JUDGMENT Rakesh Tiwari, J.
1. Heard learned Counsel for the parties and perused the record.
2. The petitioners were employed on daily wages in the U.P. Awas Evam Vikas Parishad Later on they were placed on its muster roll by the respondent-Parishad as such. They claim that they are continously working as Mates and Malis and as such they are entitled to be paid the salary admissible to their posts. It is prayed that respondents may be commanded to regularize the services of the petitioner and pay them scale admissible to the post held by them.
3. Admittedly the petitioners are daily wagers. There is no evidence on record that they have been appointed en or against a substantive vacancy or are holding any post,
4. A daily wager has no right to a sanctioned post unless he is appointed on a post in accordance with rules. There is also no material to show that the engagement of the petitioner was in accordance with rules and not by infraction or violation of rules and procedure for appointment.
5. The claim for regularisation of one petitioners cannot be granted by the High Court under Article 226 of the Constitution in view of the apex court decision rendered in State of Punjab v. Sardara Singh (1998) 9 S.C.C. 709. Further in view of the decision rendered in R.N. Nanjudappa v. T. Thimmiah . if an appointment is made by infraction of the rules or if it is in violation of the provisions of the Constitution, such appointment being illegal, "cannot be regularised, as there has been non-compliance with the procedure of appointment, which goes to the root. In Ashwani Kumar v. State of Bihar A.I.R. 1997 S.C. 1627 it has been held that if the initial entry in service is itself unauthorised and is not against any sanctioned vacancy the question of regularising, the incumbent on such non-existen: vacancy does not arise and even if such purported regularisation or confirmation is given it would be an exercise in futility.
6. The matter has been considered in details by a Division Bench of this Court in State of U.P. and Anr. v. Rajendra Prasad and Ors. 2004 (1) U.P.L.B.E.C. 60. Relying upon Khagesh Kumar and Ors. v. I.G. Registration and Ors. ; State of U.P. and Ors. v. Putti Lal (1996) 1 U.P.LB.E.C 313; and Dharvad District P.W.D. Literate Daily Employees' Association and Ors. v. State of Karnataka and Ors. (1990) 3 U.P.L.B.E.C 2151; the Court held in paragraph 7 as under: -
It is well settled that all public posts have to be filled in after advertising the same in well known Newspapers and thereafter holding a selection so as to comply with Articles 14 and 16 of the Constitution.
7. The High Court cannot issue direction for regularisation of such employees who are appointed by infraction of rules or not by competent authority or those not appointed in accordance with law.
8. All employees whether causal, daily wager, temporary ad hoc etc. can be appointed only against available sanctioned post by following recruitment process in accordance with Rules. The posts have to be advertised in well-known news papers having wide circulation in the area as well as at least in a national level paper, otherwise the appointment process would not be transparent and there would be scope for arbitrariness illegality and back door entry and denial of equal opportunity in the matter of employment. Even if a person has worked for long period he cannot be regularised in service if his appointment was not in accordance with law. He has to come through recruitment process but may be granted benefit of relaxation in age and preference for his services.
9. Admittedly a scheme for regularization has been framed and if the petitioners are eligible they may apply to the authority concerned within a period of two months and the authority concerned shall consider their case under the U.P. Regularization of Daily Wagers Rules, 2000.
10. As regard the payment of minimum pay scale, the same can be granted to an employee who is appointed against a sanctioned post. The petitioners are daily wagers and are not appointed against a sanctioned post and in view of the fact that they are daily wagers the Court cannot direct for payment of minimum pay scale as the term pay scale connotes status of permanent appointment on a post which is admissible to an employee who has been appointed in accordance with rules of recruitment on a permanent post by undergoing selection process.
11. In the case of Daily Rated Casual Labour Employed under P&T Department through Bhartiya Dak Tar Mazdoor Munch v. Union of India and Ors. , there was classification of casual labourers into three categories- (i) those who had not completed 720 days of service; (ii) those who had completed 720 days of service and not completed 1 200 days of service and (iii) those who had completed more than 1200 days of service for the purpose of payment of different rates of wages. Hon'ble the Supreme Court, on the facts and in the circumstances of that case held that 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 lowest is not tenable. The wage structure of the country is such that a worker is" always paid less than what he produces. Therefore, Hon'ble the Supreme Court directed the respondents to prepare a scheme on rational basis for absorbing as far as possible the casual labourers who had been continuously working for more than one year in the Posts and Telegraphs Department.
12. From a bare perusal of the aforesaid decision, it is evident that there was a demand of casual daily rated employees in the Posts and Telegraphs Department. The fact that there was different criterion for regularization, in the particular facts and circumstances of the case the Hon'ble Supreme Court held that paying less than the minimum pay payable to employees in the corresponding regular cadres particularly in the lowest rungs was not tenable. This fact was admitted to the Department and the judgment in the case was 'confined to the peculiar facts and circumstances of that cast; as such, the aforesaid judgment does not apply to the facts and circumstances of the case at hand and is clearly distinguishable.
13. The case of State of Haryana and Ors. v. Charanjit Singh and Ors. 2005(8) Scale 482 was a case where doctrine for equal pay for equal work to daily wagers appointed as ledger clerks, ledger keepers, pump operators etc., was applied. The Hon'ble Supreme Court advised the High Court not to proceed blindly on basis that the doctrine of 'equal pay for equal work' applies without examining any relevant factors. Hon'ble Supreme Court considered whether direction of High Court to pay the minimum wage in the scale payable to a class IV employee was required to be interfered with or not and held that:
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 or equal value. The principle of 'equal pay for equal work' has no mechanical application in every case. Article 14 permits reasonable classification based on quality 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 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 had not gone through the process of recruitment may 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 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 craftsman is not enough to come to a conclusion that he is doing the same work as another carpenter or craftsman in regular service. The quality of work which is produced 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 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 matters 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. In any event the party who claims equal pay for equal work has to make necessary averments and prove that all things are equal. Thus, before any direction can be issued by a Court, the Court must first see that there are necessary averments and there is a proof. If the High Court, is on basis of material placed before it, convinced that there was equal work of equal quality and all other relevant factors are fulfilled, it may direct payment of equal pay from the date of the filing of the respective Writ Petition. In all these case we find that the High Court had blindly proceeded on the basis that the doctrine of 'equal pay for equal work' applies without examining any relevant factors.
14. The learned Counsel for the petitioners prays that the representation of the petitioners for regularisation of their services and payment of corresponding pay scale may be directed to be decided by respondent no. 2.
15. Though the petitioners have alternative remedy under the U.P. Industrial Disputes Act, 1947, but in the circumstances of the instant case and in view of the fact that the only prayer of the learned Counsel for the petitioners is for deciding the representation of the petitioners, respondent no. 2 is directed to decide the representation of the petitioners within six weeks from the date of production of a certified copy of this order before it by the petitioners.
16. With the aforesaid directions, this writ petition is disposed of. No order as to costs.