Punjab-Haryana High Court
Pardeep Kumar vs State Of Haryana And Others on 6 July, 2012
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
CWP No.7141 of 1994 -1-
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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP No.7141 of 1994 Date of decision: 6.07.2012 Pardeep Kumar .....Petitioner Versus State of Haryana and others .....Respondents CORAM : HON'BLE MR.JUSTICE G.S.SANDHAWALIA Present: Mr. R.K.Malik, Senior Advocate with Mr. Vijay Dahiya, Advocate for the petitioner.
Ms. Aakanksha Sawhney, Deputy Advocate General, Haryana for the respondents.
G.S.Sandhawalia J.
1. The present writ petition has been filed under Articles 226/227 of the Constitution of India for issuance of writ in the nature of mandamus to the respondents to grant same salary and allowances which are being granted to the Lecturers holding regular posts and further direction be issued to grant the salary of summer vacation i.e. off season.
2. The petitioner has pleaded that he was appointed through Employment Exchange as part-time Lecturer in Computer Science and the appointment letter was issued to the petitioner for part time Lecturer. In pursuance of the same, he joined on 10.8.1990 and continued without any break upto 5.1.1991. Thereafter, the petitioner was appointed on adhoc basis vide letter dated 11.1.1991 and continued on adhoc basis upto 10.5.1991 and a certificate that the petitioner had rendered service on adhoc basis from 15.1.1991 to 10.5.1991 was appended in support of the same. The petitioner was thereafter again appointed on part time basis CWP No.7141 of 1994 -2- *** and the appointment letter issued to him was dated 1.10.1991 in pursuance of which he had joined on 7.10.1991 and continued as such without any break upto 10.4.1992. Thereafter, the petitioner was again appointed on part time basis vide letter dated 5.8.1992 and he joined on 6.8.1992 and continued upto 31.5.1993. Similar appointment letter on part time basis was issued on 18.8.1993 and in pursuance of which he had joined and he was given extension till 31.5.1994 vide letter dated 29.3.1994. The petitioner had rendered service on part time basis in Government College, Hisar and duly qualified for the post of Lecturer in Computer Science and the department had approved his appointment by taking into consideration his academic qualifications and reliance was placed upon the letter dated 13.10.1993 (Annexure P-9) issued by the Kurukshetra University, Kurukshetra.
3. The petitioner further pleaded that in the Government College, Hisar one post of Lecturer in Computer Science was lying vacant, although there was work load of two posts since 1988-89 and respondent no.3 represented to the Government to sanction the second post and ultimately in 1994 the 2nd post of Lecturer in Computer Science was sanctioned in the Government College, Hisar. The University had fixed the norms for the regular teachers and it had been prescribed that upto graduation level if the teacher has to attend practical as well as theory than maximum number of periods for a teacher per week should be 24. Reference has been made to the Appendix -7 under ordinance XXXVI. Accordingly, it has been pleaded that the maximum period for a Lecturer in Computer Science who had to attend theory, and practical should be 24 periods per week and petitioner had always been allotted more than 24 periods per week and the details of CWP No.7141 of 1994 -3- *** 1991-92 were attached to show that the petitioner was given 27 periods per week. Similarly in 1991-92 and 1992-93 the petitioner was given 27 periods per week. In the year 1993-94 the petitioner was assigned 24 periods per week which was maximum which could be assigned to regular Lecturers and accordingly, it has been pleaded that the duties and responsibilities of the petitioner were higher in comparison to the lecturer working on regular basis and the Principal of Government College, Hisar had requested that another post of Lecturer in Computer Science be sanctioned and ultimately the 2nd post of Lecturer in Computer Science had been sanctioned and there were no other lecturer in Computer Science in the said college and the petitioner was performing the duties and responsibilities of two posts. The petitioner was shown to be a part time Lecturer otherwise for all intents and purposes and the duties and responsibilities of the petitioner were of a whole time Lecturer and he was being paid Rs.2500/- per month and at first instance he had been paid Rs.1000/- per month and the same had been revised with effect from 1.9.1990 from Rs.1000/- to Rs.2500/- whereas the minimum prescribed pay scale for the post of Lecturer in Computer Science which was admissible to a regular employee was Rs.2200-4000 and minimum salary comes to Rs.4825/- per month. Reference was made to a decision of the Apex Court dated 10.9.2992 in Vijay Kumar and others Vs. State of Punjab and others arising out of Special Leave Petition (Civil) Nos.177-81 of 1992 for grant of regular pay scale. In the grounds the petitioner had also pleaded that he was entitled for the salary of the summer vacation in view of the judgment of the Apex Court in Rattan Lal & others Vs. State of Haryana and others 1985(3) SLR 548.
CWP No.7141 of 1994 -4-
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4. The writ petition was admitted for regular hearing on 30.5.1994 by a Division Bench of this Court and the written statement dated 9.12.1995 was filed thereafter by the Deputy Director Colleges of Higher Education, Haryana on behalf of respondents no.1 to 3.
5. In the preliminary objection, reference was made to Civil Writ Petition Nos.3542 of 1989 and 4256 of 1989 whereby this Court vide order dated 11.1.1991 had held that the appointment as part time lecturer on consolidated salary of Rs.1000/- per month was a contractual appointment and petitioner has no right much less right for the enforcement of her right by invoking extra ordinary jurisdiction of this Court. Reference was also made to the Full Bench of this Court in 1993(1) SLR Punjab and Haryana 312 that there was no law, rule or instructions which lays down that once a person was appointed even on a stop gap or adhoc arrangement, he acquired a vested right. Accordingly, it has been pleaded that the writ petition was not maintainable in view of the judgment of the Apex Court in State of Haryana and others Vs. Piara Singh and others 1992 (4) SLR
770. It was submitted that while making adhoc appointments applications used to be invited from the eligible candidates by giving advertisement in the news papers and the eligible candidates used to be interviewed by a committee consisting of senior officers of the Department and thereafter the panel was drawn and the adhoc appointments in the colleges were used to be made from the said panel and in the year, 1986 it was felt that it used to take a lot of time for preparing the panel and making appointments and the delay caused in making adhoc appointments was found harmful to the instructional work of the students, accordingly, since Lecturers in Colleges were Class II gazetted officers and the principals were not CWP No.7141 of 1994 -5- *** empowered to appoint lecturers on adhoc basis and keeping in view the administrative difficulties, the Government delegated the powers for filling short term vacancies of college lecturers on part time basis to the Principals of Government Colleges in the State and that power could be exercised only for the vacancies for a limited period of one to three months and that the incumbents were appointed at a fixed salary of Rs.1000/- per moth which was later on revised to Rs.2500/- per month vide Govt. Memo dated 17.10.1990. Accordingly, it was submitted that petitioner was appointed on purely part time basis on a fixed salary of Rs.2500/- per month by the Principal, Government College, Hisar and his services were liable to be terminated as per terms and conditions of his appointment letter issued by the Principal.
6. On merits, the fact of the petitioner's appointment on adhoc basis on 15.1.1991 which continued till 10.5.1991 was admitted and it was averred that in the appointment letter it was clearly mentioned that his services can be terminated at any time without assigning any reason. It was further averred that the qualifications for the post of lecturers in Colleges had since been revised by the Government on the recommendation of the University Grants Commission and since the petitioner had not attached copies of certificates/degrees, it could not be ascertained as to whether he was eligible for the post or not. Regarding the averment of the work-load of 24- 27 periods and sanctioning of 2nd post, it was submitted that the petitioner's appointment was contractual and he was employed at a fixed salary against short term vacancy, therefore, he was not entitled to regular pay scale for the period he was employed on part time basis. It was also averred that petitioner was allowed regular pay scale as per Government CWP No.7141 of 1994 -6- *** rules and regulations when he was appointed on adhoc basis and work was assigned to him as per norm fixed for the lecturers in the University and part time Lecturer could not claim parity with regular Lecturers as regular Lecturers are selected by the Haryana Public Service Commission whereas part time Lecturers are appointed by the Principals of the Colleges as a stop gap arrangement. Therefore, the petitioner had no right to claim parity with the regular Lecturers. Regarding the period of salary of summer vacations, it was pleaded that the petitioner was appointed only for a limited period and the Courts had allowed the benefit of summer vacation only to Lecturers who were working in regular pay scales and on adhoc basis.
7. Learned Senior Counsel has submitted that the petitioner had left his job on 31.3.1995 with the respondents and he only limits his claim for the grant of same salary as granted to that of lecturers who were working on regular basis since he has been doing the job of a regular employee and, therefore, on the principle of equal pay for equal work, he was entitled for the same salary or at least minimum of the pay scale and the salary of summer vacations and reliance has been placed upon the judgment of the Apex Court in Vijay Kumar's case (supra).
8. On the contrary, counsel for the respondents has contended that it was a contractual appointment and the petitioner was bound by the terms and conditions of the appointment letter, therefore, he cannot claim regular pay scale or even the minimum of the said pay scale. Reliance was placed upon the para 48 of judgment of the Apex Court in Secretary, State of Karnataka and others Vs. Uma Devi (3) and others (2006) 4 SCC 1 by the State counsel. Counsel for the petitioner also relied upon the CWP No.7141 of 1994 -7- *** observations of the Apex Court in para 55 of the said judgment wherein employees of the Commercial Taxes Department had been granted the salary at the lowest grade of the employees of their cadre from the date of the judgment of the Division Bench of the High Court.
9. A perusal of the annexures attached with the writ petition firstly go on to show that the appointment of the petitioner dated 19.7.1990 was by the Principal, Government College, Hisar for a period of three months on a consolidated salary of Rs.1000/- per month and petitioner's services could be terminated any time without assigning any reason or notice or on joining of regular hand. Thereafter, on 11.1.1991, he was appointed as Lecturer in Computer Science( College Cadre) purely on adhoc basis for a period of three months and posted in Government College, Karnal at the rate of Rs.2200/- per month in the grade of Rs.2200-75-2800-100-4000 against an existing vacancy. Thereafter, he was appointed vide letter dated 1.10.1991 by the Principal, Government College, Hisar-respondent no.3 purely on temporary basis (part time) for a period of three months only on a fixed salary of Rs.2500/- per month by the Selection Committee in pursuance of holding of interview on 4.8.1991. It was admitted that he served upto 10.4.1992. Thereafter, he was again appointed as part time Lecturer for a period of three months on a fixed salary of Rs.2500/- per month in pursuance of interview held on 3.8.1992 on purely temporary and part time basis where he continued till 31.5.1993 and thereafter, the petitioner was again appointed vide letter dated 18.8.1993 on the same terms and conditions and he was allowed to continue till 31.5.1994. From a perusal of the said annexures it would be clear that the appointments of the petitioner was purely on contractual and temporary basis at the rate of Rs.2500/- per CWP No.7141 of 1994 -8- *** month on part time basis and the respondents have explained the circumstances under which said appointments have been made by the Principals of Government Colleges in view of the delegation of powers by the Government to them and thus, the appointment of the petitioner was not a regular appointment and was only a contractual appointment to meet the exigencies of the demand and petitioner was well aware about the terms and conditions of the appointment and now cannot claim regular pay scale on the ground that he had worked as much as a regular employee and as such he should be given the same salary as granted to the regular employee who had been appointed after proper selection. Reference to Vijay Kumar's case (supra) would be also of no avail in view of the present view of the Apex Court which is now prevailing regarding the payment of minimum of the pay scale. The three Judges Bench of the Apex Court in State of Haryana and others Vs. Charanjit and others (2006) 9 Supreme Court Cases 321 while considering whether the minimum wage is to be granted and from which date to a class IV employee and whether the direction of the High Court to pay the minimum scale from the date of filing of the writ petition was required to be interfered with, specifically held that in case a person was employed on contract basis, the principle of equal pay for equal work had no application. Relevant paragraphs of the said judgment reads as under:-
"22. One other fact which must be noted is that Civil Appeals Nos. 6648 of 2002, 6647 of 2002, 6572 of 2002 and 6570 of 2002 do not deal with casual or daily rated workers. These are cases of persons employed on contract. To such persons the principles of equal pay for equal work has no CWP No.7141 of 1994 -9- *** application. The Full Bench Judgment dealt only with daily rated and casual workers. Where a person is employed under a contract, it is the contract which will govern the terms and conditions of service. In the case of State of Haryana v. Surinder Kumar & Ors., reported in 1997(2) S.C.T. 553 :
(1997) 3 SCC 633, persons employed on contract basis claimed equal pay as regular workers on the footing that their posts were interchangeable. It was held that these persons had no right to the regular posts until they are duly selected and appointed. It was held that they were not entitled to the same pay as regular employees by claiming that they are discharging same duties. It was held that the very object of selection is to test eligibility and then to make appointment in accordance with rules. It was held that the Respondents had not been recruited in accordance with the rules prescribed for recruitment.
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24. Thus it is clear that persons employed on contract cannot claim equal pay on basis on equal pay for equal work. Faced with this situation it was submitted that all these persons were in fact claiming that their respective appointments were regular appointments by the regular process of appointment but that instead of giving regular appointments they were appointed on contract with the intention of not paying them regular salary. It was admitted that the Petitions may be badly drafted and such a contention not put forth specifically. The High Court has CWP No.7141 of 1994 -10- *** disposed of these Petitions also on the footing that the principle of equal pay for equal work applied. We therefore set aside the impugned orders in these cases also and remit the matters back to the High Court for disposal. The High Court shall permit these Petitioners to amend their Petitions to make necessary averments and will also permit the Respondents in these cases to file replies to the amended Petitions."
10. In the present case, the official respondents as noticed above have very clearly mentioned that on what account the petitioner was appointed on contractual basis by the Principal in view of the powers delegated to him, and regular appointments were to be made through the Haryana Public Service Commission to the post of the Lecturer.
11. Subsequently, in State of Punjab and others Vs. Surinder Singh and another 2008(1) RSJ 246 while placing reliance upon S.C.Chandra and others Vs. State of Jharkhand & others 2007(9) SCR 130, the Apex Court observed that principle of equal pay for equal work has only to be granted where complete and total identity between the two similarly situated persons exists. A Division Bench of this Court in Dr. Lok Raj and others Vs. Chandigarh Administration and others 2008(2) PLR 544 while taking into consideration the observations of the Apex Court in pargraph 55 of Uma Devi's case held that the Apex Court was dealing with a situation for regularisation and the principle of equal pay for equal work observed in the said judgment regarding a casual employee would not be applicable while placing reliance upon a Full Bench judgment of this Court in Vijay Kumar and others Vs. State of Punjab and others 2002 (1) SLR 694. Subsequently, the Apex Court in State of Punjab and CWP No.7141 of 1994 -11- *** others and another Vs. Surjit Singh and others (2009) 9 SCC 514 examined paragraph 55 and also the relief granted to the employees of the Commercial Taxes Department wherein direction had been issued and came to the conclusion that directions were issued in view of limited controversy as indicated and accordingly, it was held as under:-
"30. We, therefore, do not see that any law has been laid down in paragraph 55 of the judgment. Directions were issued in view of the limited controversy. As indicated, the State's grievances were limited.
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36. With utmost respect, the principle, as indicated hereinbefore, has undergone a sea change. We are bound by the decisions of large benches. This Court had been insisting on strict pleadings and proof of various factors as indicated hereto before. Furthermore, the burden of proof even in that case had wrongly been placed on the State which in fact lay on the writ petitioners claiming similar benefits. The factual matrix obtaining in the said case particularly similar qualification, interchangeability of the positions within the regular employees and the casual employees and other relevant factors which have been noticed by us also had some role to play.
12. Accordingly, keeping in view the issue in controversy which now only is limited to the grant of regular pay scale/minimum of pay scale for the period the petitioner was in service, the petitioner is not entitled for the same in view of the judgments referred to above and in view of the fact that he was only appointed on contract basis and thus was bound by the CWP No.7141 of 1994 -12- *** terms of contract interse between the parties. The State has specifically stated in its reply that the petitioner had not attached the copies of the certificates/degree to contend that he was not having the same qualification as required by the regular Lecturers and no replication had been filed to the written statement that the petitioner was having the prescribed qualification. Regarding the relief of the payment of salary of summer vacations, petitioner is also not entitled for the same since it is not the case of the petitioner that he was appointed after due selection but had only been appointed on contractual basis for three months though allowed to continue for a longer period and neither he had been regularised on the said post so that he could lay claim for the salary of summer vacations.
13. In view of above facts and circumstances, the writ petition is devoid of merit and the same is dismissed.
06.07.2012 (G.S.Sandhawalia) Pka Judge