Jammu & Kashmir High Court
Ravinder Kumar And Ors. vs State Of J&K; And Ors. on 22 October, 2018
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
SWP No.2335/2016
IA No.1/2016
Date of order:-22.10.2018
Ravinder Kumar and ors. Vs. State of J&K and ors.
Coram:
Hon'ble Mr. Justice Sanjeev Kumar, Judge
Appearing Counsel:
For the petitioner(s): Mr. Abhinav Sharma, Advocate.
For the respondent(s): Mr. A.M Malik, Dy. AG.
i/ Whether to be reported in : Yes/No
Press/Media
ii/ Whether to be reported in : Yes/No
Digest/Journal
(Oral)
1. Petitioners possessing the qualification of Degree/Diploma in Civil Engineering came to be engaged as Technical Assistants in district Rajouri under Mahatama Gandhi National Rozgar Employee Guarantee Act (hereinafter called as MGNREGA). Petitioners No. 1 to 4 claim to have completed seven years of service whereas other petitioners have completed four years of service. The engagement of petitioners was consequent upon the selection made by a duly constituted Selection Committee under the Scheme. As per the terms and conditions of their engagement, the petitioners were entitled to be paid consolidated sum on monthly basis by debit to administration cost under MNNREGA as permissible in terms of the guidelines. The Technical Assistants having three years Diploma in Civil Engineering were initially entitled to be paid Rs. 4,500/- per month and those with higher qualification were entitled to be paid Rs. 5,000/- per month. This amount, however, has subsequently been revised to Rs. 7,000/- for Diploma Holders and Rs. 7,500/- in case of Degree Holder. Grievance of the petitioners in this petition is that SWP No.2335/2016 Page 1 of 6 though they are qualified Engineers and performing the same duties as are being performed by the Junior Engineers serving in the State Government Departments yet they have been denied the salary attached to the post of Junior Engineer of the State Government and therefore, the principle of equal pay for equal work is being violated by the respondents. Further grievance of the petitioners is that the respondent No. 1 has come up with two Government Orders providing certain benefits to the employees engaged under MGNREGA. It is submitted that vide Government Order No. 125-RD&PR of 2014 dated 25.03.2014, the Programme Officers engaged in the similar manner under MGNREGA on contractual basis have been sanctioned certain benefits in the shape of leave, compensatory allowance, border allowance and travelling allowance etc., but the same have been denied to the petitioners without any reason or justification. The further grievance of the petitioners is that with a view to bring the employees of MGNREGA at par with contractual employees appointed under SRO 255 dated 05.08.2003, the respondent No.1 issued Government SRO 255 dated 05.08.2003 but the benefits envisaged in the aforesaid order have not been given to all the employees serving under MGNREGA. On the strength of aforesaid two Government Orders, it is contended that the petitioners are at least entitled to the benefit of salary as envisaged under SRO 255 dated 05.08.2003 as also the benefits envisaged under Government Order 125-RD&PR of 2014 dated 25.03.2014.
2. Respondents have filed their objections and the only stand taken in the objections is that both the Government Orders of the year 2014 relied upon by the petitioners are under reconsideration in the department as the same have been issued in violation of prescribed guidelines for contractual employees working under MGNREGA.
SWP No.2335/2016 Page 2 of 63. Having heard learned counsel for the parties and perused the record I am of the view that the petitioners who are similarly situated with the Programme Officers working under MGNREGA cannot be denied the benefit of Government Order No. 125-RD&PR of 2014 dated 25.03.2014 wherever applicable. This Court does not find any valid reasons for treating the Programme Officers differently than the Technical Assistants under the same Scheme. The plea of the respondents that the Government Order No.125-RD&PR of 2014 dated 25.03.2014 is under reconsideration cannot be a ground to deny the benefits envisaged in the aforesaid order to the petitioners, particularly, when the same benefit has been extended to and is being enjoyed by the Programme Officers. So long as the Government Order No.125-RD&PR of 2014 dated 25.03.2014 is not withdrawn, rescinded or modified, it is to be applied evenly to all those similarly circumstanced. Learned counsel appearing for the respondents has not been able to point out any cogent distinction to treat the Programme Officers differently than the petitioners in the matter of sanctioning the benefits as envisaged under Government Order No. 125- RD&PR of 2014 dated 25.03.2014.
4. The plea of the petitioners that they are entitled to the salary at par with the regular Junior Engineers working in the State Government Departments cannot be accepted for the reasons that the petitioners are engaged under a Scheme known as MGNREGA which is not a Government Department. The duties of the petitioners may be in some way similar to the duties which are being performed by the Junior Engineers working in the Government Department on regular basis yet the fact remains that the employer is different, the source of funds is different and even the duties to be performed by the petitioners as Technical Assistants under MGNREGA are also substantially different. The petitioners are engaged on the basis of honorarium in the Scheme and SWP No.2335/2016 Page 3 of 6 this was made clear to the petitioners right from the beginning in the Advertisement Notification pursuant to which the petitioners were engaged. Be that as it may, the facts remains that the parameters for applying the principle of "equal pay for equal work" are not met in the case. Requisite material has also not been placed on record by the petitioners to attract the applicability of the principle of "equal pay for equal work".
5. This brings me to the claim of the petitioners to the benefits as envisaged in Government Order 131-RD&PR of 2014 dated 26.03.2014. For facility of reference the aforesaid order is reproduced hereunder:-
"Government of Jammu and Kashmir Department of Rural Development & Panchayati Raj Civil Secretariat, Jammu Subject:- Compensatory Allowance/Border Allowance and Leave in favour of contractual employees engaged under MGNREGA/NBA etc. Government Order No. 131-RD&PR of 2014 Dated 26.03.2014 It is hereby ordered that Leave and other benefits as admissible to contractual employees under SRO-255 dated 05.08.2003 shall be admissible to the contractual employees engaged under various schemes of Rural Development including MGNREGA, NBA etc. Also.
BY order of the Government of Jammu and Kashmir.
Sd/-
Commissioner Secretary to Government Department of Rural Development &PR."
6. From plain reading of the above Government Order, it is clear that the Government has ordered the leave and other benefits as admissible to the contractual employees under SRO 255 dated 05.08.2003 would also be admissible to the contractual employees engaged under various Schemes SWP No.2335/2016 Page 4 of 6 of the Rural Development Department including MGNREGA. That being the position, the respondents have, themselves applied the provisions of SRO-255 dated 05.08.2003 to the employees working under MGNREGA also.
7. The plea of the respondents that the petitioners have been engaged under MGNREGA are not contractual employees in terms of SRO-255 dated 05.08.2003 to claim the benefits under aforesaid SRO is totally misconceived and cannot be accepted. It may be correct that the petitioners are not the contractual employees as contemplated under SRO 255 dated 05.08.2003, but the fact remains that respondent No.1 vide its Order 131-RD&PR of 2014 dated 26.03.2014 has extended that the leave and other benefits envisaged under SRO 255 to the contractual employees engaged under various Schemes including MGNREGA also. This, in essence, amounts to applying the provisions of SRO-255 to the employees engaged on contractual basis in MGNREGA as well.
8. The other plea taken by the respondents that the aforesaid order is under reconsideration also cannot be taken note of at this stage for the reason that the aforesaid Government Order issued in the year 2014 is still in existence and has not been withdrawn, rescinded or modified by the competent authority so far. So long as the aforesaid order remains in existence, the benefit envisaged there-under cannot be denied to beneficiaries as contemplated under the aforesaid Government Order. The petitioners being contractual employees engaged under MGNREGA are the beneficiaries of aforesaid Government order and therefore, are entitled to the benefits envisaged there-under.
9. For the foregoing discussion, this petition is allowed, the petitioners are held entitled to the benefits as envisaged under SRO Order 125-RD&PR of 2014 dated 25.03.2014 as has been granted in favour of Programme SWP No.2335/2016 Page 5 of 6 Officers engaged under MGNREGA. Needless to say that these benefits shall be available to the petitioners w.e.f the date of issuance of the aforesaid Government Order. The petitioners are also held entitled to the benefits like leave and other benefits as admissible to the contractual employees under SRO-255 dated 05.08.2003 in terms of Government Order No. 131-RD&PR of 2014 dated 26.03.2014. These benefits shall also accrue to the petitioners w.e.f the date of issuance of the order i.e., 26.03.2014. Respondents shall consider the case of the petitioners in the list of observations made above and pass appropriate order or direction for grant of the benefits as envisaged in the aforesaid Government Orders in favour of the petitioners within a period of two months from the date certified copy of this order is made available to them.
Jammu (Sanjeev Kumar)
22.10.2018 Judge
Surinder-II
SWP No.2335/2016 Page 6 of 6