Mr. P Roy Barman vs Mr. Pk Dhar on 8 February, 2022

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Tripura High Court

Mr. P Roy Barman vs Mr. Pk Dhar on 8 February, 2022

HON'BLE MR. JUSTICE S. TALAPATRA Order 08.02.2022 Heard Mr. P Roy Barman, learned senior counsel assisted by Mr. K Nath, learned counsel appearing for the petitioners and Mr. PK Dhar, learned Sr. GA assisted by Mr. A Dey, learned counsel appearing for the respondents.

There is no dispute that the petitioners were selected for General Duty Attendant (GDA, for short) for AGMC & GBP Hospital and IGM Hospital. The interview was taken in terms of the advertisement for recruitment dated 05.11.2008 (Annexure-1 to the writ petition) for 416 vacancies. By the notification dated 14.11.2008 (Annexure-2 to the writ petition), 416 posts [309 for AGMC & GBP Hospital and 109 for IGM Hospital] were created on Daily Rate Basis for performing duties of GDA as per rate of Rs.80.10 per head per day and the petitioners were engaged by the said memoranda as available at Annexure-3 & 4 to the writ petition). The petitioners have been discharging their respective duties to the utmost satisfaction of the appropriate authority.

Mr. Roy Barman learned senior counsel has submitted that the wage of the petitioners is far below than the minimum of the pay scale (in the lowest grade) of a regular GDA. Such wage is extremely exploitative and stands contrary to the law enunciated by the apex court in State of Punjab & Page 2 of 6 Ors., Vs Jagjit Singh & Ors., reported in (2017) 1 SCC 148 where the apex court has laid down as follows:

"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 work-charge, 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.

58. In our considered view, it is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work cannot be paid less than another who performs the same duties and responsibilities. Certainly not, in a welfare State. Such an action besides being demeaning, strikes at the very foundation of human dignity. Anyone, who is compelled to work at a lesser wage does not do so voluntarily. He does so to provide food and shelter to his family, at the cost of his self-respect and dignity, at the cost of his self-worth, and at the cost of his integrity. For he knows that his dependants would suffer immensely, if he does not accept the lesser wage. Any act of paying less wages as compared to others similarly situate constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation.

59. We would also like to extract herein Article 7 of the International Covenant on Economic, Social and Cultural Rights, 1966. The same is reproduced below:

"7. The States Parties to the present Covenant recognise the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular:

(a) Remuneration which provides all workers, as a minimum, with:

(i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;

(ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant;

(b) Safe and healthy working conditions;

(c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence;

(d) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays."

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India is a signatory to the above Covenant having ratified the same on 10-4-1979. There is no escape from the above obligation in view of different provisions of the Constitution referred to above, and in view of the law declared by this Court under Article 141 of the Constitution of India, the principle of "equal pay for equal work" constitutes a clear and unambiguous right and is vested in every employee-- whether engaged on regular or temporary basis.

60. Having traversed the legal parameters with reference to the application of the principle of "equal pay for equal work", in relation to temporary employees (daily-wage employees, ad hoc appointees, employees appointed on casual basis, contractual employees and the like), the sole factor that requires our determination is, whether the employees concerned (before this Court), were rendering similar duties and responsibilities as were being discharged by regular employees holding the same/corresponding posts. This exercise would require the application of the parameters of the principle of "equal pay for equal work"

summarised by us in para 42 above. However, insofar as the instant aspect of the matter is concerned, it is not difficult for us to record the factual position. We say so, because it was fairly acknowledged by the learned counsel representing the State of Punjab, that all the temporary employees in the present bunch of appeals were appointed against posts which were also available in the regular cadre/establishment. It was also accepted that during the course of their employment, the temporary employees concerned were being randomly deputed to discharge duties and responsibilities which at some point in time were assigned to regular employees. Likewise, regular employees holding substantive posts were also posted to discharge the same work which was assigned to temporary employees from time to time. There is, therefore, no room for any doubt, that the duties and responsibilities discharged by the temporary employees in the present set of appeals were the same as were being discharged by regular employees. It is not the case of the appellants, that the respondent employees did not possess the qualifications prescribed for appointment on regular basis. Furthermore, it is not the case of the State that any of the temporary employees would not be entitled to pay parity on any of the principles summarised by us in para 42 hereinabove. There can be no doubt, that the principle of "equal pay for equal work"

would be applicable to all the temporary employees concerned, so as to vest in them the right to claim wages on a par with the minimum of the pay scale of regularly engaged government employees holding the same post.

61. In view of the position expressed by us in the foregoing paragraph, we have no hesitation in holding that all the temporary employees concerned, in the present bunch of cases would be entitled to draw wages at the minimum of the pay scale (at the lowest grade, in the regular pay scale), extended to regular employees holding the same post."

Hence, it has been contended for the petitioners that the petitioners are entitled to draw wages at the minimum of the pay scale at the lowest grade in the regular pay scale, extended to the General Duty Attendant Page 4 of 6 (GDA) who are appointed on regular basis. That apart, Mr. Roy Barman, learned senior counsel has submitted that the continuation of Daily Rated Workers (DRWs) for more than 11 years itself shows that there was/is requirement of regular GDAs and these daily rated workers have been engaged to fill that necessity. As such, the petitioners can safely be assumed to have been discharging duties of regular GDAs. It has been, therefore, urged that the respondents be directed to create regular posts and by converting those posts, as created by the notification dated 14.11.2008, the petitioners be regularized in those posts.

Mr. Dhar, learned Sr. GA appearing for the respondents has submitted that at present there is no vacancy against the post of GDA (Group- D). If there is no vacancy/post, this court may not pass any order for regularization. However, Mr. Dhar, learned Sr. GA has acceded that the petitioners may be entitled to draw the wages at the minimum of the pay scale at the lowest grade of the regular pay scale, meant for GDA, for discharging the similar duties. He has stated that if the petitioners were engaged against the regular posts on daily rate basis, there could have been basis or foundation for claiming regularization, but in the present case there is no regular vacancies/posts are available in the post of GDA (Group-D).

Mr. Roy Barman, learned senior counsel has placed his reliance on a decision of the Division Bench of this court in Sri Basudeb Debnath & Ors. vs. UOI & Ors. along with another writ petition [judgment dated 09.03.2021 delivered in WP(C) 1162/2018] where this court had occasion to observe, having appreciated the decision of the apex court in the matter of regularization as follows:

"The respondents shall form a committee to consider the cases of all the petitioners for regularization. Those petitioners who fulfill the following conditions shall be regularized."

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Having appreciated the said judgment, it requires to be recorded that all the petitioners of Basudeb Debnath (supra) had been engaged against clear vacancies [see para 6(i)]. All the petitioners possess educational qualification of higher secondary passed, which is prescribed qualification for the post in question as per the recruitment rules. They must, therefore, be granted regularization after years of casual engagement in view of decision of the apex court explaining the constitution bench judgment in Secretary, State of Karnataka and others vs. Umadevi (3) and others reported in (2006) 4 SCC1.

But in the present case, there is no record or even there is no assertion from the petitioners that the petitioners were appointed against the clear vacancies meaning vacancies against the regular post. However, it appears that the respondent No. 2 had initiated a proposal for creation of posts for absorption of the GDAs who are working on daily rate wages, but the Finance Department has turned down that proposal by observing as follows:

"The Secretary must be aware that Govt. has withdrawn earlier policy of regularization of DRWs/Contingent Workers. It was not at all desirable for Department to reopen this issue against a settled policy decision of the Govt."

This view is entirely against the law laid down in Narendra Kr. Tiwari and Ors. Vs. State of Jharkhand & Ors. reported in (2018) 8 SCC 238 where the apex court had occasion to observe that the purpose and intent of the decision of State of Karnataka Vs. Uma Devi (3), reported in (2006) 4 SCC 1 was twofold, namely, to prevent irregular or illegal appointments in the future and secondly, to confer a benefit on those who had been irregularly appointed in the past.

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In the present case, the appointments were not irregular. While appointing the petitioners, the selection process was in conformity to the public employment process. Even the respondents have not raised any plea that the appointments are irregular. As such, the petitioners are in a better position than Narendra Kumar Tiwai (supra) and the observation of apex court will squarely apply to the context of the case in hand.

Thus, the government is under constitutional duty to consider the absorption of the petitioners after creation of posts of GDA in the regular establishment. Exercise of creation of posts shall be completed within six months from today as the petitioners are discharging duties of GDAs. On survey, it has appeared that those assignments are perennial in nature, not a stop-gap mechanism. The enhancement of the wages as directed above shall be made within a period of three months from the day when a copy of this judgment will be made available to the respondents.

As such, this court cannot pass the similar direction for regularization. However, considering the fact that the petitioners are working for about 11 years and discharging all the duties and responsibilities of a regular GDA (Grade-IV), the government shall take that initiative for creation of equal number of posts and consider absorbing the petitioners on assessment of their performance within a period of three months from the day of creation of the posts, as aforementioned. It is ordered accordingly.

In terms of the above observation and direction, this writ petition stands allowed and disposed of.

No order as to costs.

Pending application(s), if any, also stands disposed of.

JUDGE satabdi

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