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Director U.P.Mandi Parishad K.M.B.V.Khand, Lko. And Others v. Ratan Kant Mishra And Others - SPECIAL APPEAL No. 663 of 2002 [2005] RD-AH 4308 (18 October 2005)


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Court No.32

Special Appeal No.663 of 2002

Director, U.P. Mandi Parishad & others...Appellants


Ratan Kant Mishra & others...Respondents

Hon'ble S. Rafat Alam, J.

Hon'ble Sudhir Agarwal, J.

This special appeal arises from the order of the Hon'ble Single Judge dated 20.5.2002 in Civil Misc. Writ Petition No.20304 of 2002 (Ratan Kant Mishra vs State of U.P. and others).

Heard Shri B.D. Mandhyan, learned counsel for the appellants and Shri K.A. Qayyum, learned counsel for respondent no.1.

Shri B.D. Mandhyan, learned counsel for the appellants vehemently contended that the Hon'ble Single Judge granted final relief to the petitioner-respondent by the interim order passed in the writ petition.  It is also argued that the direction of the Hon'ble Single Judge, for the payment of minimum salary payable to regular employees to the petitioner-respondent, is contrary to the law laid down by the Hon'ble Apex Court in the case of State of Haryana and others vs. Jasmer Singh and others, (1996) 11 SCC 77 wherein it has been held that the daily wagers are not entitled to get pay parity with regular employees, as the process of selection of both the employees i.e. daily wager and regular employees, are not similar.

On the other hand, learned counsel for the respondent no.1 opposed the prayer and submitted that against an interim order special appeal does not lie under the Rules of the Court.

We have considered the submissions made on both sides and also perused the order of the Hon'ble Single Judge.

It is not in dispute that the petitioner-respondent is a daily wager and his service has not yet been regularized under the rules and, therefore, he cannot claim minimum of pay scale of regular salary, which is prescribed for regular employees.  In the case of State of Haryana and others vs. Jasmer Singh and others (supra) the Hon'ble Apex Court has held as under: -

"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 fulfill 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."

The aforesaid judgment has been followed and affirmed by the judgment of Hon'ble Supreme Court in the case of State of Haryana and others vs. Charanjit Singh and others, JT 2005 (12) SC 475 after referring to large number of earlier judgments of the Hon'ble Apex Court, it held as under: -

"Having considered the authorities and the submissions we are of the view that the authorities in the cases of Jasmer Singh, Tilak Raj, Orissa University of Agriculture & Technology and Tarun K. Roy 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.  Article 14 permits reasonable classification based on qualities or characteristics of persons recruited and grouped together, as against those who were left out.  Of course, the qualities or characteristics must have a reasonable relation to the object sought to be achieved.  In service matters, merit or experience can be a proper basis for classification for the purposes of pay in order to promote efficiency in administration.  A higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues is also an acceptable reason for pay differentiation.  The very fact that the person has not gone through the process of recruitment itself, in certain cases, make a difference.  If the educational qualifications are different, then also the doctrine may have no application.  Even though persons may do the same work, their quality of work may differ.  Where persons are selected by a Selection Committee on the basis of merit with due regard to seniority a higher pay scale granted to such persons who are evaluated by competent authority cannot be challenged.  A classification based on difference in educational qualifications justifies a difference in pay scales.  A mere nomenclature designating a person as say a carpenter or a craftsman is not enough to come to the conclusion that he is doing the same work as another carpenter or craftsman in regular service.  The quality of work which is reproduced may be different and 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 may entail may differ from job to job.  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.  Thus normally the applicability of this principle must be left to be evaluated and determined by an expert body.  These are not matter where a writ court can lightly interfere.  Normally a party claiming equal pay for equal work should be required to raise a dispute in this regard." (para 17) (emphasis added)

A Division Bench of this Court in the case of State of U.P. vs. Rajendra Prasad & others, 2004 (54) ALR 85 having considered various authorities held that the direction of the Hon'ble Single Judge for giving minimum pay scale of regular employees is directly contrary to the decision of the Hon'ble Supreme Court rendered in the case of State of Haryana and others vs. Jasmer singh and others (supra).  It has further been held in the aforesaid judgment that the fixation of pay scale is the function of the government and the commission constituted by it and this Court normally should not interfere with it, as has been laid down by the Hon'ble Apex Court in the case of Union of India vs. P.V. Hariharan, (JT) 1997(3) 569.

It is well settled legal proposition that a daily wager cannot seek writ of mandamus for the payment of the minimum pay scale payable to regular employee.  The objection regarding maintainability of this appeal is also misconceived.  It is true that against an interim order special appeal does not lie but where, in the garb of interim relief, final relief is given the special appeal would lie.  In the writ petition filed by the petitioner-respondent no.1 prayer no.1 is as follows: -

"to issue a writ, order or direction in the nature of mandamus commanding the respondents to pay the Senior petitioner's minimum pay scale of regular salary as being paid to several Junior to petitioner in work charge services of Parishad and Regularize the services of petitioner as has been done to work charge Junior to petitioners in service of Parishad."

The learned Single Judge while granting time for counter affidavit allowed the first relief.  Therefore, in the facts of the case, the objection regarding maintainability of the appeal is rejected.  By means of the interim order part of the final relief has been allowed by the Hon'ble Single Judge, which, in our view, should not have been granted since the writ petition is yet to be decided on merit and in case the writ petition is ultimately dismissed, it would not be possible to recover the amount from the petitioners already paid under the interim orders and the respondents-appellants would suffer irreparable loss.

Looking to the facts of the case and also keeping in view the law, as has been laid down by the Hon'ble Supreme Court in the case of State of Haryana vs. Jasmer singh (supra), we modify the interim order granted in the writ petition, to the extent, that the petitioner-respondent no.1 shall be entitled to get the wages, prescribed for a daily wager, which would be subject to the final result of the writ petition.  It is further provided that the payment already made, pursuant to the interim order dated 20.5.2002, shall not be recovered from the petitioner-respondent no.1 and the same shall abide the final result of the writ petition.

However, since the writ petition itself is pending since 2002 we find it appropriate to request the Hon'ble Single Judge to decide the writ petition on merit after hearing the learned counsel for the parties expeditiously preferably within a period of three months subject to other business of the Court.

With the above observations, the order under appeal is modified to the extent stated above and this special appeal is disposed of finally.  No order as to costs.




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