Central Administrative Tribunal - Mumbai
Dilip Hadale vs M/O Finance on 23 August, 2022
1
O.A. No.596/2019
Item No.6
Central Administrative Tribunal
Mumbai Bench, Mumbai
O.A. No.596/2019
Order reserved on 02nd August, 2022
Order pronounced on 23rd August, 2022
Hon'ble Mr. S K Sinha, Member (A)
Hon'ble Mrs. Harvinder Kaur Oberoi, Member (J)
1. Dilip Hadale
Aged 37 years
Working as Casual Worker
o/o Principal Commissioner of IT-III Thane
Ashar IT Park, 6th Floor, Road No.162
Near Ambika Nagar, Wagale Industrial Estate
Thane 400 604
r/o Bunglow No.10, Kopari
12 Bunglow, Opposite Sinchan Bhawan
Thane (E) 400 603
2. Aakash Paulas Saket
Aged 28 years
Working as Casual Worker
o/o Principal Commissioner of IT-III Thane
Ashar IT Park, 6th Floor, Road No.162
Near Ambika Nagar, Wagale Industrial Estate
Thane 400 604
r/o Room No.5, Ground Floor
Shree Krishna Kunj, Co.op Society
Raut Chawl Road, Badlapur (W) 421503
3. Varsha Panchal (name withdrawn)
Aged 28 years
Working as Casual Worker
o/o Principal Commissioner of IT-III Thane
Ashar IT Park, 6th Floor, Road No.162
Near Ambika Nagar, Wagale Industrial Estate
Thane 400 604
r/o Room No.24, Shree Mahalaxmi Chaya,
Co.Op. Society
Nadivili Road, Mohachi Vadi,
Dombivali (E), Kalyan 421 201
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O.A. No.596/2019
Item No.6
4. Rajendrakumar S K (name withdrawn)
Aged 53 years
Working as Casual Worker
o/o Principal Commissioner of IT-III Thane
Ashar IT Park, 6th Floor, Road No.162
Near Ambika Nagar, Wagale Industrial Estate
Thane 400 604
R/o RS Kadakol, 28/2201, Haware city, Kasawadavali
Thane (W) 400 604
5. Sanjay Mahadik (name withdrawn)
Aged 48 years
Working as Casual Worker
o/o Principal Commissioner of IT-III Thane
Ashar IT Park, 6th Floor, Road No.162
Near Ambika Nagar, Wagale Industrial Estate
Thane 400 604
r/o 574, Sidharth Nagar, Nirmala Devi Vasahath
Koperi Colony, Thane (E) 400603
...Applicants
(Ms. Priyanka Mehndiratta, Advocate)
Versus
1. The Union of India
Through the Secretary,
Ministry of Finance
Department of Revenue, North Block
New Delhi - 110 001
2. The Principal Commissioner of Income Tax-III
6th Floor, Aasha IT Park, Wagale Estate Road
No.16, Ambika Nagar
Thane (W) 400 604
...Respondents
(Mr. R R Shetty, Advocate)
ORDER
Mrs. Harvinder Kaur Oberoi, Member (J):
At the outset, learned counsel for applicants seeks permission to withdraw the present O.A. in respect of 3 O.A. No.596/2019 Item No.6 applicant Nos. 3 to 5. Permission is accorded and the O.A. qua applicant Nos. 3 to 5 is dismissed as withdrawn.
2. After arguing the O.A., learned counsel for applicant Nos. 1 & 2 submits that she is not pressing the reliefs contained in paragraph 8 (a) and (c), i.e., with respect to conferment of temporary status.
3. Brief facts of the case are that the applicant Nos. 1 & 2 are working as daily wage employees/contract labourers in the office of Principal Commissioner of Income Tax-III, Thane for the last 7 years and are performing similar nature of work performed by other regular employees. They submit that the respondents have now issued order dated 09/13.05.2013 asking the respective Drawing and Disbursing Officers (DDOs) not to make any payments to the directly deployed casual workers. Thereafter, the respondents have resorted to making appointments through labour contract/outsourcing, despite the fact there is a regular need/requirement of chowkidar, sweeper, farash and watermen etc. The applicants, in the meantime, have become overage and cannot be regularly appointed and, therefore, it is unfair on the part of respondents to shift their muster to contractors after engaging them for years. Hence, the applicant Nos. 1 & 2 have filed the instant O.A. under 4 O.A. No.596/2019 Item No.6 Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"a) xxx xxx
b) This Hon'ble Tribunal may further be pleased to direct the Respondents to pay the arrears of the payments of wages at the minimum pay Level I of the Pay Matrix at Rs.18000/- plus D.A. w.e.f. 1.01.16.
c) xxx xxx
d) This Hon'ble may further be pleased to hold and
declare that the Applicants are entitled to all consequential benefits / reliefs, in the interest of justice.
e) This Hon'ble Tribunal may further be pleased to hold and declare that the Applicants are entitled to payment of interest @ 18% on such delayed payment of arrears till the date of payment.
f) This Hon'ble Tribunal may further be pleased to grant one day paid weekly off to Applicants as provided under DoPT OM dated 19.07.16.
g) That this Hon'ble Tribunal may also pass / grant any other order/relief in favour of the Applicants which it may deem fit in light of facts and peculiar circumstances of the case and in the interest of justice.
h) That the cost of the Application may also be awarded in favour of the Applicants."
4. The applicants have submitted that they being daily wagers have not been paid wages, as mandated by the DoPT O.M. dated 07.06.1988, which speaks about the nature of work entrusted to causal workers and that where the nature of their work is same as that of regular 5 O.A. No.596/2019 Item No.6 employees, then the casual workers may be paid at the rate of 1/30th of the pay at the minimum of the scale of relevant pay scale. This O.M. does not differentiate with casual labour with temporary status or casual labour without temporary status.
5. The applicants submit that similarly placed persons filed O.A. before various Benches of the Tribunal where orders have been passed, directing the respondents to implement the DoPT O.M. dated 07.06.1988 and it has been implemented by the respondents. In support of this plea, the applicants have relied upon the judgment of Hon'ble Supreme Court in State of Punjab & others v. Jagjit Singh & others (2017) 1 SCC (L&S) 1.
6. Per contra, the respondents have filed their counter reply, stating therein that the applicants have been hired through contractors, as can be seen from the Services Agreement entered into by the applicants with the contractor and the remuneration is being paid to them through the contractor on various dates. The applicants are not entitled to grant of payment of wages of 1/30th of the pay in the relevant minimum scale and/or regularisation of services since they are not in service of the Government of India directly and/or engaged on 01.01.1993 in consonance 6 O.A. No.596/2019 Item No.6 with the requirement of the DoPT O.M. The respondents submit that the applicants are presently employees of Nishant Service Provider. Since the applicants are working for a private firm and there is no employer and employee relationship between them, hence, this Tribunal has no jurisdiction to entertain this O.A. and it deserves to be dismissed.
7. In support of their claim, the respondents have relied on the following judgments:-
(i) State of M.P. & another v. Pramod Bhartiya & others, AIR 1993 SC 286.
(ii) Food Corporation of India Workers Union v.
Food Corporation of India & another, (2002) 1 SCC 399.
(iii) State of Haryana & another v. Tilak Raj & others, 2003 SC (L&S) 828.
(iv) State of Maharashtra & others v. Anita & another, (2016) 8 SCC 293; and
(v) Bharat Heavy Electricals Ltd. v. Mahendra Prasad Jakhmola & others, 2020 (1) SC (L&S) 399
8. We have heard learned counsel for the parties at length and perused the material available on record. 7 O.A. No.596/2019 Item No.6
9. Ms. Priyanka Mehndiratta, learned counsel for applicants, at the very outset, places reliance on the DoPT O.M. dated 07.06.1988. Referring to the subject of the said O.M., she submits that this is the only O.M. issued by the Government, which does not differentiate between daily wagers and casual workers/contract labours and relies upon clause (iv) thereof, which reads as under:-
"(iv) Where the nature of work entrusted to the casual workers and regular employees is the same, the casual workers may be paid at the rate of 1/30th of the pay at the minimum of the relevant pay scale plus dearness allowance for work of 8 hours a day."
10. The learned counsel further submits that it was pursuant to the judgment passed by the Hon'ble Apex Court in Surinder Singh's case (supra) that the aforesaid O.M. was issued and that the same is still in vogue. Therefore, the respondents are liable to pay wages as per the said O.M. She further submits that the nature of work being done by the applicants is similar to the regular Group 'D' now known as Multi Tasking Officer and, therefore, they are eligible for grant of pay @1/30th of the minimum pay scale.
11. The applicants have placed heavy reliance on the decision of Hon'ble Apex Court in Jagjit Singh's case (supra), wherein it was held as under :- 8 O.A. No.596/2019
Item No.6 "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 case 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 case 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 case.
(iii) In the Bhagwan Dass case 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 9 O.A. No.596/2019 Item No.6 to a cluster of villages, was considered inconsequential, insofar as the applicability of the principle is concerned. And likewise, whether 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 case 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 Singh 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 10 O.A. No.596/2019 Item No.6 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 Singh, a three-Judge bench of this Court held, that the decisions rendered by this Court in State of Haryana V. Jasmer Singh, State of Haryana V. Tilak Raj,the Orissa University of Agriculture & Technology case10, and Government of W.B. V. Tarun K. Roy, laid down the correct law. Thereupon, this Court declared, that if the concerned daily-wage employees could establish, that they were performing equal 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. Vs. Putti Lal, 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.
11O.A. No.596/2019 Item No.6
(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 case, 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 case, 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 Raj, 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 12 O.A. No.596/2019 Item No.6 prescribe minimum wages for such workers, and they should be paid accordingly.
(iv) In State of Punjab V. Surjit Singh, 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 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."
Thus, the applicants claim that since in the present case they have been able to establish by way of their pleadings that their nature of work is identical to that of regular employees, they are entitled for 1/30th of the minimum pay scale as per the DoPT O.M. dated 07.06.1988 or equal pay for equal work as per the law laid down in the case of Jagjit Singh (supra).
13O.A. No.596/2019 Item No.6
12. Mr. R R Shetty, learned counsel for respondents has vociferously opposed the argument of learned counsel for applicants. He, at the outset, relied upon the law laid down by the Hon'ble Apex Court in the case of State of M.P. & another v. Pramod Bhartiya (supra) and submitted that mere assertion in the pleadings is not enough to prove the nature of the work being done by the applicants. They were required to prove that they perform similar functions, duties and responsibilities. Referring further to the above judgement wherein the Hon'ble Apex Court has said that "There is, however, a conspicuous absence of any clear allegation and/or material suggesting that functions and responsibilities of both the categories of lecturers is similar.", it was submitted that since no evidence is led before the Tribunal, there are no means for it to come to the conclusion that the applicants were performing similar nature of duties as regular employees. In this regard reliance was placed on the case of Food Corporation Workers Union (supra), wherein it was held as under:-
"4. Having regard to the pleadings of the parties and the factual controversy involved, we are of the view that it would not be appropriate for this Court to record its conclusions on merits. In order to give effect to the principle of equal pay for equal work, which is no doubt a constitutional obligation implicit in Article 14, we have to enter into the factual arena and embark on an investigation of disputed facts such as the work load and the working pattern in various depots of the Food 14 O.A. No.596/2019 Item No.6 Corporation of India. The mere fact that the qualitative nature of work performed by DPS workers and the departmental workers is the same, is not conclusive. Other aspects highlighted in the counter-affidavit having a bearing on the volume and duration of work in the depots have to be gone into. Incidentally, the justification and expediency of continuing the Direct Payment System which has been recognized by various settlements has to be looked into. A comparative study of the working pattern in various depots, the overall job requirements and the overall effect it will have on the body of workmen as a whole and the Management, are all matters that may be relevant to consider. It is not a case of mere application of a legal principle to the admitted or undeniable facts. But, it depends on concrete facts brought out in evidence. When the same issue is being agitated by the petitioner-union by raising an industrial dispute, it is all the more inappropriate for this Court to make an adjudication on merits in a writ petition filed under Article 32. The award of the National Industrial Tribunal on which reliance was placed virtually stands superseded by the settlement arrived at between the parties culminating in the disposal of the writ petition challenging the said award in terms of such settlement."
13. Also in the case of State of Haryana & another (supra), the Hon'ble Supreme Court has held as under:-
"6. The principle of "equal pay for equal work" is not always easy to apply. There are inherent difficulties in comparing and evaluating the work done by different persons in different organisations, or even in the same organization. In Federation of All India Customs and Central Excise Stenographers (Recognised) and Ors. v. Union of India and Ors. (1988 (3) SCC 91), this Court explained the principle of "equal pay for equal work" by holding that differentiation in pay scales among government servants holding the same posts and performing similar work on the basis of difference in the degree of responsibility, reliability and confidentiality would be a valid differentiation. The same amount 15 O.A. No.596/2019 Item No.6 of physical work may entail different quality of work, some more sensitive, some requiring more tact, some less - it varies from nature and culture of employment. It was further observed that judgment of administrative authorities concerning the responsibilities which attach to the posts and the degree of reliability expected of an incumbent would be a value judgment of the authorities concerned which, if arrived at bona fide, reasonably and rationally, was not open to interference by the Court.
7. In State of U.P. v. J.P. Chaurasia (1989 (1) SCC
121), it was pointed out that the principle of "equal pay for equal work" has no mechanical application in every case of similar work. In Harbans Lal V. State of Himachal Pradesh (1989(4) SCC 459) it was held that a mere nomenclature designating a person as a carpenter or a craftsman was not enough to come to a conclusion that he was doing the work as another carpenter in regular service. A comparison cannot be made with counterparts in other establishments with different managements or even in the establishments in different locations though owned by the same management. The quality of work which is produced may be different, even the nature of work assigned may be different. It is not just a comparison of physical activity. The application of the principle of "equal pay for equal work" requires consideration of various dimensions of a given job. The accuracy required and the dexterity that the job requires may differ from job to job. It must be left to be evaluated and determined by an expert body. Same was of the view expressed in Ghaziabad Development Authority v. Vikram Chaudhary (1995 (5) SCC 210)."
13. The learned counsel for respondents further argued that there was no direct relationship of master and servant between the respondents and the applicants, as they were employees of the contractor and, therefore, the relief claimed by them from the respondents is not maintainable. 16 O.A. No.596/2019 Item No.6 He relied upon the case of Bharat Heavy Electricals Ltd. (supra) wherein the Court has held as under:-
"The workmen have themselves admitted that there is no appointment letter, provident fund number or wage slip from BHEL insofar as they are concerned. Apart from this, it is also clear from the evidence led on behalf of BHEL, that no wages were ever been paid to them by BHEL as they were in the service of the contractor. Further, it was also specifically pointed out that the names of 29 workers were on the basis of a List provided by the contractor in a bid that was made consequent to a tender notice by BHEL.
Ms. Asha Jain's reliance upon the judgment in 'Steel Authority of India Ltd. And Others' [(2001) 7 SCC 1] is also misplaced. There is nothing on facts to show that the contract labour that is engaged, even de hors a prohibition notification, is in the facts of this case 'sham'."
14. The respondents' another leg of argument was based on the principle of 'estoppel'. It was argued that the applicants had accepted the appointment on contractual basis under the contractor with open eyes and as such, they were estopped from raising claims beyond the terms of their contract. The respondents thus relied upon the case of State of Maharashtra & others v. Anita & another (supra) wherein it has been held as under :-
"15. The above terms of the agreement further reiterate the stand of the State that the appointments were purely contractual and that the respondents shall not be entitled to claim any right or interest of permanent service in the government. The appointments of respondents were made 17 O.A. No.596/2019 Item No.6 initially for eleven months but were renewed twice and after serving the maximum contractual period, the services of the respondents came to an end and the Government initiated a fresh process of selection. Conditions of respondents' engagement is governed by the terms of agreement. After having accepted contractual appointment, the respondents are estopped from challenging the terms of their appointment. Furthermore, respondents are not precluded from applying for the said posts afresh subject to the satisfaction of other eligibility criteria."
15. Considering the above submissions and the fact that applicants, at the outset, have given up their prayer for conferment of temporary status, it would be necessary to have a close look at the DoPT O.M. dated 07.06.1988 with respect to the claim for 1/30th of the minimum pay for the applicants. It is reproduced hereunder:-
"The policy regarding engagement of casual workers in Central Government offices has been reviewed by Government keeping in view the judgement of the Supreme Court delivered on the 17th January, 1986 in the Writ Petition filed by Shri Surinder Singh and others vs. Union of India and it has been decided to lay down the following guidelines in the matter of recruitment of casual workers on daily wage basis:-
Persons on daily wages should not recruited for work of regular nature.
Recruitment of daily wagers may be made only for work which is casual or seasonal or intermittent nature or for work which is not of full time nature, for which regular posts cannot be created.
The work presently being done by regular staff should be reassessed by the administrative Departments concerned for output and productivity so that the work being done by the casual workers could be entrusted to the regular employees. The 18 O.A. No.596/2019 Item No.6 Departments may also review the norms of staff for regular work and take steps to get them revised. If considered necessary.
Where the nature of work entrusted to the casual workers and regular employees is the same, the casual workers may be paid at the rate of 1/3oth of the pay at the minimum of the relevant pay scale plus dearness allowance for work of 8 hours a day.
In cases where the work done by a casual worker is different from the work done by a regular employee, the casual worker may be paid only the minimum wages notified by the Ministry of Labour or the State Government/Union Territory Administration, whichever is higher, as per the Minimum Wages Act, 1948. However, if a Department is already paying daily wages at a higher rate, the practice could be continued with the approval of its Financial Adviser.
The casual workers may be given one paid weekly off after six days of continuous work.
The payment to the casual workers may be restricted only to the days on which they actually perform duty under the Government with a paid weekly off as mentioned at (vi) above. They will, however, in addition, be paid for a National Holiday, if it falls on a working day for the casual workers.
In cases where it is not possible to entrust all the items of work now being handled by the casual workers to the existing regular staff, additional regular posts may be created to the barest minimum necessary, with the concurrence of the Ministry of Finance.
Where work of more than one type is to be performed throughout the year but each type of work does not justify a separate regular employee, a multifunctional post may be created for handling those items of work with the concurrence of the Ministry of Finance.
The regularisation of the services of the casual workers will continue to be governed by the instructions issued by this Department in this regard. While considering such regularisation, a casual worker may be given relaxation in the upper 19 O.A. No.596/2019 Item No.6 age limit only if at the time of initial recruitment as a casual worker, he had not crossed the upper age limit for the relevant post.
If a Department wants to make any departure from the above guidelines, it should obtain the prior concurrence of the Ministry of Finance and the Department of Personnel and Training. All the administrative Ministries /Deptts. Should undertake a review of appointment of casual workers in the offices under their control on a time-bound basis so that at the end of the prescribed period, the following targets are achieved:-
a) All eligible casual workers are adjusted against regular posts to the extent such regular posts are justified.
b) The rest of the casual workers not covered by (a) above and whose retention is considered absolutely necessary and is in accordance with the guidelines, are paid emoluments strictly in accordance with the guidelines.
c) The remaining casual workers not covered by (a) and (b) above are discharged from service.
2. The following time limit for completing the review has been prescribed in respect of the various Ministries/Deptts:-
a) Ministry of Railways 2 Years
b) Department of Posts, Department of 1 Year Telecommunications and Department of Defence Production
c) All other Ministries / Deptts./Offices 6 months.
Each Ministry should furnish a quarterly statement indicating the progress of the review in respect of the Ministry (Proper) and all Attached / Subordinate offices under them to the Department of Personnel and Training in the proforma attached. The first quarterly return should be furnished to this Department by the 10th October. 1988.
3. By strict and meticulous observance of the guidelines by all Ministries/Deptts, it should be ensured that there is no more engagement of casual 20 O.A. No.596/2019 Item No.6 workers for attending to work of a regular nature, particularly after the review envisaged above is duly completed. Each Head of Office should also nominate an officer who would scrutinise the engagement of each and every casual worker and the job for which is being employed to determine whether the work is for casual nature or not.
4. Ministry of Finance etc. are requested to bring the contents of this Office Memorandum to the notice of all the appointing authorities under their respective administrative control for strict observance. Cases of negligence in the matter of implementing these guidelines should be viewed very seriously and brought to the notice of the appropriate authorities for taking prompt and suitable action against the defaulters."
16. It can be seen that the aforesaid DoPT O.M. is applicable to the daily wage employees working in the Government Departments and not the contractual employees. The applicants are the employees of the Nishant Service Provider, which is an independent entity; and wages of the labours employed by them on contractual service are governed as per the direction of Ministry of Labour & Employment from time to time. Since the applicants being employees of Nishant Service Provider, the above mentioned DoPT's O.M. is not applicable to them.
17. The applicants have consciously accepted contractual positions, the terms of which expressly put them on notice about the tenuous nature of their employment and further, 21 O.A. No.596/2019 Item No.6 that such employment did not entitle them to regular wages but contractual wages. Therefore, for them to seek such relief now is impermissible. Doctrine of 'equal pay for equal work' presupposes fulfilment of several conditions, such as that the employee must hold the prescribed qualifications under the rules for the post concerned; she or he should have applied through the regular channel for employment (i.e. the application should have been in response to an employment exchange notice, or public advertisement ensuring fair and wide participants amongst all qualified candidates); the post advertised should have been part of the regular or permanent cadre; the process of selection (i.e. test or interview) should have been in accordance with the rules prescribed for the purpose; and the appointment should have been to a regular vacancy in the cadre. In the present case, the contractual appointment of the applicants fulfilled none of those requirements; consequently, their claim for equal pay cannot be entertained.
18. Recently, Hon'ble Apex Court while referring to the judgement of State of Punjab and others v. Jagjit Singh (supra) in the case of State of Madhya Pradesh v. R. D. Sharma (Civil Appeal Nos.474-475 of 2022 22 O.A. No.596/2019 Item No.6 (arising out of SLP (Civil) Nos.547-548 of 2021)) decided on 27.01.2022, has held as follows:-
"14. The High Court in the impugned orders passed in Writ Petition as well as in the Review Petition had thoroughly misdirected itself by applying the principle of "equal pay for equal work"
placing reliance on the decision of this court in case of State of Punjab and Ors. Vs. Jagjit Singh and Ors. 2017 SCC 148, which had no application to the facts of the present case. It may be noted that this court has consistently held that the equation of post and determination of pay scales is the primary function of the executive and not the judiciary and therefore ordinarily courts will not enter upon the task of job evaluation which is generally left to the expert bodies like the Pay Commissions. This is because such job evaluation exercise may include various factors including the relevant data and scales for evaluating performances of different groups of employees, and such evaluation would be both difficult and time consuming, apart from carrying financial implications. Therefore, it has always been held to be more prudent to leave such task of equation of post and determination of pay scales to be best left to an expert body. Unless there is cogent material on record to come to a firm conclusion that a grave error had crept in while fixing the pay scale for a given post, and that the court's interference was absolutely necessary to undo the injustice, the courts would not interfere with such complex issues. A beneficial reference of the observations made in this regard in case of Secretary, Finance Department Vs. West Bengal Registration Service Associations and Ors. 1993 Supl. 1 SCC 153 be made. As held in State of Haryana and Anr. Vs. Haryana Civil Secretariat Personal Staff Association 2002 (06) SCC 72 "equal pay for equal work" is not a fundamental right vested in any employee, though it is a constitutional goal to be achieved by the Government.
15. Pertinently the Administrative Tribunal after considering the relevant factual and legal aspects had rightly rejected the claim of the respondent no. 1 for granting the apex scale on the basis of "equal pay for equal work" in the O.A. filed 23 O.A. No.596/2019 Item No.6 by him. The said well considered, just and proper order of the Tribunal was wrongly set aside by the High Court on extraneous grounds applying the principle of "equal pay for equal work", while exercising the power of superintendence under Article 227 of the Constitution of India. It is well- settled legal position that the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. In the instant case, the Tribunal had not committed any jurisdictional error, nor any failure of justice had occasioned, and hence the interference of the High Court in order passed by the Tribunal was absolutely unwarranted.
16. In that view of the matter, the impugned orders passed by the High Court being thoroughly misconceived in law and in facts, deserve to be quashed and set aside and the same are hereby set aside. The appeals are allowed accordingly."
19. The Hon'ble Apex Court has held that equation of posts is not the function of the judiciary rather it is the function of the Executive. The applicants, being on contract, in fact, makes the comparison with regular employees even more difficult as the regular employees have faced a regular selection process and have been appointed to the said post, whereas the applicants /contractual employees have not faced any selection/screening even. It is always heartrending to refuse protection to a person, who is facing uncertainty and even exploitation, but there are other factors, which have to be kept in mind.
24O.A. No.596/2019 Item No.6
20. Learned counsel for respondents has also relied upon the recent judgment of the Mumbai Bench of this Tribunal in Vilas Pawar & others v. Union of India & others (O.A. No.701/2017 with connected O.A.) decided on 01.07.2022, where the similar issue was raised by the applicants. Vide a detailed judgment, the Tribunal dismissed the aforesaid O.As after referring the judgments of Hon'ble Supreme Court by both the parties.
21. Following the decision of the Tribunal in the abovementioned case as well as the decision of the Hon'ble Supreme Court in State of Madhya Pradesh v. R. D. Sharma's case (supra), we find no justification to interfere with the action of the respondents.
22. Accordingly, the O.A., being bereft of merit, is dismissed. There shall be no order as to costs.
( Harvinder Kaur Oberoi ) ( S K Sinha )
Member (J) Member (A)
/sunil/