Rajasthan High Court - Jaipur
Sita Ram Mali vs State Of Rajasthan And Anr. on 1 March, 1994
Equivalent citations: 1994(2)WLC177, 1994(1)WLN374
JUDGMENT G.S. Singhvi, J.
1. Although this petition has been filed by the petitioner simply for enforcing the principle of equal pay for equal work and for issue of a direction to the respondents to make payment of salary to the petitioner in the regular pay scale and even though the petitioner has come forward with a case that in the cases of similarly situated persons this Court has given directions for payment of salary according to the principle of equal pay for equal work, I have decided to consider the case in a large perspective because the learned Counsel for the petitioner has come forward with the plea that even though no post of Class IV servant is available and even though the petitioner may have been appointed in contravention of law, the Court must give relief.
2. The petitioner has come forward with a plea that he was engaged as a daily wage employee by the Settlement Commissioner, Rajasthan Jaipur in November, 1992. He was made to discharge duties as Class-IV servant and was paid a sum of Rs. 20/- per day. Between November 1992 to December 1993 he has worked as a daily wage employee and he has discharged the duties which are identical to the duties being performed by other Class IV servants. He says that since there is an identity in the nature of duties being performed by the petitioner, both qualitatively and quantitatively, he has a right to be paid salary in the regular pay scale. His plea is that right to get salary according to the principle of equal pay for equal work is fundamental right of a Government servant and by denying pay to the petitioner in the regular pay scale, the respondents have subjected him to discrimination. In this manner he has been denied equality before law.
3. A large number of similar cases have come before this Court involving employees of the Settlement Department who were appointed on daily wages. Though, this Court has granted relief according to the principle of equal pay for equal work, 1 felt that issue of such directions by the Court has encouraged the departmental authorities to flout the rules and the constitutional provisions contained in Articles 14 and 16 by appointment of persons on daily wages. For this reason, I gave direction to the learned Additional Government Advocate on 24.1.94 to submit clarification on the following points:
(1) How many persons have been appointed by the Settlement Commissioner on daily wages basis without availability of posts'?
(2) Why action has not been taken for making regular appointments against the vacant posts'?
4. On 11.2.94 the learned Dy. Government Advocate, Shri B.L. Awasthi, made a statement that Shri Manish Bhandari is standing counsel for the Revenue Department. It was ordered that the name of Shri Bhandari be shown in the cause list of 22.2.94. Shri Bhandari appeared on behalf of the Department. Arguments were heard on that day and the case was directed to be listed for dictation of order today. Shri Bhandari was asked to make a statement as to in what circumstances the officers of the Settlement Department had made appointments of the employees on daily wages without the availability of the posts. Today Shri Bhandari has frankly stated that a large number of appointments have been made in the Settlement Department at Jaipur without the availability of the vacant posts. Shri Bhandari admitted that in making such appointments neither the provisions of the Rajasthan Class IV service (Recruitment & other Service Conditions) Rules, 1963 have been followed nor any other method has been adopted by the competent authority where claims of other eligible persons could be considered. From this statement of the learned Counsel appearing for the Government it is logical to conclude that the authorities of the Settlement Department of the Government of Rajasthan and particularly those at Jaipur have made appointments de hors the Rules.
5. In recent times, the Court have on more than one eases condemned the practice of making appointments of daily wage employees and even the Government's action of creating posts on daily wages. In Delhi Development Horticulture Employee Union v. Delhi Administration 1992 S.C. 789 the Supreme Court had made these observations:
The courts can take judicial notice of the fact that such employment is sought and given directly for various illegal considerations including money. The employment is given first for temporary periods with technical breaks to circumvent the relevant rules, and is continued for 240 or more days with a view to give the benefit of regularisation knowing the judicial trend that those who have complete 240 or more days are directed to be automatically regularised. A good deal of illegal employment market has developed resulting in a new source of corruption and frustration of those who are waiting at the Employment Exchanges for years. Not all those who gain such backdoor entry in the employment are in need of the particular jobs. Though already employed elsewhere, they join the jobs for better and secured prospects. That is why most of the cases which come to the courts are of employment in government departments, public undertakings or agencies. Ultimately it is the people who bear the heavy burden of the surplus labour. The other equally injurious effect of indiscriminate regularisation has been that many of the agencies have stopped undertaking casual or temporary works though they are urgent and essential for fear that if those who are employed on such works are required to be continued for 240 or more days they have to be absorbed as regular employees although the works are time-bound and there is no need of the workmen beyond the completion of the works under-taken. The public interests are thus jeopardised on both counts.
6. In Ram Pratap v. State of Rajasthan 1992 (3) WLC 533, this Court had taken note of similar malise prevailing in the public services. The Court observed:
Last one decade has, however, seen multitude of cases in which the statutory rules have been touted with impunity and without any consequence upon the violators of the Rules. Thousands of cases have been filed in the Courts of Law/Service Tribunals containing allegations of violation of Rules. Another development which has caused grave concern to the Courts is the methodology adopted by various authorities in giving appointment on daily wages or on part time basis. For economy reasons the Government as a policy decided not to make regular recruitment and appointments against various posts. However, in order to carry the urgent work permissions were given to engage casual labour. However, the object of the Government to effect economy has been completely frustrated by thousands of appointments made in different departments buy engaging daily wages employees or part-time employees. Even against the work of regular and permanent nature appointments on daily wages or part- time basis have been made. Innovative methods have been found to give a go-bye to the provisions of equality clause contained in the Constitution. For making such appointment on daily wages or on part-time basis neither the requisition is sent to the Employment Exchange nor any effort is made to give chance to the persons who are really entitled to be given such appointments. Despite the fact that lacs of persons are registered with the different employment Exchanges and long queue of meritorious persons wait in a hope of getting public employment, these long queues are ignored with contempt and by dubious methods a few favoured sneak into the arena of public employment. Employment is sought and given for various illegal considerations including money. Such appointments are first made for few days or months and then continued for such a period which enables the employee to claim that he has completed 240 days of service. If the person making appointment was transferred, he usually asked the employee to approach a court of taw and seek a restraint order that he might not be removed from service because he has completed 240 days of service. If termination is brought about by the successor-in- office, usually the mandatory requirements of Section-25F and 25G are not complied with. Another side effect of such employment has been that those appointed on daily wage make a claim for grant of salary in the regular pay scale. In the light of the new dimensions given to the concept of equality the Court has to enforce the principle of equal pay for equal work by issuing a direction that payment in the regular pay scale be made. Ultimately it is the public at large who is the sufferer. The State exchequer or the public revenue has to bear the burden of such illegal appointments. A large percentage of public money is to be spent in meeting the demand of such employees. This practice has given a rise to enormous corruption at different levels. There is a mad race amongst the younger generation to seek employment in government services. This made race is because of the feeling that security of the conditions of the service of the government servants is unmatched. Once a person gets in the government service or public service by competition and on merit seek employment by illegal means. Thus in whom the powers have been vested by the Rules are the beneficiaries. It is, therefore, high time that employment on daily wages or on part time basis is brought to an end.
7. The malise towards which the Supreme Court had hinted in the cases of Delhi Development Horticulture Employees Union v. Delhi Administration (supra) and this Court in Ram Pratap v. State of Rajasthan (supra) has apparently spread in all the departments of the Government and Settlement Department has proved to be no exception to it.
8. The scheme of the Rules of 1963 envisages consideration of the claim of eligible persons who are registered with the Employment Exchange. Out of those who are registered with the Employment Exchanges preference is given to a person who is registered earlier and at times merit is the criteria for making appointment. Both these principles incorporated in the Rules of 1963 are regularly given decent burial by making appointments on daily wages. In making daily wage appointments, the employer and particularly the public authorities do not advertise the posts nor do they call names from the Employment Exchange. Those who are waiting in queue for years together, do not get an opportunity even to compete for the purpose of appointment and those who have kith and kins in the Government or other close relations at the helm of affairs, get the cake of public employment. The Courts in India have recognised the public employment as public property and all persons similarly situated have a right to share this property {Delhi Transport Corpn. v. D. T.C. Mazdoor Congress 1991 Suppl (1) SCC 600).
9. In Nalin Kumar v. State of Rajasthan 1992 (2) WLC 32, this Court has held that even while making of ad hoc/urgent temporary appointment, the employer has to consider cases of all eligible land suitable persons. Similarly in State of Haryana v. Pyara Singh , their Lordships of the Supreme Court have held that if rules are silent about the method to be adopted for making ad hoc or urgent temporary appointments, the employer is under an obligation to advertise the posts in the official gazette or in the newspaper and consider the claims of all eligible persons to be appointed.
10. Having regard to the principles laid clown in the various judgments referred to here in above, it must be held that the action of the authorities of the Settlement Department, Government of Rajasthan and more so, of the officers at Jaipur in making appointment on daily wages without the availability of posts and without following the provisions of Articles 14 and 16 suffers from patent illegality. Apparently, for reasons which are wholly extraneous, the officers of the Department have given appointments on daily wages to few favoured. Those who have waited in queues at the Employment Exchange, have been altogether ignored. In fact, while the length of these queues continued to increase, the backdoor entrants got the entry in the service as daily waged employee and got order of payment of salary in the regular pay scale and ultimately an order of regularisalion in the service.
11. Since a clear violation of the constitutional code of equality and the provisions of the Rules of 1963 has been established in this case, I am not inclined to exercise extra ordinary jurisdiction in favour of the petitioner who is beneficiary of an illegal/unconstitutional appointment given to him in the month of November 1992. It is high time that the Courts recognise the fact that the orders passed by it for giving benefit of principles of equal pay for equal work to those who get back door entry in public service, amounts to causing grave injury to the public interest apart from an abuse of equality clause contained in the Constitution. I am of the view that the writ jurisdiction should not ordinarily be exercised in favour of those who are beneficiaries of illegal appointments. Being a third organ of State under our constitutional set up, it is the duty of the Court to enforce constitutional provisions and one way of enforcing the principle is to deny relief to whose who get entry in the public service in breach of the constitutional provisions.
12. For the aforesaid reasons, the writ petition is dismissed.
13. However, that is not the end of the matter. Having taken note of the statement made by the learned Counsel for Department that the appointments have been made without the availability of the posts, it is necessary for the Court to give directions so that the irregularities committed by the departmental authorities are remedied and directions are issued so that appropriate steps are taken by the Government for booking those who are guilty of violating the constitutional provisions. I, therefore, direct the respondents to take appropriate legal measures for terminating the service of those persons who have been appointed without the availability of posts where such appointments have been made without following the rules of 1963 or without considering the cases of the persons who are registered with the Employment Exchanges or without advertising the vacancies. This will have to be done notwithstanding the orders passed by the Court for enforcing the principle of equal pay for equal work. Such persons should be given notice and opportunity of hearing before appropriate order is passed.
14. The State Government shall initiate disciplinary action against the officers who made appointments on daily wages without availability of the vacant posts. Such action should be initiated under the relevant discipline and appeal Rules.
15. The Revenue Secretary to the Government is directed to sent a report about compliance of this order within four months of receipt of copy of this order. Registry of this Court is directed to list this case on July 11, 1994 so that the Court may give further directions, if it becomes necessary.