Jammu & Kashmir High Court - Srinagar Bench
District Bar Association Bandipora vs Jagjeet Singh And Others on 4 December, 2020
Bench: Chief Justice, Puneet Gupta
1
S. No. 201
Suppl. List
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
OWP No. 260/2014
(Through Video Conferencing)
District Bar Association Bandipora
.... Petitioner.
Through: Mr. Bhat Fayaz, Advocate.
v.
State of J&K and others
.... Respondents
Through: Mr. B. A. Dar, Sr. AAG.
Mr. R. A. Jan, Sr. Advocate, with
Mr. Taha Khalil, Advocate, for High Court of J&K.
Mr. T. M. Shamsi, ASGI, for Union of India.
SWP No. 630/2016:
Manzoor Ahmad Zargar
.... Petitioner.
Through: Mr. M. Y. Bhat, Advocate.
v.
State of J&K and others
.... Respondents
Through: Mr. B. A. Dar, Sr. AAG.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
ORDER
04.12.2020
1. Apart from other aspects of the matter which is pending disposal in this instant public interest litigation, two issues under consideration are wages payable to the daily wagers working in the State Judiciary from the last so many years and whether they can be permanently absorbed/regularized.
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2. Mr. B. A. Dar, learned Sr. AAG submitted that the matter was discussed on the administrative side between the High Court and the Government officials in a meeting held on 24 th of October, 2018 when the following was decided:
Present:-
1. Chief Secretary, Govt of J&K.
2. Pr. Secretary to the Govt. Department of Finance.
3. Commissioner/Secretary to the Govt, General Administration Department.
4. Secretary to the Govt., Department of Law, Justice & Parliamentary Affairs.
5. Secretary to the Govt., Public Works Department.
6. Registrar General, High Court of J&K.
7. Pr. Secretary to Hon'ble the Chief Justice, High Court of J&K. After deliberating upon the issues pertaining to infrastructure and other matters of the State Judiciary, it was decided as under:-
1. The Department of Law, Justice & Parliamentary Affairs shall, after consulting the executing agencies, collect the data with regard to expenditure required for completion of the ongoing infrastructure projects of the State Judiciary.
2. The Law Secretary would, in consultations with the Registrar General approach the Government of India for release of the assigned funds so that the ongoing infrastructure projects of the State Judiciary are completed at the earliest.
3. Principal District Judges of the State shall monitor the physical progress of the ongoing infrastructure projects of the Judiciary within their respective districts and punish monthly reports to the High Court.
4. The Law Secretary would, in consultation with the Registrar General prepare a memorandum projecting the requirement of funds for completion of infrastructure projects of the State Judiciary for its presentation to the 15th Finance Commission.
5. The Law Secretary would instruct the Deputy Commissioners of the concerned Districts to identify appropriate land for construction of Court Complexes at the places in respect of which the requisition of the High Court is pending with the Law Department. The needful would be done by 15 th of November, 2018.
6. The High Court shall constitute an empowered Committee for scrutinizing the cases of daily wagers engaged in the State Judiciary for their absorption in terms of the SRO 520 dated 21.12.2017 and thereafter send a report in this regard to the Law Department for allocation of requisite funds for the same.SYED TASADUQ QADRI 2020.12.10 13:56 I attest to the accuracy and integrity of this document 3
7. The Law Department shall expeditiously issue necessary modification to note (ii) of the Govt. Order whereby the mode and manner of appointment of Registrar Computers and Joint Registrar Computers have been prescribed."
3. Mr. B. A. Dar, learned Sr. AAG submits that the High Court has failed to constitute a Committee in terms of this agreement. It is further submitted that the Minutes of the Meeting dated 24th of October 2018 were placed before the Supreme Court of India in the Special Leave Petition (C) No(s). 8564-70/2018 titled The State of J&K & others v. District Bar Association Bandipora and stand approved.
4. A status report dated 10th of December, 2019 (filed purportedly in response to the order dated 13th of November, 2019 of this Court). In this report, the respondents have extracted the observations of the Supreme Court in the order dated 14th of January, 2019 as follows:
"Mr. D.C. Raina learned Advocate General for the State of J & K in all fairness submits that in view of the subsequent events and the interaction between the high officials of the High Court and the State Government, and in principle agreement has been reached on the subject matter and the modalities are being worked out. That may take some time. But that will put an end to the issue under consideration regarding regularization of the daily rated workers involved in the suo motu Writ Petition No.260 of 2014.
We, therefore, refrain from expressing any opinion for the present, in view of the request made on behalf of the State Government. For the time being, we keep all the orders passed by the High Court, which are challenged in this special leave petition, in abeyance, to enable the parties to discharge their obligations to accomplish the in principle agreement reached during the interaction on 24.10.2018. We grant three months' time from today, to the parties for that purpose. In the event of any outstanding issue with regard to the subject matter upon expiry of three months from today, it will open be open to the High Court to deal with the same in the writ petition pending before it, in accordance with law. All aspects in that behalf are left open.
We clarify that, in the meantime, it will be open to the High Court to proceed with the hearing of writ petition on issues other than regularization of the daily rated workers engaged by the High Court, if so advised.SYED TASADUQ QADRI 2020.12.10 13:56 I attest to the accuracy and integrity of this document 4
The special leave petitions are accordingly disposed of. In view of the above, interim order dated 23.03.2018 passed by this Court is vacated.
Pending applications, if any, shall stand disposed of."
(Emphasis by us)
5. It remains a fact that the issue between the High Court and the Government has not been resolved despite the passage of more than a year and 11 months after the passing of the order by the Supreme Court of India.
6. Mr. R. A. Jan, learned Senior Counsel appearing for the High Court of Jammu & Kashmir has submitted that after the meeting of the Committee dated 24th October 2018, a special Committee comprised of two Judges of the High Court; the Registrar General; the Registrar Vigilance and the Principal Secretary to the Chief Justice was constituted to consider the matters relating to all daily wagers / contractual employees including outsource employees. The matters stands considered by this Committee in detail as reflected from the Minutes of its meeting dated 17th of December, 2018. The Committee undertook the exercise to frame two sets of rules, one for the Jammu and Kashmir High Court to be called 'The Jammu & Kashmir High Court Casual and Other Workers Regular Engagement Rules, 2018' and other for the District Judiciary called 'The Jammu and Kashmir District Judiciary Casual and Other Workers Regular Engagement Rules, 2018'. The Committee had considered the legal position enunciated by the Supreme Court in a number of cases including the judgment reported at (2017) 1 SCC 148, State of Punjab and others v. Jagjit Singh and others and thereafter recommended as follows:
"4. The issue with regard to regularization of daily rated workers, working in the High Court as well as in District Judiciary was examined in depth in light of provisions of Notification/SRO 520 of 2014 dated 21.12.2017, issued by the Government with regard to regular engagement of Casual and others workers of the government; SYED TASADUQ QADRIper se SRO 520 of 2017 is not applicable to the employees/staff of the 2020.12.10 13:56 I attest to the accuracy and integrity of this document 5 High Court as well as District Judiciary. So far as appointment of officers and servants of the High Court is concerned, the same is governed by Section 108 of the State Constitution, which provides as under:
"108. Officers and servants of the High Court. - (1) Appointment of officers and servants of the High Court shall be made by the Chief Justice of the Court or such other judge or officer of the Court as he may direct:
Provided that the Governor may by rule require that in such cases as may be specified in the rule no person not already attached to the Court shall be appointed to any office connected with the Court save after consultation with the State Public Service Commission.
(2) Subject to the provisions of any law made by the Legislature, the conditions of service of the officers and servants of the High Court shall be such as may be prescribed by rules made by the High Court with the approval of the Governor.
(3) The administrative expenses of the High Court including all salaries, allowances and pensions payable to or in respect of the officers and servants of the Court, shall be charged upon the consolidated Fund of the State, and any fees or other moneys taken by the Court shall form part of that Fund".
5. Similarly, appointment of all ministerial officers of the Subordinate Courts is governed by Section 30 of the Civil Courts Acts, which, for ready reference, is also reproduced hereunder:
"30. Ministerial officers of Subordinate Courts: -
(1) The ministerial officers of the District Courts shall be appointed, and may be suspended or removed by the Judges of those Courts respectively.
(2) The ministerial offices of all courts controlled by a District Court, other than Courts of Small Causes, shall be appointed, and may be suspended or removed by the District Court.
(3) Every appointment under this section shall be subject to such rules as the High Court may prescribe in this behalf and in dealing with any matter under this section, a Judge of a Court of Small Causes shall act subject to the control of the District Court. (4) Any order passed by a District Judge under this section shall be subject to the court of the High Court."
6. It is abundantly clear that the conditions of service of the officers and servants of the High Court are to be regulated by the rules made by the High Court with the approval of the Governor. Admittedly, SRO 520 of 2017 is framed by the Governor in exercise of powers conferred by the proviso to Section 124 of the Constitution of Jammu and Kashmir, and, therefore, does not meet the requirement of Section 108 of the State Constitution.
SYED TASADUQ QADRI2020.12.10 13:56 I attest to the accuracy and integrity of this document 6 Accordingly, the Committee has proposed to frame the Rules in line with SRO 520 of 2017, in terms of Section 108 of the State Constitution.
The Draft Rules (Jammu and Kashmir High Court Casual and Other Workers Regular Engagement Rules, 2018) prepared for the purpose, are appended as Annexure "A".
The aforesaid Rules, if approved, by the High Court, shall have to be sent to H.E. the Governor for approval, through Department of Law.
7. Similarly, so far as Casual and Daily Rated Workers of the District Judiciary are concerned, they would be governed by the Rules to be framed under Section 30 of the Civil Courts Act. In terms of Section 30, the power to frame the Rules is with the High Court. The Committee has proposed to frame the Rules in line with SRO 520 of 2017, in terms of Section 108 of the State Constitution.
Accordingly, the Draft Rules (Jammu and Kashmir District Judiciary Casual and Other Workers Regular Engagement Rules, 2018), on the lines of SRO 520 of 2017, are enclosed as Annexure "B".
8. While examining the issue, the Committee also confronted with the legal position enunciated by the Supreme Court in a number of cases, including State of Punjab and others v. Jagjit Singh and others (2017) 1 SCC 148, wherein it was held as follows:
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 welfare State. Such an action besides being demeaning, strikes at the very foundation of human dignity.
Anyone, who is compelled to work at a lesser wage does not do so voluntarily. He does so to provide food and shelter to his family, at the cost of his self-respect and dignity, at the cost of his self-worth, and at the cost of his integrity. For he knows that his dependants would suffer immensely, if he does not accept the lesser wage. Any act of paying less wages as compared to others similarly situate constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation. xxxx
57....... 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 the minimum of the pay-scale of regularly engaged Government employees, holding the same post.
61. In view of the position expressed by us in the foregoing paragraph, we have no hesitation in holding that all the temporary employees concerned, in the present bunch of cases would be entitled to draw wages at the minimum of the SYED TASADUQ QADRI 2020.12.10 13:56 I attest to the accuracy and integrity of this document 7 pay scale (at the lowest grade, in the regular pay scale), extended to regular employees holding the same post.
9. Thus, it has been specifically mandated/required by the Supreme Court that even the daily rated and casual workers, who are performing the same and similar duties as those of permanent employees, are entitled to payment of minimum of the basic pay scale (without allowance) as is being paid to their regular counterparts. The Supreme Court in Civil Appeal no.10956 of 2018 titled Sabha Shanker Dube v. Divisional Forest Officer and others (judgment dated 14th November 2018), has reiterated that temporary employees/daily rated workers are entitled to draw wages at the minimum of pay scales which are applicable to the regular employees working the same posts.
10. The monthly remuneration provided for skilled and unskilled workers in SRO 520 of 2017 by the Government, however, falls short of such initial basic pay scales of the regular Class-IV employees, serving in the State. There is, thus, clear anomaly and if the same is not resolved, the provision in SRO 520 of 2017, providing for remuneration less than minimum basic pay scales of the counterparts performing similar duties, would fall foul of the settled legal position on the subject enunciated by the Supreme Court in aforesaid judgment.
11. It is with a view to complying with the mandate of the directions of the Supreme Court, we in the Rules - Annexure "A" & "B", have proposed remuneration both for skilled and unskilled categories commensurate with the minimum of the basic pay-scale paid to their regular counterparts."
7. The aforesaid two set of proposed Rules were placed before the Full Court and were approved on 30th of January, 2019. It was recommended by the Full Court of the High Court that the Rules be forwarded to the Government for their approval by the competent authority.
These Rules have unfortunately not been examined by the Government till date.
8. We may observe here that the Registrar General of this Court has also filed a response to the instant writ petition. It is necessary to consider the same which reads as follows:
"1. That the Government of J&K admittedly issued SRO 520 of 2017 dated 21.12.2017 devising a scheme on regular engagement of casual/seasonal and other workers and with a view to follow a scheme akin to the aforesaid scheme for daily-rated workers of SYED TASADUQ QADRI 2020.12.10 13:56 I attest to the accuracy and integrity of this document 8 High. Court and Subordinate Judiciary of the State having been engaged from time to time was taken with Secretary to Government, Department of Law, Justice and Parliamentary Affairs and a communication in this regard addressed dated 16.3.2018. The matter, however, remains pending there in the office of said Secretary till files of all daily-rated workers working in the Hon'ble Courts were asked for their scrutiny which was responded to by the office of Registrar General vide letter dated 7.7.2018 and that while the issue was still pending in the office of Law Secretary, a meeting was convened under the Chairmanship of Hon'ble the Chief Justice on 24.10.2018 attended by the Chief Secretary, Principal Secretary to Government, Finance Department as also the Law Secretary whereby it was resolved that the Hon'ble Court would constitute its own Empowered Committee for scrutinizing the cases of daily-rated workers and a report upon being prepared necessary funds would be provided by the Government and that accordingly the committee was constituted by the Hon'ble Chief Justice which after threadbare discussions made certain recommendations including for framing of two sets of Rules and Regulations for casual and other workers engaged in High Court as well as in the district courts and while framing the aforesaid rules, the Committee expressed a view that SRO 520 of 2017 is not applicable in the matter and observed that the appointments of officers and the staff of Hon'ble Courts is governed by Section 108 of the Constitution of J&K and whereas the appointment of ministerial staff of subordinate courts is governed by Section 30 of the Civil Court's Act meaning thereby that the condition of services of officers and other employees of the High Court are regulated by the Rules framed by the High Court with the approval of the Hon'ble Governor. The Committee in this regard while examining the issue took cognizance of law laid down by the Hon'ble Supreme Court in the case of State of Punjab Versus Jagjeet Singh and others, reported in 2017 (I) SCC 148, and opined that even the daily-rated and casual workers while performing similar duties as those of permanent employees are entitled to the minimum basic pay (without allowances) as is being paid to their regular counterparts and accordingly in the aforesaid backdrop the I' committee proposed framing of "J&K High Court Casual and Other Workers Regular Engagement Rules" and "J&K District Judiciary Casual and Other Workers Regular Engagement Rules" and the said Rules came to be approved by the Hon'ble Full Court.
Upon framing of the aforesaid Rules, same were forwarded for approval by the office of Registrar General to the Law Secretary seeking therein also making of necessary funds available for payment of wages to the officers/employees governing the said Rules. It is pertinent and significant to mention here that aforesaid fact is evident by a copy of communication bearing No. 29008/IS dated 16.12.2019 appended herewith as Annexure I, followed by another communication bearing No. 619-20/N.G dated 10.4.2019,copy SYED TASADUQ QADRI 2020.12.10 13:56 I attest to the accuracy and integrity of this document 9 whereof is appended herewith as Annexure II, as the office of Law Secretary have had vide letter bearing No. LD(Lit)2014/49- BDP/LAW/P.FiIe-I dated 29.3.2019, copy appended herewith as Annexure III, requested the Hon'ble High Court to re-examine and reconsider the proposal after it appears to have examined the matter in consultation with General Administration Department and Finance Department. That it is further pertinent and significant to mention that the Hon'ble Full Court reconsidered the matter in light of the letter of the office of Law Secretary dated 29.3.2019 and consequently vide letter dated 10.4.2019 from the office of Registrar General to the office of Law Secretary it was conveyed that the Hon'ble Full Court has reiterated its earlier decision in the matter and accordingly again called upon the office of Law Secretary to accord approval to the aforesaid two sets of Rules furnished alongwith the letter from the Registrar General dated 6.12.2019 and to place necessary funds at the disposal of High Court for payment of wages to the employees covered by these rules. The aforesaid intimation was conveyed by the office of Registrar General of the High Court to the office of Law Secretary vide No. 14977-78 dated 6.9.2019, copy whereof is appended herewith as Annexure IV.
2. That the perusal of the reply filed by the State - respondent would reveal that the aforesaid Rules framed by the Hon'ble Court are being find fault with and that the State-respondents insist application of SRO 520 of 2017 to the said aforesaid employees of the Hon'ble Court akin to which a separate scheme was proposed to be framed by the Hon'ble High Court in the process after a meeting was convened under the Chairmanship of Hon'ble the Chief Justice on 24.10.2018 attended by the Chief Secretary, Principal Secretary Finance Department, as also the Law Secretary wherein it was resolved that the Hon'ble High Court would constitute its own Empowered Committee for scrutinizing the cases of daily-rated workers where after on the basis of the report of the committee necessary funds would be made available. The said Committee where after for resolving the issue proposed framing of two sets of aforesaid Rules. No decision/communication whatsoever in the matter after communication dated 6.9.2019 has been received so far by the office of Registrar General of this Hon'ble High Court and the perusal of the reply filed by the Law Secretary suggests and reveal that the matter is still under consideration with General Administration Department."
(Emphasis supplied) Background facts
9. It is noteworthy that the Government of the then State of J&K was regularizing daily wagers pursuant to a Government Order SRO 64 of 1994. Thereafter it had issued an order being SRO 520 of 2017 dated 21.12.2017 SYED TASADUQ QADRI 2020.12.10 13:56 I attest to the accuracy and integrity of this document 10 devising a scheme for regular engagement of Casual, Seasonal and other Workers.
10. In order to apply the said Scheme to the daily wagers of the High Court and the District Judiciary, details in this regard were furnished to the Government under cover of a letter dated 16th of March, 2018 with a request to accord sanction to the creation of 168 positions under the nomenclature of 'Government Service Assistants' so that the daily wagers of the High Court and the District Courts could be adjusted against the said positions from the date they would become eligible in terms of the Government Order, i.e., SRO 520 of 2017. This matter has remained pending with the Government on the pretext that transmission of all the files of the daily wagers was required for scrutiny of an Empowered Committee constituted by the Government.
11. The communication of the Government in this regard was responded to by the High Court by a letter dated 07th of July, 2018. It was in this background, in order to resolve this impasse, that the aforesaid meeting was held on 24th of October, 2018.
12. The submission of Mr. B. A. Dar, learned Sr. AAG that an agreement was reached with regard to the manner in which the regularization of the workers of the Government of Jammu & Kashmir would be effected is completely misconceived. All that was resolved in the meeting was that instead of placing the cases of the daily wagers engaged in the State Judiciary before the Empowered Committee of the Government, it was agreed that those cases would be placed before the Empowered Committee to be constituted by the High Court.
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13. Insofar as the position of the employees of the Judiciary vis-à-vis employees in Government Departments is concerned, it is submitted by Mr. R. A. Jan, learned Senior Counsel, that the findings recorded by this Court on this aspect have attained finality and cannot be disputed by the respondents in terms of previous orders.
14. We may usefully extract the relevant portion of this court's order dated 7th October 2015 wherein it was observed that:
"18. In respect of order dated 30th July 2015, passed in MP No. 01/2015, the Application filed by the daily rated workers working in High Court at Srinagar, learned Advocate General submitted that direction is passed by another Hon'ble Division Bench in the writ petition filed by these daily rated workers and the respondent - State has been directed to file its response.
19. Respondent - State is duty bound to consider claim of the daily rated workers and as a "one time exception" regularize the services. Commissioner Secretary to Government, Department of Law, Justice and Parliamentary Affairs, to file Status Report about this aspect of the matter as well before next date of hearing."
15. We may carefully advert to the pronouncement by the Supreme Court reported at (2006) 4 SCC 1, Secretary, State of Karnataka v. Umadevi wherein it is observed as:
"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071] , R.N. Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees SYED TASADUQ QADRI 2020.12.10 13:56 I attest to the accuracy and integrity of this document 12 or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme."
16. On 22nd of April 2016, this Court had directed in these proceedings the Commissioner / Secretary to Government, Department of Law, Justice and Parliamentary Affairs, J&K, to ensure that wages which are to be paid to the daily wagers working in the State Judiciary, are released in favour of the Registrar General of the High Court from the months of February, 2016 onwards. The Registrar General was directed to send necessary information about the existing strength of daily wagers to the afore-stated authority.
All authorities including the Finance Department of J&K were directed to ensure compliance of this order.
17. The status reports filed by the Commissioner / Secretary to the Government, Department of Law, Justice & Parliamentary Affairs were considered by this Court on 04th of May, 2016 observing as follows:
"07/ The Commissioner Secretary to Government, Department of Law has filed status report. The status report, prima facie, appears to be not, in consonance with the directions issued by the Court right from 1st December, 2015 upto 21st April, 2016. 08/ The Court, in unequivocal terms, rejected the stand of the Government about referring of the posts of Daily Wagers working in the State Judiciary to the committee constituted in accordance with the mandate contained in rules notified vide SRO 64 of 1994. It was specifically declared that these Daily Wager constitute a class in themselves. The Government was directed to create equal number of posts for their permanent absorption/appointment against those posts. This direction was reiterated on 21st April, 2016.
09/ The aforesaid authority in its compliance report, has casually dealt with the directions of the Court. The said authority has again taken the stand which stands rejected by the Court on 1st December, 2015 as also on 21st April, 2016. The officer, in this fact situation, would require to be proceeded against for prima-SYED TASADUQ QADRI 2020.12.10 13:56 I attest to the accuracy and integrity of this document 13
facie violating the Court direction, which by now, have attained finality.
10/ At this stage, learned Advocate General, appeared and assured the Court that the Court orders will be implemented. It is for this assurance, we defer initiation of action against the aforesaid authority.
11/ The Registrar General, it is submitted, has sent the information about the wage component of Daily Wagers, whose number is also mentioned, to the Law Department. The Government, in the Law Department, has not responded to the direction of the Court for placing wages of these Daily Wagers at the disposal of Registrar General of this Court for disbursement. 12/ Learned Advocate General submitted that the directions issued by the Court will be taken care of and latest compliance report will be filed by or before the next date."
(Emphasis by us)
18. Assurances given by the learned Advocate General to the Court bind the respondents. More so, it was because of the assurances that the Court deferred initiation of action against the officers who were found prima facie guilty of the violation of the Court orders.
19. It appears that the respondents challenged the order dated 01st of December, 2015 before the Supreme Court of India. An order dated 08th of December, 2016 in Civil Appeal No. 11941 of 2016, SLP (C) No. 36084 of 2016 was passed by the Supreme Court of India. We do not have the benefit of this order which has not been placed before us.
20. In the order dated 10th of June 2016, this Court has however noted the submissions of Mr. Dar, ld. AAG as follows:
"It is submitted at bar that the directions, issued for creation of posts for absorption of Daily Wagers working in the High Court and Subordinate Judiciary, have attained finality, inasmuch as, as submitted at Bar by Mr Dar, learned AAG, that the SLP, filed against order of the Court, stands dismissed by Hon'ble the Supreme Court."SYED TASADUQ QADRI 2020.12.10 13:56 I attest to the accuracy and integrity of this document 14
21. In the above background, the respondents were directed to file a compliance report of the orders dated 04th of March 2016 before the next date of hearing.
22. On 15th of July 2016, the Commissioner/Secretary to the Government, Law, J&PA was present in person alongwith the learned Advocate General. This Court has recorded his submissions as follows:
"Commissioner/Secretary to Government, Law, Justice and Parliamentary Affairs present in person. He submitted that steps have been initiated for implementing the court order dated 01.12.2015, for creation of the posts in the State Judiciary. His statement is taken on record."
23. On 2nd of June 2016, the Court directed the Commissioner / Secretary to the Government, Department of Law, J&PA to remain personally present in the Court.
24. Clearly, the exemption was granted by the Court because of the Commissioner/Secretary's assurance to the Court that steps for implementation for creation of the posts in terms of order dated 01 st December, 2015 were underway.
25. This entire matter was taken up on 08th of August, 2016 when this Court considered the matter for creation of posts for appointment of daily wagers engaged in the Court as well as the earlier directions. A strict view of the non-compliance of the orders of the Court was taken and it was directed as follows:
"1. Compliance report in terms of directions contained in para 15 and 16 of Court order dated 01st December, 2015 read with Court orders dated 24th March, 2016, 21st April, 2016, 04th May, 2016 and 15th July, 2016 has not been filed.
2/ The Court had directed for creation of equal number of posts for appointment of Daily wagers engaged in the High Court and Sub-ordinate courts from time to time.SYED TASADUQ QADRI 2020.12.10 13:56 I attest to the accuracy and integrity of this document 15
3/ Respondent-State challenged the said order before Hon'ble the Supreme Court, which dismissed the SLP. The order of this Court for creation of posts has attained finality.
4/ At this stage Mr. M. I. Dar, learned AAG submitted that the Registrar General of the High Court send communication dated 23 April, 2014, in which request was made for regularization of 188 Daily Rated workers engaged from time to time in the High Court and Sub-ordinate courts.
5/ Learned counsel submitted that in terms of the annexure enclosed with the said communication, number of said workers have been shown as 228. Learned counsel submitted that verification was sought from the Registrar General of the Court vide communication dated 27th July, 2016.
6/ Learned counsel produced copy of communication dated 27 th July, 2016. Learned counsel also produced copy of communication dated 29th July 2016 send by Registrar General to the Commissioner/Secretary to the Government, Department of Law, Justice and Parliamentary Affairs. Both the communication are taken on record. In the said communication, the Registrar General has mentioned that inadvertently, the number of Daily Rated workers working in, the High Court and Sub-ordinate courts was wrongly mentioned. It is also stated in the said communication that as a matter of fact, strength of Daily Rated workers in the High Court was 98 which was incorrectly put at 58 in the earlier communication. It is also clarified that in fact at that point of time total Daily Rated workers working in the High Court, and Subordinate courts was 228 instead of 188. It is also clarified in the aforesaid communication dated 29th July, 2016 that the present/existing strength of the 'Daily Rated workers working in the High Court and Subordinate Courts are 209 which factual position stands communicated to the Commissioner / Secretary to the Government, Department of Law, Justice and Parliamentary Affairs vide communication dated 28th April, 2016.
7/ In view of aforesaid clarification, as, on date 209 Daily Rater Workers are working in the High Court and Sub-ordinate Courts. The respondent-State, in view of the directions contained at para 15 and 16 of order dated 01st December, 2015, which order has attained finality in view of the dismissal of the SLP by Hon'ble the Supreme Court filed against the said order, has to create 209 posts for adjustment the Daily Rated workers.
8/ The respondents are, duty bound to comply with the said direction and create 209 Class-IV posts for adjustment of these number of Daily Rated workers.
9/- Mr. M. I. Dar, learned AAG after seeking instructions from his client submitted that 209 Class-IV posts will be created within a period of three weeks.SYED TASADUQ QADRI 2020.12.10 13:56 I attest to the accuracy and integrity of this document 16
10/- On 15th July 2016, the then Commissioner/Secretary to the Government, Department of law, Justice and Parliamentary Affairs, Mr. Mohammad Ashraf Mir appeared in person before the Court. He on that date submitted that steps have been already taken for implementing the Court order dated 01st December, 2015 for creation of posts in the State Judiciary. His statement was taken on record. At his request, the case was ordered to be listed today. It was also directed that by or before the next date, compliance report be filed about the creation of the posts. 11/- It is submitted at bar that Mr. Mohammad Ashraf Mir has been transferred and is presently posted and Commissioner/Secretary to Government, Revenue Department. 12/- Mr. Mohammad Ashraf Mir, then Commissioner/Secretary to Government, Department of Law, Justice and Parliamentary Affairs made to the Court on 15th July 2016 to believe that posts will be created by or before 08th August 2016. Posts have not been created till date.
13/- Prima facie it appears that Mr. Mohammad Ashraf Mir, then Commissioner / Secretary to the Government, Department of Law, Justice and Parliamentary Affairs on 15th July, 2016 has made an effort not only to defeat the Court Order but to hoodwink the process of the Court.
14/- Registry to issue notice to the said authority to show cause as to why contempt proceedings shall not be initiated against him."
26. The orders dated 01st of December, 2015 and 10th of August, 2016 in this writ petition was assailed before the Supreme Court of India by way of SLP (C) No. 36084/2016 (Civil Appeal No. 1193/2016) titled State of J&K & others v. The District Bar Association Bandipora reported as (2017) 3 SCC 410.
27. Before the Supreme Court, reliance was placed by the respondents on the pronouncement in Secretary, State of Karnataka v. Umadevi, (2006) 4 SCC 1, and the respondents, inter alia, espoused the following grievances:
"28. The grievances which have been set out on behalf of the state government in the Special Leave Petition, and during the course of the hearing, include the following:
28.1. (i) In a Public Interest Litigation seeking the construction of a district court complex in Bandipora District the High Court proceeded to issue directions for the regularization of services of daily rated workers. These directions were totally unconnected to the reliefs which were sought in the PIL;SYED TASADUQ QADRI 2020.12.10 13:56 I attest to the accuracy and integrity of this document 17
28.2. (ii) By an order of the High Court dated 7 October 2015, the state government was directed to consider the claim for regularization of the daily rated workers as a one-time exception which required the state government necessarily to decide on the issue of regularization. The state government has constituted an empowered committee on 19 August 2015 to inquire into the issue of creating posts for the regularization of nearly sixty one thousand daily rated and casual workers working in various departments of the state government. These include workers on the establishment of the High Court and the district courts; The High Court has pre-empted consideration by issuing a direction for regularisation;
28.3. (iii) There is a lack of clarity in the actual number of daily rated workers engaged in the High Court and the district judiciary, as well as in the nature of work performed. The list furnished by the Registrar General contains the names of several Sewaks whose services are governed under a GO dated 28 July 2016. All the two hundred nine workers do not perform the same job and who among them is eligible to be considered for regularization has yet to be determined;
28.4. (iv) The High Court has proceeded on the erroneous basis that the issue of regularization has attained finality. The dismissal of the Special Leave Petition by this Court on 16 December 2015 against an interim order dated 7 October 2015 does not conclude the issue. There is no vested right to seek regularization; and The High Court has erred, in its order dated 1 December 2015, in holding that daily rated workers on the establishment of the High Court would not be regulated by the rules governed by SRO 64 of 1994. If the Daily Rated Workers are to be regularized, the state government should be required to create a sufficient number of posts for the purpose.
28. Finding substance in the above, the Supreme Court had observed as follows:
29. We have adverted to the above grievances in order to emphasise that there is substantial merit in the submission that the High Court proceeded to issue directions for regularization without considering either the legal position enunciated in the judgments of this Court referred to above and without considering the prevailing rules and regulations on the subject. The High Court has observed in its order dated 1 December 2015 that over a considerable period of time the state government has not created the required number of posts for the state judiciary as a result of which work has been hampered. According to the High Court, appointment of daily rated workers was necessitated to ensure that judicial work does not suffer. The High Court opined that these workers have been rendering work which should have been assigned to persons appointed on a regular basis against sanctioned posts. It is unfortunate, in our view, that the state SYED TASADUQ QADRI 2020.12.10 13:56 I attest to the accuracy and integrity of this document 18 government has allowed the requirements of the state judiciary to be neglected over such a long period of time. The need to facilitate the proper functioning of the High Court and the district judiciary is a constitutional necessity which imposes a non-
negotiable obligation on the state government to create an adequate number of posts and to provide sufficient infrastructure. The state government is to blame for the unfortunate situation which has resulted in a large number of persons being recruited on a daily wage basis."
29. Finding substance in the above grievances, the Supreme Court finally concluded as follows:
"30. We have already indicated above our conclusion that the direction for regularization was issued by the High Court without considering the relevant constitutional and legal principles. While some of the daily rated workers have been engaged over long periods of time, others have been engaged as recently as in 2015. The issue of whether such appointments were irregular or whether they were illegal should have been determined but has not been considered. Since the issue of regularization is a matter with which the state government is seized, as stated in the proceedings before this Court, we are of the view that at this stage it would be appropriate and proper to set aside the impugned order of the High Court which directs the regularization en masse of two hundred nine daily rated workers. While doing so, we restore the proceedings back to the file of the High Court for reconsideration. We order accordingly, leave it open to the High Court to reconsider the entire matter afresh having due regard to the constitutional and legal principles enunciated and having regard to all relevant factual aspects."
30. Mr. R. A. Jan, learned Senior Counsel has drawn our attention to the observations of the Supreme Court with regard to the manpower of the judiciary. He has also placed reliance upon the judgement of the Supreme Court of India delivered in All India Judges' Association and others v. Union of India, reported at AIR 1993 SC 2493, wherein the Supreme Court has made observations with regard to judges and the judicial service as under:
"...The judicial service is not service in the sense of 'employment'. The judges are not: employees. As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders SYED TASADUQ QADRI 2020.12.10 13:56 I attest to the accuracy and integrity of this document 19 of public offices in the same way as the members of the council of ministers and the members of the legislature. When it is said that in a democracy such as ours, the executive, the legislature and the judiciary constitute the three pillars of the State, what is intended to be conveyed is that the three essential functions of the State are entrusted to the three organs of the State and each one of them in turn represents the authority of the State. However, those who exercise the state-power are the ministers, the legislators and the judges, and not the members of their staff who implement or assist in implementing their decisions. The council of ministers or the political executive is different from the secretarial staff or the administrative executive which carries out the decisions of the political executive. Similarly, the legislators are different from the legislative staff. So also the Judges from the judicial staff. The parity is between the political executive, the legislators and the Judges and not between the Judges and the administrative executive. In some democracies like the U.S.A., members of some State judiciaries are elected as much as the members of the legislature and the heads of the State. The Judges, at whatever level they may be, represent the State and its authority unlike the administrative executive or the members of the other services. The members of the other services, therefore, cannot be placed on par with the members of the judiciary, either constitutionally or functionally.
This distinction between the Judges and the members of the other services has to be constantly kept in mind for yet another important reason. Judicial independence cannot be secured by making mere solemn proclamations about it. It has to be secured both in substance and in practice. It is trite to say that those who are in want cannot be free. Self-reliance is the foundation of independence. The society has a stake in ensuring the independence of the judiciary, and no price is too heavy to secure it. To keep the judges in want of the essential accoutrements and thus to impede them in the proper discharge of their duties, is to impair and whittle away justice itself."
31. It thus cannot be disputed that functions discharged by the judiciary cannot be equated to those discharged by the other branches. The staff assisting the courts also has special and distinct responsibilities from those of similar positions in Govt. departments.
32. The daily wagers employed in the courts are thus a class by themselves.
Wages to be paid to daily wagers - application of principle of equal pay for equal work suggested by the Committee-Entitlement of daily SYED TASADUQ QADRI 2020.12.10 13:56 I attest to the accuracy and integrity of this document 20 wagers to draw wages at the minimum of the pay-scale (at the lowest grade, in the regular pay-scale), extended to regular employees, holding the same post
33. So what is the remuneration to which a daily wager, who is not to be regularized, be entitled?
34. So far as the proposal in the draft Rules to pay minimum of the pay scale is concerned, it is essential to go through the law laid down by the Supreme Court of India. In this regard, the Supreme Court of India has already considered the legal position with regard to the payment of wages to employees engaged as daily wagers who are performing the same work as persons engaged with the regular employees employed with an organization and are performing the same duties and responsibilities.
35. In this regard, we may advert to the extensive jurisprudence of the Supreme Court as laid down in the following judgments:
(i) (1998) 9 SCC 5951, State of Punjab and Ors. vs. Devinder Singh and Ors., We, therefore, allow this appeal to the limited extent that though the respondents are held entitled on the principle of "Equal Pay for Equal Work" to get the salary available to the Ledger-Keepers/Ledger Clerks who are regularly recruited, they would be entitled to the minimum of the pay scale of the Ledger-Keepers which may be available to the regularly appointed Ledger-Keepers and they cannot be straightaway paid the running time scale as they were not regularly appointed as Ledger-Keepers/Ledger Clerks.
(ii) (2006) 9 SCC 321, State of Haryana v. Charanjit Singh,
19. Having considered the authorities and the submissions we are of the view that the authorities in the cases of State of Haryana v. Jasmer Singh (1996) 11 SCC 77, State of Haryana v. Tilak Raj (2003) 6 SCC 123, Orissa University of Agriculture and Technology v. Manoj K. Mohanty (2003) 5 SCC 188, Govt. of W.B. v. Tarun K. Roy (2004) 1 SCC 347, 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... In any event the party who claims equal pay for equal work has to make necessary averments and prove that all things are equal. SYED TASADUQ QADRI 2020.12.10 13:56 I attest to the accuracy and integrity of this document 21 Thus, before any direction can be issued by a Court, the Court must first see that there are necessary averments and there is a 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.
(iii) (2006) 9 SCC 337, State of U.P. v. Putti Lal
5. In several cases this Court applying the principle of equal pay for equal work has held that a daily wager, if he is discharging the similar duties as those in the regular employment of the Government should at least be entitled to receive the minimum of the pay scale though he might not be entitled to any increment or any other allowance that is permissible to his counterpart in the Government. In our opinion that would be the correct position and we, therefore, direct that these daily-wagers would be entitled to draw at the minimum of the pay scale being received by their counterparts in the Government and would not be entitled to any other allowances or increment so long as they continue as daily wagers."
(Emphasis supplied)
36. We may usefully advert to the principle laid down in the judgment reported at (2017) 1 SCC 148, State of Punjab and others v. Jagjit Singh & others which read as follows:
"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 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.
56. We would also like to extract herein Article 7, of the International Covenant on Economic, Social and Cultural Rights, 1966. The same is reproduced below:-
"Article 7 The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular:
(a) Remuneration which provides all workers, as a minimum, with:SYED TASADUQ QADRI 2020.12.10 13:56 I attest to the accuracy and integrity of this document 22
(i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;
(ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant;
(b) Safe and healthy working conditions;
(c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence;
(d) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays." India is a signatory to the above covenant, having ratified the same on 10.4.1979. There is no escape from the above obligation, in view of different provisions of the Constitution referred to above, and in view of the law declared by this Court under Article 141 of the Constitution of India, the principle of 'equal pay for equal work' constitutes a clear and unambiguous right and is vested in every employee - whether engaged on regular or temporary basis.
57. Having traversed the legal parameters with reference to the application of the principle of 'equal pay for equal work', in relation to temporary employees (daily-wage employees, ad-hoc appointees, employees appointed on casual basis, contractual employees and the like), the sole factor that requires our determination is, whether the concerned employees (before this Court), were rendering similar duties and responsibilities, as were being discharged by regular employees, holding the same/corresponding posts. This exercise would require the application of the parameters of the principle of 'equal pay for equal work' summarized by us in 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 employees in the present bunch of appeals, were appointed against posts which were also available in the regular cadre/establishment. It was also accepted, that during the course of their employment, the concerned temporary employees were being randomly deputed to discharge duties and responsibilities, which at some point in time, were assigned to regular employees. Likewise, regular employees holding substantive posts, were also posted to discharge the same work, which was assigned to temporary employees, from time to time. There is, therefore, no room for any doubt, that the duties and responsibilities discharged by the temporary employees in the present set of appeals, were the same as were being discharged by regular employees. It is not the case of the appellants, that the respondent-employees did not possess the qualifications prescribed for appointment on regular basis. Furthermore, it is not the case of the State, that any of the temporary employees would not be entitled to pay parity, on any of the principles summarized by us in SYED TASADUQ QADRI 2020.12.10 13:56 I attest to the accuracy and integrity of this document 23 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 the minimum of the pay-scale of regularly engaged Government employees, holding the same post."
(Emphasis by us)
37. It is well settled that payment of minimum wages at the minimum pay scale as is paid to a regular employee is premised on the principle of "equal pay for equal work".
38. Before us, as evident from the assurances given by the respondents on 4th May 2016 and 15th July 2016, the respondents accept and admit the entitlement of the daily wagers in the court to consideration for regularization. There is also no issue at all that these daily wagers are performing the same work as those employed in regular posts.
Whether an employer can pay lower wages merely because the employee is willing to receive them
39. In the present case, the issue being considered is the working of the principle of equal pay for equal work. Can the employer, which is the State in the instant case, refuse to pay the wages premised on this principle merely because the daily wagers with the High Court may be willing to receive them?
40. Some guidance on this issue is to be found in the extensive jurisprudence under the Minimum Wages Act.
41. In AIR 1962 SC 12, Unichoyi and Others vs. State of Kearala, the court considered the policy of the enactment and rejected the permissibility of payment of wages lower than minimum wages because the employees consented to receive a lower wage in para 12 of the judgment in the following terms :
SYED TASADUQ QADRI2020.12.10 13:56 I attest to the accuracy and integrity of this document 24
"12. We have already seen what the Act purports to achieve is to prevent exploitation of labour and for that purpose authorises the appropriate Government to take steps to proscribe minimum rates of wages in the scheduled industries. In an under developed country which faces the problem of unemployment on a very large scale, it is not unlikely that labour may offer to work even on starvation wages. The policy of the Act is to prevent the employment of such sweated labour in the interest of general public and so in prescribing the minimum wage rates, the capacity of the employer, need not be considered. What is being prescribed is minimum wage rates which a welfare state assumes every employer must pay before he employs labour. This principle is not disputed (Vide: Crown Aluminium Works v.
Workmen [(1958) SCR 651]."
(Emphasis supplied)
42. The principle that the financial capacity of the employer does not enter into the scale in fixation of the bare minimum wages was also rejected by the Supreme Court in the judgment reported at (1974) 3 SCC 318, Woolcombers of India Limited vs. Woolcombers Union & Anr., the relevant portion whereof reads as follows :
"9. .... We have already pointed out that the referring order of the West Bengal Government did not ask the Tribunal to fix the bare minimum wage. It is also necessary to point out at this stage that apart from the aforesaid passage in the award there is no reference at any other place therein that the bare minimum wage was being granted to the workmen. The financial capacity of an employer does not enter into the scale in the fixation of a bare minimum wage. But in fixing the basic wages the Tribunal has admittedly considered the financial capacity of the Woolcombers."
(Emphasis by us)
43. It is noteworthy that the judgment of the Supreme Court reported at AIR 1992 SC 504: 1992 (1) SCC 290, Workmen vs. the Management of Reptakos Brett & Co. Ltd. & Anr., reiterates the same extremely important SYED TASADUQ QADRI 2020.12.10 13:56 I attest to the accuracy and integrity of this document 25 principle. It also considered the question as to whether the management can revise the wage structure to the prejudice to the workmen in a case where due to financial stringency the employer was unable to bear the burden of an 'existing wage' as distinguished from the 'minimum wage'. On this issue, in para 28 of the judgment, the Supreme Court held as follows:
"28. The ratio which emerges from the judgments of this Court is that the management can revise the wage structure to the prejudice of the workmen in a case where due to financial stringency it is unable to bear the burden of the existing wage. But in an industry or employment where the wage structure is at the level of minimum wage, no such revision at all, is permissible not even on the ground of financial stringency. It is, therefore, for the management which is seeking restructuring of DA scheme to the disadvantage of the workmen to prove to the satisfaction of the tribunal that the wage structure in the industry concerned is well above minimum level and the management is financially not in a position to bear the burden of the existing wage structure."
(Underlining by us) Therefore, it is open to the management to revise the wage structure to the prejudice to the workmen only if the existing wage structure which is above the minimum level and the management is financially not in a position to bear this burden.
44. In 2003 Lab IC 1326, Andhra Pradesh Hotel Association, Hyderabad v. Government of Andhra Pradesh also, the court repelled the contention that the workers were willing to work at less than the minimum wages :
"10. .... The employers cannot be heard to complain if they are compelled to pay minimum wages, even though the labourers, on account of their poverty and helplessness or disabilities, are willing to work on lesser wages. According to the Universal Declaration of Human Rights everyone as a member of society has the right to social security and is entitled to realization, through national efforts and international cooperation and in SYED TASADUQ QADRI 2020.12.10 13:56 I attest to the accuracy and integrity of this document 26 accordance with the organization and resources of each State, of economic, social and cultural rights indispensable for one's dignity and the free development of one's personality. Likewise everyone has the right to a standard of living, adequate for the health and well- being of oneself, including food, clothing, housing and medical care and necessary social services and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood or circumstances beyond one's control."
(Emphasis by us)
45. It is therefore, well settled that the purport and object of fixation of the wages is clearly to prevent exploitation of labour. The hardship caused to individual employers or their inability to meet the burden of minimum wages or its upward revision, has no relevance. The minimum wages which are prescribed "provide not merely for the bare subsistence of life but for the preservation of the efficiency of the workers".
46. In this background even if the workmen are willing to take wages lower than the minimum wages as notice above, the application of the principle of equal pay for equal work knows of no exception.
Norms for fixation of wage
45. What would be an appropriate wage structure?
46. We have come across several instances of daily wagers working for decades together on extremely paltry wages. In one of the courts, an incident of a person engaged in sanitation work at a monthly wage of Rs.3,000/- for several years together has come to our notice.
47. Even this circumstance is the subject matter of consideration before the Supreme Court. The Supreme Court has noted the distinction between an exploitative wage structure; fair wage; living wages; bare sustenance; minimum wage and a statutory minimum wage. In this regard in the pronouncement reported at AIR 1962 SC 12, Unichoyi and Ors. V. State of SYED TASADUQ QADRI 2020.12.10 13:56 I attest to the accuracy and integrity of this document 27 Kerala, the Supreme Court has held as that the minimum wages has to be higher than the bare subsistence observing as follows:
"13. It is, therefore, necessary to consider what are the components of a minimum wage in the context of the Act. The evidence led before the Committee on Fair Wages showed that some witnesses were inclined to take the view that the minimum wage is that wage which is essential to cover the bare physical needs of a worker and his family, whereas the overwhelming majority of witnesses agreed that a minimum wage should also provide for some other essential requirements such as a minimum of education, medical facilities and other amenities. The Committee came to the conclusion that a minimum wage must provide not merely for the bare subsistence of life but for the preservation of the efficiency of the worker, and so it must also provide for some measure of education, medical requirements and amenities. The concept about the components of the minimum wage thus enunciated by the Committee have been generally accepted by industrial adjudication in this country. Sometimes the minimum wage is described as a bare minimum wage in order to distinguish it from the wage structure which is 'subsistence plus' or fair wage, but too much emphasis on the adjective "bare" in relation to the minimum wage is apt to lead to the erroneous assumption that the maintenance wage is a wage which enables the worker to cover his bare physical needs and keep himself just above starvation. That clearly is not intended by the concept of minimum wage. On the other hand, since the capacity of the employer to pay is treated as irrelevant, it is but right that no addition should be made to the components of the minimum wage which would take the minimum wage near the lower level of the fair wage, but the contents of this concept must ensure for the employee not only his sustenance and that of his family but must also preserve his efficiency as a worker. The Act contemplates that minimum wage rates should be fixed in the scheduled industries with the dual object of providing sustenance and maintenance of the worker and his family and preserving his efficiency as a worker. xxxx
15. In the course of his judgment Bhagwati, J., who spoke for the Court, has elaborately considered several aspects of the concept of wage structure including the concept of minimum wage. The conclusion of the Fair Wage Committee as to the content of the minimum wage has been cited with approval (p.83). Then a distinction has been drawn between a bare subsistence or minimum wage and a statutory minimum wage, and it is observed that the statutory minimum wage is the minimum which is prescribed by the statute and it may be higher than the bare subsistence or minimum SYED TASADUQ QADRI 2020.12.10 13:56 I attest to the accuracy and integrity of this document 28 wage providing for some measure of education, medical requirements and amenities (p. 84). This observation is followed by a discussion about the concept of fair wage; and in dealing with the said topic the Minimum Wages Act has also been referred to and it is stated that the Act was intended to provide for fixing minimum rates of wages in certain employments and the appropriate Government was thereby empowered to fix different minimum rates of wages as contemplated by s. 3(3). Then it is stated that whereas the bare minimum or subsistence wage would have to be fixed irrespective of the capacity of the industry to pay the minimum wage thus contemplated postulates the capacity of the industry to pay and no fixation of wages which ignores this essential factor of the capacity of the industry to pay could ever be supported. Mr. Nambiar contends that the last part of the observation refers to the minimum wage prescribed by the Act and it requires that before prescribing the said wage the capacity of the industry must be considered. We do not think that this argument is well founded. It would be noticed that in considering the distinction drawn between the minimum wage fixed by industrial adjudication and the minimum wage prescribed by a statute which is called statutory minimum it has been made clear that the latter can be higher than the bare subsistence or minimum wage and as such is different in kind from the industrial minimum wage. We do not think that the observation in question was intended to lay down the principle that whereas a minimum wage can be laid down by an industrial adjudication without reference to an employer's capacity to pay the same it cannot be fixed by a statute without considering the employer's capacity to pay. Such a conclusion would be plainly illogical and unreasonable. The observations on which Mr. Nambiar relies do not support the assumption made by him and were not intended to lay down any such rule. Cases are not unknown where statutes prescribe a minimum and it is plain from the relevant statutory provisions themselves that the minimum thus prescribed is not the economic or industrial minimum but contains several components which take the statutorily prescribed minimum near the level of the fair wage,and when that is the effect of the statutory provision capacity to pay may no doubt have to be considered. It was a statutory wage structure of this kind with which the Court was dealing in the case of Express Newspapers (Private) Ltd. (1), because s. 9 authorised the imposition of a wage structure very much above the level of the minimum wage and it is obvious that the observations made in the judgment cannot, and should not, be divorced from the context of the provisions with respect to which it was pronounced. Therefore, we feel no hesitation in reject- ing the argument that because the Act prescribes minimum wage rates it is necessary that the capacity of the employer to bear the burden of the said wage structure must be considered. The attack against the validity of the notification made on this ground must therefore fail.
(Emphasis supplied) SYED TASADUQ QADRI 2020.12.10 13:56 I attest to the accuracy and integrity of this document 29
48. Having determined the constituents of minimum wages, it is necessary to consider what should be the norms for fixation? This aspect is also no longer res integra and has been the subject matter of consideration by not only the authorities including the Committee (as extracted above) but has also been authoritatively laid down in the pronouncement of the Supreme Court in Reptakos Brett's case. In this case the court referred to the recommendations given in the year 1957 of the Tripartite Committee of the Indian Labour Conference on what would be the optimum wage. The Supreme Court has considered this report in para 9 and affirmatively declared the norms which must be followed while determining the minimum wages in the following terms :
"9. Before the points are dealt with, we may have a fresh look into various concepts of wage structure in the industry. Broadly, the wage structure can be divided into three categories -- the basic "minimum wage" which provides bare subsistence and is at poverty line level, a little above is the "fair wage" and finally the "living wage" which comes at a comfort level. It is not possible to demarcate these levels of wage structure with any precision. There are, however, well accepted norms which broadly distinguish one category of pay structure from another. The Fair Wages Committee, in its report published by the Government of India, Ministry of Labour, in 1949, defined the "living wage" as under:
"the living wage should enable the male earner to provide for himself and his family not merely the bare essentials of food, clothing and shelter but a measure of frugal comfort including education for the children, protection against ill- health, requirements of essential social needs, and a measure of insurance against the more important misfortunes including old age."
The Committee's view regarding "minimum wage" was as under:
"the minimum wage must provide not merely for the bare sustenance of life but for the preservation of the efficiency of the worker. For this purpose the minimum wage must also SYED TASADUQ QADRI 2020.12.10 13:56 I attest to the accuracy and integrity of this document 30 provide for some measure of education, medical requirements and amenities."
xxxx "11. The Tripartite Committee of the Indian Labour Conference held in New Delhi in 1957 declared the wage policy which was to be followed during the Second Five Year Plan. The Committee accepted the following five norms for the fixation of 'minimum wage':
"(i) In calculating the minimum wage, the standard working class family should be taken to consist of 3 consumption units for one earner; the earnings of women, children and adolescents should be disregarded.
(ii) Minimum food requirement should be calculated on the basis of a net intake of calories, as recommended by Dr Aykroyd for an average Indian adult of moderate activity.
(iii) Clothing requirements should be estimated at per capita consumption of 18 yards per annum which would give for the average workers' family of four, a total of 72 yards.
(iv) In respect of housing, the rent corresponding to the minimum area provided for under Government's Industrial Housing Scheme should be taken into consideration in fixing the minimum wage.
(v) Fuel, lighting and other 'miscellaneous' items of expenditure should constitute 20 per cent of the total minimum wage.
(vi) children's education, medical requirement minimum recreation including festivals/ceremonies and provision for old age marriages etc. should further constitute 25 per cent of the total minimum wage."
12. This Court in Standard Vacuum Refining Company case [(1961) 3 SCR 536 : AIR 1961 SC 895 : (1961) 2 LLJ 227] has referred to the above norms with approval.
13. The concept of 'minimum wage' is no longer the same as it was in 1936. Even 1957 is way behind. A worker's wage is no longer a contract between an employer and an employee. It has the force of collective bargaining under the labour laws. Each category of the wage structure has to be tested at the anvil of social justice which is the live-fibre of our society today. Keeping in view the socio-economic aspect of SYED TASADUQ QADRI the wage structure, we are of the view that it is necessary to 2020.12.10 13:56 I attest to the accuracy and integrity of this document 31 add the following additional component as a guide for fixing the minimum wage in the industry:
14. The wage structure which approximately answers the above six components is nothing more than a minimum wage at subsistence level. The employees are entitled to the minimum wage at all times and under all circumstances. An employer who cannot pay the minimum wage has no right to engage labour and no justification to run the industry.
15. A living wage has been promised to the workers under the Constitution. A 'socialist' framework to enable the working people a decent standard of life, has further been promised by the 42nd Amendment. The workers are hopefully looking forward to achieve the said ideal. The promises are piling up but the day of fulfilment is nowhere in sight. Industrial wage -- looked at as a whole has not yet risen higher than the level of minimum wage.
(Emphasis supplied)
47. In the judgment of the Andhra Pradesh High Court reported at 2003 Lab IC 1326 Andhra Pradesh Hotel Association, Hyderabad v. Government of Andhra Pradesh, the court unequivocally declared the principle that minimum wages have to necessarily increase with the progress of society, that they would differ from one employment to another and that minimum wages cannot be static but are a dynamic concept in the following terms :
"11. The concept of a minimum wage is a wage which is somewhat intermediate to a wage which is just sufficient for bare sustenance and a fair wage. The concept of minimum wage includes not only the wage sufficient to meet the bare sustenance of an employee and his family. It also includes expenses necessary for his other primary needs such as medical expenses and education for his children etc. The concept of minimum wage is a dynamic concept and, therefore, is likely to undergo a change with the growth and development of economy and also with the change in the standard of living. It is not a static concept. Therefore its concomitants must necessarily increase with the progress of the society. It is likely to differ from place to place and from industry to industry. That is clear from the provisions of the Act SYED TASADUQ QADRI 2020.12.10 13:56 I attest to the accuracy and integrity of this document 32 itself and is inherent in the very concept of minimum wage."
48. It is amply clear therefore, that the wage structure must take into consideration the norms and components so succinctly set out above that we would only state that we reiterate the same without any further repetition. What is unquestionable is that minimum wages have to be more than wages at the subsistence level, have to take into consideration all relevant factors and prescriptions made after due application of mind.
Plea of financial capacity of the employer - Financial constraints cannot be a justification for violation of fundamental rights.
49. It is well settled that payment of wages for work being discharged is the fundamental right of an employee. No employer can be permitted to project financial constraints or incapacity as a justification for violation of fundamental rights. In this regard, the Supreme Court of India has set down the law in numerous judgments, few of which are extracted as under:
(i) (1980) 4 SCC 162, Municipal Council, Ratlam vs. Vardichan and Ors.
"12. The statutory setting being thus plain, the municipality cannot extricate itself from its responsibility. Its plea is not that the facts are wrong but that the law is not right because the municipal funds being insufficient it cannot carry or he duties under Section 123 of the Act. This 'alibi' made us issue notice to the State which is now represented by counsel, Shri Gambhir, before us. The plea of the municipality that notwithstanding the public nuisance financial inability validly exonerates it from statutory liability has no juridical basis.
14. ... Likewise, the grievous failure of local authorities to provide the basic amenity of public conveniences drives the miserable slum-dwellers to ease in the streets, on the sly for a time, and openly thereafter, because under Nature's pressure, bashfulness becomes a luxury and dignity a difficult art. A responsible municipal council constituted for the precise purpose of preserving public health and providing better finances cannot run away from its principal duty by pleading financial inability. Decency and SYED TASADUQ QADRI 2020.12.10 13:56 I attest to the accuracy and integrity of this document 33 dignity are non-negotiable facets of human rights and are a first charge on local self-governing bodies. Similarly, providing drainage systems-not pompous and attractive, but in working condition and sufficient to meet the needs of the people-cannot be evaded if the municipality is to justify its existence. A bare study of the statutory provisions make this position clear."
"17. The constitutional mandate to the State, as upheld by this Court in Unni Krishnan's case - to provide free education to the children upto the age of fourteen - cannot be permitted to be circumvented on the ground of lack of economic capacity or financial incapacity."
(iii) All India Imam Organization and Ors. vs. Union of India (UOI) and Ors., (1993) 3 SCC 584 "6. ...Much was argued on behalf of Union and the Wakf Boards that their financial position was not such that they can meet the obligations of paying the imams as they are being paid in the State of Punjab. 5 It was also urged that the number of mosques is so large that it would entail heavy expenditure which the boards of different States would not be able to bear. We do not find any co- relation between the two financial difficulties of the institution cannot be above fundamental right of a citizen. If the boards have been entrusted with the responsibility of supervising and administering the Wakf then it is their duty to harness resources to pay those persons who 10 perform the most important duty namely of leading community prayer in a mosque the very purpose for which it is created."
(iv) (2003) 6 SCC 1, Kapila Hingorani vs. State of Bihar "66. Financial stringency may not be a ground for not issuing requisite directions when a question of violation of fundamental right arises"
(v) Hussain Ara Khatoon and Ors, vs. Home Secretary, State of Bihar, (1980) 1 SCC 98 "The State cannot be permitted to deny the constitutional right of speedy trial to the accused on the around that the State has no adequate financial resources, to incur the necessary expenditure needed for improving the administrative and judicial apparatus with a view to ensuring speedy trial, The State may have its financial constraints and its priorities in expenditure, but, as pointed out by the Court in Rhem v. Malclm, 377 F Supp 995. The law does not permit any Government to deprive its citizens of constitutional rights on a plea of poverty". It is also interesting to notice what Justice, then Judge, Black mum said in Jackson v.
Bishop. 404 F Supp 571 SYED TASADUQ QADRI 2020.12.10 13:56 I attest to the accuracy and integrity of this document 34 Humane considerations and constitutional requirements are not in this day, to be measured by dollar considerations"
(vi) Ashoka Kumar Thakur vs. Union of India (UOI) (2008) 6 SCC 1 "Time and again, this Court, in a number of judgments, has observed that the State cannot avoid its constitutional obligation on the ground of financial inabilities."
50. This principle has been applied by the Supreme Court to matters relating to payment of wages as well.
51. Similar issues have arisen before the court while considering challenges to the enforceability of minimum wages fixed under the Minimum Wages enactments. There is extensive jurisprudence on the objections by employers who have contended that there were unable to pay the minimum wages pointed by the Govt. even though there had no intention to exploit the labour at all. Several cases in which employers have contended that they could not be therefore compelled to pay the minimum wages. Employers have repeatedly challenged the fixation of the minimum wages even on the ground that the minimum fixed by the govt. were much higher ought to have been fixed.
52. This objection stands considered by the Supreme Court as back in the year 1955 in AIR 1955 SC 33 Bijoy Cotton Mills Ltd & Others v. State of Ajmer. It was contended that the restrictions put by the Act were altogether unreasonable and even oppressive with regard to one class of employers, who for purely economic reasons, were not able to pay the minimum wages but who had no intention whatsoever to exploit the labour at all. On these arguments, it was urged that the provisions of the Act had no reasonable relation to the object which it sought to achieve. SYED TASADUQ QADRI 2020.12.10 13:56 I attest to the accuracy and integrity of this document 35
The object of the Act was considered by the court in para 4 of the judgment in the following terms:
"4. It can scarcely be disputed that securing of living wages to labourers which ensure not only bare physical subsistence but also the maintenance of health and decency, is conducive to the general interest of the public. This is one of the Directive Principles of State Policy embodied in Article 43 of our Constitution. It is well known that in 1928 there was a Minimum Wages Fixing Machinery Convention held at Geneva and the resolutions passed in that convention were embodied in the International Labour Code. The Minimum Wages Act is said to have been passed with a view to give effect to these resolutions [ Vide SI Est etc. v. State of Madras, (1954) 1 MLJ 518 at page 521] .
If the labourers are to be secured in the enjoyment of minimum wages and they are to be protected against exploitation by their employers, it is absolutely necessary that restraints should be imposed upon their freedom of contract and such restrictions cannot in any sense be said to be unreasonable. On the other hand, the employers cannot be heard to complain if they are compelled to pay minimum wages to their labourers even though the labourers, on account of their poverty and helplessness are willing to work on lesser wages."
(Emphasis by us)
53. The Supreme Court thereafter repelled the challenged premised on financial hardship of the employers holding as follows:
"5. We could not really appreciate the argument of Mr Seervai that the provisions of the Act are bound to affect harshly and even oppressively a particular class of employers who for purely economic reasons are unable to pay the minimum wages fixed by the authorities but have absolutely no dishonest intention of exploiting their labourers. If it is in the interest of the general public that the labourers should be secured adequate living wages, the intentions of the employers whether good or bad are really irrelevant. Individual employers might find it difficult to carry on the business on the basis of the minimum wages fixed under the Act but this must be due entirely to the economic conditions of these particular employers. That SYED TASADUQ QADRI 2020.12.10 13:56 I attest to the accuracy and integrity of this document 36 cannot be a reason for the striking down the law itself as unreasonable."
(Emphasis by us) The Supreme Court thus affirmatively rejected the argument based on the employers' inability to meet the burden of the minimum wage rates.
54. We find that in Bijoy Cotton Mills, the Supreme Court also clearly declared that the labourers' willingness to work on lesser wages on account of their poverty and helplessness cannot impact the liability to pay the minimum wages. Thus, even the willingness of employees to work at wages below minimum wages cannot absolve the liability and responsibility of employers to pay minimum wages.
55. These very submissions were placed before the Constitution Bench of the Supreme Court in the judgment reported at AIR 1962 SC 12 Unichoyi & Ors. vs. State of Kerala. The Supreme Court reiterated its earlier decision in the judgments reported at AIR 1955 SC 25 Edward Mills Co. Limited vs. State of Ajmer, and AIR 1955 SC 33, Bijoy Cotton Mills Limited & Ors. vs. State of Ajmer unequivocally declaring that in fixing the minimum wage rate as contemplated by the Minimum Wages Act, the hardship caused to the individual employers or their inability to meet the burden has no relevance.
56. In this case (Unichoyi), the Government of Kerala had exercised its power under Section 5(1)(a) of the Minimum Wages Act, 1948 and on 14th August, 1957, nominated eight persons to constitute a committee under Section 9 of the Act to hold the inquiry to advise the government in fixing the minimum wage rate in respect of employment in the tile industry. After considering the report submitted only on 30th March, 1958, the Government of Kerala issued a notification on 12th May, 1958 prescribing SYED TASADUQ QADRI 2020.12.10 13:56 I attest to the accuracy and integrity of this document 37 the minimum rate of wages specified in the schedule annexed thereto which were to come into effect from 26th May, 1958.
Nine petitioners representing tile factories challenged the validity of the notification contending that the minimum wage rate fixed was much above the level of what may be properly regarded as minimum wage; that what in effect was fixed was in the nature of fair wages and therefore, the employer's capacity to bear the additional burden should have been considered before the impugned wage rate were prescribed as the burden imposed by the notification were beyond the financial capacity of the industry in general and their individual capacity in particular.
57. The statute was also challenged on the ground that it did not define what minimum wage is to comprise of or to comprehend and that it arbitrarily confers authority on the appropriate Governments to impose unreasonable restrictions on the employers and was violative of Article 19(1)(g) of the Constitution; it does not lay down any reasonable procedure in the imposition of restrictions by fixation of minimum wage and so authorizes any procedure to be adopted which may even be violative of the principles of natural justice; the Act was discriminatory in effect as it submits some industries to an arbitrary procedure in the matter of fixation of minimum wages and leaves other industries to the more orderly and regulated procedure under the Industrial Disputes Act, 1947. The notification was impugned on these very grounds as well.
58. The Supreme Court considered the constitution of the Committee and the procedure adopted by it in para 5 of the judgment in Unichoyi and also the basis for the recommendations by the committee in para 6. It was noted SYED TASADUQ QADRI 2020.12.10 13:56 I attest to the accuracy and integrity of this document 38 in para 7 that the Committee has accepted the observation of the Fair Wages Committee that the minimum wage "must provide not merely for the bare subsistence of life but for the preservation of the efficiency of the workers". The court noted that the Committee had examined the food requirements of the employee on the basis of three consumption units recognised in Dr Aykroyd's formula and then adopted the assessment made by the Planning Commission in regard to the requirements of the employees in cotton textiles; it took into account the requirement of housing and held that the additional requirements of workers for fuel, lighting and additional miscellaneous items of expenditure should generally be fixed at 20% of the total wage in cases where the actual percentage has not been found out by a family budget enquiry.
59. Again emphasizing the irrelevance of the employer's capacity to pay, so far as constituents of the minimum wages are concerned, in Andhra Pradesh Hotel Association, it was observed thus :
"21. It is well-settled that minimum wage must provide not merely for the bare subsistence of life but for the preservation of the efficiency of the worker and so it must also provide for some measure of education, medical requirements and amenities of himself and his family. While fixing the minimum wages, the capacity of the employer to pay is treated as irrelevant and the Act contemplates that rates of minimum wage should be fixed in scheduled industries with a dual object of providing sustenance and maintenance for the worker and his family and preserving his efficiency as a worker. So it is required to take into consideration the cost of bare subsistence of life and preservation of efficiency of the workers and for some measure of education, medical requirements and amenities. This cost is likely to vary depending upon the cost prevailing in the market of various items. If there are inflationary conditions prevailing in the country, then minimum wages fixed at a particular point of time would not serve the purpose. Therefore, Section 4 contemplates that minimum wages fixed at a particular point of time should be revised from SYED TASADUQ QADRI 2020.12.10 13:56 I attest to the accuracy and integrity of this document 39 time to time. Section 4 postulates that minimum wage fixed or revised by the appropriate Government under Section 3 may consist of basic rates of wages and special allowance at a rate to be adjusted at such intervals in such manner as the appropriate Government may direct to accord as nearly as practicable with a variation in the cost of living index number applicable to such workers; alternatively, it permits the fixation of basic rate of wages with or without the cost of living allowance and the cash value of the concessions in respect of supplies of essential commodities at concessional rates where so authorised; or in the alternative, it permits an all- inclusive rate allowing for the basic rate, the cost of living allowance and the cash value of concessions, if any."
(Emphasis supplied)
60. In para 11 of Unichoyi, the Supreme Court concluded as follows :
"11. .... It would, thus, be seen that these two decisions have firmly established the validity of the Act, and there can no longer be any doubt that in fixing the minimum wage rates as contemplated by the Act the hardship caused to individual employers or their inability to meet the burden has no relevance. ...."
(Emphasis by us)
61. Clearly the paying capacity of the employer is an irrelevant consideration for arriving at the optimum minimum wages.
Jurisdiction of this court.
62. With regard to the power of the High Court, this Court in a case titled State of Jammu & Kashmir and others v. Tarsem Kumar Arora and others passed in a Letters Patent Appeal (LPASW No. 58/2015) on 17th of December, 2015 filed by the State of J&K against the judgment of the Single Bench of this Court while dismissing the LPA has observed as under:
"16. It is pertinent to mention at this juncture that once the High Court recommends the up-gradation of the posts, the appellants have no power to sit over the same except to implement the proposal to be submitted by the Registrar General in terms of the judgment of Hon'ble the Supreme Court in the decision reported in Jt 1998 (2) SC 1, (High Court of Judicature of Rajasthan v. Ramesh Chand Paliwal & anr.) where it is held thus;SYED TASADUQ QADRI 2020.12.10 13:56 I attest to the accuracy and integrity of this document 40
"Since, under the Constitution, Chief Justice has also the power to make rules regulating the conditions of service of the officers and servants of the High Court, it is obvious that he can also prescribe the scale of salary payable for a particular post. This would also include the power to revise the scale of pay Since such a rule would involve finances, it has been provided in the Constitution that it will require the approval of the Governor which, in other words means the Stage Government. This Court in state of Andhra Pradesh &Anr. v. T. Gopalakrishan Murthi & Ors., (AIR 1976 SC 123= 1976(1) SCR 1008), had expressed the hope that 'one should accept in the fitness of things and in view of the spirit of Article 229 that the approval, ordinarily and generally would be accorded."
This was reiterated by this Court in Supreme Court Employees Welfare Association vs. Union of India (UT 1989(3) SC 188+ AIR 1990 SC 334= JT 1989(3) SCR 488). We again reiterate the hope and feel that once the Chief Justice, in the interest of High Court administration has taken a progressive step specially to ameliorate the service conditions of the officers and staff working under him, the State Government would hardly raise any objection to the sanction of creation of posts or fixation of salary payable for that post or the recommendation for revision of scale of pay if the scale of pay of the equivalent post in the Government has been revised." In the decision reported in JT 1999 (1) SC 441 (State of Himachal Pradesh V Shri PD. Attri & others). it is held thus:
'7. But then the fact remains that when the Chief Justice of the Himachal Pradesh High Court made recommendations to the Government to the re-designate/equate the posts of Senior Translators and Junior Translators in the Himachal Pradesh High Court to those in the Punjab & Haryana High Court no decision was communicated which led the Respondents to approach the High Court on its judicial side Recommendations or the Chief Justice of the High Court are to be given due deference and utmost consideration by the State Government it certainly cannot sleep over the recommendations........"
(Emphasis by us)
63. The aforesaid judgment was taken by the Government of J&K before the Supreme Court of India in a Special Leave Petition [SLP (C) No. 8864/2016] which was also dismissed in terms of the order dated 12th of April, 2016.
SYED TASADUQ QADRI2020.12.10 13:56 I attest to the accuracy and integrity of this document 41
64. In its report dated 17th of December, 2018, the Committee made the recommendations and considered the applicability of SRO 520 of 2017 dated 21st of December, 2017. These recommendations of the Committee have been considered and approved by the Full Court which is detailed hereinafter in the status report/response filed by the Registrar General reproduced in paragraph 40 of the instant order.
65. Mr. B.A. Dar, learned Sr. AAG has contended that no direction other than direction to comply with SRO 520 of 2017 can be made.
Discussion
66. Mr. R. A. Jan, learned Senior Counsel has vehemently contended that the implementation of the law laid down by the Supreme Court in Jagjit Singh's case supra is squarely applicable to the instant case.
67. The proposal of SRO 520 of 2017 to pay fixed wages prescribed under the said SRO to the employees of the judiciary to the extent that it postulates payment of wages in derogation of "equal pay for equal work" is in the teeth of law laid down by the Supreme Court of India.
68. Government orders also have to comport with the principles laid down by the Supreme Court. It is trite that law cannot be modified by consent of agreement and the binding principles of law cannot be overridden.
69. The daily wagers employed in the courts are in any case numbering a little over two hundred and, as discussed above, have to be treated as a class. In view of the law discussed above, the plea of financial incapacity is not thus available to the respondents to defeat the constitutional rights of the daily wagers or their legal rights. SYED TASADUQ QADRI 2020.12.10 13:56 I attest to the accuracy and integrity of this document 42
70. We may note that before us there are reiterated statements of learned Advocate General and the Commissioner / Secretary to Government, Department of Law Justice and Parliamentary to the effect that steps for creation of posts in the State Judiciary to accommodate the daily wagers have been initiated. This would be independent of the scrutiny which would require to be conducted after finalization of the Rules as to whether any of the daily wagers in the courts can be legally appointed/regularized against the posts which are created in terms of the Rules finalized.
71. It is submitted by Mr. R. A. Jan, learned Senior Counsel that so far as prescription, suitability, eligibility and the procedure for regularization under the proposed Rules is concerned, the same is substantially the same as is prescribed by the respondents under SRO 520 of 2017. The only variation is the prescription with regard to payment of wages which is in terms of the law laid down by the Supreme Court of India at (2017) 1 SCC 148, State of Punjab and others v. Jagjit Singh & others.
72. This is disputed by Mr. B.A. Dar, learned Sr. AAG. This is a matter which needs to be easily resolved with the respondents. For which purpose meetings / deliberations can be held between the Registrar General and the Secretary to Government, Department of Law, Justice & Parliamentary Affairs.
73. We also find that the respondents have not examined the Draft Proposed Rules from the perspective as to whether they prescribe for variation from SRO 570 of 2017.
74. In view of the above, the respondents are bound to take a fresh look into the matter keeping in view the observations of the Supreme Court of India recorded in order dated 14th of January, 2019 and the two set of Rules SYED TASADUQ QADRI 2020.12.10 13:56 I attest to the accuracy and integrity of this document 43 approved by the Full Court besides the principles of law reiterated in the judgment (2017) 1 SCC 148, State of Punjab and others v. Jagjit Singh & others.
75. There is no dispute by the respondents that the daily wagers are discharging the same duties as are discharged by employees regularly employed in the courts in equivalent position. The respondents also accept that a one time regularization of persons eligible under a scheme framed for this purpose has to be effected.
76. In the instant case, repeated assurances and undertakings have been given by the learned Advocate General of the State. The orders of this Court recorded on 10th of June 2016 and 15th of July 2016 for resolving the issues remain unaddressed.
77. It is only after the respondents examine the recommendations of the Full Court dated 30th of January, 2019 in the light of the law laid down by the Supreme Court, that the scrutiny of the individual cases of daily wagers engaged in the State Judiciary would arise.
Directions
78. In view of the above, we direct as follows:
(i) The respondents shall examine the proposed Rules in terms of the above legal position. A report shall be placed before this court before the next date of hearing.
79. List this matter for the report of the respondents as well as of the Registrar General of the High Court on 03rd of March, 2021.
80. Copy of this order be given Mr. B.A. Dar, learned Sr. AAG as well as to Mr. R. A. Jan, learned Senior counsel for ensuring compliance.
SYED TASADUQ QADRI 2020.12.10 13:56 I attest to the accuracy and integrity of this document 44 (PUNEET GUPTA) (GITA MITTAL) JUDGE CHIEF JUSTICE SRINAGAR 04.12.2020 TASADUQ SAB: SYED TASADUQ QADRI 2020.12.10 13:56 I attest to the accuracy and integrity of this document