Central Administrative Tribunal - Chandigarh
Dharam Pal Punia Aged 57 Years S/O ... vs Union Of India Through Secretary on 14 February, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
ORIGINAL APPLICATION NO. 960-HR of 2011
Chandigarh, this the day of February 14, 2013
CORAM: HONBLE SMT.PROMILLA ISSAR, MEMBER (A)
HONBLE MR. SANJEEV KAUSHIK, MEMBER (J)
1.Dharam Pal Punia aged 57 years s/o Permanand, R/o Village & Post Office Barota, District Karnal.
2.Dharam Pal Singh aged 47 years s/o late Sh. Balbir Singh, r/o 179-A, Gali No. 3, Vasant Vihar, Near I.T.I. Karnal.
3.Hari Chand aged 40 years s/o Sh. Prem Chand, H. No. 147, Sector 4, Karnal.
APPLICANT
BY ADVOCATE: SHRI SHAKUM CHAUDHARY PROXY FOR SH. SUKHDEEP PARMAR.
VERSUS
1.Union of India through Secretary, Ministry of Broadcasting Shastri Bhawan, Dr. Rajinder Parsad Road, Delhi-110001.
2.The Director General, Doordarshan, S-II, (A-Section), Mandi House, Coper Nicus Marg, New Delhi-110001.
3.Station Engineer, Prasar Bharti, Broadcasting Corporation of India, Doordarshan Maintenance Centre, Sector 5, Karnal.
RESPONDENTS
BY ADVOCATE: SH. ASHWANI KUMAR SHARMA.
ORDER (Oral)
HONBLE MR. SANJEEV KAUSHIK, MEMBER (J):-
1.The present O.A. has been filed by under Section 19 of the Administrative Tribunals Act, 1985, whereby the applicants seek following reliefs:-
i) Directing the respondents to review the pay scale of the applicants as per the recommendations of Sixth Pay Commission adopted by the Central Govt. including the respondents and to release the arrears of the daily wages after revising it as per the recommendations of Sixth Pay Commission w.e.f. 1.1.2006 along with interest @ 18% per annum.
ii) Directing the respondents to give one paid weekly off after six days of continuous work done by the applicants.
2.The facts are to be noticed first.
3.The applicants are Ex-servicemen retired from the Army. They were engaged as Administrative Staff (Accounts & Administration work) by respondent no.3 through Jila Sainik Board. They joined the respondent department between May, 2005 to June 2009. The grievance of the applicants is that their wages have not been revised w.e.f. 1.1.2006 as per the recommendations of the 6th Central Pay Commission. It is averred that they represented the respondent department on several occasions, but the respondents did not heed to their request. Finally, on 20th April, 2011 they served a legal notice through their counsel upon the respondents, but nothing has been done, hence the present O.A.
4.Pursuant to the notice, the respondents resisted the claim of the applicants by filing a detailed written statement. In para 2 of the Preliminary submissions, it is submitted that the posts of Administrative Staff have not been sanctioned. All the applicants have been engaged for day to day administrative, accounts and typing work in Doordarshan Maintenance Centre, Karnal and Doordarshan High Power Transmitter, Karnal on daily wages basis @ Rs. 220/- per day for the days they actually attend the office on six monthly period basis after taking approval/sanction from the Director General, Doordarshan, New Delhi. They are engaged purely on temporary basis for actual working days till the regular sanctioned staff is posted. It is also submitted that their service are governed by certain terms and conditions as stipulated in their engagement letter, copy of one such appointment letter is attached at Annexure R-I. It is averred that the applicants can not equate themselves with the regular employee because they are not posted against permanent post and they were not even appointed through open competition. The respondents have also relied upon the following Judgments of the Honble Supreme Court:
I)Harbans Lal vs. Staste of H.P. (1989) 4 SCC 459;
II)Ghaziabad Development Authority vs. Vikram Chaudhary (1995) 5 SCC 210.
III)State of Haryana and Ors. Vs. Jasmer Singh and Ors. 1996 (11) SCC 77;
IV)Basudev Pati Vs. State of Orissa and Anr. 1997 (3) SCC 632.
5.We have heard Sh. Shakum Chaudhary, proxy counsel for Sh. Sukhdeep Parmar, learned counsel for the applicant as well as Sh. Ashwani Kumar Sharma, learned counsel representing the respondents.
6.The learned counsel for the applicant vehemently argued that by not revising the pay scale of the applicants w.e.f. 1.1.2006 from the date the recommendations were made applicable by the 6th Central Pay Commission, the respondents have violated Article 14 of the Constitution of India, thus a direction may be given to the respondents to revise their pay w.e.f. 1.1.2006 as admissible to a regular incumbent of the respondent department as they are also performing the same duties.
7.Per contra Sh. Sharma, learned counsel for the respondents argued that it is not that if any recommendation is made it has to be implemented or acted upon. It is for the department or the organization to see whether those recommendations are actually accepted or not. As the recommendations are not binding till they were accepted. In the present case, he urged that the recommendations have not been accepted qua the daily wager who were appointed on casual basis. He further urged that the service conditions of the applicants are strictly governed by their letter of engagement. Therefore, they cannot claim over and above which have already been granted to them as per their letter of engagement. Lastly, he submitted that the issue involved here has already been considered by the Honble Full Bench of the jurisdictional High Court in the case of Avtar Singh vs. State of Punjab & Ors. decided on 11.11.2011, in which it has been held that the daily wager/casual labourer are not entitled to same privileges/salary which are admissible to a regular incumbent. Lastly he prayed for dismissal of OA with costs.
8.We have considered the rival submissions of the learned counsel for the respective parties and have gone through the pleadings on record and the Judgments with the able assistance of the learned counsel for the respective parties.
9.The issue is whether the applicants who are engaged on casual basis/daily wage employee/contractual , are entitled to minimum basic pay and/or Dearness Allowance in regular pay scale in view of the assertion of the applicants that they are doing the same work as is performed by a incumbent holding regular sanctioned post. Therefore, the action of discrimination in the matter of payment of pay is not sustainable on the touch stone of Article 14 of the Constitution of India.
10. Having considered the contentions of the rival parties, we have perused the pleadings. It is trite law that pay parity and equal pay for equal work can be best judged by the executive and the judicial interference is rather limited. The principle of equal pay for equal work was propounded by the Honble Apex Court in certain decisions. It is appropriate for us to take extract of the relevant judgment on the subject. In earlier 1980s, the benefit of equal pay for equal pay was granted to the casual, daily rated employees as granted to regular employees by applying Articles 14 and 39(d) of the Constitution e.g. Dhirendra Chamoli and another vs. State of U.P. (1986) 1 SCC 637, Surinder Singh vs. Engineer-in-Chief, C.P.W.D. (1986) 1 SCC 639, Randhir Singh vs. Union of India (1982) 1 SCC 618 etc. Subsequently, it was realized that fixation of pay scale is a delicate mechanism which requires various considerations including financial capacity, responsibility, educational qualification, mode of appointment, etc. and it has a cascading effect. Hence, in subsequent decisions the principle of equal pay for equal work has been considerably watered down.
11. In State of Haryana vs. Jasmer Singh and others AIR 1997 SC 1788, the Supreme Court observed that the principle of equal pay for equal work is not always easy to apply. There are inherent difficulties in comparing and evaluating the work of different persons in different organizations. Persons doing the same work may have different degrees of responsibilities, reliabilities and confidentialities, and this would be sufficient for a valid differentiation. The judgment of the administrative authorities concerning the responsibilities, which attach to the post, and the degree of reliability expected of an incumbent, would be a value judgment of the authorities concerned which, if arrived at bona fide, reasonably and rationally was not open to interference by the court.
12. Similarly, in State of Haryana and another vs. Haryana Civil Secretariat Personal Staff Association (2002) 6 SCC 72, the principle of equal pay for equal work was considered in great detail. In paragraphs 9 & 10 of the said judgment the Supreme Court observed that equation of posts and salary is a complex matter which should be left to an expert body. The Courts must realize that the job is both a difficult and time consuming task which even experts having the assistance of staff with requisite expertise have found it difficult to undertake. Fixation of pay and determination of parity is a complex matter which is for the executive to discharge. Granting of pay parity by the Court may result in a cascading effect and reaction which can have adverse consequences vide Union of India and others vs. Pradip Kumar Dey (2000) 8 SCC 580.
13. In State of Haryana vs. Tilak Raj (2003) 6 SCC 123, it was held that the principle can only apply if there is complete and wholesale identity between the two groups. The relevant observation reads as under:-
A scale of pay is attached to a definite post and in case of a daily wager, he holds no post. The respondent workers cannot be held to hold any posts to claim even any comparison with the regular and permanent staff for any or all purposes including a claim for equal pay and allowances. To claim a relief on the basis of equality, it is for the claimants to substantiate a clear cut basis of equivalence and a resultant hostile discrimination before becoming eligible to claim rights on a par with the other group vis-a-vis an alleged discrimination. No material was placed before the High Court as to the nature of duties of either categories and it is not possible to hold that the principle of 'equal pay for equal work' is an abstract one. 'Equal pay for equal work' is a concept which requires for its applicability complete and wholesale identity between a group of employees claiming identical pay scales and the other group of employees who have already earned such pay scales. The problem about equal pay cannot always be translated into a mathematical formula
14. Even in case of Government of West Bengal vs. Tarun K. Roy and others (2004) 1 SCC 347 it is well settled by the Honble Supreme Court that only because the nature of work is the same, irrespective of educational qualification, mode of appointment, experience and other relevant factors, the principle of equal pay for equal work cannot apply.
15. In State of Haryana and others vs. Charanjit Singh and others (2006) 9 SCC 321, discussing a large number of earlier decisions it was held by a three-Judge Bench of the Honble Supreme Court held that the principle of equal pay for equal work cannot apply unless there is complete and wholesale identity between the two groups. Moreover, even for finding out whether there is complete and wholesale identity, the proper forum is an expert body and not the writ court, as this requires extensive evidence. A mechanical interpretation of the principle of equal pay for equal work creates great practical difficulties. Hence in recent decisions the Supreme Court has considerably watered down the principle of equal pay for equal work and this principle has hardly been ever applied in recent decisions.
16. Recently the same view was again retreated in case of Indian Drugs & Pharmacheuticals Ltd. vs. Workmen, Indian Drugs and Pharmaceuticals Ltd. (2007) 1 SCC 408 and In S.C. Chandra and Others Versus State of Jharkhand and Others [2007-8-SCC-279], where the Lordships of Honble Apex court held that granting pay scales is a purely executive function and hence the Court should not interfere with the same. It may have a cascading effect creating all kinds of problems for the Government and authorities. Hence, the Court should exercise judicial restraint and not interfere in such executive function.
17. Recently Honble Full Bench of the Punjab and Haryana High Court in case of Avtar Singh vs. State of Punjab and Others was occasion to go into the same preposition and after analyzing the law on the subject. The Honble Full Bench held as under:-
Keeping in view the various parameters delineated above and till such time, the Expert Committee examines the similarity of work which may entitle a daily wager to get minimum of pay scale, a daily wager engaged by the Head of the Department or in any other manner is not entitled to claim minimum of pay scale as that of regular employee without undergoing regular selection process and the absence of any post. The fact that he has not undergone regular selection process and the fact that he has not subject to disciplinary control and transfer in administrative exigencies, does not entitle a daily wager to the minimum of the regular pay scale. Thus, we do not approve the decision of Division Bench in LPA No.1024 of 2009 - Rajinder Kumar's case and overrule the same, whereas the decision of Division Bench in LPA No.337 of 2003 - Rajinder Singh's case is approved. However, it is also noticed that certain daily wagers are permitted to continue for long number of years. Keeping in view the ratio of the aforesaid judgments, we hold that daily wagers, ad hoc or contractual appointees are not entitled to minimum of the regular pay scale from the date they were engaged merely for the reason that the physical activity carried out by the daily wager and the regular employee is similar, but such general principle shall be subject to the following exceptions:
(1) A daily wager, ad hoc or contractual appointee against the regular sanctioned posts, if appointed after undergoing a selection process based upon fairness and equality of opportunity to all other eligible candidates, shall be entitled to minimum of the regular pay scale from the date of engagement.
(2) But if daily wagers, ad hoc or contractual appointees are not appointed against regular sanctioned posts and their services are availed continuously, with notional breaks, by the State Government or its instrumentalities for a sufficient long period i.e. for 10 years, such daily wagers, ad hoc or contractual appointees shall be entitled to minimum of the regular pay scale without any allowances on the assumption that work of perennial nature is available and having worked for such long period of time, an equitable right is created in such category of persons. Their claim for regularization, if any, may have to be considered separately in terms of legally permissible scheme.
(3) In the event, a claim is made for minimum pay scale after more than three years and two months of completion of 10 years of continuous working, a daily wager, ad hoc or contractual employee shall be entitled to arrears for a period of three years and two months.
18. In the light of the above authoritative judicial pronouncements, we are now examining the case of the applicants. It is the conceded position that the applicants were engaged as casual laborers till regular incumbents joins. The posts upon which they are working are also not sanctioned posts. They are being paid Rs. 220/- per day as per the approval given by the Director General Doordarshan. Their appointments are made purely on temporary basis that too for actual working day. In terms of judicial pronouncements, since they have not gone through the rigorous process of recruitment, they do not have same degrees of responsibilities as cast upon regular employee; therefore they cannot equate themselves with that of regular appointees. Moreover their case is also not covered under the principles laid down by the Honble Full Bench. Therefore, we are of the considered view that the claim of the applicants cannot be accepted. Accordingly, the O.A. is dismissed being devoid of merits. No costs.
(SANJEEV KAUSHIK) (PROMILLA ISSAR)
MEMBER(J) MEMBER (A)
Dated: 14.02.2013
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