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RAMAYAN RAM AND OTHERS versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Ramayan Ram And Others v. State Of U.P. & Others - WRIT - A No. 12694 of 1990 [2003] RD-AH 223 (23 July 2003)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.4/AFR

Civil Misc. Writ Petition No. 12694 of 1990

Ramayan Ram and another......Vs....... State of Uttar Pradesh and others.

     ----------

Hon'ble R.B. Misra, J.

Heard Sri Shyam Krishna, along with Sri Madhur Prakash, learned Counsel for the petitioners, and Sri M.C. Chaturvedi, learned Additional Chief Standing Counsel, along with Sri Raj Kumar, learned Standing Counsel for the State respondents. With the consent of the parties this petition is decided finally at this stage in view of Second proviso to Rule-2 of Chapter XXII of the Allahabad High Court Rules, 1952.

(1) In this petition prayer has been made for issuance of writ of mandamus directing the respondents to give the same pay scale to the petitioners as given to the lecturers of recognised Intermediate College along with the same benefit of gratuity, pension as payable to the lecturers of the recognised college of State of Uttar Pradesh.

(2) The brief facts necessary for adjudication are that the petitioners were teaching in Adarsh Sanskrit Vidyalaya, Sivankalan, Ballia (hereinafter referred to as 'the Sanskrit Institution'), which imparts Uttar Madhyama said to be equivalent to Intermediate. The institution is equivalent to Intermediate College recognised by the U.P. High School and Intermediate Education Board (in short called as 'Board'). The said institution was recognised by Sampurnanand Sanskrit Vishwavidyalaya, Varanasi (hereinafter in short called 'Vishwavidyalaya') imparting education in the field of Sanskrit.  Petitioner no.1 was in possession of Acharya degree in first division from 'Vishwavidyalaya', and claimed to be qualified to teach Sanskrit to Uttar Madhyama classes and is also qualified for being appointed as a lecturer in Sanskrit in a recognised institution of the State of Uttar Pradesh, was appointed on 1.7.1976 and has continuously been working as a Sanskrit teacher satisfactorily in the said institution and petitioner no.2 claims to be in possession of Master's degree in 'Economics' and 'History' and qualified to teach to Uttar Madhyama Classes in the said institution, claims to be appointed as a lecturer in Intermediate College recognised by 'Board' of Uttar Pradesh and has been working satisfactorily from the date of his appointment i.e. on 1.7.1979 by contending as follows: -  

(a) The petitioners' institution is equivalent to a recognised Intermediate college in the State of Uttar Pradesh. The petitioners are teaching Uttar Madhyama classes, which is equivalent to Intermediate classes of recognised Intermediate College in the State of Uttar Pradesh, thus the petitioners are doing the same job as done by the lecturers of recognised Intermediate Colleges. As such, the petitioners are entitled to the same pay scale, which is paid to the lecturers of recognised Intermediate colleges in the State of Uttar Pradesh.

(b) The qualifications laid down by the 'Vishwavidyalaya' for teachers of an institution imparting education upto Uttar Madhyama are the same as that of lecturers of recognised Intermediate colleges in the State of Uttar Pradesh. Both the petitioners are post-graduate in their respective subjects.  The petitioners are teaching classes equivalent to Intermediate classes in the institution. As such, they are entitled to pay scale of lecturers of recognised Intermediate colleges.

(c) The payment of salaries of the teachers and that of lecturers of recognised Intermediate colleges and aided institutions are paid by the District Inspector of Schools from the grant obtained from the State of Uttar Pradesh, thus the source of payment of salary of petitioners and that of lecturers of recognised Intermediate Colleges in the State of Uttar Pradesh is the same i.e. State of Uttar Pradesh, and the State of Uttar Pradesh cannot discriminate between the petitioners and lecturers of recognised Intermediate colleges. The petitioners are entitled to the same pay scale and benefits as given to the lecturers of recognised Intermediate college.

(d) In case of petitioners the principle of equal pay for equal work is squarely applicable. The State Govt. is acting illegally in not giving pay scale to the petitioners, which is given to the lecturers of recognised Intermediate college.  

(3) Counter affidavit has been filed on behalf of the respondents to controvert the claims of the petitioners as follows:-

(a) The services of lecturers and teachers of recognised Intermediate Colleges are governed by the U.P. Intermediate Education Act, 1921, which provides different mode of selection, appointment and pay scale of the teachers in different grade like C.T. grade, L.T. grade, Lecturer grade and principal grade. The institution, in which the petitioners are working, is a Sanskrit school, which is run, controlled and affiliated by the 'Vishwavidyalaya', which has a separate Statutes prescribing different mode of appointment, approval, selection and pay scale of Sanskrit Vidyalaya affiliated with 'Vishwavidyalaya', is quite different one from the recognised Intermediate Colleges as provided in the Notification dated 5.3.1992 issued by the State Government in which Sanskrit Vidyalaya run and affiliated by 'Vishwavidyalaya' have been categorised in four categories viz Ka, Kha,Ga and Gha. The institution in which the petitioners are working falls under the category 'Gha', for which the posts have been sanctioned only as 'Head Master', 'Teachers' and 'Assistant Teachers' and there is no post like lecturer ever sanctioned for the said Sanskrit Vidyalaya, therefore, the salary is being paid to the teachers of Sanskrit Vidyalayas falling in category 'Gha' as per notification dated 5.3.1992 which has been permitted for being implemented by another notification dated 6.10.1994.

(b) The lecturers of Intermediate Colleges are selected by the U.P. Secondary Education Service Commission while the teachers of Sanskrit Vidyalayas are appointed as per statutes of 'Vishwavidyalaya'  an autonomous body, which gives affiliation to different Sanskrit Colleges and its administration, approval and selection of teachers, appointment and removal of their services are also done by 'Vishwavidyalaya' only, however, the Director of Education is only authorised for grant in aid and inspection of Sanskrit Colleges.

(c) The petitioners working under category 'Gha', as stated above, not as a lecturer, are only entitled to get their salary as per sanctioned posts in aforesaid notification and they can not claim parity with the salary of lecturers of recognised Intermediate Colleges.

(d) The qualifications of lecturers of recognised Intermediate College is also different one. So far as qualification of L.T. Grade teacher in the Intermediate Colleges, is concerned, the qualification has been prescribed as B. Ed. (trained) or equivalent to this and the qualification of lecturers in the Intermediate Colleges, has been prescribed as M. A., while in Sanskrit Colleges, only post of Teachers, Asstt. Teachers and Head Master have been sanctioned, for which pay scales have been provided in the said notification dated 5.3.1992 and accordingly the petitioners are being paid their salary as per pay scale provided in the said notification, therefore, they cannot claim parity with the teachers appointed under U.P. Intermediate Education Act.

(e) Mere possessing qualification of Acharya and M.A. the petitioners can not claim parity with the lecturers of Intermediate Colleges, who are appointed, selected and regulated under different mode and Act.

(f) The appointment, pay scales and the recognition of the appointment of the teachers and lecturers of Intermediate College, is totally different than the teachers of Sanskrit Vidyalayas, hence the teachers of these two categories viz. teachers of Intermediate Colleges and teachers of Sanskrit Colleges can not be put at par with each others.

(g) In some places degree of Uttar Madhyama is being recognised as equivalent to Intermediate but only on this basis the petitioners can not claim same salary as is being paid to the lecturers of Intermediate Colleges as mode of appointment, selection, approval and pay scales of teachers/ lecturers of Intermediate Colleges is quite different than the teachers of Sanskrit College affiliated with 'Vishwavidyalaya', inasmuch as services of these two categories are being governed by two different Act.

(4) The principle of "equal pay for equal work" is not always easy to apply. There are inherent difficulties in comparing and evaluating the work done by different persons in different organisations, or even in the same organization. In Federation of All India Customs and Central Excise Stenographers (Recognised) and others Vs. Union of India and others [1988 (3) SCC 91], the Supreme Court explained the principle of "equal pay for equal work" by holding that differentiation of pay scales among Government servants holding the same posts and performing similar work on the basis of difference in the degree of responsibility, reliability and confidentiality would be a valid differentiation. The same amount of physical work may entail different quality of work, some more sensitive, some requiring more tact, some less--it varies from nature and culture of employment. It was further observed that judgement of administrative authorities concerning the responsibilities which attach to the posts 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.  

(5) In Harbans Lal Vs. State of Himachal Pradesh (1989 (4) SCC 459) it was held that a mere nomenclature designating a person as a carpenter or a craftsman was not enough to come to a conclusion that he was doing the work as another carpenter in regular service. A comparison cannot be made with counterparts in other establishments with different managements or even in the establishments in different locations though owned by the same management. The quality of work, which is produced, may be different, even the nature of work assigned may be different. It is not just a comparison of physical activity. The application of the principle of "equal pay for equal work" requires consideration of various dimensions of a given job. The accuracy required and the dexterity that the job requires may differ from job to job.

(6) In Harbans Lal's case (supra) and Vikram Chaudhary's case (supra), the daily rated workmen were entitled to be paid minimum wages admissible to such workmen as prescribed and not the minimum in the pay scale applicable to similar employees in regular service unless the employer had decided to make such minimum in the pay scale applicable to the daily rated workmen.

(7) In Secretary, Finance Department v. West Bengal Registration Service Association, AIR 1992 SC 1203, it was observed:-

"It is well settled that equation of posts and determination of pay scales is the primary function of the executive and not the judiciary and therefore, ordinarily Courts will not enter upon the task of job evaluation which is generally left to expert bodies."

(8) In Dr. Bajrang Bahadur Singh v. State of U.P., 1997 (3) AWC 1476, a Division Bench of this Court observed:

"From the conspectus of views taken in the aforementioned decided cases, the position is clear that to substantiate a claim of higher scale of pay/ salary on the basis of the principle equal pay for equal work the petitioners will have to establish that they are equally placed in all respects with the person or persons whose scale of pay/ salary they claim. They must allege and prove, that the mode of recruitment eligibility qualifications prescribed, the nature of duties, responsibilities discharged and the service rules if any applicable to the two posts are similar. They cannot succeed in the case merely by showing that they have been discharging the same duties which are being discharged by persons holding the other class of posts."

The above decision has been approved by a Full Bench of this Court in Ajai Kumar Jaitly v. State of U.P., (1999) 1 UPLBEC 388.

(9) In Shyam Babu Verma v. Union of India, JT 1994 (1) SC 574, it has been observed by the Supreme Court that the nature of work may be more or less the same but the scale of pay may vary based on academic qualification or experience which justifies classification.

(10) In State of Haryana v. Tilak Raj and others, (2003) 6 SCC 123 = 2003 AIR SCW 3382, the Supreme Court pointed out 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 done by different persons in different organisations or even in the same organisation. In State of Haryana Vs. Tilak Raj (supra), the Supreme Court observed that a scale of pay is attached to a definite post and in case of a daily wager, he holds no post, hence he cannot be compared with the regular and permanent staff for any or all purposes including a claim for equal pay for equal allowances. 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 scale 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.

In Tilak Raj (supra) the Supreme Court has held that the claim of equal pay for equal work by a daily wager quay the regular and permanent staff are not tenable. Since the daily wager holds no post and scale of pay is attached to a definite post, however, the State Government was directed to ensure that minimum wages are prescribed for daily wagers and the same to paid to them. While reversing the judgement of 2002 (2) SCT 349 (Punj & Har.), it was held in Tilak Raj (supra) as below:--

"A scale of pay is attached to a definite post and in case of a daily wager, he holds no posts. The respondent workers on daily wages in Haryana Roadways 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-�-vis an alleged discrimination. No material was placed before the High Court as to the nature of the duties of either categories and it is not possible to hold that the principle of 'equal pay for equal work' is an abstract one. However, the appellant- State has to ensure that minimum wages are prescribed for such workers and the same is paid to them. '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 scale. The problem about equal pay cannot always be translated into a mathematical formula."

(11) In State of U.P. v. J.P. Chaurasia, (1989) 1 SCC 121, it was observed by the Supreme Court that the principle of equal pay for equal work requires consideration of various dimensions of a given job. The accuracy required and the dexterity that the job requires may differ from job to job. It must be left to be evaluated and determined by an expert body. The Supreme Court further observed that the principle of equal pay for equal work has no mechanical application in every case of similar work. In service matters merits and experience could be the proper basis for classification. The same view was expressed in Ghaziabad Development Authority v. Vikram Chaudhary, (1995) 5 SCC 210.

(12) In State of Haryana Vs. Jasmer Singh, (1996) 11 SCC 77, the Supreme Court observed that daily rated workmen could neither be equated with regular employees for the purpose of wages nor could they claim the minimum pay scale of the regular employees. In paragrphs 10 and 11, it was noted as under:-

"10. The respondents, therefore, in the present appeals who are employed on daily wages cannot be treated as on a par with persons in regular service of the State of Haryana holding similar posts. Daily rated workers are not required to possess the qualifications prescribed for regular workers, nor do they have to fulfil the requirement relating to age at the time of recruitment. They are not selected in the manner in which regular employees are selected. In other words the requirements for selection are not as rigorous. There are also other provisions relating to regular service such as the liability of a member of the service to be transferred, and his being subject to the disciplinary jurisdiction of the authorities as prescribed, which the daily-rated workmen are not subjected to. They cannot, therefore, be equated with regular workmen for the purposes for their wages. Nor can they claim the minimum of the regular pay scale of the regularly employed.  

11. The High Court was, therefore, no right in directing that the respondents should be paid the same salary and allowances as are being paid to regular employees holding similar posts with effect from the dates when the respondents were employed. If a minimum wage is prescribed for such workers, the respondents would be entitled to it if it is more than what they are being paid."

(13) In State of Orissa Vs. Balram Sahu and others, (2003) 1 SCC 250, the Supreme Court reiterated the principle laid down in the case of Jasmer Singh, (supra).

(14) In State Bank of India and another Vs. M.R. Ganesh Babu & others,JT 2002 (4) SC 129 : (2002) 4 SCC 456 : (2002) UPLBEC 1680, the Supreme Court observed that the principle of equal pay for equal work must depend upon the nature of work done and it cannot be judged by the mere volume of work. There may be qualitative difference as regards reliability and responsibility. The functions may be the same but the responsibilities make a difference. One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as such value judgment is made bona fide, reasonably on an intelligible criterion, which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination. The Supreme Court in Para-16 has expressed that: -

"The principle of equal pay for equal work has been considered and applied in many reported decisions of this Court. The principle has been adequately explained and crystallized and sufficiently reiterated in a catena of decisions of this Court. It is well settled that equal pay must depend upon the nature of work done. It cannot be judged by the mere volume of work; there may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities made a difference. One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as such value judgment is made bona fide, reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination. The principle is not always easy to apply as there are inherent difficulties in comparing and evaluating the work done by different persons in different organizations, or even in the same organization. Differentiation in pays scales of persons holding same posts and performing similar work on the basis of difference in the degree of responsibility, reliability and confidentiality would be a valid differentiation. The judgment of administrative authorities concerning the responsibilities which attach to the post, and the degree of reliability expected of an incumbent, would be a value judgment of the authorities concerned which, if arrived at bona fide, reasonably and rationally, was not open to interference by the Court.""

(15) In State of Tamil Nadu Vs. M.R. Alagappan, JT 1997 (4) SC 515, the Supreme Court observed that the Deputy Agricultural Officers cannot be given the same pay scale as the Agricultural Officers although they may be substantially discharging the same type of duties and their place of work may be interchangeable. The Deputy Agricultural Officers are recruited by promotion from the lower category of Assistant Agricultural Officers. They remain non-gazetted employees in the subordinate service while the Agricultural Officers are directly recruited to a gazetted service. The qualifications are different and though substantially they carry out the same type of work and duties, the important assignments are exclusively entrusted to Agricultural Officers.

(16) In Chandigarh Administration Vs. Anita Sood, 1995 (Supp.) 3 SCC 613, the Supreme Court observed that even though the lecturers may be teaching the same subject as Professors the quality and standard of teaching by a Professor is bound to be a much higher standard than that of a lecturer and hence, a lecturer cannot claim the same pay scale as a Professor. Similarly, Teaching Assistant is a different class of Teacher as compared to Lecturer.

(17) In State of West Bengal Vs. Manirujjaman Mullik and others, (1996) 10 SCC 56, the Supreme Court observed, that where the method of appointment, the source of recruitment, etc. are different the principle of equal pay for equal work will not apply.

(18) In State of West Bengal Vs. D.K. Mukherjee, AIR 1995 SC 1889, it was observed by the Supreme Court that even though the duties performed by the Inspectors in two grades may be the same no fault can be found with the classification, since the classification in the cadre on the ground of selection based on merit is permissible.

(19) In State of Haryana Vs. Surendra Kumar, (1997) SCC 633, the Supreme Court observed that the daily wagers were appointed on contract basis and hence they cannot have any right to a post as such until they are duly selected and appointed, or they are able to manage to have the posts interchanged, they cannot become entitled to the same pay scale, which the regular clerks are holding by claiming that they are discharging their duties as regular employees. The very object of selection is to test the eligibility and then to make selection in accordance with the rules. Since, the respondents' recruitments were not made in accordance with the rules they cannot claim equal pay.

(20) In Union of India Vs. P.V. Hariharan, JT 1997 (3) SC 569, the Supreme Court observed, that the Tribunals are often interfering with pay scales without proper reason and without being conscious of the fact that fixation of pay is not their function. It is the function of the Government which normally acts on the recommendation of a Pay Commission. Change of pay scale of a category has a cascading effect. Several other categories similarly situated, as well as those situated above and below will put forward their claims on the basis of such change. The Tribunal should realise that interfering with the prescribed pay scale is a serious matter. The Pay Commission goes into the problem at great depth and it is the proper authority to decide upon the issue. Very often the doctrine of equal pay for equal work is also being misunderstood and misapplied freely revising and enhancing the pay scales across the board.

(21) In Sate of U.P. Vs. Ramashraya Yadav, AIR 1996 SC 1188, the Supreme Court observed that the employees appointed to temporary posts are not entitled to pay scale equivalent to the regular employees.

(22) In Union of India Vs. Dharampal, (1996) 4 SCC 195, the Supreme Court gave of approval to the scheme framed by the authorities for regularization of Daily-rated workers/ casual workers and held "Daily rated workers/ casual workers who are not regularized and work is taken from them, are entitled to minimum of scale of pay prescribed for that post and in addition to that, they are also entitled to 60% of the D.A. on Punjab Pattern which is being followed in all others cases".  

(23) In A. Krishnamacharyulu Vs. Dr. Venketshwar Hindu College (Engineering), 1997 (3) SCC 571, the Supreme Court was considering the doctrine of ''equal pay for equal work' in respect of parity claimed by teachers, who were imparting education in non-Government institutions with the teachers of Government institutions. The ratio of the decision in that case is that teachers, who impart education, get an element of public interest in performance of their duties and the element of public interest calls for regulating the conditions of services of those employees in juxtaposition with a Government employee.

(24) To enforce his submissions, the learned Counsel for the petitioners placed credence on a decision in The Dharwad District P.W.D. Literate Daily Wage Employees' Association and others Vs. State of Karnataka and another, 1990 (2) SLR 43 and State of U.P. Vs. Putti Lal, (2002) 2 UPLBEC 1595 (SC). In Putti Lal's case, the Supreme Court has directed to consider the case of regularization according to the relevant prevailing rules and for payment of minimum of the pay scale as applicable to their counter part in the government until services of such daily wage employees are regularized. The other decisions relied upon by the learned Counsel are Gujarat Agricultural University Vs. Rathod Labhu Bechar, AIR 2001 SC 706; Jayanta Biswas Vs. University of Calcutta and others, (2001) 1 UPLBEC 74 and Daily Rated Casual Labour Employed under P&T Department through Bhartiya Dak Tar Majdoor Manch Vs. Union of India and others, AIR 1987 SC 2342, to hammer home the submissions aforestated.

(25) In State of West Bengal and others Vs. Pantha Chatterjee and others, (2003) 6 SCC 469, the Supreme Court was seized of the claim Part Time Border Wing Home Guards vis-�-vis regular Boarder Wing Home Guards of the West Bengal and the Border Security Force personnel. In the matter, it was claimed that the part time Border Wing Home Guards were performing similar duties and discharging same responsibilities. It was contended in that petition that the part time Border Wing Home Guards are entitled to the honorarium and they are to be paid only as and when their services are required and utilised. It was further claimed in opposition in that case, that their appointment was not to exceed for a period of more than three months except in cases where it was recommended otherwise by the authorities of the Border Security Force. It was noticed by the Supreme Court that duties of the permanent Border Wing Home Guards and part time Border Wing Home Guards are the same and performed under the same situation and circumstances but there has been disparity in their emoluments and other facilities, necessities for performing their duties. In the background of the facts of that case, it was held by the Supreme Court that the part time Border Wing Home Guards cannot be treated as volunteers engaged in casual nature of work so as to be termed as part time staff of Government of West Bengal and as such they cannot be treated differently from the permanent staff and are to be accorded parity with them.

(26) In the case of Daily Rated Casual Labour Employed under P&T Department Vs. Union of India and others, (1988) 1 SCC 122, the Supreme Court reckoned with issue in question and indicated as under:

"It may be true that the petitioners have not been regularly recruited but many of them have been working continuously for more than a year in the department and some of them have been engaged as casual labourers for nearly ten years. They are rendering the same kind of service, which is being rendered by the regular employees doing the same type of work. Clause (2) of Article 38 of the Constitution of India, which contains one of the Directive Principles of State Policy provides that the State shall, in particular, strive to minimize the inequalities in income and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged indifferent vocations. Even though the above Directive Principle may not be enforceable as such by virtue of Article 37 of the Constitution of India, it may be relied upon by the petitioners to show that in the instant case they have been subjected to hostile discrimination. It is urged that the State cannot deny at least the minimum pay in the pay scales of regularly employed workmen even though the Government may not be compelled to extend all the benefits enjoyed by regularly recruited employees. We are of the view that such denial amounts to exploitation of labour. The Government cannot take advantage of its dominant position and compel any worker to work even as a casual labourer on starvation wages. It be that the casual labourer has agreed to work on such low wages. That he has done because he has no other choice. It is poverty that has driven him to that state. The Government should be a model employer. We are of the view that on the facts and in the circumstances of this case, the classification of employees into regularly recruited employees and casual employees for the purpose of paying less than the minimum pay payable to employees in the corresponding regular cadres particularly in the lowest rungs of the department where the pay scales are the lower is not tenable. India is a socialist republic. It implies the existence of certain important obligations which the State has to discharge. The right to work, the right to free choice of employment, the right to just and favourable conditions of work, the right to protection against unemployment, the right of everyone who works to just and favourable remuneration ensuring a decent living for himself and his family, the right of every one without discrimination of any kind to equal pay for equal work, the right to rest, leisure, reasonable limitation on working hours and periodic holidays with pay, the right to form trade unions and the right to joint trade unions of one's choice and the right to security of work are some of the rights which have to be ensured by appropriate legislative and executive measures. It is true that all these rights cannot be extended simultaneously. But they do indicate the socialist goal. The degree of achievement in this direction depends upon the economic resources, willingness of the people to produce and more than all the existence of industrial peace throughout the country. Of those rights the question of security of work is of utmost importance. If a person does not have the feeling that he belongs to an organization engaged in production he will not put forward his best effort to produce more. That sense of belonging arises only when he feels that he will not be turned out of employment the next day at the whim of the management. It is for this reason it is being repeatedly observed by those who are in charge of economic affairs of the countries in different parts of the world that as far as possible security of work should be assured to the employees as that they my contribute to the maximization of production. It is again for this reason that managements and the governmental agencies in particular should not allow workers to remain as casual labourers or temporary employees for an unreasonably long period of time......."  

(27) The ratio flowing from the Dharwad case as followed in the case of Pantha Chhatterjee and others (supra) can usefully be applied to the facts of the present case as contended for and on behalf of the petitioner(s). The aforesaid decision was rendered noticing a three Judges Bench decision in Randhir Singh Vs. Union of India and others, (1982) 1 SCC 618; Dhirendra Chamoli and another Vs. State of U.P.,(1986) 1 SCC 637; Surinder Singh and another Vs. Engineer in Chief, C.P.W.D. and others, (1986) 1 SCC 634; Bhagwan Dass and others Vs. State of Haryana and others, (1987) 4 SCC 634 and Daily Rated Casual Labour Employed under P&T Department (supra). Yet another case noticed in this decision is U.P. Income Tax Department contingent Paid Staff Welfare Association Vs. Union of India and others, (1987) Suppl. SCC 668. It is in the above conspectus that the Supreme Court gave directions of paying minimum of the pay scale. It is a well considered decision after analyzing all the aspects on the point. This three Judges Bench decision held good the ratio by applying the principles of ''equal pay for equal work' that those daily wagers discharging duties similar to those in the regular employment of the Government should at least be entitled to receive the minimum of the pay scale. In Putti Lal's case, the ratio in that case flowed from the background that the State of Uttaranchal had framed a scheme for regularization of daily wagers.

(28) It has been submitted on behalf of the petitioners that the Supreme Court has noticed in its decision the case of Jasmer Singh (supra), where the direction was that pending regularisation, the daily wage employees are entitled to get minimum of the wages and also referred to various other cases including Ghaziabad Development Authority Vs. Vikram Chaudhary (supra), in fortifying his stand that the petitioners are not entitled to minimum of the pay scales. The learned Counsel in reference has submitted that the aforestated decisions being the latest in the series could be followed for application in the facts and circumstances of the present case. The learned counsel again harking back to the decision in Tilak Raj (supra) canvassed that in this decision, all the earlier authoritative pronouncements including one rendered in Jasmer Singh's case has been noted in which the Supreme Court has analyzed the ratio decidendi flowing from all the earlier decisions. It was further canvassed that there is noticeable difference between the functions being performed by daily wage employees and regularly appointed persons and by this reckoning, threadbare formula cannot be applied and therefore, it was submitted that the petitioners are not entitled to get minimum of the pay scales. The learned Counsel also drew attention of the Court to a decision in M.R. Ganesh Babu (supra), which is a three Judges Bench decision in which the Supreme Court reiterated the principles that the equal pay must depend upon the nature of work done and it cannot be judged by the mere volume of work; there may be qualitative difference as regards reliability and responsibility. It was further observed that functions may be the same but the responsibilities make a difference.

(29) Three Judges Bench decisions in Putti Lal (supra), Randhir Singh (supra) and in Dharwad case (supra) cases referred by the learned Counsel for the petitioners. The Randhir Singh's case has been followed in number of cases and has been affirmed by yet another Constitution Bench in D.S. Nakara Vs. Union of India, (1983) 2 SCR 165 and subsequently, the principles laid down in Randhir Singh's case were observed with approval in Dharwad case. The two Judge Bench decision in Jasmer Singh (supra) has been rendered in conflict with Randhir Singh's case, which was followed by Constitution Bench in D.S. Nakara's case and subsequently in Dharwad and Putti Lal's case on the point whether the daily rated employees are entitled to minimum of the wages or minimum of the pay. In Randhir Singh (supra) it was observed as under:--

"It is true that principles of ''equal pay for equal work' is not expressly declared by our Constitution to be a fundamental right. But it certainly is a constitutional goal. ''Article 39(d) of the Constitution proclaims ''equal pay for equal work for both men and women' as a Directive Principle of State Policy. ''Equal pay for equal work for both men and women' means equal for pay and equal work for everyone and as between the sexes. Directive Principles, as has been pointed out in some of the judgments of this Court have to be read into the fundamental rights as a matter of interpretation. Article 14 of the Constitution enjoins the State not to deny any person equality before the law or the equal protection of the laws and Article 16 declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. These equality clauses of the Constitution must mean something to everyone. To the vast majority of the people the equality clauses of the Constitution would mean nothing if they are unconcerned with the work they do and the pay they get. To them the equality clauses will have some substance if equal work means equal pay. Whether the special procedure prescribed by a statute for trying alleged robber-barons and smuggler kings or for dealing with tax evaders is discriminatory, whether a particular governmental policy in the matter of grant of licences or permits confers unfettered discretion on the Executive, whether the takeover of the empires of industrial tycoons is arbitrary and unconstitutional and other questions of like nature, leave the millions of people of this country untouched. Question concerning wages and the like, munhdane they may be, are yet matters of vital concern to them and it is there, if at all that the equality clauses of the Constitution have any significance to them. Construing Articles 14 and 16 of the Constitution in the light of the Preamble and Article 39 (d), we are of the view that the principle ''equal pay for equal work' is deducible for those articles and maybe properly applied to cases of unequal scales of pay based on no classification or irrational classification though those drawing the different scales of pay do identical work under the same employer."      

(30) In U.P. Income Tax Department contingent Paid Staff Welfare Association Vs. Union of India and others, (1987) Suppl. SCC 668, the Supreme Court having regard to the principles as laid down in P&T Department case aforestated, gave following relief in the ultimate analysis.

"We accordingly allow this writ petition and direct the respondents to pay wages to the workmen who are employed as the contingent paid staff of the Income Tax Department throughout India, doing the work of Class IV employees at the rates equivalent to the minimum pay in the pay scale of the regularly employed workers in the corresponding cadres......."

(31) The Dharwad case (supra) has been rendered noticing the principles in the aforestated case. It was a three Judges Bench decision dealing with the case of confirmation of daily rated and monthly rated employees as a regularly government servants and for payment of normal salary at the rates prescribed for the appropriate categories of the government servants and other service benefits. It was pleaded in that case that about 50,000 such workers were employed in the different Government establishments and though many of them have put in 16 to 20 years of continuous service which is proof of the fact that there is permanent need for the jobs they perform- they have not been regularized in their service and were not being paid equal pay for equal work as has been mandated by this Court by way of implementation of the Directive Principles of State Policy.

(32) In Jaipal and others etc. Vs. State of Haryana and others etc., (1998) 3 SCC 354, the Supreme Court held it to be a constitutional obligation to ensure equal pay for equal work where the two sets of employees discharge similarly responsibilities under similar working conditions. According to Dhirendra Chamoli (supra) casual workers could not be denied same emoluments and benefits as admissible to temporary employees on the premises that they had acquiesced to the employment with full knowledge of their disadvantage. In Grih Kalayan Kendra Workers' Union Vs. Union of India and others,(1991) 1 SCC 619, the Supreme Court has held that though on facts no discrimination was found but the principle of 'equal pay for equal work' was upheld and recognized where all were placed similarly and discharging same duties and responsibilities irrespective of casual nature of work. This right had been held to have assumed status of a fundamental right of 'equality' in Articles 14 and 16. In Daily Rated Casual Labour through Bhartiya Dak Tar Mazdoor Manch Vs. Union of India and others, (1988) 1 SCC 122, the substance of what was held by the Supreme Court was that right of daily rated casual workers in the P&T Department was recognized and they were directed to be paid in minimum of the scale as was admissible to the regular workers as both discharged similar work and responsibilities.

(33) In (2004) 1 UPLBEC 721 (Praveen Kumar Vs. The State of U.P. through the Secretary, Nagar Vikas Government of U.P., Lucknow and others), this Court (Hon'ble S.N. Srivastava, J.) has observed that daily wage employees, who had worked for more than 12 years in various Nagar Nigams/ Nagar Palika Parishads, are entitled for regularisation and minimum of pay scales pending their regularisation qua regular employees and directions were issued for creation of posts for regularisation.

(34) In (2003) 2 UPLBEC 1755 (Orissa University of Agriculture and Technology and another Vs. Manoj K. Mohanty) the Supreme Court relying on the decisions in Jasmer Singh (supra), M.R. Ganesh Babu (supra) and Pradip Kumar Dey (supra) has held that the writ petitioner employed in the university on temporary basis as a typist continued for more than five years with an artificial break while working as Junior Assistant was not entitled for regularisation by applying principle of equal pay for equal work and in the said case the Supreme Court in para 11 observed as under:-

"11.  This Court in Union of India and others v. Pradip Kumar Dey, (2000) 8 SCC 580 : JT 2000 (S2) SC 449, after referring to various decisions dealing with the similar question in Para 8 has held thus---

"In our considered view, the Division Bench of the High Court was not right and justified in straightway giving direction to grant pay scale to the respondent when there was no material placed before the Court for comparison in order to apply the principle of "equal pay for equal work" between the radio operators of CRPF and the radio operators working in civil side in the central water commission and the directorate of police wireless. In the absence of material relating to other comparable employees as to the qualifications, method of recruitment, degree of skill, experience involved in the performance of job, training required, responsibilities undertaken and other facilities in addition to pay scales, the learned Single Judge was right when he stated in the order that in the absence of such material it was not possible to grant relief to the respondent. No doubt, the directorate of CRPF made recommendations to the Pay Commission for giving higher pay scales on the basis of which claim is made by the respondent for grant of pay scale. The factual statements contained in the recommendation of a particular department alone cannot be considered per se proof of such things or then cannot by themselves vouch for the correctness of the same. The said recommendation could not be taken as a recommendation made by the Government. Even otherwise a mere recommendation did not confer any right on the respondent to make such a claim for writ of mandamus."  

(35) This Court (D.B.) in (2004) 1 UPLBEC 77 (State of U.P. and others Vs. U.P. Madhyamik Shiksha Parishad Shramik Sangh and others) has held that writ petitioners while working as daily wagers for several years could not claim same pay scale as regular Class-III employees nor other benefits admissible to other regular employees and for regularisation the daily wagers have to face regular selection in accordance with the rules as they cannot be regularised without such selection, and in said case this Court in para 47 has held as under:--

"47. No doubt in certain decisions the Courts have given directions for regularising daily wagers or casual/ temporary employees but in our opinion such directions do not amount to a precedent vide Indian Council of Agricultural Research v. Raja Balwant Singh College, 2003 (1) ESC 424; Delhi Administrtion v. Manoharlal, AIR 2002 SC 3088, etc. What is a binding precedent is a principle of law, which has been laid down in a decision of the Court and a mere direction without laying down any principle of law not a precedent. A case is an authority for what it actually decides vide Goodyear India Ltd. v. State of Haryana, AIR 1990 SC 781; Sreenivasa General Traders v. State of A.P., AIR 1983 SC 1246 (Para 29); Union of India v. Dhanwanti Devi, (1996) 6 SCC 44 (Paragraphs 9 and 10); M/s Amar Nath Om Prakash v. State of Punjab and others, AIR 1985 SC 218, etc. Everything in a decision is not a precedent vide State of Punjab v. Baldeo Singh, 1999 SCC (Cri) 1080."

(36) Treating unequals unequally does not violate the provisions of article 14 of the Constitution in view of (1997) 7 SCC 592 (M.P. Oil Extraction and another Vs. State of M.P. and others).

(37) Granting of special pay-scale and upgradation of particular cadre pertain to the economic aspects and policy decision of State and organization and scope of judicial review is limited and circumscribed unless the policy decision is absolutely capricious, unreasonable and arbitrary and based on mere ipse dixit of the executive authority or is violative of any constitutional or statutory mandate, the Court's interference is not called for as observed by the Supreme Court in M.P. Oil Extraction and another Vs. State of M.P. and others (1997) 7 SCC 592. The relevant extract of para-41 reads as below:-

".......... The executive authority of the State must be held to be within its competence to frame a policy for the administration of the State. Unless the policy framed is absolutely capricious and, not being informed by any reason whatsoever, can be clearly held to be arbitrary and founded on mere ipse dixit of the executive functionaries thereby offending Article 14 of the Constitution or such policy offends other constitutional provisions or comes into conflict with any statutory provision, the Court cannot and should not outstep its limit and tinker with the policy decision of the executive functionary of the State. This Court, in no uncertain terms, has sounded a note of caution by indicating that policy decision is in the domain of the executive authority of the State and the Court should not embark on the unchartered ocean of public policy and should not question the efficacy or otherwise of such policy so long the same does not offend any provision of the statute or the Constitution of India. The supremacy of each of the three organs of the State i.e. legislature, executive and judiciary in their respective fields of operation needs to be emphasized. The power of judicial review of the executive and legislative action must be kept within the bounds of constitutional scheme so that there may not be any occasion to entertain misgivings about the role of judiciary in outstepping its limit by unwarranted judicial activism being very often talked of in these days. The democratic set-up to which the policy is so deeply committed cannot function properly unless each of the three organs appreciate the need for mutual respect and supremacy in their respective fields."

(38) The Supreme Court following Tata Cellular Vs. Union of India, (1994) 6 SCC 651 has observed in (1997) 7 SCC 622 (Mansukhlal Vithalidas Chauhan Vs. State of Gujarat) in respect of exercise of power under Article 226 by the High Court and under Article 32 by the Supreme Court that the court does not sit as a court of appeal but merely reviews the manner in which the decision was made, particularly as the court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted, it will be substituting its own decision which itself may be fallible. The duty of the court is to confine itself to the question of legality. Its concern should be, (i) whether the decision-making authority exceeded its powers?; (ii) committed an error of law; (iii) committed  a breach of the rules of natural justice; (iv) reached a decision which no reasonable Tribunal would have reached; or (v) abused its powers.  

(39) I have heard learned Counsels for the parties and perused the records. The petitioners have been recruited by different source and under different employer and the responsibility, reliability and confidentiality in respect of the petitioners is different to that of the lecturers, who were recruited by the Commission and relatable to Intermediate Education Act, 1921. For claiming equal pay for equal work the petitioners could not demonstrate that they are holding the same posts and performing similar work in respect of responsibility, reliability and confidentiality. A comparison and claim for equal pay for equal work cannot be made with counterparts in other establishments with different managements or even in the establishment in different locations though owned by the same management. It is well settled that equation of posts and determination of pay scales is the primary function of the executive and not of the judiciary, therefore, ordinarily the Court shall not enter upon to take the job of evaluation, which is generally left to the expert bodies. The petitioners could not establish that they are equally placed in all respects with the others or persons, whose scale of pay/ salary they claim. The claim of equal pay for equal work is a concept, which requires for its applicability complete and wholesale identity between the group of employees claiming identical pay scale and other group of employees. The claim of equal pay could also not be judged mere on the volume of work when the mode of appointment and source of recruitment are different. As a policy measure of the State Government depending upon the recommendation of the Pay Commission or expert bodies or Samta Committee reports the claim of equal pay for equal work is considered by the State Government. Any change of pay scale of a category may create wide ramification and may have a cascading effect because persons of several other categories who on the ground of being similarly situated might put forward their claims on the basis of such change and allocation of pay scale. The petitioners are unequals in all respects to the lecturers and teachers of recognised Intermediate Colleges governed by the U.P. Intermediate Education Act.

In view of the above observations, since the petitioners could not legally substantiate their claim, more so, the petitioners claim is devoid on merits, as such, the prayer made in the writ petition can not be granted, therefore, the writ petition is dismissed.

Dated: 23.07.2003.

SKT/-  


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