Central Administrative Tribunal - Delhi
Ajay Kumar vs Health & Family Welfare on 11 November, 2024
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O.A. No. 986/2022
Central Administrative Tribunal
Principal Bench: New Delhi
O.A. No.986/2022
Reserved on 18.09.2024
Pronounced on 11.11.2024
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S Khati, Member (A)
1. AJAY KUMAR
S/O SATYAPAL SINGH
347, VILLAGE SIRSASALI, BAGHPAT,
UTTAR PRADESH - 250611
2. SHAHJAD ANSARI S/O SAIDADEEN
WEST MUSTAFABAD, LONI,
NORTH EAST DELHI - 201102
3. DEVANAND S/O VASUDEV
HNO.B 393 BAGRIAN BASTI, NABI,
HNO.B-393
PAHAR GANJ, NEW DELHI - 110055
4. SONU S/O SURESH CHANDER
H.NO. 3/23, VEENA ENCLAVE,
NANGLOI, WEST DELHI - 110041
5. RAVI S/O MEHENDERH.
NO. 4765, A GALI NO. 1 SCHOOL
WALI GALI, OLD SEELAM PUR DELHI
GANDI NAGAR - 110031
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6. DINESH KUMAR KASHYAP
S/O MAHESH KASHYAP
D/278, D BLCOK GANESH NAGAR,
PANDAV NAGAR DELHI
DELH - 110092
7. AMIT KUMAR S/O RAM BAB
F-543
543 BUDH NAGAR,
INDER PURI DELH - 110012
8. KAMLESH S/O MOTI
AZAMGHAR UTTER PRADESH - 276001
9. MANOJ KUMAR JHA
S/O JAGTA NAND JHA
A253, AMAN VIHAR, KIRARI
SULEMAN NAGAR, DELHI - 110086
10.KAMAL KUMAR
S/O MOHAN KUMAR
HO. 151/2 JANTA COLONY
CIRCULAR ROAD SHAHDRA,
EAST DELHI - 110032
11. VED PRAKSH S/O NIRANJA
2081, GANJ MIR KHAN
TURKMAN GET DARYA GANJ,
CENTRAL DELHI - 110002
12. VINOD KUMAR S/O MANTRI SINGH
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RAJEEV GARDEN LONI, UP
13. SUNIL KUMAR S/O SURAJ PAL
H.NO. 4/1820, STREET NO. RAM NAGAR
SHAHDRA, DELHI - 110032
14. VIKASH CHANDER S/O TARA CHAND
H.NO. A,405 GALI NO.12
SONIA VIHAR, DELHI - 110090
15. RAVI S/O DEEP KUMAR
HNO. 940, KALHWARA USMANPUR
GHARI MANDHU NORTH EAST DELHI,
DELHI - 110053
16. SHARVAN KUMAR S/O TEJVIR,
KATTA PRAHLADPUR TAJVIR KAATTA
BHAGPATH UTTER PRADESH - 250609
17.SHAKIR ALI S/O NAWAB ALI
HOUSE NO. 3522 GALI THELE SANGTRASHAN RAO,
DELHI - 110001
18.SACHIN S/O RAM BABU
F/543 J.J COLONY INDER PURI
CENTRAL DELHI - 1100012
19.SHYAMU S/O RAGHUBIIR
RAGHUBIR, JAHRUHLA NAGAR UNNAO,
RAGHUBIR,
UTTAR PRADESH - 209801
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20.KAPIL KUMAR S/O ANIL KUMAR
C 112 NAI SEEMA PURI DELHI - 110095
C-112
21. RAHUL S/O HAVALDAR
R/O H NO. 650 AJAD ENCLAVE,
POOJA COLONY TRONICA CITY
UTTAR PRADESH
22. RAJU S/O LACHI RAM
GALI NO. 13 H.1 KARAWAL,
NAGAR - 110094
23. RAJAN S/O RAMASHRAY
GANDHI VIHAR EAST DELHI - 110009
24. DHARMVEER SINGH S/O SHRI CHAND
H. NO. 873, HOUSE, CHIRODI
UTTAR PRADESH - 201102
25. MOHD. KAMIL S/O HAFIJ JAMSED ALI
H. NO. 1606, WARD NO. 36, PASCHIM,
LONI, UTTAR PRADESH - 201
201102
26. SHYAM SINGH S/O BHRAM PAL
BALMIKI MOHALLA, SARAI KHAWAJA,
AMARNAGAR P.O., FARIDABAD,
HARYANA - 121003
27. VISHAL KUMAR S/O RAMESH KUMAR
C/O RAMESH KUMAR, JHUGGI NO.194/4 PUNJABI
BASTI GALI NO.4, NEAR GUMBAD CHOWK,
BALJEET NAGAR, PATEL NAGAR,
CENTRAL DELHI - 110008
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28. MONU KUMAR S/O ASHOK
HOUSE NO 02, KHATTA PRAHLADPUR,
KHATTA
PRAHLADPUR, BAGHPAT, KHEKADA,
UTTAR PRADESH - 250515
29. AKASH KUMAR PATHARWAL S/O
H.NO 448 ADARSH NAGAR KHORA COLONY,
GHAZIABAD UTTAR PRADESH - 201307\
30. VIJAY KUMAR
R S/O BIRBAL
BHURTHALA MANDER TEH.MALER KOTLA
DISST.SANOTRUR PUNJAB PIN - 148023
31. DEEPAK S/O SURAJ BHAN
H.NO .121 GALI NO 4. SEELAM PUR,
GANDHI NAGAR, EAST DELHI - 110031
32. BEJINDER S/O SATPAL
H.NO. 345, VIHAS NAGAR, IDGAH ROAD,
LONI GHAZIABAD, ALAP
ALAPUR,
UTTAR PARDESH - 201102
33. TEJPAL DHIRAN S/O GOVIND SINGH
ADDRESS.633,02 JOHRI BAGHPAT
UTTAR PAEDESH - 250645
34. SANKET S/O HARISH CHAND
H.NO. D.2 INDRA ENCLAVE,
BAHETA HAJIPUR AGRAULA
GHAZIABAD UTTAR PARDESH - 201102
35. SHYAM S/O SHISH PAL
H.NO,113, GALI NO.1 SCHOOL WALI GALI
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OLD SEELAM PUR, GANDHI NAGAR
S.O EAST DELHI - 110031
36. KAMLESH S/O MOTI
H.NO KHARAGAPUR POST BANSGAON
AZAMGARH UTTAR PARDESH - 276126
37. RAVI KUMAR S/O DURGA DASS
H.NO 396 KABIR BASTI MALKA GANJ
NORTH DELHI - 110007
38. CHITRASEN
ASEN NAYANK S/O BANGALI NAYAK
H.NO.A.20 TAIMOOR NAGAR
NEW FRIEND COLONY SOUTH DELHI
DEFENCE COLONY DELHI - 110025
39. SURENDER S/O SHANKAR LAL
H.NO. B-2108,
2108, FIRST PUSTA ST.NO.31
NEAR SHIV GERNAL STORE, SONIA VIHAR
NORTH DELHI - 110094
40. VINOD KUMAR S/O RAMESH
AMESH CHANDRA
H.NO.C-41/53
41/53 JANTA CAMP,
BHAIRO MANDIR ROAD PRAGATI MAIDAN,
G.P.O. NEW DELHI - 110001
41. DEVENDAR KUMAR S/O RAM CHANDER
H.NO A-3/351 -H
H BASTI EAST GOKAL PUR
NAND NAGIR, NORTH EAST DELHI - 110093
42. RAJESH
29/313 GPO DELHI - 110001
43. VISHAL S/O PRAKASH
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1023 FLATS GULABI BAGH DELHI - 110007
44. MANTOSH KUMAR S/O RAM BALI
H.NO. 650 AZAD ENCLAVE
LONI DEHAT, UTTAR PRADESH - 201102
45. RAHUL S/O RAJENDRA
A-87 NEW USMANPUR,
GARHI MENDU, NORTH EAST DELHI - 110053
46. SANJAY S/O RAJ KUMAR
42, BALMIKI MOHOLLA, HIRANKI,
NORTH WEST, DELHI - 110036
47. SHISHPAL S/O HUKAM SINGH
BIJROL, BIJROL BAGPAT,
UTTAR PRADESH - 250611
48. SANJEEV KUMAE SHARMA
S/O SUSHEEL KUMAR SHARMA
VILLAGE- SHAMLI, MUZAFFARNAGAR,
UTTAR PRADESH - 247776
49. ANIL SAINI S/O LAXMAN
AN SAINI
VILLAGE PUSAR, PUSAR BAGPAT,
UTTAR PRADESH -250622
250622
50. SALEEM S/O ABDUL AZIZ
J-3/159,
3/159, KRISHAN KUNJ NEAR ANAR WALI
MASJID LAXMI NAGAR SHAKARPUREAST
DELHI - 110092
51. BABUR NAYAK S/O BANGALI NAYAK
VILLAGE BHAPUR, POST BADASHIRAIPUR,
BHAPUR, KHORDA, ODISA - 752031
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52. NASIR KAMAL S/O ANWAR KHAN
H.NO-218, NARAU-2,
2, NARAU BULANDSHAHR,
UTTAR PRADESH - 202397
53. HARENDRA KUMAR S/O ROHTASH SINGH
SIRSALI, BAGHPAT, UTTAR PRADESH -
250645
54. RAHUL S/O SUKHPAL
PREMPURI LINEPAAR, KHEKADA BAGHPAT,
UTTAR PRADESH - 520101
55. FIROZ S/O TAYAB
148, JAIN SKUL ROAD,
KHEKDA KHEKRA BAGHPAT KHEKADA,
UTTAR PRADESH - 250101
56. RAVINDRA KUMAR S/O PALAK DHAN RAM
H NO. 31, T - HURTS, DHOBI GHAT NO
NO- 26,
NEAR GATE NO. 9, G.B PANT HOSPITAL,
DARYA GANJ, CENTRAL DELHI - 110002
57. JOSEPH TOPNO S/O DAUD TOPNO
DIGRI KERATDI THANA
THANA-RANIA,
DIGARI, KHUNTI, JHARKHAND - 835227
58. SURESH S/O HARICHARAN
POST-BANKATA
BANKATA BUUJURG
VILLAGE VISHUNPUR BANKATA JAMUNIPUR
RAJESULTANPUR AMBEDKAR NAGAR
UTTAR PRADESH - 224176
59. JAGGI S/O SUDHRAM
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H.NO-29 STREET NO- 1
SHAHEED BHAGAT SINGH COLONY,
KRAWAL NAGAR NORTH EAST DELHI -
110094
60. DEEPAK CHAND S/O LATE ROOP CHAND
12/212, TRILOK PURI
EAST DELHI - 110091
61. SANOVAR ALI S/O SALAUDDIN
HASANPUR MASOORI KHEKADA BAGHPAT
UTTAR PRADESH - 250101
62. AAS MOHAMMAD S/O HAFEEJ
H.NO- 648 PRASHANT VIHAR LONI DEHAT
GHAZIABAD UTTAR PRADESH - 201102
63. HARISH S/O RAJU
E-10/B-210 T-HUTS
HUTS NEW SEELAMPUR BHAJAN
PURA
NORTH EAST DELHI - 110053
64. AMAN S/O SUNIL KUMAR
12 DOUBLE STORY, HINDU RAO HOSPITAL,
MALKA GANJ S.O, NORTH DELHI - 110007
65. VINOD PAWAR S/O RAM SHARAN PAWAR
H.NO-9/2394,
9/2394, STREET NO. 12 KAILASH NAGAR,
GANDHI NAGAR, EAST DELHI - 110031
66. BULU NAYAK S/O GOLAKHA NAYAK
AYATAPUR, BANAPUR KHORADA
ODISHA - 752035
67. RAJENDRA KUMAR S/O BAINI RAM
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12/96, L.N.J.P. HOSPITAL MINTO ROAD,
NEW DELHI, CENTRAL DELHI - 110002
68. IQBAL AHMED S/O MOHD.AHEMD
1872, HAUZ SUI WALAN DARYA GANJ
CENTRAL DELHI - 110002
69. SUNNY S/O MANGAT RAM
PANA GHILANA MURTHAL
SONIPAT MURTHAL HARYANA - 131027
70. RAVI KUMAR S/O VIJAY P
PAL
H.NO-13
13 HARIJAN BASTI OLD CHANDRAWAL
CIVIL LINES S.O NORTH DELHI - 110054
71. GITESH KUMAR S/O BHUMESH KUMAR
A-22 SANGAM PARK, RANA PRATAP BAGH,
MALKA GANJ S.O NORTH DELHI - 110007
72. VINOD KUMAR S/O ISHWAR
C-25 GALI INDRA PURI
NEAR MOVIE MAGIC CINEMA LONI,
DEHAT GHAZIABAD, UTTAR PRADESH -
201102
73. ARVIND KUMAR S/O LAHARI SINGH
BIJROL, BAGHPAT, UTTAR PRADESH - 250611
74. RAJKISHOR S/O KHACHER SINGH
AGRICULTURE J.J ESTATE, NEAR VIJAY
GHAT DELHI G.P.O., NORTH DELHI - 110006
75. ANESH S/O JUMMAN LAL
F-103 JJ CAMP TIGRI
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SOUTH DELHI - 110062
76. VAKEEL S/O SURFU DEEN
VILLAGE KHATTA PRAHLADPUR,
BHAGHPAT UTTAR PRADESH - 250515
77. SANJAY S/O TITU
7522 GALI TEL MEEL RAM NAGAR,
PAHAR GANJ NEW DELHI - 110055
78. DHARMVEER SINGH S/O SHRE CHAND
HOUSE NO. 873 CHIRORI
GHAZIABAD - 201102
79. IMRAN S/O JABARDEEN
PURVI MUSTAFABAD
LONI, UTTAR PRADESH - 201102
80. MOHIT KUMAR S/O MANJO KUMAR
FLAT NO. 40 TYPE-11 GULABI BAGH
MALKA GANJ - 110007
81. MOHD.SHAFI S/O
C58/113, MATA SUNDRI ROAD
NEW DELHI - 110002
82. MOHIT KUMAR S/O SHIV CHARAN
A 66 N NEW BASTI CHAKKI WALI GALI,
SHADHARA SEELAM PUR DELHI - 110053
83. JITENDER S/O JAGDEESH SINGH
H.NO. 874 GALI NO.5 PS. BANAULI BAGPATH -
250345
84. MAJID S/O RAHMAN
DISTRICT BAGPATH
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UTTAR PRADESH - 250609
85. RAKESH KUMAR S/O V
VED SINGH
H.NO. 452/7 PANCHAL VIHAR
P.O KARAWAL NAGAR DAYALPUR,
NORT EAST DELHI - 110094
86. PRAVEEN SINGH S/O RAM PAL
H. NO557/B AMBEDKAR MARG HIMACHAL,
MOHALLA GALI NO 5,
FAZALPUR MANDAWLI, EAST DELHI - 110092
87. VISHAL CHAND S/O OM PRAKASH
1023 DELHI ADMINISTRATE FLAT
GULABI BAGH, DELHI - 110007
88. KALLU SINGH S/O RAM SINGH
C-146, A-BLOCK,
BLOCK, GALI NO. 1, AMBIKA VIHAR
SHIV VIHAR, MUSTAFABAD, NORTH EAST
DELHI - 110094
89. GANGA RAM S/O RAJENDER
612, GAUTAM GALI, MAKLA GANJ,
SO NORTH DELHI - 110007
90. MAHESH S/O SURENDER
H. NO. 8/1831, GALI NO. 4 RAMA BLOCK,
BHOLA NATH NAGAR,
SHAHDARA DELHI - 110032
91. ARUN KUMAR S/O PREM MASIH
H. NO. 1365, GALI NO. 8/A VIJAY PARK,
MAUJPUR, NORTH EAST,
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DELHI - 110053
92. ROHIT S/O KAWAR SINGH
R/O E-11 DDA FLAT, KALI MAS
MASJID,
JAMA MASJID, NORTH DELHI - 110006
93. RAHUL S/O BABU LAL
R/O 110 JANTA COLONY CIRCULAR,
ROAD SHAHDARA 110032
94. ANIL KUMAR S/O ASHOK KUMAR
99 GALI NO. 3 NEAR NEW GANESH PARK,
RASHID MARKET, KRISHNA NAGAR,
EAST DELHI - 110052
95. ANUJ KUMAR S/O RATAN PAL SINGH
JHUGGI NO.83 OLD SEEMA PURI
GANDI NAGAR, EAST DELHI - 110031
96. VIKAS SINGH S/O NARESH PAL
H. NO. 131 GALI NO.21, BHAJAN PURA
DELHI - 110053
97. FAHIMUDDIN S/O NIJAMUDDIN
MUSTAFABAD WEST, LONI DEHAT,
GHAZIABAD, UTTAR PRADESH - 201102
98. ROHIT S/O VEER SINGH
93 VIKRAM ENCALVE SHALIMAR GARDEN,
PASADA HAPUR, UTTAR PRADESH - 201005
99. SUNNY S/O RAMESH BARLA
H. 422 TYPE 2 SECTOR 4 GOVT.TIMARPUR
NORHT DELHI - 110084
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100. ROBIN KUMAR S/O JAGDISH
ANUPSHAHIR BULANDSHAR,
UTTAR PRADESH - 20239
101. SHYAM S/O SHISH PA
H. NO. 109
GALI NO. 9 SCHOOL WALI GALI,
OLD SEEMA PUR, GANDI NAGAR
102. DHIRAJ S/O RAMESH SINGH
H. NO. 810 ASHOK VIHAR LINE
PAAR JHAJJAR
103. JAI PRAKASH S/O PREM SINGH
108 JANTA COLONY CIRCULAR ROAD
SHAHDARA - 110032
104. BHANU S/O KAMLA SINGH
STI VIHAR LONI DEHAT
105. RAJ ROOP S/O VED PRAKASH
75, KUMHAR LOHAR MOHALLA HIANKI
NORTH WEST DELHI
106. RAJEEV KUMAR S/O BALWAN SINGH
R/O H. 9 HIRANKI, HIRNI ROAD NORTH,
WEST DELHI
107. MUKESH KUMAR S/O PREM SINGH
R/O GRAM POST VEERPURA AALIGADH
202142 UP
108. LAXMI KANT S/O GIRDHARI LAL
R/O D 152, DDA FLATS KALKA J,
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NEW DELHI 110019
109. PAWAN KUMAR S/O DURGA DAS
R/O 396 KABIR BASTI OLD SABZI MANDI,
MALKA GANJ, DELHI
110. VISHAL KAPOOR S/O SATISH KAPOOR
R/O C-66 OLD GOVIND PURA PARWANA
ROAD KRISHNA NAGAR, EAST DELHI
111. RAHUL S/O MUKESH
R/O 336 DELHI ADMINISTRATION TYPE
TYPE-1
GULABI BAGH, DELHI-11007
11007
112. PRAVIN S/O DHARMPAL
R/O AMBEDKAR BASTI GHONDA
SHASTRI PARK, EAST DELHI 110053
...Applicants
(By Advocate: Mr. Arun Bhardwaj, Sr. Advocate assisted by
Mr. Virender Kr.)
Versus
1. GOVERNMENT OF NCT OF DELHI(DEPARTMENT OF
HEALTH AND FAMILY WELFARE)
THROUGH PRINCIPAL SECRETARY
ADDRESS:
ADDRESS:9TH LEVEL, A-WING,
WING, IP ESTATE,
DELHI SECRETARIAT, DELHI - 110002.
EMAIL:
EMAIL:[email protected]
2. GOVIND BALLABH PANT INSTITUTE OF
POST GRADUATE MEDICAL EDUCATION &RESEARCH
THROUGH DIRECTOR
ADDRESS:JAWAHARLAL NEHRU MARG, 64 KHAMBA,
ADDRESS:JAWAHARLAL
RAJ GHAT, NEW DELHI, DELHI 110002
EMAIL:[email protected]
[email protected]
...Respondents
16
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(By Advocate: Mr. Amit Anand )
ORDER
By Hon'ble Mr. Manish Garg, Member (J) By virtue of the present OA, the applicants are seeking the following reliefs:
"A. Direct Respondents to grant equal pay for equal work at par with the regular employees to the present Applicants; AND B. Direct Respondents to pay back arrears to the Applicants at par with the regular employees from December 2018 onwards; AND/OR C. Grant any other / additional relief which this Hon'ble 31 Tribunal may deem fit in and proper in the interest of justice in favour of the Applicants and against the Respondents."
2. Drawing attention to the facts of the case, Mr. Arun Bhardwaj, learned Senior Counsel appearing on behalf of the applicants highlighted the order dated 25.05.2022 passed by this Tribunal. Relevant portion oof the said order reads as under:
"The applicants claim that they have been working as contractual employees of Gobind Ballabh Pant Institute under the Government of National Capital Territory, Delhi as Sanitization Staff Workers since the year 2018 on a consolidated monthly payment of Rs. 16,064/-.
16,064/ By virtue of the instant O.A., they seek parity with the regular employees who are receiving basic pay of Rs. 37,000/ 37,000/- and after inclusion of various other allowances and emoluments, the total monthly emoluments emoluments are likely to go up to Rs. 60,000/ 60,000/-. However, they allege that instead of granting them the parity as is their rightful due, the respondents are outsourcing their services through contractor, thus, depriving them the benefit of regular service which they have been rendering since the year 2018.
Mr. Arun Bhardwaj, learned Senior Counsel argues on behalf of the applicants stating that there is a plethora of judgments of various High Courts which have held that outsourcing of 17 Item No. 32/ C-5 C O.A. No. 986/2022 Sanitization and House-keeping House services ervices is violative of law and cannot be resorted to, especially in the case of health and other public institutions.
He particularly finds support from the judgments rendered by the Hon'ble High Court of Andhra Pradesh in Writ Petition No. 18988/2014 dated dated 14.09.2016 titled Gade Basaveswara Rao and Ors. Vs. Government of A.P. , Hon'ble High Court of Calcutta in WPA 692/2022 dated 14.01.2022 titled Shri Aloke Singh & Ors Vs. Indian Statistical Institute and Ors. and the Hon'ble High Court of Telangana in W.P. No. 47675/2018 dated 07.08.2020.
However, on the other hand, learned counsel for the respondents draws attention towards the judgment rendered by this very Bench of the Tribunal in O.A. No. 694/2019 wherein it was held that merely because some saniti sanitization workers got to be paid directly by the Government department on account of some contractual issues, does not confer any right upon them to seek regular appointment. Learned counsel for the respondents further submits that this judgment of the Tribun Tribunal was assailed in the Hon'ble High Court of Delhi without success.
He further draws attention to circular bearing No. F.No. (27)/Sanitation Branch/GIPMER/2022 Branch/GIPMER/2022-23/5967-71 dated 12.05.2022 which has a reference to a Cabinet Decision of 22.03.2016 wherein a conscious decision was taken by the Government that sanitization services shall be performed only on outsourcing basis. He draws attention to para 2 of the said circular which indicates that a fresh contract has been awarded which shall be operational fromfrom 20.05.2022. He submits that any interference at this stage shall create contractual liabilities.
We have heard the learned counsel for the parties and also gone through the documents on record.
The matter before us today is only with respect to the pray prayer for interim relief vide which the learned counsel for the applicants argues that till the disposal of the Original Application, the services of the applicants should be continued in accordance with their status, and terms and conditions as they exist to today.
In other words, they should continue to be engaged directly by the respondents and paid accordingly instead of through a contractor on outsourcing basis.
It is not disputed that the applicants were engaged during different periods in the year 2007, initially initially through a contractor and continued as such through different contractors till the year 2018. However, this is also a fact that since the year 2018, may be on account of certain contractual disputes, the applicants have been directly engaged by the respondents and have been working as such, be on contractual or daily wage basis as the employees of the respondents uninterruptedly for a period of four years till today.
18Item No. 32/ C-5 C O.A. No. 986/2022 We are conscious of the fact that an abrupt discontinuance of their services without putting them to notice, and changing the terms and conditions of their service from being employees of the department, be in any status, through that of contractual employees of an outsourcing agency, is likely to jeopardise and adversely affect their their position as the workers of the department. Moreover, in case, an interim protection is not granted to them today, the main relief sought for in the O.A. is likely to become infructuous. The Cabinet Decision dates back to 2016, hence, we cannot appreciate appreciate the sudden urgency of its implementation after six years.
Therefore, in our considered view, the prayer for interim relief should be allowed.
Accordingly, we direct the respondents that the terms and conditions of the engagement of the applicants shal shall not be altered or changed in any respect whatsoever till the disposal of this Original Application.
We clarify that the purport of this order is that the applicants shall be allowed to continue to work in their present capacity."
3. Opposing the grant of relief, learned counsel for the respondents relied upon the decision referred to in the order dated 29.08.2024 passed by this Tribunal, which reads as under:
"In n support of his case, learned counsel for the respondents relies upon the following judgments:-
judgment
(i) OA No. 2866/2017 decided on 10.01.2020, the decision in which has been upheld in W.P. (C) No.842/2020 by the Hon'ble High Court of Delhi;
(ii) OA No. 323/2019 decided on 15.01.2024 by a co co-ordinate Bench of the Tribunal.
2. Let learned senior counsel counsel for the applicant go through the same and assist us on the next date of listing.
3. List on 17.09.2024 as Part Heard."
4. Learned counsel for the applicants stated that from 2018 until May 2022, the applicants were engaged as daily wage workers under the GNCTD. Learned counsel relied upon circular dated 10.03.2021 issued 19 Item No. 32/ C-5 C O.A. No. 986/2022 by the Govt. of National Capital Territory of Delhi, He Health and Family Welfare Department, which reads as under:
"DECISION:
In view of the above said discussion and in compliance of above said judgment as well as, as per the direction of Hon'ble LG, It has been decided that:
All the contractual Nursing/Paramedical Staff shall be paid consolidated pay at minimum of the pay in grade in the relevant pay band as the same is fixed in respect of new entrant as per Finance Departinent OM dated 30.12.2011. The same shall be applicable to all contractual employees w.e.f 01.08.2014 (as per the orders of Hon'ble CAT Court in OA-2947/2013 OA 2947/2013 upheld by Hon'ble High Court in WPC-
WPC 717/2015) and arrears shall also be paid to them accordingly. Furthermore, all the Judgements of Hon'ble Courts in the similar matters would would also be complied with.
Accordingly, all MD/MS/HOD of all Hospitals Medical Institutions under H&FW-
H&FW Department are hereby directed to implement the above mentioned decision for fixation of pay of Contractual Nursing/Paramedical officials with immediaimmediate effect. Non compliance of the same shall be viewed seriously.
This issues with the prior approval of Competent Authority, H&FW."
5. Learned counsel also relied upon the following paras of the judgment of the Hon'ble Supreme Court in State of Punjab & Ors. vs. Jagjit Singh & Ors.(2017) Ors.(2017) 1 Supreme Court Cases Cases:-
"55.
55. 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 welfar welfare state. Such an action besides being demeaning, strikes at the very foundation of human dignity. Any one, 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 dependents 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.20
Item No. 32/ C-5 C O.A. No. 986/2022
56. We would also like to extract herein Article 77, of the International Covenant on Economic, Social and Cultural Rights, 1966. The same is reproduced below:-
below:
"Article 7 The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just 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 gguaranteed 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 ys with pay, as well as remuneration for public holidays." 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 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' constitute constitutes a clear and unambiguous right and is vested in every employee - whether engaged on regular or temporary basis.
57. Having traversed the legal parameters with reference to the application of the principle of 'equal pay for equal work', in relation to temporary porary employees (daily-wage (daily wage employees, ad ad-hoc appointees, employees appointed on casual basis, contractual employees and the like), the sole factor that requires our determination is, whether the concerned employees (before this Court), were rendering sim 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' summarized by us in paragraph paragraph 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 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 21 Item No. 32/ C-5 C O.A. No. 986/2022 employment, the concerned temporary employees were being ran 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, 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 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 summarized by us in paragraph 42 hereinabove. There can be no doubt, that the principle of 'equal pay for equal work' would be applicable to all the concerned temporary employees, so as to vest in them the right to claim wages, at par with with the minimum of the pay pay-scale of regularly engaged Government employees, holding the same post.
58. In view of the position expressed by us in the foregoing paragraph, we have no hesitation in holding, that all the concerned temporary employees, in the present bunch of cases, would be entitled to draw wages at the minimum of the pay-scale pay (- at the lowest grade, in the regular pay-
pay scale), extended to regular employees, holding the same post."
6. Learned counsel for the respondents relied upon the follow following averments made in the counter affidavit:
"6.c). In the interim and till a new contractor is selected, the Department shall take all the concerned willing workers into its fold as dally wage worker. This be done for a maximum period of 89 days in one go go and only by way of Interim measure."
It is submitted that Dr. Rajender Dhar, Addl. Labour Commissioner Issued an advisory vide COMIC/CLA/011/Lab./2705 dated 07.09.2018, wherein, it is advised by the Contract Labour Advisory Board, GNCTD that "no contractor contractor outsourced agency who has deployed workers In any department of GNCT of Delhi shall terminate the services of workers till decision for keeping such workers on the roll of Govt. department is taken."
As per above Cabinet Decision and advisory of Contr Contract Labour Advisory Board, the willing outsourced housekeeping workers of the previous said agency were allowed to work in this Institute on daily wages basis. These willing workers are being paid Minimum Wages as per Minimum Wages Act, 1948, notified by L Labour Department, GNCT of Delhi, time to time, as applicable. In addition to this, necessary efforts to award a tender to a agency through GeM Portal were made by this Institute for providing 22 Item No. 32/ C-5 C O.A. No. 986/2022 Housekeeping services on outsource basis, but the same could not be materialized due to some technical/administrative grounds. As stated above, the applicants are not contractual workers. Even after quitting of the services of previous outsourced agency, the willing workers of the previous agency (presently applicants of this OA) were allowed to work In view of the above order/advisory. They should not be equated with Regular/permanent employees and as such, not eligible for pay parity with the regular employees.
4(D). That in reply to para 4(D), it is submitted that tthe facts/present status about the representation dated 28.02.2022 has already been mentioned above at Para 1 and the same may kindly be perused.
4(E). That in reply to para 4(E), it is submitted that the said allegation has also been proved counterfeit, aas even after award of fresh tender to the above said agency, the applicants of the present OA has been given opportunity through circular no. F.No.(27)/Sanitation Branch/GIPMER/2022 Branch/GIPMER/2022-23/5957-71 dated 12.05.2022 (Copy enclosed) to report to the authorized representative presentative of the above agency, so that they may work with this Institute through above agency on outsource basis Instead of daily wages basis. In the event of providing their services by the applicants of this OA on outsource basis, all the related benefits/facilities fits/facilities such as ESI, EPF etc. shall also be availed by the concerned."
7. Learned counsel for the respondents contended that as per the terms of the contract, the applicants were engaged under manpower outsourcing services, under the category of unskilled unskilled labor, and thus, the question of granting minimum pay does not arise.
7.1. Furthermore, he submitted that the applicants did not meet the educational qualifications required under the Recruitment Rules (RRs), and, therefore, they are not eligible for minimum pay. He also highlighted that the aforesaid circular dated 10.03.2021 pertains to contractual employees and not outsourced workers, and thus, the same standards cannot be applied in the present case.
23Item No. 32/ C-5 C O.A. No. 986/2022 7.2. Learned counsel asserted that the appl applicants' engagement was under outsourcing arrangements and the same is distinct from contractual employment. In support of his contention, he referred to and relied upon the decision rendered in OA No. 2866/2017, with the relevant paragraphs reading as follows:
foll "6. Mr. Amit Anand, learned counsel for respondents, on the other hand, submits that the work of housekeeping in hospitals was entrusted to outsourcing agencies as a matter of policy and M/s. SHKS was awarded the contract from 05.05.2015 for a period of one year. He submits that the applicants herein were deployed by the said agency and the occasion to pay daily wages directly to them arose on account of the default committed by the labour contractor. He contends that once the new contractor was assigned assigned the work, deployment is required to be done by him and the applicants do not have any right to insist on being continued. He further submits that dispute, if any, in this regard needs to be raised before the competent Labour Court and not by approaching this Tribunal.
8. Things would have been different altogether, had it been the case where the applicants were inducted into service in whatever capacity, by the Delhi Administration itself. Once their induction is through an outsourcing agency, a totally different legal regime altogether, comes into existence. The respondents have clearly stated the circumstances under which order dated 02.05.2016 came to be issued. The contract with M/s. SHKS was for a period of one year up to 04.05.2016. When some probl problem arose as regards the working of the contractor, wages were paid directly. There was some delay in awarding the contract to another agency. In the interregnum, the order dated 02.05.2016 was issued to ensure the continuance of work. This is not a case in which a set of employees was already in existence and that very work is sought to be entrusted to a labour contractor."
7.3. The aforesaid OA was taken on appeal in a Writ Petition No. 842/2020, which was decided on 06.02.2020, with the relevant paragraphh read as follows:
"15. Upon perusal of Cabinet Decision dated 22.03.2016 referred to above it is evident that the Cabinet was concerned about the delay in the payment of wages to workers engaged by government departments and organizations, either directly or outsourced through ugh private firms/ agencies. It was in this context that the 24 Item No. 32/ C-5 C O.A. No. 986/2022 Cabinet decided to put in place certain measures to ensure that all contractual employees, whether employed directly by the Government or through a contractor whose services have been hired by the the Government, are paid wages regularly and punctually. There is therefore nothing in the Cabinet Decision dated 22.03.2016 to warrant the conclusion that the Cabinet had decided that all contractual employees would be hired directly by the Government and there there would be no outsourcing of contractual employees through private firms/agencies/contractors. Accordingly, there is no basis to say that after Cabinet Decision dated 22.03.2016, the petitioners must be deemed to have been engaged on contractual basis directly directly by the Delhi Government."
8. Learned counsel for the respondents also relied upon the decision rendered in OA No. 323/2019, decided on 15.01.2021, wherein the principle of outsourcing was upheld. Additionally, he cites the decision of the Hon'ble Supreme Court in Chief Executive Officer, Zila Parishad, Thane vs. Santosh Tuka Ram Tiwari, Tiwari, CA No. 8856/2022 decided on 24.11.2022. On the point of equal pay for equal work work, he relied upon the decision rendered by the Hon'ble Supreme Court in State of Haryana vs. Tilak Raj,, Appeal (Civil) No. 4570/2003 decided on 14.01.2003, with the relevant paragraph reading as follows:
"AA scale of pay is attached to a definite post and in case of a daily wager, he holds no posts. The respondent workers cannot be held to hold any posts to claim even any comparison with the regular and permanent staff for any or all purposes including a claim for equal pay and allowances. To claim a relief on the basis of equality, it is for the claimants to substantiate a clear cut bas basis of equivalence and a resultant hostile discrimination before becoming eligible to claim rights on a par with the other group vis vis- à-vis an alleged discrimination. No material was placed before the High Court as to the nature of the duties of either categories categories and it is not possible to hold that the principle of "equal pay for equal work" is an abstract one.
"Equal pay for equal work" is a concept which requires for its applicability complete and wholesale identity between a group of employees claiming identical identical pay scales and the other group of employees who have already earned such pay scales. The problem 25 Item No. 32/ C-5 C O.A. No. 986/2022 about equal pay cannot always be translated into a mathematical formula. Judged in the background of aforesaid legal principles, the impugned judgment of the High Court is clearly indefensible and the same is set aside. However, the appellant-
appellant-State has to ensure that minimum wages are prescribed for such workers and the same is paid to them. The appeal is allowed to the extent indicated above. There willl be no order as to costs."
8.1. He further relied upon the judgment rendered by the Hon'ble Supreme Court in State of Punjab & Ors. vs. Surjit Singh & Ors. in Civil Appeal No. 1976/2003, with the relevant paragraph reading as follows:
"30. In State of U.P. v. Ministerial Karamchari Sangh the Supreme Court observed that even if persons holding the same post are performing similar work but if the mode of recruitment, qualification, promotion, etc. are different it would be sufficient for fixing different pay scale. Where the mode of recruit recruitment, qualification and promotion are totally different in the two categories of posts, there cannot be any application of the principle of equal pay for equal work."
In a given case, mode of selection may be considered as one of the factors which may make a difference. {See State of Haryana v. Charanjit Singh [(2006) 9 SCC 321 Para 15]}.
(2) Daily wager working for a long time should be granted pay on the basis of the minimum of a pay scale. Reliance in tthis behalf has been placed on Secretary, State of Karnataka & Ors. v. Uma Devi (3) & Ors. [(2006) 4 SCC 1]. It was furthermore urged that this Court should follow the principle laid down by the Constitution Bench in Uma Devi as such a relief had been grant granted by it in respect of daily wagers of the Commercial Taxes Department.
The learned counsel submitted that this Court lately, although made a distinction between a direction to regularize the employees who had been working for some time, but keeping in vi view the constitutional mandate contained in Article 39A of the Constitution of India directed grant of a salary on a scale of pay, particularly in cases where the conduct of the State had been found to bbe unreasonable, unjust and prejudiced.
Mr. Gupta has also drawn our attention to a Three Judge Bench decision in Official Liquidator v. Dayanand & Ors. [(2008) 10 SCC 1], Singhvi J, speaking for a Three Judge Bench, while reiterating the principles laid down down in Uma Devi, in view of the 26 Item No. 32/ C-5 C O.A. No. 986/2022 decision of the subsequent two Judge Benches decision, held as under :
"78. There have been several instances of different Benches of the High Courts not following the judgments/orders of coordinate and even larger Benches. In some cases, the High Courts have gone to the extent of ignoring the law laid down by this Court with without any tangible reason. Likewise, there have been instances in which smaller Benches of this Court have either ignored or bypassed the ratio of the judgments of the larger Benches including the Constitution Benches. These cases are illustrative of non non- adherence erence to the rule of judicial discipline which is sine qua non for sustaining the system. In Mahadeolal Kanodia v.
Administrator General of W.B. this Court observed:
"19. ... If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if Judges of coordinate jurisdiction in a High Court start overruling one another's decisions. If one Division Bench of a High Court is unable to distinguish a previous decision of another Division Bench, and holding the view that the earlier decision is wrong, itself gives effect to that view the result would be utter confusion. The position would be equally bad where a Judge sitting singly in the High Court is of opinion that the previous decision of anot another Single Judge on a question of law is wrong and gives effect to that view instead of referring the matter to a larger Bench. In such a case lawyers would not know how to advise their clients and all courts subordinate to the High Court would find themse themselves in an embarrassing position of having to choose between dissentient judgments of their own High Court."
(emphasis added) In regard to the application of doctrine of `equal pay for equal work', it was opined:
"93. The respondents' claim for fixation of of pay in the regular scale and grant of other monetary benefits on a par with those appointed against the sanctioned posts has been accepted by the High Courts on the premise that their duties and functions are similar to those performed by regular employees.
employees. In the opinion of the High Courts, similarity in the nature of work of the company company-
paid staff on the one hand and regular employees on the other hand, is by itself sufficient for invoking the principle of equal pay for equal work. In our view, the approach approach adopted by the High Courts is clearly erroneous and directions given for bringing about parity between the company-paid company paid staff and regular employees in the matter of pay, allowances, etc. are liable to be upset."
Upon noticing the history, it was opined:
opi 27 Item No. 32/ C-5 C O.A. No. 986/2022 "100. As mentioned earlier, the respondents were employed/engaged by the Official Liquidators pursuant to the sanction accorded by the Court under Rule 308 of the 1959 Rules and they are paid salaries and allowances from the company fund.
They were neither neither appointed against sanctioned posts nor were they paid out from the Consolidated Fund of India. Therefore, the mere fact that they were doing work similar to the regular employees of the Offices of the Official Liquidators cannot be treated as sufficient sufficient for applying the principle of equal pay for equal work. Any such direction will compel the Government to sanction additional posts in the Offices of the Official Liquidators so as to facilitate payment of salaries and allowances to the company company-paid staff aff in the regular pay scale from the Consolidated Fund of India and in view of our finding that the policy decision taken by the Government of India to reduce the number of posts meant for direct recruitment does not suffer from any legal or constitutional infirmity, it is not possible to entertain the plea of the constitutional respondents for payment of salaries and allowances in the regular pay scales and other monetary benefits on a par with regular employees by applying the principle of equal pay for equal work."
However, wever, upon taking a practical view of the matter, it was directed:
"121. We also feel that the salaries and allowances payable to the company paid staff should be suitably increased in the wake of company-paid huge escalation of living cost. In Jawaharlal Nehru Technological University v. T. Sumalatha a two-Judge Judge Bench, after taking note of the fact that emoluments payable to the investigators appointed in the Nodal Centre at Hyderabad had not been revised for six ye years, directed the Union of India to take expeditious steps in that direction. Keeping that judgment in mind, we direct the Official Liquidators attached to various High Courts to move the Courts concerned for increasing the emoluments of the company company-paid staff.
taff. Such a request should be sympathetically considered by the Courts concerned and the emoluments of the company company-paid staff be suitably enhanced and paid subject to availability of funds."
In our opinion, this Court thereby did not lay down any law. In fact, by reason thereof, the Bench refused to apply the doctrine of `equal pay for equal work'.
Appearing on behalf of the appellants in CA No.2090/2003, Mr. Gupta has drawn our attention to the fact that although appellants had been appointed on a contract basis for 89 days wherefor agreement had been entered into by and between the employer and the employee, but the allegations in the writ petition that they were forced to sign such contracts contracts had not been denied or disputed. It was argued that the appellants having been appointed by a 28 Item No. 32/ C-5 C O.A. No. 986/2022 Committee duly constituted for the said purpose upon calling for their names from the employment exchange and they having the requisite qualifications to hold the the said posts of Clerk etc. as is required by the regular employees, this Court may issue similar directions as was done by the Constitution Bench in Uma Devi.
In any event, Mr. Gupta contended that a circular letter having been issued by the State itself that any direction issued by the High Court to grant pay on a regular pay scale should be implemented across the board, there was no reason as to why the State would refrain from applying the said principle in the case of the respondents.
Mr. Kapoor, appearing appearing for the appellants in CA No.7466 had also drawn our attention to the fact that although the writ petition has been dismissed, still a special leave petition has been filed.
In our constitutional scheme, the doctrine of `equal pay for equal work' has has a definite place in view of Article 39(d) of the Constitution of India read with Article 14 thereof. Although as an abstract principle the existence of the applicability of the said doctrine cannot be ignored, the question which arises for our consideration is as to whether the said doctrine could have been mechanically applied as has been done by the High Court in the instant case.
We must also place on record the fact that in different phases of development of law by this Court, relying on or on the basis of the said principle, a clear cleavage of opinion has emerged. Whereas in the 1970s and 1980s, this Court liberally applied the said principle without without insisting on clear pleadings or proof that the person similarly situated with others are equal in all respects; of late, also this Court has been speaking in different voices as would be evident from the following.
This has been noticed specifically by a Division Bench of this Court in S.C. Chandra & Ors. v. State of Jharkhand & Ors. [(2007) 8 SCC 279], wherein it was held:
"21. Learned counsel for the appellants have relied on Article 39(d) of the Constitution. Article 39(d) does not mean that all the teachers working in the school should be equated with the clerks in BCCL or the Government of Jharkhand for application of the principle of equal pay for equal work. There should be total identity between both groups i.e. the teachers of the school on the one hand and the clerks in BCCL, and as such the teachers cannot be equated with the clerks of the State Government or of BCCL. The question of application of Article 39(d) of the Constitution has recently been interpreted by this Court in State of Haryana v.29
Item No. 32/ C-5 C O.A. No. 986/2022 Charanjit Singh wherein Their Lordships have put the entire controversy to rest and held that the principle, "equal pay for equal work" must satisfy the test that the incumbents are performing equal and identical work as discharged by employees against whom the equal pay is claimed. Their Lordships have reviewed all the cases bearing on the subject and after a detailed discussion have finally put the controversy to rest that the persons who claimed the parity should satisfy the court that the conditions are identical and equal and same duties are being discharged by them. Though a number of cases were cited for our consideration but no useful purpose will be served as in Charanjit Singh all these cases have been reviewed by this Court. More so, when we ha have already held that the appellants are not the employees of BCCL, there is no question seeking any parity of the pay with that of the clerks of BCCL."
Katju, J. in his separate but concurrent judgment opined as under:
"26. Fixation of pay scale is a delicate mechanism which requires various considerations including financial capacity, responsibility, educational qualification, mode of appointment, etc. and it has a cascading effect. Hence, in subsequent decisions of thi this Court the principle of equal pay for equal work has been considerably watered down, and it has hardly ever been applied by this Court in recent years.
xxx xxx xxx
35. In our opinion fixing pay scales by courts by applying the principle of equal pay for equal work upsets the high constitutional principle of separation of powers between the three organs of the State. Realising this, this Court has in recent years avoided applying the principle of equal pay for equal work, unless there is complete and wholesale wholesale identity between the two groups (and there too the matter should be sent for examination by an Expert Committee appointed by the Government instead of the court itself granting higher pay)."
The Bench in arriving at the said finding specifically reli relied upon a three Judge Bench decision of this Court in Charanjit Singh (supra), wherein it was held:
"9. In State of Haryana v. Tilak Raj it has been hel held that the principle of equal pay for equal work is not always easy to apply. It has been held that there are inherent difficulties in comparing and evaluating the work of different persons in different organisations or even in the same organisation. It has has been held that this is a concept which requires, for its applicability, complete and wholesale identity between a group of employees claiming identical 30 Item No. 32/ C-5 C O.A. No. 986/2022 pay scales and the other group of employees who have already earned such pay scales. It has been held that the problem about equal pay cannot be translated into a mathematical formula. It was further held as follows:
"11. A scale of pay is attached to a definite post and in case of a daily-wager, wager, he holds no post. The respondent workers cannot be held to hold hold any posts to claim even any comparison with the regular and permanent staff for any or all purposes including a claim for equal pay and allowances. To claim a relief on the basis of equality, it is for the claimants to substantiate a clear clear-cut basis of equivalence and a resultant hostile discrimination before becoming eligible to claim rights on a par with the other group vis vis-
`-vis vis an alleged discrimination. No material was placed before the High Court as to the nature of the duties of either categories and it is not possible to hold that the principle of `equal pay for equal work' is an abstract one."
xxx xxx xxx
17. In Bhagwan Dass v. State of Haryana this Court held that if the duties and functions of the temporary appointees and regular employees are similar, there cannot be discrimination in pay merely on the ground of difference in modes of selection. It was held that the burden of proving similarity similarity in the nature of work was on the aggrieved worker. We are unable to agree with the view that there cannot be discrimination in pay on the ground of differences in modes of selection.As has been correctly laid down inJasmer Singh case persons selected by a Selection Committee on the basis of merit with due regard to seniority can be granted a higher pay scale as they have been evaluated by the competent aauthority and in such cases payment of a higher pay scale cannot be challenged.
challenged.Jasmer Singh case has been noted with approval in Tarun K. Roy case.
xxx xxx xxx
19. Having considered the authorities and the submissions we are of the view that the authorities in the cases of Jasmer Singh, Tilak Raj, Orissa University of Agriculture & Technology and Tarun K. Roy lay down the correct law. Undoubtedly, the doctrine of "equal pay for equal work" is not an abstract doctrine and is capable of being enforced in a court of law. But equal pay must be for equal work of equal value. The principle of "equal pay for equal work"
has no mechanical application in every case. Article 14 permits reasonable classification based on qualities or characteristics of persons recruited and grouped together, as against those who were left out. Of course, the qualities or characteristics must have a reasonable relation to the object sought to be achieved. In service 31 Item No. 32/ C-5 C O.A. No. 986/2022 matters, merit or experience can be a proper basis for classification for the purposes of pay in order to promote efficiency in administration. A higher pay scale to avoid stagnatio stagnation or resultant frustration for lack of promotional avenues is also an acceptable reason for pay differentiation. The very fact that the person has not gone through the process of recruitment may itself, in certain cases, make a difference. If the education educational qualifications are different, then also the doctrine may have no application. Even though persons may do the same work, their quality of work may differ. Where persons are selected by a Selection Committee on the basis of merit with due regard to seniority ity a higher pay scale granted to such persons who are evaluated by the competent authority cannot be challenged. A classification based on difference in educational qualifications justifies a difference in pay scales. A mere nomenclature designating a person person as say a carpenter or a craftsman is not enough to come to the conclusion that he is doing the same work as another carpenter or craftsman in regular service. The quality of work which is produced may be different and even the nature of work assigned maymay 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 may entail mmay differ from job to job. It cannot be judged by the mere volume of work.
There may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities make a difference. 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. Normally a party claiming equal pay for equal work should be required to raise a dispute in this regard. In an any event, the party who claims equal pay for equal work has to make necessary averments and prove that all things are equal. Thus, before any direction can be issued by a court, the court must first see that there are necessary averments and there is a proo proof. If the High Court is, on basis of material placed before it, convinced that there was equal work of equal quality and all other relevant factors are fulfilled it may direct payment of equal pay from the date of the filing of the respective writ petition.
petition. In all these cases, we find that the High Court has blindly proceeded on the basis that the doctrine of equal pay for equal work applies without examining any relevant factors.
xxx xxx xxx 32 Item No. 32/ C-5 C O.A. No. 986/2022
22. One other fact which must be noted is that Civil Appeals No Nos. 6648, 6647, 6572 and 6570 of 2002 do not deal with casual or daily-rated rated workers. These are cases of persons employed on contract. To such persons the principle of equal pay for equal work has no application. The Full Bench judgment dealt only with dail daily-
rated and casual workers. Where a person is employed under a contract, it is the contract which will govern the terms and conditions of service. In State of Haryana v. Surinder Kumar persons employed on contract basis claimed equal pay as regular workers on the footing that their posts were interchangeable. It was held that these persons had no right to the regular posts until they are duly selected and appointed. It was held that they were not entitled to to the same pay as regular employees by claiming that they are discharging the same duties. It was held that the very object of selection is to test the eligibility and then to make appointment in accordance with the rules. It was held that the respondents had not been recruited in accordance with the rules prescribed for recruitment."
8.2. He also cited the judgment of the High Court of Jammu and Kashmir at Jammu in Jagdish Kumar & Ors vs. State of Jammu and Kashmir and Anr. in SWP No. 498/2004, with the relevant paragraph reading as follows:
"It is being further stated that the posts in question i.e. thepost of Data Operator in the Board carrying pay pay-scale of 950-1500 is distinct and different in nature, nomenclature and wor workload from the post referred by the petitioners in other departments and, as such, the petitioners have no claim which can be entertained.
10. The core issue raised by the petitioners in the instant petition is traceable to the principle of "equal pay for equal work". Article 16(1) read with Article 14 and 39(d) of the Constitution of India guarantees „equal pay for equal work‟ work‟ so that the court would strike down in equal scalesof pay for identical work which is based on no classification or irrational classification.
classification. However, the person, who asserts that there is equality in work has to prove it, however, the equality is not to be based in designation or nature of work, but on several other factors like, responsibilities, reliabilities, experience, confidentially confidentially involved, functional need and requirements commensurate with the position in hierarchy, the qualification required.
A reference in regard to above to the judgment of the Apex Court passed in case titled as "State Bank of India & Anr.Vs M. R. Ganesh Babu & Ors." reported in 2002 (4) SCC 556 would be relevant herein wherein following has been observed and laid down:
down:-33
Item No. 32/ C-5 C O.A. No. 986/2022 "It is well settled that equal pay ust depend upon the nature of work done. It cannot be judged by the mere volume of work; there may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities made a difference. One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as such value judgment is made bona fide, reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such such differentiation will not amount to discrimination. The principle is not always easy to apply as there are inherent difficulties in comparing and evaluating the work done by different persons in different organizations, or even in the same organization.
Differentiation in pay scales of persons holding 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 judgment of administrative authorities concerning the responsibilities which attach to the post, and the degree of reliability expected of an incumbent, would be a value judgment of2021:JKLHC-JMU:12379the of2021:JKLHC JMU:12379the authorities concerned which, if arrived at bona fide reasonably and rationally, was not open pen to interference by the court."
9. Finally, he referred to the judgment of the Hon'ble Supreme Court in Union of India & Ors. vs. Manoj Kumar & Ors Ors. in Civil Appeal No. 913-914/2021, 914/2021, with the relevant paragraph reading as follows:
"13.
13. We now turn to the aspect of whether the post in the case in hand can be said to be that of a Secretariat or non non-Secretariat organization. 2(supra) This aspect, once again, has been dealt with in the judgment in V.N. Narayanappa & Ors.3, taking note of Swamy's Compilation of 6th CPC Report Part I (pages 141 to
147) and Swamy's Manual on Office Procedure 2006 and 2009.
In the definition Chapter at entry 53, Secretariat Offices are said to have been defined defined as those which are responsible for formulation of the policies of the Government and also for the execution and review of those policies. Relying on this definition, it was opined that the organizations where the applicants in V.N. Narayanappa & Ors.4Ors.4 were working, were not Secretariat Organizations, but were non non-Secretariat Organizations or attached offices or subordinate offices thereto. The meaning of subordinate offices is stated to signify their function as field establishments or as agencies res responsible for the detailed execution of the policies of Government. They function under the direction of an attached office or directly under a department. In that context, it was opined that there exists a distinction in the works, functions and responsibi responsibilities between Secretariat and non-Secretariat non Secretariat organizations. As such, it was noted that if there are functional dissimilarities between 34 Item No. 32/ C-5 C O.A. No. 986/2022 the cadres, there are bound to be financial 3(supra) 4(supra) disparities in pay and allowances. It would be useful to reproduce paras 38 and 39 of the judgment in V.N. Narayanappa & Ors.5, which read as under:
"38. As it would be evident from the discussions in the preceding paras, there is a significant difference in the recruitment rules, promotional hierarchy etc. bet between the applicants who are Private Secretaries Grade Grade-II in the Zonal Railways with that of Private Secretaries in the Railway Board/Central Secretariat Services/CSSS or CAT. There also no case of any historical parity between the applicants and their counterparts in CSSS or CAT or RBSS. Therefore the applicants counterparts cannot claim the benefits of pay scales allowed to CSSS in the ratio of judgments in OA No.164/2009 in S.R. Dheer & Ors. v. Union of India whereinn the Private Secretaries in the CAT were granted the benefit on the basis of establishment of a historical parity with CSS.
39. In this context, we also note the submission made by the respondents about the consequential implications on various other categories/groups under the respondents if such benefit is granted to the applicants even though they do not have any parity with RBSS and CSSS and are not entitled to the same. The Railways is a vast organization where there are many cadres/category of employees having identical pay scales and equal parity with that of Private Secretaries Grade Grade-II in the Zonal Railways. A list of such such groups has been highlighted in the reply statement. Therefore, grant of benefit which the applicants are otherwise not entitled to will also have an effect on the other cadres of Railways as contended." 5(supra)
14. We do believe in the conspectus of the aforesaid discussion that the correct perspective has been taken in V.N. Narayanappa & Ors.6 insofar as which clause of the 6th CPC recommendations would be applicable. We find that once we come to the conclusion that the regional offices of the Railways are to be treated as non-Secretariat non Secretariat Organizations, then the specific recommendations in para 3.1.14 relating to such nonnon- Secretariat Organizations will apply. The observations made in Secretariat para 3.1.9 which are qua Secretariat offices giving parity between the Private Secretary/equivalent to a Section Officer cannot be said to be mutatis mutandis applicable even to nonnon- Secretariat Organizations.
Organizations. If we were to opine otherwise and equate everybody there would have been no purpose in the 6th CPC making separate recommendations for non non-Secretariat Organizations in their wisdom. It is not as iif the Commission was unaware of the plea of disparity between the Secretariat and field offices as that was dealt with in paras 3.1.2 and 3.1.3 but despite having taken note of the same some difference was sought to be made between Secretariat and non non-Secretariat offices.
15. The Pay Commission is a specialized body set up with the objective of resolving anomalies. It is relevant to note that the 35 Item No. 32/ C-5 C O.A. No. 986/2022 anomaly in 6(supra) question was referred to the Pay Commission at the request of candidates similarly situated to the respondents and thus, the 6th CPC was aware of the claim for parity and the requirement of making a recommendation in that regard. In its wisdom while giving better scales it has still sought to maintain a separate recommendation for non non- Secretariat Organizations.
16. We may also notice another aspect. There is a plea by the respondents that the recruitment process for the two cadres was common and persons used to be transferred from one to the other. Some illustrations have been given of this. In fact, the plea of the respondents is that there have been times when a common competitive exam was conducted and sometimes the exams were conducted separately. In this regard, it has been explained by the the learned Additional Solicitor General on behalf of the appellants that the cadres are separate and the rules governing them are also separate. The Stenographers under the Railway Board are governed by the RBSS Rules, 1971, the Central Secretariat Stenographers Stenographers are governed by the CSS Rules, 1969 and the CSSS Rules, 2010 and the Stenographers in the Central Administrative Tribunal are governed by the CATSS Rules, 2013. These are the posts with which the respondents sought parity. On the other hand, the respondents respondents working in the Zonal Railways were governed by Rule 107 of the Indian Railway Establishment Code. The avenue and channel of promotion of stenographers in the Railway Board and the Zonal Railways, it has been stated, are entirely different.
17. Learned Learned counsel for the appellants did accept that there were some cases of transfer, but those were persons who were brought to the Railway Board for exigency of work - it was not as if they were absorbed in the Railway Board. There were also cases where transfers transfers took place from the Railway Board to the Zonal Railway offices, but that was on the specific request of such officers and considered on a case-to case to-case basis and they had to take then seniority at the bottom of the list.
18. Para 3.1.3 which dealt with the disparity between the Secretariat and field offices has canvassed a case for parity between similarly placed persons employed in field offices and the Secretariat; in view of the field offices being at the cutting edge of administration. However, it came to the conclusion that parity would need to be absolute till the grade of Assistant. It was clearly stipulated that beyond that "it may not be possible or even justified to grant complete parity because the hierarchy and career progression will need need to be different taking in view the functional considerations and relativities across the board."
If this principle is observed, the benefit cannot accrue to the respondents and we cannot accept the plea that as a result of parity being given up to the level level of Assistant (which would put them in the grade of Rs.4200 (later Rs.4600)), the respondents, being one post higher, would automatically have to get one higher grade.
36Item No. 32/ C-5 C O.A. No. 986/2022
19. We are fortified in the view we are seeking to adopt in interpreting the aforesaid aforesaid paragraphs of the Pay Commission by the observations in Union of India v. Tarit Ranjan Das,7 where it was opined that the principle of equal pay for equal work cannot be applied merely on basis of desig designation. While dealing with the 5th Pay Commission recommendations with respect to functional requirements, it was held that there was no question of any equivalence on that basis. The said case dealt with Stenographers of the Geological Survey of India. Wh While observing that as a general statement it was correct to state that the basic nature of work of a Stenographer remained by and large the same whether they were working for an officer in the Secretariat or for an officer in a subordinate office; it was hheld that Courts ought not to interfere if the Commission itself had considered all aspects and after due consideration opined that absolute equality ought not to be given. 7(2003) 11 SCC 658.
20. In the end we would like to reiterate that the aspect of disparity parity between the Secretariat and the field offices was a matter taken note of by the Commission itself while making the recommendations. Yet to some extent, a separate recommendation was made qua Secretariat Organizations and non-Secretariat Secretariat Organizations.
Organizations. Once these recommendations are separately made, to direct absolute parity would be to make the separate recommendations qua non non-Secretariat Organizations otiose. If one may say, there would have been no requirement to make these separate recommendations if everyone was to be treated on parity on every aspect.
21. In view of the aforesaid reasons, we find the impugned judgment, which in turn relies upon other orders passed by different Tribunals and Courts unsustainable, and is accordingly set aside.
22.. The appeals are accordingly allowed."
10. He distinguished the Jagjit Singh (supra) case, noting that outsourcing was not an issue in that case, and the principles laid down therein do not apply to the facts of this case. He concluded by stating that the minimum of the pay scale refers to the minimum wages, as applicable under the th law.
11. In rejoinder, learned Senior Counsel for the applicants argued that the decision relied upon by learned counsel for the respondents in the matter of Sushil Kumar and Ors. Vs. Govt. of NCT of Delhi and 37 Item No. 32/ C-5 C O.A. No. 986/2022 Ors.did did not address the issue of the minimum pay scale in the present matter, and instead pertained to the interpretation of the circular dated 22.03.2016, regarding whether timely payments were being made to workers. He finally submitted that the decision rendered in Jagjit Singh (supra) was not considered considered in the decisions relied upon by the respondents, and the principles therein still holds the field.
12. ANALYSIS :
12.1. In the present OA, the applicants, who were initially appointed as sanitization staff workers by the respondents on contractu contractual pay are seeking pay parity with regular employees who in comparison are receiving a higher basic pay.
12.2. In Jagjit Singh (supra), while dealing with the question, as to whether, temporarily engaged employees (daily (daily-wage employees, ad-hoc appointees, employees appointed on casual basis, contractual employees) are entitled to minimum of the regular pay-scale, pay scale, along with dearne dearness allowance on account of their performing the same duties, which are discharged by those engaged on regular basis, against sanctioned posts, the Hon'ble Supreme Court affirmed that the principle of 'equal pay for equal work' constitutes a clear and unambiguous unambiguous right and is vested in every employee-whether employee whether engaged on regular or temporary basis.
12.3 The circular dated 10.03.2021 issued by the GNCTD, Health and Family Welfare Department has neither been withdrawn or rescinded by 38 Item No. 32/ C-5 C O.A. No. 986/2022 the respondents. The aforesaid facts as well as case laws relied upon by the respective counsel are not being repeated herein for the sake of brevity.
12.4. It is not disputed that the circular dated 10.03.2021 issued by the Govt. of National Capital Territory of Delhi, Health and Family Welfare Department, reads as under:
"DECISION:
In view of the above said discussion and in compliance of above said judgment as well as, as per the direction of Hon'ble LG, It has been decided that:
All the contractual Nursing/Paramedical Staff shall be paid consolidated pay at minimum of the pay in grade in the relevant pay band as the same is fixed in respect of new entrant as per Finance Department OM dated 30.12.2011. The same shall be applicable to all contractual employees w.e.f 01.08.2014 (as per the orders of Hon'ble CAT Court in OA-2947/2013 OA 2947/2013 upheld by Hon'ble High Court in WPC-
WPC 717/2015) and arrears shall also be paid to them accordingly. Furthermore, all the Judgments of Hon'ble Courts in the similar matters would also be complied with.
Accordingly, all MD/MS/HOD of all Hospitals Medical Institutions under H&FW-
H&FW Department are hereby directed to implement the above mentioned decision for fixation of pay of Contractual Nursing/Paramedical officials with immediate effect. Non compliance of the same shall be viewed seriously.
This issues with the prior approval of Competent Authority, H&FW."
12.5. In the present OA, the the respondents cannot take a different stand.. The respondents shall apply circular dated 10.3.2021 inso insofar 39 Item No. 32/ C-5 C O.A. No. 986/2022 as the applicants applicant are concerned, keeping eeping in view the fact that the circular dated 10.03.2021 provides as under:-
under:
"All the contractual Nursing/Paramedical Staff shall be paid consolidated pay at minimum of the pay in grade in the relevant pay band as the same is fixed in respect respect of new entrant as per Finance Department OM dated 30.12.2011. The same shall be applicable to all contractual employees w.e.f 01.08.2014 (as per the orders of Hon'ble CAT Court in OA OA-2947/2013 upheld by Hon'ble High Court in WPC-
WPC 717/2015) and arrear arrears shall also be paid to them accordingly. Furthermore, all the Judgments of Hon'ble Courts in the similar matters would also be complied with."
12.6. At this stage we find that till date no decision has been taken by the respondents upon the pending representation of the applicants dated 28.02.2022. No No useful purpose will be served by directing the respondents to take a decision on the pending representation of the applicants after a lapse of considerable period of time.
Conclusion:
13. In light of the above analysis, we partly allow the present OA to the limited extent by directing the respondents that the circular dated 10.03.2021 3.2021 be applied in the case of the applicants and the they shall be paid consolidated pay at minimum of pay scale in the relevant pay band, which is given to a new entrant on his/her initial appointment. The 40 Item No. 32/ C-5 C O.A. No. 986/2022 arrears thereto shall be paid for the last three years from the date of filing the present OA.
13.1. The aforesaid aforesaid exercise shall be completed within a period of two months from the date of receipt of a certified copy of this order.
13.2. The interim order dated 25.05.2022 is made absolute inso insofar as the directions contained therein are concerned. However, the said directions shall not give any right to the applicants for seeking regularization regularization.
13.3. Pending MAs, if any, shall also stand disposed of. There shall be no order as to costs.
(Dr.
Dr. Anand S Khati)
Khati (Manish Garg)
Member (A) Member (J)
/arti/