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Ashagar Ali v. Administrator, Nagar Maha Palika & Others - WRIT - A No. 1749 of 1995  RD-AH 5496 (10 November 2005)
(A.F.R.) Court No.25
Civil Misc. Writ Petition No. 1749 of 1995
Ashagar Ali...Vs...Administrator, Nagar Maha Palika, Kanpur Nagar & others.
Hon'ble Sabhajeet Yadav,J.
By this petition, the petitioner has sought relief of writ of mandamus directing the respondents to promote the petitioner from the post of Beldar to the post of Driver, in the Nagar Mahapalika, Kanpur Nagar and pay his salary for the post of Driver w.e.f. 14.9.1984.
2. The relief sought in the writ petition rests on the facts that petitioner was appointed as Beldar, Class IV employee in Nagar Mahapalika, Kanpur Nagar on 3.5.1980 in the pay scale of Rs. 750/- to 940/- and he was confirmed on the said post in the year 1982. Since he was experienced vehicle driver having valid driving licence he was promoted casually to drive the vehicle i.e. Jeep No. 5592 in the Zone-3 of Nagar Mahapalika, Kanpur Nagar but no promotion order in writing was given to the petitioner by the respondents. On 4.9.1985 an order posting the petitioner permanently in the Project department on the post of driver was passed by the office Director, City Cleaning, Nagar Mahapalika, Kanpur Nagar. Thereafter on 21.9.1989 the Executive Engineer Zone-3 sent a recommendation for promotion of the petitioner from the post of Beldar to the post of driver on the ground that petitioner was working as driver from 4.9.1985 continuously. It is alleged that although in the year 1989, the recommendation was sent to the Mukhya Nagar Adhikari and he has accepted the recommendation of promotion of petitioner on the post of driver on 9.10.1990 but no formal order of promotion was passed nor he was paid his salary for the post of driver despite he is working as driver under the control of respondents from 14.9.1984 but he is being paid salary of Beldar which is less remuneration against the principle of equal pay for equal work. On 3.4.1993 the petitioner sent a representation to the Project Officer,U.D.C., Nagar Mahapalika, Kanpur Nagar with the prayer for his promotion from the post of Beldar to the post of driver. On 15.4.1993 the Project Officer sent a recommendation to the Administrator, Nagar Mahapalika, Kanpur Nagar for promotion of petitioner on the post of driver. On 31.5.1994 the representation of petitioner dated 3.4.1993 was referred to the respondent no.2 by the Administrator but petitioner has not been promoted so far. He again submitted representation on7.6.1994 to the respondent no.1 ventilating his grievances therein.
3. In para 9 of the writ petition it is further stated that one Madho Raj who was appointed as Safai Mazdoor in the year 1992 has been promoted as driver on 2.6.1994 by the respondent no. 1(Annexure-7 of the writ petition). In para 10 of the writ petition it is stated that the petitioner is working as driver since 14.9.1984 continuously under the control of respondents and more than 10 years have passed but he has neither been designated as driver nor salary of driver has been paid to him by the respondents. The petitioner is still working as driver and on 1.3.1994 the petitioner has been deputed to operate Jeep No.U.S.J. 5403 in Third Zone for recovery of revenue. It is further stated in para 11 of the writ petition that according to the service rule the petitioner is entitled for promotion if he deserves. The petitioner is holding a valid licence and he is working as driver by the order of respondents. He is also entitled for designation as driver and entitled for salary of driver in pay scale of Rs. 950/- to 1500/- admissible to the post of Driver. The action of respondents in denying the aforesaid benefit of service to the petitioner is arbitrary and illegal and not justified under law.
4. A detail counter affidavit has been filed in the writ petition, wherein the appointment of petitioner as Beldar in pay scale of Rs. 165/- to 215/- on 1.9.1980 in a temporary capacity has not been disputed. It is also not disputed that petitioner had driving licence and he was asked to drive the Jeep by Chief Engineer. In reply to para 3 of the writ petition it is stated that the petitioner was transferred to Project Department and was directed to drive the vehicle by Director, City Cleaning. In para 7 of the counter affidavit it has been stated that the petitioner was never promoted as driver in spite of recommendation but he was paid an extra allowances for driving the vehicle. He was regularly paid the allowance of Rs.200/- per month. In para 9 of the counter affidavit although it appears that the facts stated in para 7,8 and 9 of the writ petition were admitted but in para 11 of the counter affidavit in reply to the para 11 of the writ petition it is stated that the substantive post of petitioner was of Beldar and in lieu of his services as a driver he was paid an extra allowances of Rs.200/- per month. The petitioner having accepted the extra allowances for driving the vehicle cannot claim the salary admissible to the post of driver and for regularisation of his services as a driver.
5. It appears that the petitioner has filed a supplementary rejoinder affidavit, whereby certain more new facts have been incorporated basically in para 3,5 and 6 of the affidavit as under :
"3. That petitioner has served the order on 21.3.2003 along with Hon'ble court order dated 7.3.2003 as well as numbers of juniors namely Noor Mohammad, Sabbir, Balram Sri Mishra, Akhilesh Singh, Gulab Singh, Ramakant Tripathi and other have been given cadar of the driver from the post of Beldar as well as getting salary of the post of driver, however the petitioner continuously discharging the duty of the post of driver since 1985 with full satisfaction of the authority. The Photostat copy of receiving dated 21.3.2003 is being filed here with and marked as Annexure no.1.
5. That in reply of contents of paragraph nos. 3 and 4 of the supplementary counter affidavit as stated partly correct and rest is denied. It is further submitted that the post of Beldar and Safai Karmchari are from the categories of class 4 with the same pay scale as well as number of Majadoor and Beldar has been promoted on the post of driver after considering experience of driving who have driving licence.
6. That in reply of contents of paragraph no. 5 of the supplementary counter affidavit as stated needs no comment. It is further submitted that respondents had adopted pick and chose policy in regard of promotion for the post of driver as given promotion Madho Raj, Akhilesh Singh, Dooth Nath, Gulab Singh, RamakantTripathi, NoorMohammad and Rampal Tiwari got promotion on the post of driver from the post of Safai Karmachari and Beldar (Class IV) and all of them are junior to the petitioner, however petitioner's case has not been considered for the promotion of the post of driver as continuously discharging the duty for the post of driver since 1985 and the above stated persons also having no any qualification of High School."
6. It appears that after exchange of aforesaid affidavits, this Court vide order dated 7.3.2003 has directed the respondents to furnish certain more information in details to the court by filing supplementary counter affidavit in the writ petition alongwith the Rules, Regulations of the Nagar Mahapalika having bearing with the issue as under:
"Heard counsel for the parties.
The petitioner was appointed as a Beldar IVth Class employee in Nagar Maha Palika, Kanpur Nagar on 3.5.1980. The petitioner was experienced vehicle driver having valid driving licence and he was promoted casually to operate the vehicle i.e. Jeep No. 5592 and he was being paid allowance for driving the vehicle. On 21.9.1989 the Executive Engineer sent a recommendation for the promotion of the petitioner from the post of Beldar to the post of Driver and as such the petitioner was performing the work of driver from 21.9.1989 (Annexure-2 to the writ petition). The Project Officer on the application of the petitioner also on 15.4.1993 had sent a recommendation to the Administrator, Nagar Mahapalika, Kanpur Nagar recommending the case of the petitioner to the post of Driver. The copy of the recommendation dated 15.9.1994 is Annexure- 4 to the writ petition. On 31.5.1994 the representation of the petitioner dated 3.4.1993, the Administrator referred the matter for promotion of the petitioner to the Mukhya Nagar Adhikari but the petitioner was not promoted. However, the petitioner again submitted a representation on 7.6.1994 giving assertion that the petitioner after working as a driver from more than 10 years and his juniors who were appointed as a beldar have been promoted as a driver and subsequently it was mentioned that one Madho Raj who was appointed as a Safai Mazdoor in the year 1992 has been promoted as a driver on 2.6.1994.
The averment of the petitioner that a junior Beldar/Safai Mazdoor appointed subsequently in the year 1992 was transferred to the post of Driver by the order dated 2.6.1994 has not been denied in the counter affidavit. Now the respondent has to apprise this court under what circumstances the similarly situated persons had been given chance while the petitioner who is senior to Madha Raj and working for the last twelve years as a driver has been deprived of his appointment to the post of driver. How this discriminatory treatment was adopted and how the services of the petitioner as a driver was ignored.
Now Executive Officer/Mukhya Nagar Adhikari, Kanpur Nagar has to file his personal affidavit and also state that how many posts of driver are available and how many persons are working and the provisions/rules/regulations of the Nagar Mahapalika has also to be apprised to this court in addition to the filing of response by way of affidavit. It is expected that Mukhya Nagar Adhikari, Nagar Mahapalika, Kanpur will give assistance as indicated above.
List this matter on 16th April for further hearing."
7. It appears that in compliance of the aforesaid order dated 7.3.2003 passed by this court two supplementary counter affidavits have been filed on behalf of the respondents one sworn by Sri R.N. Ram working as Nagar Ayukta known as Mukhya Nagar Adhikari, Nagar Mahapalika, Kanpur Nagar and another by Sri Mahatma Prasad working as Project Officer impleaded as respondent no.3 in the writ petition, whereby information sought by the court has been furnished and stand taken by respondents were also clarified. In para 5 of the supplementary counter affidavit sworn by Sri R.N. Ram it is stated that the post of driver is to be filled up by direct recruitment and the appointment of qualified persons who have driving licence and have worked as a driver for three years and also have knowledge of reading and writing Hindi language can be made after holding selection. A Government Order with regard to the mode of recruitment for appointment of driver is filed as Annexure-1 to the supplementary counter affidavit. In para 6 of the supplementary counter affidavit a clarification has been made with regard to the eligibility and mode of recruitment on the post of driver. It is also made clear that Class IV staff who have passed High School and fulfil the qualification prescribed by the State Government are eligible for promotion in Class -III category posts i.e. Clerk and typist etc., if a person is working as Beldar and fulfils the qualification for any higher post he can be promoted in Class-III post i.e. Clerk, typist etc.. Beldar has no channel of promotion on the post of Driver. However if the driver is eligible and qualified for any higher post, he may apply for selection in open competition, they have no channel of promotion. In para 7 of the aforesaid supplementary counter affidavit it has been further stated that at present there are about 19 vacancies on the posts of driver. It is open for the petitioner to apply for the post and if he fulfils the eligibility conditions for the post of driver, he may apply along with other staff. The petitioner has never been appointed as a driver. His substantive post is of Beldar.
8. In another supplementary counter affidavit sworn by Sri Mahatma Prasad the stand taken on behalf of respondents has been stated in paragraphs 5,7,8 and 9 of supplementary counter affidavit as under :
"5. That in reply to para 3 of the affidavit, it is submitted that Noor Mohd., Sabbir, Balrm, Shri Mishra, Akhilesh Singh, Gulab Singh, Ramakant Tripathi and no person junior to the petitioner in his cadre as Beldar/Safai Mazdoor has been appointed as driver by promotion. The persons mentioned were working as driver and were appointed as driver on temporary basis and have been duly selected as driver by Selection Committee. The petitioner can appear in the selection for the post of driver, if he fulfills the eligibility conditions of the driver and selected by the Selection Committee. There are still 19 vacancies for the post of driver and the petitioner can appear for the selection. It is denied that the petitioner has been working as driver since 1985. Since the petitioner knows driving his services were utilized occasionally and was paid the allowance of driver. The scale of pay of the driver is higher than the Class IV Staff.
7. That the facts stated in para 5 of the affidavit are not correct as alleged and are denied. The post of driver is filled by persons who fulfil the essential eligibility conditions. The post of driver is a directly recruited post and appointment is made of qualified persons who have driving licence and has worked as a driver for 3 years and also has knowledge of reading and writing Hindi Language. The post of Beldar and Safai Mazdoor are from different Class IV category and the promotion to the next higher Class III post is made from the eligible persons according to the availability of vacancy. That although the post of driver is a class IV post but the scale of pay is higher.
8. That the facts as stated in para 6 of the affidavit are not admitted and are denied. As has already been stated the persons mentioned by the petitioner are not junior to the petitioner. They appeared in the selection for the post of driver and were appointed as driver. The petitioner has not been selected as driver by the Selection Committee. The petitioner knew driving as such occasionally he was asked to drive the vehicle and was paid allowance for the period he performed the duty of driver.
9. That in reply to para 7 of the affidavit, it is submitted that no person junior to the petitioner has been promoted as driver. The post of driver is a directly recruited post and the persons mentioned by the petitioner were not promoted but applied for the selection and were selected by the Selection Committee."
9. On the basis of pleadings of the parties and materials available on record the learned counsel for the petitioner has submitted that in view of clear cut averment made in paragraph 9 of the writ petition that one Sri Madho Raj who was appointed as Safai Mazdoor in the year 1992 has been promoted as driver on 2.6.1994 by respondent no. 1 and in the counter affidavit the aforesaid allegation has neither been denied nor the aforesaid fact has been disputed by the respondents. In para 10 of the writ petition it has been averred that the petitioner is working as driver since 14.9.1984 continuously. Now more than 20 years have passed the petitioner has neither been designated as driver nor the salary of the driver has been paid to him by the respondents. Therefore, he is also entitled to be promoted as driver and to be paid his salary on the aforesaid post even on principle of equal pay for equal work. In support of his submissions learned counsel for the petitioner has placed reliance upon decisions of Madhav Prasad Dubey Vs. The Executive Engineer, Public Works Department, Allahabad and others, 1999(2) E.S.C. 1378(All.), R.K. Dubey Vs. State of U.P. and others, 2000 (2) E.S.C. 785(All.) and a decision of Apex Court rendered in Gujarat Agricultural University Vs. Rathod Labhu Bechar and others, AIR 2001 Supreme Court 706. The submissions made by learned counsel for the petitioner at the strength of the aforesaid rulings appears to be misconceived and misplaced for the reasons given herein after.
10. Heard Sri A. K. Tiwari, learned counsel for the petitioner and Sri Lal Ji Sinha for the respondents.
11. Having heard learned counsel for the parties and on perusal of records the first question arises for consideration before this court is that in given facts and circumstances of the case as to whether the petitioner while working on the post of Beldar is entitled to be promoted on the post of Driver and further since the work of driver is being taken from him as to whether he is entitled for salary of driver or not? And as to whether on that count he is entitled to be treated and designated as driver or not? In this connection before adverting the arguments advanced by learned counsel for the parties it is necessary to point out that recruitment on any post or service is normally governed by statute i.e. enactment or statutory rules or in absence thereof by Administrative instructions or circulars or office orders issued from time to time, whatever names it may be called. Thus first of all it is necessary to examine as to whether there exist any statute or Government order/circular regulating the recruitment of Driver. In this regard it is necessary to point out that it is not in dispute that Governor of State of U.P. has issued an order notified in Gazette dated 1.3.1963 in exercise of power conferred under the provisions of Section106 and Section109 of U.P. Nagar Mahapalika Adhiniyam, 1959 under the name and style of The Uttar Pradesh Nagar Mahapalika Services (Designations, Scales of Pay, qualifications, Conveyance Allowance and Method of Recruitment) Order 1963. This Government order is of statutory nature, having sanction and backing of the aforesaid provisions of Adhiniyam. Hindi version of relevant extract of it along with schedule has been filed along with supplementary counter affidavit sworn by Sri R.N. Ram. Clause 3 of Government order provides that the servants of Mahapalika shall be grouped into services mentioned in the schedule. Clause-7 provides that qualifications for recruitment to various posts in the Mahapalika shall be such as are given in the schedule. Clause-8 provides that no person shall be appointed to any of the posts created under section 106 unless he fulfils the qualifications and experience mentioned in the schedule against the post provided that exemption may be granted in special cases by the Appointing Authority with certain conditions need not to be referred in detail. In the relevant part of the schedule attached with the aforesaid Govt. Order, against the post of Lory, Truck or Tractor Driver it is provided that, besides having driving lincence there must be three years driving experience and person must read and write in Hindi language. In the column of mode of recruitment it is mentioned as direct recruitment. Thus from the aforesaid provisions of Govt.Order it is clear that the post of driver is liable to be filled up through direct recruitment method from amongst the eligible and qualified persons. The same cannot be filled up by promotion of Beldar. Thus in my considered opinion the assertion made by respondents in this regard in the supplementary counter affidavit finds supports from the provisions of statutory Govt.Order referred herein before and no exception can be drawn in this regard for taking different and contrary view in the matter.
12. Now further question arises for consideration as to whether petitioner while working as Beldar can claim promotion on the post of driver on account of alleged promotion of one Madho Raj on the post of driver on 2.6.1994 who was appointed as Safai Mazdoor/Beldar in the year 1992 subsequent to the appointment of petitioner and was much junior to him on the ground of alleged discrimination? In order to examine this question it is necessary to examine factual back ground of the case first. The petitioner has come forward with the case in writ petition that certain persons named in affidavit, were junior to him appointed on the post of either Beldar or Safai Mazdoor which is Class IV post, but they were promoted on the post of driver. In reply thereto in the supplementary counter affidavits filed on behalf of the respondents a clear cut stand has been taken stating therein that Noor Mohd., Sabbir, Balram, Sri Misra, Akhilesh Singh, Gulab Singh, Ramakant Tripathi and no junior person to the petitioner in his cadre as Beldar/Safai Mazdoor has been given appointment as driver by promotion. The persons aforementioned were appointed as driver on temporary basis and have been duly selected as driver by selection committee. There are still 19 vacancies against the post of driver and the petitioner can appear for the selection. It is denied that the petitioner has been working as driver since 1985. Since the petitioner knows driving his services were utilized occasionally and was paid the allowances for driver. The scale of pay of driver is higher than class IV staff. It is further stated that the post of driver is filled by persons who fulfil the essential eligibility conditions. It is directly recruited post and appointment is made of qualified persons who have driving licence and have 3 years experience of driver and also have knowledge of reading and writing of Hindi Language. The post of Beldar and Safai Mazdoor are different class IV category post and promotion to the next higher class III post is made from the eligible persons according to availability of vacancy. Although the post of driver is also class IV post but it carries higher pay scale. It is also stated in para 8 of the supplementary counter affidavit that the persons mentioned by the petitioner are not junior to him with further statement of fact that they appeared in selection for the post of driver and they were selected and appointed on that post. The petitioner has not been selected as driver by selection committee. Since the petitioner knew driving as such occasionally he was asked to drive the vehicle and was paid allowances for the period he performed the duty of driver. In para 9 of the said supplementary counter affidavit it is stated that no person junior to the petitioner has been promoted as driver. The post of driver is directly recruited post and persons mentioned by the petitioner were not promoted but applied for selection and were selected by selection committee.
13. Thus in view of these clear and emphatic statement of facts made on behalf of the respondents in the supplementary counter affidavit filed by them in compliance of earlier order passed by this Court on 7.3.2003 referred herein before, clarifying the ambiguity in the statements as earlier made by the parties in their affidavits, in absence of any pleadings and proof of malafide against the respondents authorities, I have no reason to disbelieve aforesaid facts pleaded in the aforesaid supplementary counter affidavit and take different and contrary view in the matter and believe the disputed statement of facts pleaded by the petitioner . It has also never been the case of the petitioner that he has ever been selected and appointed on the post of driver on regular basis in substantive capacity rather it was throughout his case that he was appointed on the post of Beldar but he has been permitted to work as driver since 1984 and continuously working as such on casual basis. He was recommended for promotion on the post of driver by the authorities but no order promoting him was passed. Although he is working on the post of driver but the salary of aforesaid post is not being paid to him. Thus in back drop of these facts and situation the claim of the petitioner for promotion on the post of driver being contrary to the statutory provisions of law referred herein before cannot be accepted.
14. Now viewing the matter from different angles it is necessary to point out that assuming for the sake of arguments if the allegation of the petitioner that persons juniors to him who were appointed as Beldar and Safai Mazdoors were promoted on the post of driver and one Madho Raj who was appointed as Safai Mazdoor in the year 1992 was promoted on the post of driver on 2.6.1994 was admitted by the respondents as correct, a question arises as to whether that admission of the respondents in original counter affidavit would alone be sufficient ground for grant of relief to the petitioner on account of alleged discrimination? In this connection it is necessary to point out that after clarification sought by this Court vide order dated 7.3.2003, when detail supplementary counter affidavits were filed clarifying the whole situation in that eventuality the admission made in para 9 of the original counter affidavit in reply to the averments made in para 9 of the writ petition has lost its efficacy and can be of no legal consequence in support of the claim of the petitioner but even if such admission still survives and is taken to be into account the question would arises that what would be its effect with regard to the claim of the petitioner ?
15. In this connection it is necessary to point out that from the perusal of Annexure 7 of the writ petition which is order dated 2.6.1994 passed by Up Nagar Adhikari, Karmik, Kanpur Nagar Nigam, in compliance of order of Administrator Nagar Nigam dated 22.2.1994 whereby Sri Madho Raj Safai Mazdoor was transferred against clear vacancy of driver in the workshop department with stipulation that his cadre would be of driver. Except the aforesaid order there is no other material evidence on record to show that how this order of transfer was made posting Safai Mazdoor on the post of driver and as to whether it was made after his due selection on the post of driver and pursuant order dated 22.2.1994 was passed by administrator or it was passed promoting him on the aforesaid post by way of transfer but from the perusal of Annexure 7 of the writ petition there is nothing to indicate that Sri Madhoraj was promoted from the post of Safai Mazdoor to the post of driver as alleged by the petitioner in para 9 of the writ petition. The onus of proof was upon the petitioner to establish his allegation by placing actual order of Administrator dated 22.2.1994 on record, but he has failed to place the aforesaid order of Administrator before the Court. The order dated 2.6.1994 does not recite the word promotion although, the distinction between the expressions transfer, posting, appointment and promotion is well known in service law jurisprudence. Thus the averments made by respondents in two supplementary counter affidavits appears to be correct and persons named by the petitioner have been appointed on the post of driver after due selection by selection committee and since the petitioner did not face selection for the post of driver nor he claims so, as such cannot blame for such alleged discriminatory treatment met to him against aforementioned persons and Sri Madhoraj. Therefore, it can be safely held that the petitioner has failed to substantiate his aforesaid ground of alleged discrimination.
16. However, even assuming the fact in absence of denial, in the counter affidavit that Sri Madhoraj who was admittedly junior to the petitioner and was promoted on the post of driver contrary to the rules as the provisions of the aforesaid Govt.Order which governs the recruitment of driver does not permits such promotion from the post of Beldar or Safai Mazdoor to the post of driver as correct, nevertheless there can be no hesitation to hold that such alleged promotion of Madhoraj is contrary to the statutory rules referred herein before. Further question arises for consideration as to whether the petitioner can also seek his promotion contrary to the aforesaid statutory rules? In this connection it is necessary to point out that similar question has received consideration of Hon'ble Apex Court at several occasions. It would be useful to refer some decisions in this regard, herein after.
17. In Chandigarh Administration and another Vs. Jagjit Singh and another, AIR 1995 S.C. 705 in para 8 of the decision Hon'ble Apex Court held as under :
"8. . . . . . . . . . . . Generally speaking, the mere fact that the respondent-authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order. The extra-ordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent-authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law- indeed, wherever it is possible, the court should direct the appropriate authority to correct such wrong orders in accordance with law- but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent-authority to repeat the illegality, the court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law. Of course, if in case the order in favour of the other person is found to be a lawful and justified one it can be followed and a similar relief can be given to the petitioner if it is found that the petitioner's case is similar to the other person's case. But then why examine another person's case in his absence rather than examining the case of the petitioner who is present before the court and seeking the relief. It is not more appropriate and convenient to examine the entitlement of the petitioner before the court to the relief asked for in the facts and circumstances of his case than to enquire into the correctness of the order made or action taken in another person's case, which other person is not before the Court nor is his case. In our considered opinion, such a course - barring exceptional situations - would neither be advisable nor desirable. In other words, the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and legal, in accordance with relevant legal principles. The orders and actions of the authorities cannot be equated to the judgments of the Supreme Court and High Courts nor can they be elevated to the level of the precedents, as understood in the judicial world. (What is the position in the case of orders passed by authorities in exercise of their quasi-judicial power, we express no opinion. That can be dealt with when a proper case arises)."
18. The similar view has also been taken by Hon'ble Apex Court in State of Bihar and others Vs. Kameshwar Prasad Singh and another, J.T. 2000 (5) S.C. 389. In paragraph 30 of the decision Hon'ble Apex Court has considered the several earlier decisions rendered by Supreme Court and has held that any illegality committed by department in favour of any person cannot be made ground and basis to claim parity under Article 14 of the Constitution of India, and no writ, order or direction can be issued by the High Court under Article 226 of the Constitution of India unless the person approaches the court substantiates his claim on independent legal basis. For ready reference Para 30 of the decision is reproduced as under :
"30. The concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals other cannot claim the same illegality or irregularity on ground of denial thereof to them. Similarly wrong judgment passed in favour of one individual does not entitle others to claim similar benefits. In this regard this Court in Gursharan Singh & Ors. Vs. N.D.M.C. & others (JT 1996 (1) SCC 647 =1996 (2) SCC 459) held that citizens have assumed wrong notions regarding the scope of Article 14 of the Constitution which guarantees equality before law to all citizens. Benefits extended to some persons in an irregular or illegal manner cannot be claimed by a citizen on the plea of equality as enshrined in Article 14 of the Constitution by way of writ petition filed in the High Court. The Court observed:
"Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination."
Again in Secretary, Jaipur Development Authority, Jaipur Vs. Daulat Mal Jain & others (JT 1996 (8) SC 387 = 1997 (1) SCC 35) this Court considered the scope of Article 14 of the Constitution and reiterated its earlier position regarding the concept of equality holding:
"Suffice it to hold that the illegal allotment founded upon ultra vires and illegal policy of allotment made to some other persons wrongly, would not form a legal premise to ensure it to the respondent or to repeat or perpetuate such illegal order, nor could it be legalized. In other words, judicial process cannot be abused to perpetuate the illegalities. Thus considered, we hold that the High Court was clearly in error in directing the appellants to allot the land to the respondents."
In State of Haryana & others Vs. Ram Kumar Mann (JT 1997 (3) SC 450=1997 (3) SCC 321) this Court observed:
"The doctrine of discrimination is founded upon existence of an enforceable right. He was discriminated and denied equality as some similarly situated persons had been given the same relief. Article 14 would apply only when invidious discrimination is meted out to equals and similarly circumstanced without any rational basis or relationship in that behalf. The respondent has no right, whatsoever and cannot be given the relief wrongly given to them, i.e., benefit of withdrawal of resignation. The High Court was wholly wrong in reaching the conclusion that there was invidious discrimination. If we cannot allow a wrong to perpetrate, an employee, after committing mis-appropriate of money, is dismissed from service and subsequently that order is withdrawn and he is reinstated into the service. Can a similarly circumstanced person claim equality under Section 14 for reinstatement? The answer is obviously "No". In a converse case, in the first instance, one may be wrong but the wrong order cannot be the foundation for claiming equality for enforcement of the same order. As stated earlier, his right must be founded upon enforceable right to entitle him to the equality treatment for enforcement thereof. A wrong decision by the Government does not give a right to enforce the wrong order and claim parity or equality. Two wrongs can never make a right.""
19. Thus from a close analysis of law laid down by the Hon'ble Apex Court in cases of Jagjit Singh (supra) referred herein before it is clear that merely because of the reason that respondent-authority has passed a particular order in case of another person similarly situated can never be the ground for issuing a writ in favour of petitioner on the plea of discrimination. The order in favour of other person might be legal and valid or it might not be that has to be investigated first before it can be directed to be followed in case of petitioner. If the order in favour of other person found contrary to law or not warranted in facts and circumstances of the case it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent authorities to repeat the illegality or to pass another unwarranted order. The Hon'ble Apex Court has further cautioned that giving effect to such plea of discrimination would be prejudicial to the interest of law and will do incalculable mischief to public interest. It would be negation of law and rule of law. If in case, the order in favour of other person is found to be a lawful and justified one it can be followed and a similar relief can be given to the petitioner if it is found that petitioner's case is similar to other persons' case. Hon'ble Apex Court went on saying that but further question would arise why another person's case would be examined, who is not present before the court instead of examining the petitioner's case, who is present before the court. Similarly in Kameshwar Prasad Singh's case (supra), the Hon'ble Apex Court held that when any authority is shown to have committed any illegality or any irregularity in favour of any individual or group of individuals other cannot claim the same illegality or irregularity on the ground of denial thereof to them, on plea of equality as enshrined in Article 14 of the Constitution by way of writ petition filed in the High Court, as neither Article 14 of the Constitution conceives such equality within its fold nor Article 226 empowers the High Court to enforce such claim. Enforcement of such claim would be amount to directing to continue and perpetuate an illegal procedure or illegal order for extending similar benefits to others. Before a claim based on equality is upheld, it must be established by the petitioner, that his claim being just and legal, has been denied to him, while it has been extended to others, in this process there has been a discrimination.
20. Now applying the aforesaid principle on the facts of the case, it would be seen that the petitioner did not claim his promotion from the post of Beldar to the post of driver under the rules of recruitment of the post of driver, which is to be filled up through direct recruitment alone and not by promotion but on the ground of alleged discrimination met to him. As a matter of fact there is no channel of promotion from the post of Safai Mazdoor or Beldar to the post of driver. Although both the posts are class IV posts but the post of driver carries slightly higher pay scale and it is selection post bears much responsibility and requires expertise. Thus the petitioner's claim for promotion is contrary to the aforesaid provisions of statutory rules contained in the Government Order of 1963. In case the claim of petitioner for promotion on the post of driver on the ground of alleged discrimination from Madhoraj who was Safai Mazdoor and junior to the petitioner allegedly promoted on 2.6.1994 on the post of driver is accepted, in that eventuality it would be amount issuing a direction for promotion contrary to the aforesaid statutory provisions of the rules by extending same benefit to the petitioner on account of alleged discrimination and that would be amount to directing the respondent to continue and perpetuate an illegal procedure for extending the similar benefit to the petitioner, which would be neither in consonance of principles enshrined under Article 14 of the constitution nor Article 226 empowers this court to enforce such claim of equality before law. Thus in my considered opinion no such direction for promotion of petitioner on the post of driver can be issued by this Court in exercise of writ jurisdiction under Article 226 of the Constitution of India.
21. Before coming to the next question a further question arises to be considered as to whether any direction for relaxing the rules of recruitment can be given by this Court or not? In this connection it is necessary to point out that the rules prescribing the eligibility, qualification and mode of recruitment of a particular post is sole domain of the employer and depending upon the rules of recruitment, which cannot be relaxed even by authorities concerned unless it is expressly provided under the rules itself. The Hon'ble Apex Court has considered similar controversy in case of Keshav Chandra Joshi and others Vs. Union of India and others, AIR 1991 S.C. 284. In para 32 of the decision the Apex Court has held as under :
"32. In those peculiar circumstances this Court though recognized that appointment according to rules is a condition precedent, adopted the rule of deemed relaxation and deemed promotion to the service in accordance with the rules. R.27 of the Rules gives power to the Governor that if he is satisfied that the operation of any rule regarding conditions of service of the members caused under hardship in a particular case; he may consult the Public Service Commission; not withstanding anything contained in the Rules and dispense with or relax the requirement of the conditions of service and extend the necessary benefit as is expedient so as to relieve hardship and to cause just and equitable results. The word "may" consult the Commission has been used in the context of discharge of statutory duty. The Governor is obligated to consult the Public Service Commission. Therefore, the word "may" must be construed as to mean "shall" and it is mandatory on the part of the Governor to consult the Public Service Commission before exempting or relaxing the operation of rule regarding conditions of the service of a member to relieve him from undue hardship and to cause just and equitable results. There is a distinction between "rules of recruitment" and "conditions of service". To become a member of the service in a substantive capacity, appointment by the Governor shall be preceded by selection of a direct recruit by the Public Service Commission; undergoing training in Forestry for two years in the College and passing Diploma are conditions precedent. If the contention of the promotees that rules of recruitment are conditions of service is accepted, it would be open to the Governor to say that "I like the face of ''A' and I am satisfied that he is fit to be appointed; I dispense with the rules of recruitment and probation and appoint ''A' straightway to the service in a substantive capacity as Assitt. Conservator of Forest. Take another instance. Passing the prescribed tests during probation is a condition of service. Similarly efficiency bar stands as an impediment for the promotee's confirmation. On consideration of the record and on objective satisfaction, in an appropriate case, the Governor may relax those or other similar conditions. So passing the tests prescribed is a condition of service. Therefore, the rule which effects the right to confirmation or similar provision is a condition of service. The rules relating to recruitment to the service either under R. 5(a) or 5(b) or the manner of recruitment to service as per Appendix ''A' or ''B' are basic rules of recruitment to service. Satisfaction of the Governor that the operation of the rules regarding the conditions of service would cause undue hardship in a particular case or cases and the need to relieve hardship and to cause just and equitable results is a pre-condition. Even otherwise the court cannot substitute its satisfaction to the satisfaction of the Governor in exercise of the power of deemed relaxation. In Narendra Chadha's case the power to relax was wide enough to cover ''any rule' and there was no pre-condition of objective satisfaction by the Governor. We hold that R. 5(a) and (b) and Appendices ''A' and ''B' are basis rules of recruitment and would not be subject to R. 27."
22. Similarly while relying upon the earlier decision in case of J. & K. Public Service Commission etc. Vs. Dr. Narinder Mohan and others, A.I.R. 1994 S.C. 1808 in para 9 of the decision the Apex Court has held as under :
"9. Moreover the proviso to Article 320 (proviso to S. 133 of J. & K. Constitution), though gives power to the State Government to specify case or class of cases in respect of which consultation with the Public Service Commission may be dispensed with still the recruitment shall be in compliance with either of the Art. 320 (1) and S. 133(1) of the J & K Constitution or by duly constituted body or authority. The rules or instructions should be in compliance with the requirements of Arts. 14 and 16 of the Constitution. The procedure prescribed shall be just, fair and reasonable. Opportunity shall be given to eligible persons by inviting application through the public notification and recruitment should be according to the valid procedure and appointment should be of the qualified persons found fit for appointment to a post or an office under the State. Therefore, it must be held that power of relaxation exercised by the Government is ultra vires the Rules and the High Court is right in holding that Government cannot relax the rules of recruitment to be made by the Public Service Commission. Government have no power to make regular appointment under the Rules without selection by the Public Service Commission under S. 133(1) read with Rule 5 and Schedule III of the Rules."
23. Thus in view of law laid down by the Apex Court, I am of the considered opinion that mode of recruitment on the post of driver is being basic rules of recruitment, can not be relaxed by the authorities concern otherwise it would lead to an anomalous and arbitrary results and would cause serious prejudice to so many others inasmuch as would also be in violation of Art. 14 and 16 of the Constitution. The relaxation of rules of recruitment except the relaxation of educational qualification as provided under the proviso to clause 8 of the aforesaid statutory rules 1963 is not permissible under law, therefore, no direction can be issued by this Court to the respondents-authorities to relax the mode of recruitment on the post of driver and permit the post to be filled by promotion from Safai Mazdoor and Beldar which is not prescribed mode of recruitment under the aforesaid rule. Such direction would be contrary to the statutory rule and would also be amount to legislation by the court creating another mode of recruitment contrary to the rules, therefore, no such direction can be issued by this court under Article 226 of the Constitution of India.
24. Now coming to the next question in given facts and circumstances of the case, as to whether the petitioner is entitled for regularisation on the post of driver or entitled to be designated as driver and payment of salary in the pay scale of driver? In this regard it is necessary to point out that for the sake of convenience the aforesaid question can be split into two parts. The first part of it would be that as to whether the petitioner is entitled for regularisation on the post of driver or to be designated as driver? In this regard only this much allegation has been made in the writ petition that while working on the post of Beldar the work of driver is being taken from him on casual basis since 1984 till now but inspite of recommendations of promotion made by the immediate officers, the competent authority did not pass formal order for promotion of the petitioner on the post of driver. At this juncture it is necessary to point out that regularisation has been recognized as one of the mode of recruitment in service law jurisprudence as such the same is dependent upon existence rule regarding the regularisation. In absence of such a rule of regularisation it is very difficult for the court to issue any writ, order or direction for regularisation of services of petitioner which would be amount to legislation by the court creating another mode of recruitment contrary to the existing rules of recruitment. In this connection it would be useful to refer some decision of Hon'ble Apex Court having material bearing on the issue herein after.
25. In Asif Hameed and others Vs. State of Jammu and Kashmir and others, A.I.R. 1989 SC 1899, Hon'ble Apex Court while examining the scope of judicial review under Articles 32 and 226 of the Constitution of India Vis-avis doctrine of separation of powers, has very categorically held in paragraphs 17 and 19 of the decision as under:
"17. Before adverting to the controversy directly involved in these appeals we may have a fresh look on the inter se functioning of the three organs of democracy under our Constitution. Although the doctrine of separation of powers has not been recognized under the Constitution in its absolute rigidity but the constitution maker have meticulously defined the functions
of various organs of the State. Legislature, executive and judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another. The Constitution trusts to the judgment of these organs to function and exercise their discretion by strictly following the procedure prescribed therein. The functioning of democracy depends upon the strength and independence of each of its organs. Legislature and executive, the two facets of people's will, they have all the powers including that of finance, Judiciary has no power over sword or the purse nonetheless it has power to ensure that the aforesaid two main organs of State function within the constitutional limits. It is the sentinel of democracy. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The expanding horizon of judicial review has taken in its fold the concept of social and economic justice. While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the self imposed discipline of judicial restraint.
19. When the State action is challenged, the function of the Court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the Constitution and if not, the Court must strike down the action. While doing so the Court must remain within its self imposed limits. The Court sits in judgment on the action of a coordinate branch of the Government. While exercising power of judicial review of administrative action, the Court is not an appellate authority. The Constitution does not permit the Court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers."
26. Similarly, in Mullikarjuna Rao and others Vs. State of A.P. and others, AIR 1990 SC 1251, in para 12 of decision relying upon earlier decisions, the Hon'ble Apex Court has held that the High Court or the Administrative Tribunals cannot issue a mandate to the State Government to legislate under Article 309 of the Constitution of India. The Courts cannot usurp the functions assigned to the executive under the Constitution and cannot even indirectly require the executive to exercise its rule-making power in any manner. The Courts cannot assume to itself a supervisory role over the rule making power of the executive under Article 309 of the Constitution of India.
27. Similar view has also been taken by the Hon'ble Apex Court in Chandigarh Administration and another Vs. Manpreet Singh and others, AIR 1992 SC 435. In para 20 of the aforesaid decision also Hon'ble Apex Court has held that the Courts cannot assume role of rule-making authority and cannot also act as appellate authority over rule-making authority.The Courts cannot usurp the functions assigned to the executive authority over the rule-making power. In case of State of Haryana and others Vs. Piara Singh and others, AIR 1992 SC 2130, Hon'ble Apex Court has taken a note of earlier cases of Dharwad District P.W.D. Literate Daily Wage Emploees Association Vs. State of Kerala, AIR 1990 SC 883 and Jacob Vs. Kerala Water Authority and others, AIR 1990 SC 228. In the earlier case a direction has been issued to regularise the casual and daily rated employees, who have completed ten years service by 31st December, 1989. Guidelines were also issued for regularisation and in the later case while issuing guidelines for regularisation to the employees of certain length of service, other guidelines have also been issued for consideration of their claim for regularisation as well as for relaxation of their age in regular recruitment, but in para 19 of the judgment the Hon'ble Apex Court has held that blanket directions by the High Court for regularisation of all the work-charged, daily wage workers and casual labourers, who are not workmen under the Industrial Disputes Act, on completion of one year, are unsustainable and similar directions to regularise the persons of the above categories, who are workmen, on completion of 4 or 5 years of service, are also unsustainable. But in para 25 of the decision it is further observed that efforts should be made to regularise such daily wage, casual and work-charge employees as far as possible and as early as possible subject to fulfillment of qualifications prescribed for the post and availability of the work.
28. In J. & K. Public Service Commission etc. Vs. Dr. Narinder Mohan and others, AIR 1994 SC 1808, in para 11 of the decision Hon'ble Apex Court has held that the directions issued by this Court from time to time for regularisation of adhoc appointments, are not ratio of the decision, rather the aforesaid directions were to be treated under Article 142 of the Constitution of India and ultimately held that the High Court is not right in placing reliance on the judgment as a ratio to give the direction to the Public Service Commission to consider the cases of the respondents of the aforesaid case. For ready reference the observations made by the Hon'ble Apex Court in paragraph 11 of the decision is reproduced as under :
"11. This Court in Dr. A.K. Jain Vs. Union of India, 1988 (1) SCR 335, gave directions under Article 142 to regularise the services of the adhoc doctors appointed on or before October 1, 1984. It is a direction under Article 142 on the particular facts and circumstances therein. Therefore, the High Court is not right in placing reliance on the judgment as a ratio to give the direction to the P.S.C. to consider the cases of the respondents. Article 142 - power is confided only to this Court. The ratio in Dr. P.C.C. Rawani Vs. Union of India,(1992) 1 SCC 331, is also not an authority under Article 141. Therein the orders issued by this Court under Article 32 of the Constitution to regularise the adhoc appointments had become final,. When contempt petition was filed for non-implementation, the Union had come forward with an application expressing its difficulty to give effect to the orders of this Court. In that behalf, while appreciating the difficulties expressed by the Union in implementation, this Court gave further direction to implement the order issued under Article 32 of the Constitution. Therefore, it is more in the nature of an execution and not a ratio under Article 141. In Union of India Vs. Gian Prakash Singh, JT 1993 (5) SC 681 this Court by a Bench of three Judges considered the effect of the order in A.K. Jain's case and held that the doctors appointed on adhoc basis and taken charge after October 1, 1984 have no automatic right for confirmationand they have to take their chance by appearing before the P.S.C. for recruitment. In H.C. Puttaswamy Vs. Hon'ble Chief Justice of Karnataka AIR 1991 SC 295 : (1991 Lab IC 235), this Court while holding that the appointment to the post of clerk etc. in the Subordinate Courts in Karnataka State without consultation of the P.S.C. are not valid appointments, exercising the power under Article 142, directed that their appointments as a regular, on humanitarian grounds, since they have put in more than 10 years service. It is to be noted that the recruitment was only for clerical grade (Class-III post) and it is not a ratio under Article 141. In State of Haryana Vs. Piara Singh, (AIR 1992 SC 2130), this Court noted that the normal rule is recruitment through the prescribed agency but due to administrative exigencies, an adhoc or temporary appointment may be made. In such a situation, this Court held that efforts should always be made to replace such adhoc or temporary employees by regularly selected employees, as early as possible. Therefore, this Court did not appear to have intended to lay down as a general rule that in every category of adhoc appointment, if the adhoc appointee continued for long period, the rules of recruitment should be relaxed and the appointment by regularisation be made. Thus considered, we have no hesitation to hold that the direction of the Division Bench is clearly illegal and the learned Single Judge is right in directing the State Government to notify the vacancies to the P.S.C. and the P.S.C. should advertise and make recruitment of the candidates in accordance with the rules."
29. Thus in view of settled legal position discussed herein before it is necessary to point out that in absence of necessary foundation in writ petition supported by material and in absence of rule of regularisation neither any direction for regularisation nor any direction to designate the petitioner as driver can be given by this Court only on account of the existence of vacancies on the post of Driver. In my considered opinion, issuance of such direction would be amount to legislation by court contrary existing statutory rules of recruitment referred herein before.
30. Now next question arises for consideration as to whether in given facts and circumstances of the case, the petitioner is entitled for salary in the pay scale of driver? In this connection before I proceed to examine factual aspect of the matter it is necessary to refer some recent decision of the Apex Court wherein the question in issue have received consideration of the Apex Court. In State of Haryana Vs. Surinder Kumar and others, AIR 1997 S.C. 2129, in para 5 of the decision observations made by the Hon'ble Apex Court is reproduced as under :
"5. Shri Manoj Swarup, learned counsel for the respondents, contends that the posts held by the respondents are interchangeable and in fact they have been interchanged to enable them to hold the posts. That contention cannot be given acceptance for the reason that since the respondents were appointed on contract basis on daily wages, they cannot have any right to a post as such until they are duly selected and appointed. Merely because 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 rules prescribed for recruitment. Obviously the respondents' recruitment was not made in accordance with the rules. This Court has also pointed out in State of Haryaya Vs. Jasmer Singh, 1996 (10) JT (SC) 876 in that behalf. If any illegal actions have been taken by the officers after recruitment, it would be a grave matter of indiscipline by the officers and the higher authorities are directed to look into the matter and see that such actions are rectified, but that would not be a matter for this Court to give legitimacy to illegal acts done by the officers and to grant relief on the basis of wrong or illegal actions of superior officers. The appropriate authority would look into and take suitable disciplinary action against the erring officers and submit the report of the action taken and the result thereof to the Registry of this Court."
31. In case of State of Haryana and another Vs. Haryana Civil Secretariat Personal Staff Association, JT 2002 (5) SC 189 while dealing with doctrine of "equal pay for equal work" in paras 8 and 9 of the decision, Hon'ble Apex Court has held as under :
"8. From the discussions in the impugned judgment it is clear to us that the High Court has ignored certain settled principles of law for determination of the claim on parity of pay scale by a section of Government employees. While making copious reference to the principle of equal pay for equal work and equality in the matter of pay, the High Court overlooked the position that the parity sought by the petitioner in the case was with employees having only the same designation under the Central Government. Such comparison by a section of employees of State Government with employees of Central Government based merely on designation of the posts was misconceived. The High Court also fell into error in assuming that the averment regarding similarity of duties and responsibilities made in the writ petition was unrebutted. The appellants in their counter affidavit have taken the specific stand that no comparison between the two sections of employees is possible since the qualifications prescribed for the P.A.s in the Central Secretariat are different from the P.A.s in the State Civil Secretariat. Even assuming that there was no specific rebuttal of the averment in the writ petition that could not form the basis for grant of parity of scale of pay as claimed by the respondent. The High Court has not made any comparison of the nature of duties and responsibilities, the qualifications for recruitment to the posts of P.A.s in the State Civil Secretariat with those of P.A.s of the Central Secretariate."
"9. This Court in the case of Secretary, Finance Department and others Vs. West Bengal Registration Service Association and others, dealing with the question of equation of posts and equation of salaries of Government employees, made the following observations:
''...................Courts must, however, realize that job evaluation is both a difficult and time consuming task which even expert bodies having the assistance of staff with requisite expertise have found difficult to undertake sometimes on account of want of relevant data and scales for evaluating performances of different groups of employees............. Ordinarily a pay structure is evolved keeping in mind several factors, e.g. (i) method of recruitment, (ii) level at which recruitment is made, (iii) the hierarchy of service in a given cadre, (iv) minimum educational/technical qualifications required, (v) avenues of promotion, (vi) the nature of duties and responsibilities, (vii) the horizontal and vertical relativities with similar jobs, (viii) public dealings, (ix) satisfaction level, (x) employer's capacity to pay, etc.. . . . . . . . .There can, therefore, be no doubt that equation of posts and equation of salaries is a complex matter which is best left to an expert body unless there is cogent material on record to come to a firm conclusion that a grave error had crept in while fixing the pay scale for a given post and Court's interference is absolutely necessary to undo the injustice."
32. In the case of State of Haryana and another Vs. Tilak Raj and others, JT 2003 (5) SC 544, Hon'ble Apex Court has occasion to consider the doctrine of equal pay for equal work again in context of daily wages helpers of Haryana Roadways. While taking note of earlier decision rendered in case of Federation of All India Customs and Central Excise Stenographers (Recognised) and others Vs. Union of India and others, AIR 1988 SC 1291; State of U.P. Vs. J.P. Chaurasia, AIR 1989 SC 19; Harbans Lal Vs. State of Himachal Pradesh, JT 1989 (3) SC 296; Ghaziabad Development Authority Vs. Vikram Chaudhary, AIR 1995 SC 2325; State of Haryana and others Vs. Jasmer Singh and others, AIR 1997 SC 1788, the Apex Court has set aside the judgment and order of High court under challenge and in para 11 of the decision held that appellant State has to ensure that minimum wage prescribed for such worker may be paid to the respondents. The observation made in para 10 of the judgment is apt to be reproduced as under:
"10. A scale of pay is attached to a definite post and in case of a daily wager, he holds not 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-à-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."
33. Now applying the law laid down by the Hon'ble Apex Court on the facts of the case, it is necessary to point out again, that it is no where case of the petitioner that he has ever been appointed on the post of driver, rather it is alleged that while working on the post of Beldar he was asked to drive the vehicle since 1984, since then he is continuously discharging the duties of driver but salary in the pay scale of driver is not being paid to him. Contrary to it the respondents have taken stand in their counter and supplementary counter affidavits that although the post of Beldar and driver both are class-IV category posts, but the post of driver carries slightly higher pay scale. The petitioner has never been selected and appointed on the post of driver. Since he knew the driving and holding driving lincence, therefore, he was occasionally asked to drive the vehicle for which period extra-allowances of Rs. 200/- per month was paid to him and he accepted the same, therefore, he cannot claim same pay scale admissible to the post of driver.
34. Thus in view of law laid down by Hon'ble Apex Court, it is very difficult to hold that the petitioner has pleaded necessary facts and placed the materials on records so as to enable the court to grant the relief of similar pay scale admissible to the post of driver. On the basis of admitted and undisputed facts, I have no hesitation to hold that since the petitioner has never been selected and appointed on the post of driver on regular basis and a particular pay scale is attached to particular post, unless a person holds such post according to law, he cannot claim the pay scale of that post, since the petitioner does not hold the post of driver after his due selection according to the relevant rules of recruitment referred herein before, merely because he was asked to drive the vehicle occasionally on casual basis for which he was paid extra-driving allowance of Rs. 200/- per month in addition to his salary on the post of Beldar, and he accepted the same, therefore, he cannot legitimately claim the pay scale attached to the post of driver, therefore, in absence of other relevant pleadings and proof, in connection of eligibility, qualification, discharge of similar and identical duties and responsibilities merely because some how he managed to work on the post of driver can not entitle him to claim the same pay scale as admissible to the post of driver. The case law upon which the learned counsel for petitioner has placed reliance in support of his case namely R.K. Dubey Vs. State of U.P. and others, 2000(2) E.S.C. 785 (Alld.) is distinguishable on facts hence can be of no assistance to the case of petitioner. Similarly in Gujrat Agriculture University Vs. Rathod, Labhu Bechar & others A.I.R. 2001 S.C. 705 a total altogether different scheme of regularisation of the daily wages workers and emoluments payable to them were under consideration before Hon'ble Apex Court, therefore, the same is also distinguishable on facts and cannot be any assistance to the case of petitioner. Likewise the case of Madhav Prasad Dubey 1999(2) E.S.C. 1878 (All.) relied by learned counsel for petitioner has no application to the facts case of petitioner.
35. In view of aforesaid discussions, I am of the considered opinion that petitioner has hardly made out any case so as to call for any interference of this court under Article 226 of the Constitution of India. In the result writ petition fails and dismissed.
36. However I would like to observe that dismissal of this writ petition will not prevent the competent appointing authority to relax the qualification of the post of driver having regard to the period of services rendered by the petitioner as driver on casual basis while permitting him in the next selection on the post of driver if the selection is to be held in near future against available vacancies.
37. There shall be no order as to costs.
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