Allahabad High Court
Avdhesh Pratap Singh vs State Of U.P. And Ors. on 5 April, 1993
Equivalent citations: (1998)IIILLJ550ALL
ORDER B.C. Saksena, J.
1. By means of this writ petition the petitioner has inter alia prayed for following reliefs :
(a) A writ of mandamus, commanding the opposite parties to allow him to work on the post of Typist on daily labour basis uninterruptedly to earn his wages on the basis of duties performed ;
(b) Mandamus, commanding opposite parties to allow him wages equal to that as has been allowed to Typist/Junior Clerk employees of the State Government from the date the petitioner is working on the post to the date the petitioner is regularly absorbed against, the post of Typist/Junior Clerk in the regular establishment of the Irrigation Department.
(c) A writ of mandamus, commanding opposite parties to pay bonus to the petitioner for the years 1984-85. 1985-86 and 1986-87 as per Government Order.
(d) A writ of mandamus, commanding opposite parties to regularise his services by appointing him on the post of Typist/Junior Clerk against the vacant post or the posts likely to fall vacant giving him preference on the basis of length of service.
2. The facts averred in the writ petition may be noted in short;
The petitioner's academic qualifications are B.Com. which degree he obtained in the year 1984. Earlier thereto he had passed Intermediate examination in the year 1981 and has obtained proficiency in typewriting both Hindi and English. The averment is that he was initially appointed with effect from August 1, 1981, on daily labour basis on muster roll as a Typist in the Sharda Sahayak Khand Haiderganj, Barabanki under opposite party No. 4. He while working as a Typist on Daily Labour Basis on muster roll from August, 1981 to October 1981, he was paid at the rate of Rs. 8/ - per day, thereafter from November, 1981 to November 1982, at the rate of Rs. 10/- per day and from December, 1982 to June, 1983 @ Rs. 13/-per day.
3. The petitioner's case is that he had been given enhanced labour wages as admissible from time to time and lastly he was being paid at the rate of Rs. 22/- per day. In August, 1987 his attendance was not being marked on the muster roll and the opposite party No. 4 then directed not to take work from the petitioner as he has not accorded sanction for the petitioner's continued employment on the muster roll on daily basis. The writ petition came up for orders on September 1, 1987 and an interim order was passed to the effect that the services of the petitioner shall not be terminated till further orders. The learned Standing Counsel was given time to obtain instructions but he failed to obtain instructions. By an order dated October 9, 1987 the writ petition was admitted and the interim order dated September 1, 1987, was directed to continue.
4. A counter-affidavit has been filed on behalf of the opposite parties along with an application for vacation of the interim order. The petitioner has filed rejoinder affidavit.
5. From the rejoinder-affidavit it appears that the opposite parties have not complied with the interim order and have not allowed the petitioner to work. The application for vacation of the stay order, preferred by the State on November 2, 1989, has not been disposed of.
6. It is a matter of serious concern that the almighty State has acted whimsically in choosing to disobey the interim order, passed by the Court while at the same time had sought vacation of the interim order after it had continued for more than two years. Since unilaterally the opposite parties have succeeded in denying the interim order, passed by the Court, it has not shown any anxiety for the disposal of the application for vacation of the interim order and passively allowed it to remain pending.
7. The petitioner has further averred in the writ petition that from time to time though for specified period he has been given appointment on the post of routine grade Clerk/Junior Typist was switched over to work as Junior Typist/Clerk on daily labour basis. He has continuously been working with effect from August 1, 1981 till August, 1987 either as a daily labour typist7clerk or on short term vacancies on the said post in the regular establishments.
8. The petitioner's case further is that he has worked with devotion and sincerity all through and no lapse in his work and conduct has ever been pointed out. The further case of the petitioner is that the post of Typist and Junior Clerk in the regular establishment carried the same scale of pay and the grade for the said post from July 1, 1979 was Rs. 354-550/-.
9. In the counter-affidavit the only defence taken is that the petitioner was engaged on daily wages and was not a regular employee. He was allowed from time to time to work in place of regular employee in stop gap arrangement. It has baldly been alleged that his work was found unsatisfactory. He also started taking less interest in the work. Hence he was not allowed to continue with effect from July 1, 1987. It is further averred on behalf of the opposite parties that recruitment for the post of Junior Clerk is to be made in terms of the Recruitment Rules published vide G.O. of Karmik department dated July 18, 1975 read with G.Os. dated June 14, 1977 and July 3, 1977 and April 28, 1979. It is averred that the recruitment of the post of Regular Junior Clerk is to be made after proper publication of the vacancy and selection and till the petitioner is selected he is not entitled to be given regular scale of pay admissible to regular employees.
10. In the rejoinder affidavit the averments made in the writ petition have been reiterated.
11. The learned counsel for the petitioner urged that in the Preamble of Constitution of India by 42nd Amendment, made in 1976 for the words "Sovereign Democratic Republic" words "Sovereign Socialist Secular Democratic Republic" have been substituted. Article 39(d) whjch contains Directive Principles of State Policy provides that there is equal pay for equal work for both men and women. He has urged on the basis of a few Supreme Court decisions reported in Randhir Singh v. Union of India (1982-I-LLJ-344), Dhirendra Chamoli v. State of U.P., reported in (1986-I-LLJ-134) Surendra Singh v. Engineer-in-Chief, CPWD (1986-I-LLJ-403) and a Division Bench decision of this Court in Vishwanath v. State of U. P. 1987 LIC 514 (All) , that even casual labour discharging the same nature of duties as regular employees are entitled to the same scale of pay as the regular employees.
12. The question, therefore, that falls for consideration is whether in the instant case it is possible to hold that the petitioner as a daily labour muster roll Typist can be said to be performing the same duties and responsibilities as are performed by the Typist/Junior Clerks in the regular establishment. In para 17 of the writ petition the necessary averments have been made. In the counter-affidavit the averment in para 17 of the writ petition has been denied. It has been averred in paras 16 and 17 of the counter-affidavit that regular Junior Clerk/ Typists are entrusted to do typing work, despatch, noting and drafting etc. while daily wage workers are deputed on specific work. It is, therefore, averred that there is no comparison with the duties and responsibilities of the two categories of employees aforesaid. The responsibilities of regular clerks are very much while no responsibility of that nature is entrusted to daily wage worker. In the rejoinder-affidavit it has been denied that Junior Clerks perform the duties of noting and drafting. It is the petitioner's case that the said duties are performed by Notor and Drafter, a post higher to that of Junior Clerk. It is averred that the duties are the same of Typist/ Junior Clerk of Regular Establishment as Junior Clerk/Typist on daily wage basis.
13. From what has been indicated hereinabove it would be evident that the defence on this aspect of the matter is primarily on the basis of difference in the nature of appointment of a daily wage worker and a regular employee. Such a defence has been considered in the decision cited by the learned counsel for the petitioner. Each of the said cases is being analysed hereinbelow;
14. Randhir Singh's case (supra) the claim was that the petitioner who was a Driver-Constable in Delhi Police Force under the Delhi Administration claimed that his scale of pay should at least be the same as scale of pay of other Drivers in the service of the Delhi Administration. In the said case the submission of the respondent that persons belonging to different departments of the Government is itself a sufficient circumstance to justify different scales of pay irrespective of the identity of their powers, duties and responsibilities was not accepted. In the said case in the counter-affidavit it was admitted that the duties of the Constable of the Delhi Police Force were onerous and thus the allegation in the petition that the Driver-Constables of Delhi Police Force perform no less arduous duties than the Drivers of other department was virtually admitted. The plea that they belong to different departments and thus there can be no basis for claiming similar pay scale. The said decision is not of much assistance for deciding the issue in the present case except that the Apex Court in the said decision did not subscribe to the proposition that the Principle "equal pay for equal work" is an abstract doctrine. It was held that "Construing Articles 14 and 16 in the light of the Preamble and Article 39(d) principle" equal pay for equal work is deducible from those Articles and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though those drawing different scales of pay do identical work under the same employer.
15. In Dhirendra Chamoli's case (supra) casual workers on daily wage basis employed by the Government in different Kendras of Nehru Yuvak Kendras claim equal pay for equal work on the basis that they are doing the same work which is done-by regular Class IV employees against sanctioned post. A perusal of the judgment shows that it was conceded in the counter-affidavit that "the persons engaged by the Nehru Yuvak Kendras perform the same duties as is performed by Class IV employees appointed on regular basis against sanctioned post." The plea in the counter-affidavit was that the Nehru Yuvak Kendras have been started at different places in the country as temporary organisation and they have not yet been made permanent with the result that there are no sanctioned posts of Class IV employees and employees are engaged or taken as causal employees on daily wage basis. The other plea raised on behalf of the employer was that since the casual workers had accepted employment with full knowledge that they will be paid only daily wages they cannot claim more. It was held by the Apex Court that such a plea lies ill in the mouth of Central Government for it is an all too familiar argument that the exploiting class and Welfare State committed to a socialist pattern of society cannot be permitted to advance such an argument. In this case also it was held that equality before law as enshrined in Article 14 of the Constitution has further principles implicit in it that there must be equal pay for work of equal value. The argument that they are not appointed against sanctioned posts themselves cannot claim same salary and conditions of Class IV employees appointed on regular basis was negatived and it was held that so long as they are performing the same duties they must receive the same salary and conditions of service as Class IV employees. The relief for regularisation was however not granted for want of sanctioned post. The Apex Court however in the said judgment expressed the hope and trust that posts will be sanctioned by the Central Government in the different Nehru Yuvak Kendras so that the causal employees be regularised. However, it was directed that they will be paid same scale of pay from the date when they were employed.
(b) It would be evident that in this case also it was admitted by the employer that the casual workers on daily wages were performing the same duties as performed by regular Class IV employees.
16. In the decision in Surinder Singh's case (supra) the judgment does not refer to the pleadings of the respondents on the fact whether it was admitted that daily wage workers were doing the identical work as the regular employees. It appears that the main trust of the submission on behalf of the respondents in that case was that doctrine of equal pay for equal work was a mere abstract doctrine and it was not capable of being enforced in Court of law. The said plea was rejected and it was held that observation in Kishri Mohanlal Bakshi v. Union of India. AIR 1962 SC 1139 the Supreme Court had occasion to explain the observation in the said judgment in Randhir Singh v. Union of India (supra). Para 2 of the said judgment however gives insight to the operative part of the judgment in Surinder Singh's case. In para 2 thereof the Supreme Court observed as follows:
"Earlier the Court also observed that it was a peculiar attitude to take on the part of the Central Government to say that they would pay only daily wages and not the same wages as other similarly employed employees, though all of them did identical work."
After this observation a quotation from Dhirendra Chamoli's case has been extracted. The last part of which reads as under :
"It makes no difference whether they are appointed in sanctioned posts or not. So long as they are performing the same duties, they must receive the same salary and conditions of service as Class IV employees."
17. In the operative part of the judgment it was provided :
"We allowed both the writ petitions and direct the respondents, as in Nehru Yuvak Kendras' case to pay the petitioners and all other daily rated employees, to pay the same salary and allowances as are paid to regular and permanent employees with effect from the date when they were respectively employed."
Thus the direction is clearly on the basis that the daily rated employees perform the same duties as regular employees. On that factual aspect there appears to have been no controversy.
18. In the case of Vishwanath (supra) a perusal of para 3 of the judgment would show that in the counter-affidavit neither (sic.) the difference in the nature of work and duties performed by daily wagers nor the details of any difference has been pointed out. The Court recorded a finding that the petitioners no doubt daily wage workers were performing the same duties and functions as are being carried out by regular Class IV employees of the High Court and it was, therefore, held that they are entitled to same salary and allowances which are being paid to regular employees.
19. In the instant case in the counter-affidavit there has been a denial that the petitioner as a daily wager has been performing the same nature of duties as a Regular Clerk Typist and was discharging the same responsibilities. The said plea has not been dislodged by the averments in the rejoinder-affidavit.
20. Further consideration of this aspect of the matter would be in the later part of the judgment. The petitioner's employment was discontinued in August, 1987. It would, therefore, be necessary to deal with this aspect of the matter first. His claim to be allowed wages equal to Regular Typist/Junior Clerk can only be considered thereafter if termination of his service is set aside.
21. In para 10 of the writ petition it has been averred that the petitioner has worked in the Division of opposite party No. 4 on the post of Typist with devotion and sincerity all through. It has further been averred that his work and conduct was always appreciated. On the basis of his good work he was allowed appointment on the post of Routine Grade Clerk in regular establishment in leave vacancy and against vacant post on short term basis.
22. A reply to this averment is only a bald denial. It has been mentioned that no character rolls are maintained for daily wage workers in the department nevertheless in para 7 it has been admitted that the petitioner has been allowed to work in short term/leave vacancy as and when they occurred on the regular side. I am therefore, satisfied that all the years the petitioners had worked on daily wage basis his work has been satisfactory. His engagement against short term/ leave vacancy on the regular side cannot be explained on any other hypothesis. The plea in the counter affidavit that he has started to take less interest in the work and his work was found unsatisfactory, hence he was not allowed to continue with effect from July 1, 1987 has been verified on the basis of the record. No such record has been annexed to the counter-affidavit. No complaint with regard to his alleged unsatisfactory work has been placed on record nor any reference to the same has been made in the counter-affidavit. This plea, therefore, appears to have been taken only by way of defence to defeat the claim in the writ petition.. The specific averment, made in para 9, of the writ petition that opposite party No. 4 has directed not to take work from the petitioner as he has not accorded his sanction for the petitioner's continued employment on muster roll on daily wage basis has also not been specifically answered much less controverted. On a totality of the pleadings it is, therefore, evident that discontinuation of the petitioner's services has been arbitrary. That being so the petitioner has made out a case for direction for his being reinstated in service forthwith on the same status which he was holding at the time his services were discontinued. In this context it may be noted that the petitioner has been reasonable in indicating his reliefs. As noted in the opening part of the judgment the first relief prayed for is for a writ, order or direction in the nature of mandamus, commanding the opposite parties to allow the petitioner to work on the post of Typist on daily labour basis.
23. (a) We now come to the plea and the relief that he may be allowed wages equal to that has been allowed to Typist/Junior Clerk on regular side from the date he has been working. There is merit in the stand of the opposite parties that the nature of duties and responsibilities of a Typist on daily labour basis is not equal to Typist on regular side. The Supreme Court in the case of daily rated casual labour P & T Department reported in (1988-I-LLJ-370) has held that the State cannot deny to casual labourer atleast the minimum pay in the pay scales of regular employees even though the Government may not be compelled to extend all the benefits enjoyed by regularly recruited employees. The Supreme Court in the said case directed the Union of India to pay wages to the workmen who were employed as casual labourers at the rate equivalent to the minimum pay in the pay scales of the regularly employed workers in the corresponding cadres but without any increment.
(b) In the said case as a perusal of paragraph 7 would show that it was contended on behalf of the respondent that the petitioners belong to the category of Labourers and are not being regularly employed and therefore they are not entitled to the same privileges which the regular employees are enjoying. The Supreme Court observed. "It may be true that the petitioners have not been regularly recruited but many of them have been working continuously for more than a year in the department and they have been engaged as casual labourers for nearly ten years. They are rendering same kind of services which is being rendered by regular employees doing the same type of work. "
24. The Apex Court noted the submission that the State cannot deny the minimum pay scale in the pay scale of regularly employed workmen even though the Government may not compel to extend all the benefits enjoyed by the regularly recruited employees and hold that such denial amounts to exploitation of the labour.
25. The more appropriate decision in the facts and circumstances of the present case is the decision of the Supreme Court in Federation of All India Customs and Central Excise Stenographers (Recognised) v. Union of India, reported in 1988 3 SCC 91. In the said case it was held :
"Equal pay for equal work is a concomitant of Art. 14 but equal pay for unequal work will be a negation of that right. Equal pay must depend upon the nature of the 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 make a difference. The same amount of physical work may entail different quality of work, some more sensitive, some requiring more tact, some less-- it varies from nature and culture of employment."
26. The decision referred to in preceding para of judgment to support the view that classification based on experience is a reasonable classification. It has rational nexus with the object thereof, (See the decision in the State of V.P, v. J. P. Chaurasia (1989-I-LLJ-309) (SC) ).
27. One other grievance of the petitioner that remains to be considered is that he has been denied bonus for the years 1984-85, 1985- 86 and 1986-87 to which he is entitled on the basis of the Government order dated October 18, 1986, copy of which is Annexure 5 to the writ petition. This averment made in para 13 of the writ petition has not been controverted in the counter-affidavit. Hence it must be held that the petitioner has made out a case for being entitled for payment of bonus for the aforesaid year.
28. Lastly a claim for regularisation may be considered. The relevant case law on the subject shows that the Apex Court had earlier taken the view in same case that casual daily employees are entitled to be regularised after six months of service. In later decision the service of one year was considered necessary for being regularised. In subsequent decision thereafter instead of directing regularisation the State authorities were required to draw a scheme for regularisation. In the instant case, however, since it has been pleaded that regular appointment is to be made in terms of recruitment list published vide G.O. of Karmik Department dated July 18, 1975 read with G.Os. dated June 14, 1977, July 3, 1977 and April 28, 1979 no direction to draw up a scheme for regularisation be made. Copies of the said Government orders have however not been placed on record. From the averments in the counter-affidavit it transpires that the recruitment of regular post of Junior Clerk is to be made after proper publication of the vacancy and selection. There is no averment in the counter-affidavit that any such advertisement was issued or selection made after 1981 from the date the petitioner has been working till July/ August, 1987. This inaction on the part of the State Government which should act as a model employer cannot but be viewed with concern.
29. On a conspectus of the discussion hereinabove the writ petition deserves to be partly allowed. It is partly allowed with the following directions:
(a) A writ of mandamus is issued, commanding opposite parties to reinstate the petitioner in service within two weeks from the date a certified copy of this judgment is furnished by the petitioner to the opposite party on the post of Typist on daily labour basis with the further stipulation that as a daily labour he would be paid the minimum of the pay scale admissible to Typist/Junior Clerk of the regular establishment with all admissible allowances but without annual increment and other privileges admissible to regular Typist/ Junior Clerk in the Irrigation Department.
(b) The period during which the petitioner has been made to remain out of job will be computed for the purposes of his eligibility for regular appointment as and when the same is made. The said period will however not count for any other purposes.
(c) A further writ of mandamus is issued, commanding the opposite parties to initiate the process of selection in accordance with the recruitment rules, referred to hereinabove to fill the regular vacancies in the post of Typist/Junior Clerk over on date in the department and to consider the petitioner's candidature for the same on the basis of his total length of services from the date of his initial appointment till the date of selection ignoring the break in service resulting from his illegal discontinuance from July, 1987 till the date of reinstatement.
(d) Further writ of mandamus is issued commanding the opposite parties to consider the petitioner's candidature even against leave vacancy or short term vacancy which may be available in the cadre of Typist/Junior Clerk on the basis of the total length of services ignoring the break in service as directed hereinabove.
(e) The petitioner will be paid bonus for the years 1984-85 to 86-87.
The opposite parties shall pay costs to the petitioner.