WPSS/422/2017 of MUNNA LAL Vs STATE OF UTTARAKHAND THROUGH PRINCIPAL SECRETARY, EDUCATION,

HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition (S/S) No. 422 of 2017

Munna Lal and others

……Petitioners

State of Uttarakhand and others

… Respondents

Advocates : Mr. Subhash Upadhyay, Advocate, for the petitioners. Mr. N.S. Pundir, Deputy Advocate General for the State.

Hon’ble Sharad Kumar Sharma, J.

Brief facts of the case are that the petitioners have come up with the case, that they are working with the respective respondents/Government Inter Colleges, as Class IV employee on the respective posts of Sweeper, as well as, Chaukidars, as against the respective date of appointment as it has been detailed in the writ petition which normally pertains to the year 2012, except for that of petitioner no.1, who is working since 2010.

2. The petitioners contend, that it is not in dispute that in their respective capacity of their engagement, they have been satisfactorily and consistently working ever since 2012 and 2010 respectively. But despite of having requisite qualification and fulfilling all the eligibility criteria, to be appointed against the aforesaid post, the respondents have adopted an unfair labour practice of by taking the services from the petitioners, equivalent to that of the regular employee, who have been appointed against the respective post, without being adequately remunerating, the petitioners with the salary which could

have been made payable to them in the light of the principles laid down by the Hon’ble Apex Court in the judgment of State of Punjab and others vs. Jagjit Singh and others. The petitioners contends that they have been consistently representing their claim, before the respective principal’s who happens to be their appointing authority, but their claim has not been considered in the light of the directive issued in para – 44 of the judgment of the Hon’ble Apex Court as reported in (2017) 1 SCC 148, State of Punjab and others vs. Jagjit Singh and others. Particularly the reference has been made to para-44 of the said judgment which is extracted hereunder:-

44. We shall first outline the conclusions drawn in cases where claim for pay parity, raised at the hands of the temporary employees concerned was accepted by this Court by applying the principle of ‘equal pay for equal work’, with reference to regular employees:

(i) In the Dhirendra Chamoli case this Court examined claim for pay parity raised by temporary employees for wages equal to those being disbursed to regular employees. The prayer was accepted. The action of not paying the same wage despite the work being the same was considered as violative of Article 14 of the Constitution. It was held that the action amounted to exploitation – in welfare State committed to socialist pattern of society.

(ii) In the Surinder Singh case this Court held, that the right of equal wages claimed by temporary employees emerged, inter alia, from Article 39 of the Constitution. The principle of ‘equal pay for equal work’ was again applied, where the subject employee had been appointed on temporary basis, and the reference employee was borne on the permanent establishment. The temporary employee was held entitled to wages drawn by an employee on the regular establishment. In this judgment, this Court also took note of the fact, that the above proposition was affirmed by Constitution Bench of this Court, in D.S. Nakara case.

(iii) In the Bhagwan Dass case this Court recorded that in claim for equal wages, the duration for which an employee would remain (or had remained) engaged, would not make any difference. So also, the manner of selection and appointment would make no difference. And therefore, whether the selection was made on the basis of open competition or was limited to cluster of villages, was considered inconsequential, insofar as the applicability of the principle is concerned. And likewise, whether the appointment was for fixed limited duration (six months, or one year), or for an unlimited duration, was also considered inconsequential, insofar as the applicability of the principle of ‘equal pay for equal work’ is concerned. It was held that the claim for equal wages would be sustainable, where an employee is required to discharge similar duties and responsibilities as regular employees, and the employee concerned possesses the qualifications

prescribed for the post. In the above case, this Court rejected the contention advanced on behalf of the Government, that the plea of equal wages by the employees in question, was not sustainable because the employees concerned were engaged in temporary scheme, and against posts which were sanctioned on year to year basis.

(iv) In Daily Rated Casual Labour case this Court held, that under principle flowing from Article 38(2) of the Constitution, the Government could not deny temporary employee, at least the minimum wage being paid to an employee in the corresponding regular cadre, along with dearness allowance and additional dearness allowance, as well as, all the other benefits which were being extended to casual workers. It was also held, that the classification of workers (as unskilled, semi-skilled and skilled), doing the same work, into different categories, for payment of wages at different rates, was not tenable. It was also held, that such an act of an employer would amount to exploitation. And further that, the same would be arbitrary and discriminatory, and therefore, violative of Articles 14 and 16 of the Constitution.

(v) In State of Punjab v. Devinder Singh this Court held that daily wagers were entitled to be placed in the minimum of the pay scale of regular employees working against the same post. The above direction was issued after accepting, that the employees concerned were doing the same work as regular incumbents holding the same post, by applying the principle of ‘equal pay for equal work’.

(vi) In State of Karnataka case, Constitution Bench of this Court, set aside the judgment of the High Court, and directed that daily-wagers be paid salary equal to the lowest grade of salary and allowances being paid to regular employees. Importantly, in this case, this Court made very important distinction between pay parity and regularization. It was held that the concept of equality would not be applicable to issues of absorption/regularization. But, the concept was held as applicable, and was indeed applied, to the issue of pay parity – if the work component was the same. The judgment rendered by the High Court, was modified by this Court, and the concerned daily-wage employees concerned were directed to be paid wages, equal to the salary at the lowest grade of the cadre concerned.

(vii) In State of Haryana v. Charanjit Singh, three-Judge bench of this Court held, that the decisions rendered by this Court in State of Haryana v. Jasmer Singh, State of Haryana v. Tilak Raj, Orissa University of Agriculture & Technology case and State of W.B. v. Tarun K. Roy, laid down the correct law. Thereupon, this Court declared that if the daily-wage employees concerned could establish, that they were performing equal work of equal quality, and all other relevant factors were fulfilled, direction by Court to pay such employees equal wages (from the date of filing the writ petition), would be justified.

(viii) In State of U.P. v. Putti Lal, based on decisions in several cases (wherein the principle of ‘equal pay for equal work’ had been invoked), it was held, that daily-wager discharging similar duties, as those engaged on regular basis, would be entitled to draw his wages at the minimum of the pay-scale (drawn by his counterpart, appointed on regular basis), but would not be entitled to any other allowances or increments.

(ix) In the Uttar Pradesh Land Development Corporation case this Court noticed, that the respondents were employed on contract basis on consolidated salary. But, because they were actually appointed to perform the work of the post of Assistant Engineer, this Court directed

the employer to pay the respondents wages in the minimum of the pay-scales ascribed for the post of Assistant Engineer.

3. The fact that the petitioners are working as against the respective post, from their respective date of appointment as detailed in the writ petition are the facts which are disputed in the counter affidavit.

4. In that eventuality, there has had to be uniformity to be maintained by the respondents in the payment of the pay parity, even to those employees who have been working on temporary, daily-wage, or casual basis, particularly when, their services happens to be equivalent to that of the regular employees, and hence then the wider principle are to be adhered to for determination of the parity in the scale which has been extracted in para -44, and that has to be adhered to by the respondents, and the petitioners deserve to be requisitely remunerated in lieu of the services rendered by them as against the respective posts held by them or which they have been working now almost for over decade together based on the principle of “equal pay for equal work” as it has been envisaged in the judgment of Hukum Chand Gupta reported in 2012 Volume-12 SCC 666.

5. Owing to the aforesaid wider principles and due to the undisputed fact with regard to the length of services of the respective petitioners and the capacity in which they have working, it cannot be disputed by the respondents that the petitioners’ claim do not lie within the ambit of parameters provided under para-44 of the judgment of Jagjit Singh (supra).

6. In that eventuality, this writ petition is disposed of by issuance of writ of mandamus to the respondents to the respective principles of the different government institutions in which the petitioners are appointed as Sweepers and Chaukidars respectively, and the respondents are directed to maintain the parity of scale and pay minimum of pay scale, as admissible to the respective post which is being held by them as against which they are discharging their services. It is expected by this Court that the principles of the respective government institutions, will ensure the remittance of equal pay to the petitioners within period of one month from the date of production of certified copy of this judgment.

7. Subject to the aforesaid observations, the writ petition stands disposed of.

Nahid

(Sharad Kumar Sharma, J.) 21.02.2022