision in the case of Randhir Singh v. Union of India reported in 1982 (1) SCC 682 and considered that the case of Jagjit Singh Page 25 of 43 Downloaded on : Sat Dec 24 12:20:08 IST 2022 C/SCA/1831/2021 JUDGMENT DATED: 07/03/2022 (Supra) had reiterated the limitations of equal pay for equal work. The case of Joginder Singh (Supra) & Zabar Singh (Supra) were considered by the Hon'ble Supreme Court in context of the facts which were akin to those of the case of the teachers of those cases and the case before the Court in the case of Bihar Secondary Teachers Struggle Committee (Supra). In the case of Joginder Singh (Supra), the case of teachers was that they were working before 1.10.1957 as Junior vernacular teachers. By executive instructions of Government in September, 1957 which were to take effect from 1.10.1957, teachers became State employees. They were to be governed by the Rules framed under Article 309 of the Constitution of India. The executive instructions in the form of the communication made a change in the terms and conditions of service of teachers in the District Board and Municipal Board Schools. The teachers were then classified into lower and middle grade teachers which applied to the Junior teachers in the Page 26 of 43 Downloaded on : Sat Dec 24 12:20:08 IST 2022 C/SCA/1831/2021 JUDGMENT DATED: 07/03/2022 State Cadre. The case of the petitioners was that whether the State could constitute two services consisting of employees doing the same but with different scales of pay or subject to different conditions of service and whether such distinction would violate the provisions of Article 12 of the Constitution of India. It is in this context that the Supreme Court held that it is for the Government to consider differentiation and disparity in pay scales when two services are independent and the qualifications prescribed for entry into each is different, the method of recruitment and machinery is also different, and if the government order that is the executive instructions did not integrate them into a single service, they would, therefore, remain two distinct services and there cannot be assimilation thereof and the benefit for equal pay and equal work be granted. Similarly, in the case of Zabar Singh (Supra), the Supreme Court was considering the validity of the same Rules albeit under the aegis of the Constitution Bench and Page 27 of 43 Downloaded on : Sat Dec 24 12:20:08 IST 2022 C/SCA/1831/2021 JUDGMENT DATED: 07/03/2022 observed that the validity of the Rules cannot be challenged merely because they have been framed with retrospective effect distinguishing provisionalized teachers and other teachers belonging to the State Cadre. The parity and disparity purportedly on the basis of the date of the operation of the Rules was therefore a subject matter of challenge before the Supreme Court in the case of Zabar Singh (Supra) and Joginder Singh (Supra) which was considered by the Supreme Court in the decision in the case of Bihar Secondary Teachers Struggle Committee (Supra).
12. The contention that the decision in the case of Jagjit Singh (Supra) would therefore not be applicable is a misconceived notion. In the case of Jagjit Singh (Supra) the issue for consideration before the Supreme Court considering the same decisions as considered in the case of Bihar Secondary Teachers Struggle Committee (Supra) was set Page 28 of 43 Downloaded on : Sat Dec 24 12:20:08 IST 2022 C/SCA/1831/2021 JUDGMENT DATED: 07/03/2022 out in para 6 of the decision which reads as under:
"6. By the Constitution (74th Amendment Act, 1992) Part IXA (containing Articles 243P to 243Z, 243ZA to 243ZG) was inserted in the Constitution. In terms of Article 243Q there shall be constituted in every State, a Nagar panchayat for a transitional area, a municipal council for a small urban area and a municipal corporation for a larger urban area in accordance with the provisions of said Part IXA of the Constitution. Article 243W dealing with powers, authority and responsibilities of Municipalities etc. is as under:
"243W. Powers, authority and responsibilities of Municipalities, etc. - Subject to the provisions of this Constitution, the Legislature of a State may, by law, endow -
"(a) The Municipalities with such powers and authority as may be necessary to enable them to function as institutions of self-
government and such law may contain provisions for the devolution of powers and responsibilities upon Municipalities, subject to such conditions as may be specified therein, with respect to -
(i) the preparation of plans for economic development and social justice;
(ii) the performance of functions and the implementation of schemes as may be entrusted to them including those in relation to the matters listed in the Twelfth Schedule;
(b) the Committees with such powers and authority as may be necessary to enable them to carry out the responsibility conferred upon them including those in relation to the matters listed in the Twelfth Schedule." One of the matters mentioned in the Twelfth Schedule at Serial No.13 states, "Promotion of cultural, educational and aesthetic aspects."
13. The context of equal pay for equal work was not considered on the decision of granting benefits of the regular pay scale on the same set up of two distinct employees but was considered on the basis of granting the minimum of pay scale of a regular established employee to a daily wager who was carrying out the same duties and the same nature of Page 29 of 43 Downloaded on : Sat Dec 24 12:20:08 IST 2022 C/SCA/1831/2021 JUDGMENT DATED: 07/03/2022 work which an employee otherwise on a regular set up would carry out. The issue was examined in the situations where equal pay for equal work has been extended to the regular employees and how such principle can be applied to different categories of temporary employees. After considering several decisions in the case of the Supreme Court on the issue of equal pay for equal work and considering the decision of Bhagvandas v. State of Harynana (Supra) in para 28, 28.1 the Supreme Court held as under:
"28. Bhagwan Dass v. State of Haryana[21] decided by a two-Judge bench: The Education Department of the State of Haryana, was pursuing an adult education scheme, sponsored by the Government of India, under the National Adult Education Scheme. The object of the scheme was to provide functional literacy to illiterates, in the age group of 15 to 35, as also, to impart learning through special contract courses, to students in the age group of 6 to 15, comprising of dropouts from schools. The petitioners were appointed as Supervisors. They were paid remuneration at the rate of Rs.5,000/- per month, as fixed salary. Prior to 7.3.1984, they were paid fixed salary and allowance, at the rate of Rs.60/- per month. Thereafter, the fixed salary was enhanced to Rs.150/- per month. The reason for allowing them fixed salary was, that they were required to work, only on part-time basis. The case set up by the State Government was, that the petitioners were not full-time employees; their mode of recruitment was different from Supervisors engaged on regular basis; the nature of functions discharged by them, was not similar to those discharged by Supervisors engaged in the regular cadre; and their appointments were made for a period of six months, because the posts against which they were appointed, were sanctioned for one year at a time.
28.1. Having examined the controversy, this Court rejected all the above submissions advanced on behalf of the State Government. It was held, that the duties discharged by the petitioners even though for a shorter duration, were not any different from Supervisors, engaged in the regular cadre. Even though Page 30 of 43 Downloaded on : Sat Dec 24 12:20:08 IST 2022 C/SCA/1831/2021 JUDGMENT DATED: 07/03/2022 recruitment of Supervisors in the regular cadre was made by the Subordinate Selection Board by way of an open selection, whereas the petitioners were selected through a process of consideration which was limited to a cluster of a few villages, it was concluded that, that could not justify the denial to the petitioners, wages which were being paid to Supervisors, working in the regular cadre. It was held, that so long as the petitioners were doing work, which was similar to the work of Supervisors engaged in the regular cadre, they could not be denied parity in their wages. Accordingly it was held, that from the standpoint of the doctrine of 'equal pay for equal work', the petitioners could not be discriminated against, in regard to pay-scales. Having concluded that the petitioners possess the essential qualification for appointment to the post of Supervisor, and further the duties discharged by them were similar to those appointed on regular basis, it was held, that the petitioners could not be denied wages payable to regular employees. This Court also declined the plea canvassed on behalf of the Government, that they were engaged in a temporary scheme against posts which were sanctioned on year to year basis. On the instant aspect of the matter, it was held, that the same had no bearing to the principle of 'equal pay for equal work'. It was held, that the only relevant consideration was, whether the nature of duties and functions discharged and the work done was similar. While concluding, this Court clarified that in the instant case, it was dealing with temporary employees engaged by the same employer, doing work of the same nature, as was being required of those engaged in the regular cadre, on a regular basis. It was held, that the petitioners, who were engaged on temporary basis as Supervisors, were entitled to be paid on the same basis, and in the same pay-scale, at which those employed in the regular cadre discharging similar duties as Supervisors, were being paid."
14. What was considered by the Supreme Court and which needs to be noted is that while considering the decision in the case of Bhagvandas v. State of Harynana (Supra), the case of Joginder Singh (Supra) specifically observed that while concluding as such, what the Court clarified was that in the instant case, it was dealing with temporary employees engaged by the same employer doing work of the same nature as was being required of Page 31 of 43 Downloaded on : Sat Dec 24 12:20:08 IST 2022 C/SCA/1831/2021 JUDGMENT DATED: 07/03/2022 those engaged in the regular cadre on a regular basis. That was not the case on hand in consideration before the Supreme Court in the case of Bihar Secondary Teachers Struggle Committee (Supra) which was considering decisions in the case of Joginder Singh (Supra) and Zabar Singh (Supra). In the opinion of this Court therefore, the distinguishing features of Bihar Secondary Teachers Struggle Committee (Supra) is evident from considering the decision of Joginder Singh (Supra) which reiterates the principles of equal pay for equal work in paragraph Nos.42 to 46 thereof which read as under:
"42. All the judgments noticed in paragraphs 7 to 24 hereinabove, pertain to employees engaged on regular basis, who were claiming higher wages, under the principle of 'equal pay for equal work'. The claim raised by such employees was premised on the ground, that the duties and responsibilities rendered by them, were against the same post for which a higher pay-scale was being allowed, in other Government departments. Or alternatively, their duties and responsibilities were the same, as of other posts with different designations, but they were placed in a lower scale. Having been painstakingly taken through the parameters laid down by this Court, wherein the principle of 'equal pay for equal work' was invoked and considered, it would be just and appropriate, to delineate the parameters laid down by this Court. In recording the said parameters, we have also adverted to some other judgments pertaining to temporary employees (also dealt with, in the instant judgment), wherein also, this Court had the occasion to express the legal position with reference to the principle of 'equal pay for equal work'. Our consideration, has led us to the following deductions:-
(i) The 'onus of proof', of parity in the duties and responsibilities of the subject post with the reference post, under the principle of 'equal pay for equal work', lies on the person who claims it. He who approaches the Court has to establish, that the subject post Page 32 of 43 Downloaded on : Sat Dec 24 12:20:08 IST 2022 C/SCA/1831/2021 JUDGMENT DATED: 07/03/2022 occupied by him, requires him to discharge equal work of equal value, as the reference post (see - the Orissa University of Agriculture & Technology case10, Union Territory Administration, Chandigarh v. Manju Mathur15, the Steel Authority of India Limited case16, and the National Aluminum Company Limited case18).
(ii) The mere fact that the subject post occupied by the claimant, is in a "different department" vis-a-vis the reference post, does not have any bearing on the determination of a claim, under the principle of 'equal pay for equal work'. Persons discharging identical duties, cannot be treated differently, in the matter of their pay, merely because they belong to different departments of Government (see - the Randhir Singh case1, and the D.S. Nakara case2).
(iii) The principle of 'equal pay for equal work', applies to cases of unequal scales of pay, based on no classification or irrational classification (see - the Randhir Singh case1). For equal pay, the concerned employees with whom equation is sought, should be performing work, which besides being functionally equal, should be of the same quality and sensitivity (see - the Federation of All India Customs and Central Excise Stenographers (Recognized) case3, the Mewa Ram Kanojia case5, the Grih Kalyan Kendra Workers' Union case6 and the S.C. Chandra case12).
(iv) Persons holding the same rank/designation (in different departments), but having dissimilar powers, duties and responsibilities, can be placed in different scales of pay, and cannot claim the benefit of the principle of 'equal pay for equal work' (see
- the Randhir Singh case1, State of Haryana v. Haryana Civil Secretariat Personal Staff Association9, and the Hukum Chand Gupta case17). Therefore, the principle would not be automatically invoked, merely because the subject and reference posts have the same nomenclature.
(v) In determining equality of functions and responsibilities, under the principle of 'equal pay for equal work', it is necessary to keep in mind, that the duties of the two posts should be of equal sensitivity, and also, qualitatively similar. Differentiation of pay-
scales for posts with difference in degree of responsibility, reliability and confidentiality, would fall within the realm of valid classification, and therefore, pay differentiation would be legitimate and permissible (see - the Federation of All India Customs and Central Excise Stenographers (Recognized) case3 and the State Bank of India case8). The nature of work of the subject post should be the same and not less onerous than the reference post. Even the volume of work should be the same. And so also, the level of responsibility. If these parameters are not met, parity cannot be claimed under the principle of 'equal pay for equal work' (see - State of U.P. v. J.P. Chaurasia4, and the Grih Kalyan Kendra Workers' Union case6).
(vi) For placement in a regular pay-scale, the claimant has to be a regular appointee. The claimant should have been selected, on the basis of a regular process of recruitment. An employee appointed on a temporary basis, cannot claim to be placed in the regular pay- scale (see - the Orissa University of Agriculture & Technology case10).(vii) Persons performing the same or similar functions, duties and responsibilities, can also be placed in different pay- scales. Such as - 'selection grade', in the same post. But this difference must emerge out of a legitimate foundation, such as - merit, or seniority, or some other relevant criteria (see - State of U.P. v. J.P. Chaurasia4).
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(viii) If the qualifications for recruitment to the subject post vis-a- vis the reference post are different, it may be difficult to conclude, that the duties and responsibilities of the posts are qualitatively similar or comparable (see - the Mewa Ram Kanojia case5, and Government of W.B. v. Tarun K. Roy11). In such a cause, the principle of 'equal pay for equal work', cannot be invoked.
(ix) The reference post, with which parity is claimed, under the principle of 'equal pay for equal work', has to be at the same hierarchy in the service, as the subject post. Pay-scales of posts may be different, if the hierarchy of the posts in question, and their channels of promotion, are different. Even if the duties and responsibilities are same, parity would not be permissible, as against a superior post, such as a promotional post (see - Union of India v. Pradip Kumar Dey7, and the Hukum Chand Gupta case17).
(x) A comparison between the subject post and the reference post, under the principle of 'equal pay for equal work', cannot be made, where the subject post and the reference post are in different establishments, having a different management. Or even, where the establishments are in different geographical locations, though owned by the same master (see - the Harbans Lal case23). Persons engaged differently, and being paid out of different funds, would not be entitled to pay parity (see - Official Liquidator v. Dayanand13).
(xi) Different pay-scales, in certain eventualities, would be permissible even for posts clubbed together at the same hierarchy in the cadre. As for instance, if the duties and responsibilities of one of the posts are more onerous, or are exposed to higher nature of operational work/risk, the principle of 'equal pay for equal work' would not be applicable. And also when, the reference post includes the responsibility to take crucial decisions, and that is not so for the subject post (see - the State Bank of India case8).
(xii) The priority given to different types of posts, under the prevailing policies of the Government, can also be a relevant factor for placing different posts under different pay-scales. Herein also, the principle of 'equal pay for equal work' would not be applicable (see - State of Haryana v. Haryana Civil Secretariat Personal Staff Association9).
(xiii) The parity in pay, under the principle of 'equal pay for equal work', cannot be claimed, merely on the ground, that at an earlier point of time, the subject post and the reference post, were placed in the same pay- scale. The principle of 'equal pay for equal work' is applicable only when it is shown, that the incumbents of the subject post and the reference post, discharge similar duties and responsibilities (see - State of West Bengal v. West Bengal Minimum Wages Inspectors Association14).
(xiv) For parity in pay-scales, under the principle of 'equal pay for equal work', equation in the nature of duties, is of paramount importance. If the principal nature of duties of one post is teaching, whereas that of the other is non-teaching, the principle would not be applicable. If the dominant nature of duties of one post is of control and management, whereas the subject post has no such duties, the principle would not be applicable. Likewise, if the central nature of duties of one post is of quality control, whereas the subject post has minimal duties of quality control, the principle would not be applicable (see - Union Territory Administration, Chandigarh v. Manju Mathur15).
(xv) There can be a valid classification in the matter of pay-scales, between employees even holding posts with the same nomenclature i.e., between those discharging duties at the Page 34 of 43 Downloaded on : Sat Dec 24 12:20:08 IST 2022 C/SCA/1831/2021 JUDGMENT DATED: 07/03/2022 headquarters, and others working at the institutional/sub-office level (see - the Hukum Chand Gupta case17), when the duties are qualitatively dissimilar.
(xvi) The principle of 'equal pay for equal work' would not be applicable, where a differential higher pay-scale is extended to persons discharging the same duties and holding the same designation, with the objective of ameliorating stagnation, or on account of lack of promotional avenues (see - the Hukum Chand Gupta case17).
(xvii) Where there is no comparison between one set of employees of one organization, and another set of employees of a different organization, there can be no question of equation of pay-scales, under the principle of 'equal pay for equal work', even if two organizations have a common employer. Likewise, if the management and control of two organizations, is with different entities, which are independent of one another, the principle of 'equal pay for equal work' would not apply (see - the S.C. Chandra case12, and the National Aluminum Company Limited case18).
43. We shall now venture to summarize the conclusions recorded by this Court, with reference to a claim of pay parity, raised by temporary employees (differently designated as work-charge, daily-wage, casual, ad- hoc, contractual, and the like), in the following two paragraphs.
44. We shall first outline the conclusions drawn in cases where a claim for pay parity, raised at the hands of the concerned temporary employees, was accepted by this Court, by applying the principle of 'equal pay for equal work', with reference to regular employees:-
(i) In the Dhirendra Chamoli case19 this Court examined a claim for pay parity raised by temporary employees, for wages equal to those being disbursed to regular employees. The prayer was accepted. The action of not paying the same wage, despite the work being the same, was considered as violative of Article 14 of the Constitution. It was held, that the action amounted to exploitation - in a welfare state committed to a socialist pattern of society.
(ii) In the Surinder Singh case20 this Court held, that the right of equal wages claimed by temporary employees emerged, inter alia, from Article 39 of the Constitution. The principle of 'equal pay for equal work' was again applied, where the subject employee had been appointed on temporary basis, and the reference employee was borne on the permanent establishment. The temporary employee was held entitled to wages drawn by an employee on the regular establishment. In this judgment, this Court also took note of the fact, that the above proposition was affirmed by a Constitution Bench of this Court, in the D.S. Nakara case2.
(iii) In the Bhagwan Dass case21 this Court recorded, that in a claim for equal wages, the duration for which an employee would remain (- or had remained) engaged, would not make any difference. So also, the manner of selection and appointment would make no difference. And therefore, whether the selection was made on the basis of open competition or was limited to a cluster of villages, was considered inconsequential, insofar as the applicability of the principle is concerned. And likewise, whether Page 35 of 43 Downloaded on : Sat Dec 24 12:20:08 IST 2022 C/SCA/1831/2021 JUDGMENT DATED: 07/03/2022 the appointment was for a fixed limited duration (six months, or one year), or for an unlimited duration, was also considered inconsequential, insofar as the applicability of the principle of 'equal pay for equal work' is concerned. It was held, that the claim for equal wages would be sustainable, where an employee is required to discharge similar duties and responsibilities as regular employees, and the concerned employee possesses the qualifications prescribed for the post. In the above case, this Court rejected the contention advanced on behalf of the Government, that the plea of equal wages by the employees in question, was not sustainable because the concerned employees were engaged in a temporary scheme, and against posts which were sanctioned on a year to year basis.
(iv) In the Daily Rated Casual Labour Employed under P&T Department through Bhartiya Dak Tar Mazdoor Manch case22 this Court held, that under principle flowing from Article 38(2) of the Constitution, Government could not 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 the other benefits which were being extended to casual workers. It was also held, that the classification of workers (as unskilled, semi-skilled and skilled), doing the same work, into different categories, for payment of wages at different rates, was not tenable. It was also held, that such an act of an employer, would amount to exploitation. And further that, the same would be arbitrary and discriminatory, and therefore, violative of Articles 14 and 16 of the Constitution.
(v) In State of Punjab v. Devinder Singh26 this Court held, that daily- wagers were entitled to be placed in the minimum of the pay-scale of regular employees, working against the same post.
The above direction was issued after accepting, that the concerned employees, were doing the same work as regular incumbents holding the same post, by applying the principle of 'equal pay for equal work'.
(vi) In the Secretary, State of Karnataka case28, a Constitution Bench of this Court, set aside the judgment of the High Court, and directed that daily-wagers be paid salary equal to the lowest grade of salary and allowances being paid to regular employees. Importantly, in this case, this Court made a very important distinction between pay parity and regularization. It was held that the concept of equality would not be applicable to issues of absorption/regularization. But, the concept was held as applicable, and was indeed applied, to the issue of pay parity - if the work component was the same. The judgment rendered by the High Court, was modified by this Court, and the concerned daily-wage employees were directed to be paid wages, equal to the salary at the lowest grade of the concerned cadre.
(vii) In State of Haryana v. Charanjit Singh30, a three-Judge bench of this Court held, that the decisions rendered by this Court in State of Haryana v. Jasmer Singh25, State of Haryana v. Tilak Raj27, the Orissa University of Agriculture & Technology case10, and Government of W.B. v. Tarun K. Roy11, laid down the correct law. Thereupon, this Court declared, that if the concerned daily- wage employees could establish, that they were performing equal Page 36 of 43 Downloaded on : Sat Dec 24 12:20:08 IST 2022 C/SCA/1831/2021 JUDGMENT DATED: 07/03/2022 work of equal quality, and all other relevant factors were fulfilled, a direction by a Court to pay such employees equal wages (from the date of filing the writ petition), would be justified.
(viii) In State of U.P. v. Putti Lal31, based on decisions in several cases (wherein the principle of 'equal pay for equal work' had been invoked), it was held, that a daily-wager discharging similar duties, as those engaged on regular basis, would be entitled to draw his wages at the minimum of the pay-scale (drawn by his counterpart, appointed on regular basis), but would not be entitled to any other allowances or increments.
(ix) In the Uttar Pradesh Land Development Corporation case33 this Court noticed, that the respondents were employed on contract basis, on a consolidated salary. But, because they were actually appointed to perform the work of the post of Assistant Engineer, this Court directed the employer to pay the respondents wages, in the minimum of the pay-scales ascribed for the post of Assistant Engineer.
45. We shall now attempt an analysis of the judgments, wherein this Court declined to grant the benefit of 'equal pay for equal work' to temporary employees, in a claim for pay parity with regular employees:-
(i) In the Harbans Lal case23, daily-rate employees were denied the claimed benefit, under the principle of 'equal pay for equal work', because they could not establish, that the duties and responsibilities of the post(s) held by them, were similar/equivalent to those of the reference posts, under the State Government.
(ii) In the Grih Kalyan Kendra Workers' Union case6, ad-hoc employees engaged in the Kendras, were denied pay parity with regular employees working under the New Delhi Municipal Committee, or the Delhi Administration, or the Union of India, because of the finding returned in the report submitted by a former Chief Justice of India, that duties and responsibilities discharged by employees holding the reference posts, were not comparable with the posts held by members of the petitioner union.
(iii) In State of Haryana v. Tilak Raj27, this Court took a slightly different course, while determining a claim for pay parity, raised by daily- wagers (- the respondents). It was concluded, that daily-
wagers held no post, and as such, could not be equated with regular employees who held regular posts. But herein also, no material was placed on record, to establish that the nature of duties performed by the daily-wagers, was comparable with those discharged by regular employees. Be that as it may, it was directed, that the State should prescribe minimum wages for such workers, and they should be paid accordingly.
(iv) In State of Punjab v. Surjit Singh32, this Court held, that for the applicability of the principle of 'equal pay for equal work', the respondents who were daily-wagers, had to establish through strict pleadings and proof, that they were discharging similar duties and responsibilities, as were assigned to regular employees. Since they had not done so, the matter was remanded back to the High Court, for a re- determination on the above position. It is therefore Page 37 of 43 Downloaded on : Sat Dec 24 12:20:08 IST 2022 C/SCA/1831/2021 JUDGMENT DATED: 07/03/2022 obvious, that this Court had accepted, that where duties, responsibilities and functions were shown to be similar, the principle of 'equal pay for equal work' would be applicable, even to temporary employees (otherwise the order of remand, would be meaningless, and an exercise in futility).
(vi) It is, therefore apparent, that in all matters where this Court did not extend the benefit of 'equal pay for equal work' to temporary employees, it was because the employees could not establish, that they were rendering similar duties and responsibilities, as were being discharged by regular employees, holding corresponding posts.
46. We have consciously not referred to the judgment rendered by this Court in State of Haryana v. Jasmer Singh25 (by a two-Judge division bench), in the preceding two paragraphs. We are of the considered view, that the above judgment, needs to be examined and explained independently. Learned counsel representing the State government, had placed emphatic reliance on this judgment. Our analysis is recorded hereinafter:-
(i) In the above case, the respondents who were daily-wagers were claiming the same salary as was being paid to regular employees.
A series of reasons were recorded, to deny them pay parity under the principle of 'equal pay for equal work'. This Court expressed the view, that daily- wagers could not be treated at par with persons employed on regular basis, because they were not required to possess qualifications prescribed for appointment on regular basis. Daily-wagers, it was felt, were not selected in the same manner as regular employees, inasmuch as, a regular appointee had to compete in a process of open selection, and would be appointed, only if he fell within the zone of merit. It was also felt, that daily-wagers were not required to fulfill the prescribed requirement of age, at the time of their recruitment. And also because, regular employees were subject to disciplinary proceedings, whereas, daily-wagers were not. Daily-wagers, it was held, could also not be equated with regular employees, because regular employees were liable to be transferred anywhere within their cadre. This Court therefore held, that those employed on daily-wages, could not be equated with regular employees, and as such, were not entitled to pay parity, under the principle of 'equal pay for equal work'.
(ii) First and foremost, it is necessary to emphasise, that in the course of its consideration in State of Haryana v. Jasmer Singh25, this Court's attention had not been invited to the judgment in the Bhagwan Dass case21, wherein on some of the factors noticed above, a contrary view was expressed. In the said case, this Court had held, that in a claim for equal wages, the manner of selection for appointment would not make any difference. It will be relevant to notice, that for the posts under reference in the Bhagwan Dass case21, the selection of those appointed on regular basis, had to be made through the Subordinate Selection Board, by way of open selection. Whereas, the selection of the petitioners as daily- wagers, was limited to candidates belonging to a cluster of villages, and was not through any specialized selection body/agency. Despite thereof, it was held, that the benefit under the principle of 'equal pay for equal work', could not be denied to the petitioners. The aforesaid conclusion was drawn on the ground, that as long as the petitioners were performing similar Page 38 of 43 Downloaded on : Sat Dec 24 12:20:08 IST 2022 C/SCA/1831/2021 JUDGMENT DATED: 07/03/2022 duties, as those engaged on regular basis (on corresponding posts) from the standpoint of the doctrine of 'equal pay for equal work', there could be no distinction on the subject of payment of wages.
(iii) Having noticed the conclusion drawn in State of Haryana v. Jasmer Singh25, it would be relevant to emphasise, that in the cited judgments (noticed in paragraph 26 onwards, upto paragraph
41), the employees concerned, could not have been granted the benefit of the principle of 'equal pay for equal work' (in such of the cases, where it was so granted), because temporary employees (daily-wage employees, in the said case) are never ever selected through a process of open selection, by a specialized selection body/agency. We would therefore be obliged to follow the large number of cases where pay parity was granted, rather than, the instant singular judgment recording a divergent view.
(iv) Temporary employees (irrespective of their nomenclature) are also never governed by any rules of disciplinary action. As a matter of fact, a daily-wager is engaged only for a day, and his services can be dispensed with at the end of the day for which he is engaged. Rules of disciplinary action, are therefore to the advantage of regular employees, and the absence of their applicability, is to the disadvantage of temporary employees, even though the judgment in State of Haryana v. Jasmer Singh25, seems to project otherwise.
(v) Even the issue of transferability of regular employees referred to in State of Haryana v. Jasmer Singh25, in our view, has not been examined closely. Inasmuch as, temporary employees can be directed to work anywhere, within or outside their cadre, and they have no choice but to accept. This is again, a further disadvantage suffered by temporary employees, yet the judgment projects as if it is to their advantage.
(vi) It is also necessary to appreciate, that in all temporary appointments (- work-charge, daily-wage, casual, ad-hoc, contractual, and the like), the distinguishing features referred to in State of Haryana v. Jasmer Singh25, are inevitable, yet in all the judgments referred to above (rendered before and after, the judgment in the State of Haryana v. Jasmer Singh25), the proposition recorded in the instant judgment, was never endorsed.
(vii) It is not the case of the appellants, that the respondent- employees do not possess the minimum qualifications required to be possessed for regular appointment. And therefore, this proposition would not be applicable to the facts of the cases in hand.
(viii) Another reason for us in passing by, the judgment in State of Haryana v. Jasmer Singh25 is, that the bench deciding the matter had in mind, that daily-wagers in the State of Haryana, were entitled to regularization on completion of 3/5 years of service, and therefore, all the concerned employees, would in any case be entitled to wages in the regular pay-scale, after a little while. This factual position was noticed in the judgment itself.
(ix) It is not necessary for us to refer the matter for adjudication to a larger bench, because the judgment in State of Haryana v.
Page 39 of 43 Downloaded on : Sat Dec 24 12:20:08 IST 2022C/SCA/1831/2021 JUDGMENT DATED: 07/03/2022 Jasmer Singh25, is irreconcilable and inconsistent with a large number of judgments, some of which are by larger benches, where the benefit of the principle in question was extended to temporary employees (including daily-wagers).
(x) For all the above reasons, we are of the view that the claim of the appellants cannot be considered, on the basis of the judgment in State of Haryana v. Jasmer Singh25."
15. What is also evident is that in para 46, the Supreme Court observed that pay parity in the context of daily wagers is the only issue for consideration and therefore the divergent view on the question is taken. Therefore in para 49.1 of Jagjit Singh (Supra) the Supreme Court held as under:
"49.1 We are of the considered view, that in paragraph 44 extracted above, the Constitution Bench clearly distinguished the issues of pay parity, and regularization in service. It was held, that on the issue of pay parity, the concept of 'equality' would be applicable (as had indeed been applied by the Court, in various decisions), but the principle of 'equality' could not be invoked for absorbing temporary employees in Government service, or for making temporary employees regular/permanent. All the observations made in the above extracted paragraphs, relate to the subject of regularization/permanence, and not, to the principle of 'equal pay for equal work'. As we have already noticed above, the Constitution Bench unambiguously held, that on the issue of pay parity, the High Court ought to have directed, that the daily-wage workers be paid wages equal to the salary, at the lowest grade of their cadre. This deficiency was made good, by making such a direction."
16. In the background of the facts in the case of Umadevi (Supra) which was considered by the Hon'ble Supreme Court in the case of Joginder Singh (Supra), the Court extensively referred to Page 40 of 43 Downloaded on : Sat Dec 24 12:20:08 IST 2022 C/SCA/1831/2021 JUDGMENT DATED: 07/03/2022 paragraph No.55 of the judgment in the case of Umadevi (Supra) that the Court may not issue directions to make such employees permanent but at least they can be directed that they be given the pay scale equal to the salary of the lowest grade of employees working in the equivalent posts in the regular establishment. Paragraph No.55 of the decision of also needs reproduction which reads as under:
"55. In cases relating to service in the commercial taxes department, the High Court has directed that those engaged on daily wages, be paid 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. The objection taken was to the direction for payment from the dates of engagement. We find that the High Court had clearly gone wrong in directing that these employees be paid salary 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 engaged or appointed. It was not open to the High Court to impose such an obligation on the State when the very question before the High Court in the case was whether these employees were entitled to have equal pay for equal work so called and were entitled to any other benefit. They had also been engaged in the teeth of directions not to do so. We are, therefore, of the view that, at best, the Division Bench of the High Court should have directed that wages equal to the salary that are being paid to regular employees be paid to these daily wage employees with effect from the date of its judgment. Hence, that part of the direction of the Division Bench is modified and it is directed that these daily wage earners be paid wages equal to the salary at the lowest grade of employees of their cadre in the Commercial Taxes Department in government service, from the date of the judgment of the Division Bench of the High Court. Since, they are only daily wage earners, there would be no question of other allowances being paid to them. In view of our conclusion, that Courts are not expected to issue directions for making such persons permanent in service, we set aside that part of the direction of the High Court directing the Government to consider their cases for regularization. We also notice that the High Court has not adverted to the aspect as to whether it was regularization or it was giving permanency that was being directed by the High Court. In such a Page 41 of 43 Downloaded on : Sat Dec 24 12:20:08 IST 2022 C/SCA/1831/2021 JUDGMENT DATED: 07/03/2022 situation, the direction in that regard will stand deleted and the appeals filed by the State would stand allowed to that extent. If sanctioned posts are vacant (they are said to be vacant) the State will take immediate steps for filling those posts by a regular process of selection. But when regular recruitment is undertaken, the respondents in C.A. No. 3595-3612 and those in the Commercial Taxes Department similarly situated, will be allowed to compete, waiving the age restriction imposed for the recruitment and giving some weightage for their having been engaged for work in the Department for a significant period of time. That would be the extent of the exercise of power by this Court under Article 142 of the Constitution to do justice to them."
17. The argument of the learned counsel for the respondent that the appointments made are illegal and, therefore, the petitioners are not entitled to the benefits of the regular pay scale cannot be considered in light of the decision in the case of Bhartiya Seva Samaj Trust Tr. Pres. v.
Yogeshbhai Ambalal Patel reported in 2012(9) SCC 310 wherein the Supreme Court after considering the question held that it is not open for an employer to contend after having taken the services of an employee for long period of time to hold that their appointments were made illegally.
18. Accordingly, all these petitions are partly allowed.
The petitioners are entitled to the minimum of the pay scale of the posts equivalent to which the Page 42 of 43 Downloaded on : Sat Dec 24 12:20:08 IST 2022 C/SCA/1831/2021 JUDGMENT DATED: 07/03/2022 petitioners are engaged on daily wage basis as would be available to a corresponding regularly employed employee of a Municipality on the corresponding post. The minimum of pay scale shall be granted to the petitioners of these petitions from the date of their filing the petitions i.e. on and from 1.4.2021. It is evident that all the petitioners have completed more than ten years of service from their date of joining and, therefore, the directions to grant them such benefits from their respective dates of filing of the petitions to be taken as 1.4.2021 also satisfies the test of they having completed ten years of service in accordance with the decision in the case of Manubhai (Supra) which was decided taking into consideration the law in the case of Umadevi (Supra). Compliance of the decision shall be made within a period of twelve weeks from the date of receipt of this judgment.
19. Rule is made absolute to the aforesaid extent.
Direct Service is permitted. No costs.
Sd/-
[ BIREN VAISHNAV, J. ] VATSAL S. KOTECHA Page 43 of 43 Downloaded on : Sat Dec 24 12:20:08 IST 2022