JUDGMENT M. Katju, J.
1. This writ petition has been filed against the impugned order dated 15.6.1987 vide Annexure-1 to the writ petition.
2. Heard learned counsel for the parties.
3. The petitioner No. 3, Board of High School and Intermediate Education, U.P., is a statutory body established under the U.P. Intermediate Education Act, 1921, as amended from time to time. Its Headquarter is at Allahabad. It is an examining body that holds Board of High School and Intermediate Examinations every year. As stated in paragraph 3 of the petition, these examinations are one of the biggest examinations conducted in the world. About 20 lacs students appear in the examinations conducted by the Board.
4. It is alleged in para 4 of the petition that to take care of the handling of the examinations a large number of daily wage casual workers and labourers are engaged by the Board from time to time. These persons are engaged according to the exigencies of work in the office of the Board. These casual dally wage workers and labourers are employed at the rate prevailing from time to time, fixed by the Government. In the years 1975 to 1978 the workers were paid Rs. 5 per day, during the years 1979 to 1983 they were paid Rs. 7 per day, from 1983 to 1985 they were paid Rs. 10 per day, from 24.3.1985 to 11.12.1985 at Rs. 15 per day.
5. It is alleged in para 6 of the petition that the respondent Nos. 2 to 34, who were the petitioners before the U.P. Public Service Tribunal, were engaged along with other persons by the Board to discharge various manual duties and functions at its head office at Allahabad. It may be mentioned that the respondents were casual daily wage employees, and their services were never regularized nor were they ever absorbed in the cadre of the Board's Office. They were only doing manual work and were not engaged to do ministerial, clerical or official work as performed by the clerks or officials of the Board. They were merely assisting the clerks by carrying files, documents and papers. Some times they acted as messengers. Their job was not done Independently. They were manual workers and labourers employed for specific purposes.
6. It is alleged in para 8 of the petition that there was another category of nominal roll writers, which was only a nomenclature used for the sake of convenience. These nominal roll writers were in fact engaged to assist the Board Officials in reading and writing the documents, papers rolls, marks-sheets, etc. They were getting honoraria in the shape of daily conveyance allowance, but no regular pay scale was given to them. Thus, no regular pay scale was given to any of the respondents.
7. In para 10 of the petition it is alleged that the respondents voluntarily and of their own freewill accepted this arrangement. There were no Service Rules in the Board by which the services of such persons could be regularized, and the respondents have no right to the posts. It is also stated that the posts of the regular establishment of the Board are filled in through direct recruitment after formal notification and formal selection by a selection committee. No such advertisement, publication or selection was held for appointing the respondents.
8. In para 11 of the petition it is stated that the State Government vide Government order dated 14.11.1979, banned the recruitment of nominal roll writers vide Annexure-2. In para 12 it is stated that in the year 1972 the first Regional Office of the Board was established in Meerut, and thereafter Regional Offices were established at Varanasi and Bareilly in the years 1978 and 1981 respectively. In 1986, the State Government constituted a Task Force of an eight member committee which recommended establishment of another Regional Office at Allahabad, vide Annexure-3 to the petition. Since there were four Regional Offices, the work load at the Head Office, Allahabad, decreased due to the decentralization of the work load. As no work was left for the respondent Nos. 2 to 34 in the head office of the petitioner Board at Allahabad, it could have terminated the services of these respondents but taking a lenient and sympathetic view, it gave them opportunity to work as daily wage workers at the Regional Offices, but they were not interested in leaving Allahabad.
9. It is stated in para 15 of the petition that by Government order dated 28.2.1986, the Government sanctioned 138 posts of clerks, and by another Government order dated 31.10.1986, 109 temporary posts were created of Assistants, vide Annexures-4 and 5 to the petition.
10. The respondents filed a claim petition before the U.P. Public Service Tribunal claiming that they be treated as regularized clerks against the newly sanctioned posts, 247 in number, sanctioned by the State Government vide Government order, copies of which are Annexures-4 and 5, They also claimed the same salary as regular staff on the basis of the principle of 'equal pay for equal work'. The Service Tribunal after hearing the parties allowed the petitioner's claim. Hence this writ petition.
11. It is alleged in para 22 of the petition that the respondent Nos. 2 to 34 were not members of the regular cadre or establishment of the Board's Office. They were only daily wage employees discharging manual duties. Their duties, functions and responsibilities were altogether different from those of the regular ministerial clerks and staff of the office of the Board. For example, some respondents were Just carrying documents and papers from one section to another or carrying typewriters, files, examination copies, roll numbers etc. from one room to another in the premises of the Board's Office. A clerk in the Board's Office discharges ministerial functions like typing, writing, making notes on the files, considering documents, recording opinion and preparing brief for the senior officers. Respondent Nos. 2 to 34 were not doing this work, they were only casual labourers doing manual work.
12. It is alleged in para 24 of the petition that in fact the Tribunal in the Impugned order has taken a short cut and disposed of the matter in a summary manner. It is alleged that the Board will have to Incur very heavy expense in paying the regular salaries directed to be paid by the Tribunal. The Board had in fact retained the respondent Nos. 2 to 34 taking a lenient view in the matter and offered them service at the Regional Office but they refused. It is alleged that for recruitment and promotion there has to be a selection and test which was not done in the case of the respondents. According to the rules, the post has to be first advertised, and then a candidate has to undergo a formal selection test-interview, typing test and other tests to get appointment. Grant of regularization to the respondents in the manner done by the Tribunal would discriminate against others who are excluded from getting such appointments.
13. Two supplementary-affidavits have also been filed by the petitioners and we have perused the same.
14. In the first supplementary-affidavit It is stated in para 3 that originally 247 posts were sanctioned but those were not for the Head Office at Allahabad alone but also for all the three Regional Offices of the Board, i.e., at Meerut, Varanasi and Bareilly. Of these 247 posts, 3 posts were of Assistant Secretaries (Gazetted posts), 4 posts of Assistant Secretaries (Ministerial), 5 posts of Superintendent Grade-I, 20 posts of Superintendent Grade-II, 100 posts of Senior Assistants, 35 posts of Senior Clerks and 80 posts of Junior Clerks. So far as the three posts of the Assistant Secretaries (Gazetted) are concerned, they were filled by transfer of officers from the Education Department. Except the junior clerks, the other posts were to be filled by promotion from the lower ranks. 80 posts of Junior clerks were to be filled up by fresh recruitment. Before the aforesaid 247 posts were sanctioned there were 48 persons who were working as paid apprentice, and 95 persons were working as Nominal Roll Writers. They were all accommodated against these posts except 19 persons. After the aforesaid accommodations, the persons available with the Board for being given regular appointment as junior clerks were 19 Nominal Roll Writers who had already been working from before, and 99 persons selected through the District Selection Committee. Thus, the Board has given appointments to 154 persons on regular basis so far. Now there are 81 posts lying vacant to be filled in by the Board, and after this there are still 19 paid apprentices who have not yet been given regular appointments and besides these 19 there are 82 selected candidates whose selection has been made by the respective District Selection Committee. Thus, 101 persons have to be accommodated first before the respondent Nos. 2 to 34 can be considered.
15. It is mentioned in para 6 of the petition that 82 of the selected candidates had filed writ petitions in this Court in which directions had been given to the Board to pay salary to them. In para 7 it is stated that the Board is finding it difficult to regularize the services of the petitioners. They can be accommodated only as class-IV employees, provided some additional posts of class IV employees are sanctioned by the Government or regular posts of class IV employees fall vacant.
16. In para 9 of the supplementary-affidavit it is stated that none of the petitioners have ever worked as clerks. They have only been assisting the clerks in discharging the duties assigned to them from time to time by the officers of the Board.
17. In para 5 of the second supplementary-affidavit it is stated that while appointing the respondents as daily wage labourers their educational qualification were not considered. The procedure for recruitment of class-III employees is that they have to face a duly constituted departmental selection committee, whereas the daily wage labourers (respondent Nos. 2 to 34) were engaged without following a selection and without following the regular procedure. The daily wagers were never entrusted to do the job of clerks. The clerks have to maintain important registers and other records, but this responsibility is not entrusted to the daily wage labourers. The daily wage labourers are not entitled or required to handle important and confidential records of the Board such as tabulation registers, etc. They are not allowed to enter the confidential section.
18. A counter-affidavit has been filed on behalf of the respondents and we have perused the same. It is alleged in paragraph 4 (a) of the counter-affidavit that in the absence of requisite number of clerical posts dally rated workers were appointed by the Board on regular and not on casual basis in anticipation that their services would be regularised as regular clerks. It is alleged that these employees are doing the work of regular routine work of class III employees (clerical duties). The respondent Nos. 2 to 34 are also performing clerical duties and they were appointed in anticipation of regularisation of their services. In paragraph 8 (b) it is stated that prior to 1975 due to inadequate number of sanctioned clerical staff in the Board Office to cope with the increased work the Board recruited educated persons as nominal roll writers for working temporarily In the office of the Board on a nominal payment of conveyance charges to do similar work as was being done by the regular clerks. After several years some of nominal roll writers were appointed as regular clerks at intervals. Later on an audit objection was raised against the recruitment of these nominal roll writers and hence the State Government banned the recruitment of such nominal roll writers.
19. In paragraph 8 (e) it is stated that the nominal roll writers have been absorbed as regular clerks in the office of the Board.
20. In paragraph 10 (d) it is stated that during the last ten years or more the daily rated workers were absorbed against regular vacancies according to their seniority and no other procedure was followed. In paragraph 13 (g) it is denied that no work was left for the respondent Nos. 2 to 34 in the headquarter of the Board at Allahabad, In paragraph 25 (a) it is stated that the respondent Nos. 2 to 34 are continuously performing the work of routine clerical work of regular nature and they cannot be treated as casual employees. They can at most be called temporary employees on daily wages who are continuously performing clerical work in the office of Board since a very long time.
21. A rejoinder-affidavit has been filed and we have perused the same. It is reiterated in paragraph 6 of the same that the daily wage workers are engaged only for doing manual work. Some dally wagers are employed as class IV employees in the Board but not as clerk. To be appointed as a clerk one has to be duly appointed after regular selection in accordance with the legal procedure and fulfilling the requisite formalities. The respondent Nos. 2 to 34 were never appointed in that manner and hence they cannot claim status of class III employees. In paragraph 10 it is denied that the respondent Nos. 2 to 34 were employed to do clerical work and they have been doing only manual work.
22. There is no dispute that the respondent Nos. 2 to 34 were appointed on a purely temporary basis as daily wage employees. The Tribunal has observed that the petitioners (respondent Nos. 2 to 34 in this writ-petition) are doing the same work as class III employees. Some of them were appointed as nominal roll writers and were given only conveyance charges. They were initially appointed for four months during heavy load of work. In 1979, the Government abolished the system of appointment of nominal roll writers and directed the Board to employ regular employees.
23. The Tribunal has only relied on the paper which is annexed as Annexure-5 to the claim petition before the Tribunal and on the basis of that it was observed that the petitioners (respondent Nos. 2 to 34 to this writ petition) are doing clerical work as they are taking dictation, preparing ledger, helping in the checking of eligibility of examiners, etc. In our opinion this at best means that sometimes respondent Nos. 2 to 34 were also given some clerical work in addition to do their manual work as additional work. Merely because respondent Nos. 2 to 34 were doing some work at some time as clerk, this does not mean that they are regular class III employees. In fact they were never regularly appointed as class III employees after following the legal procedure for making such appointment. For making such appointment the post has to be advertised, selection has to be held in accordance with the rules and then only regular appointment can be done. There is no dispute that this procedure was not followed. In our opinion, the Tribunal has recorded its finding that the claimants (respondent Nos. 2 to 34 In this petition) were doing the same work as clerks in a cursory and perfunctory manner, without properly considering the version of the Board, and relying on just on document (Annexure-5 to the claim petition). In our opinion this is not the proper way to record such a finding. No doubt in a writ petition this Court does not ordinarily interfere with the findings of fact, but in exceptional cases it can interfere if it is of the opinion that the finding was reached in a slipshod and summary manner without properly considering the entire evidence and version of the parties, as has happened In this case.
24. As regards the principle of equal pay for equal work, which has been adopted by the Tribunal, we are of the opinion that that principle has no application in this case and was wrongly applied by the Tribunal.
25. In our opinion, the principle of equal pay for equal work has a limited application, as is evident from the recent trend of decisions of the Supreme Court. In particular it cannot apply when the qualifications and the mode and procedure of regular appointment have not been followed.
26. In Secretary, Finance Department v. West Bengal Registration Service Association, AIR 1992 SC 1203, it was observed :
"It is well-settled that equation of posts and determination of pay scales is the primary function of the executive and not the judiciary and, therefore, ordinarily Courts will not enter upon the task of job evaluation which is generally left to expert bodies."
27. In Dr. Bajrang Bahadur Singh v. State of U.P., 1997 (3) AWC 1476, a Division Bench of this Court observed :
"From the conspectus of views taken in the aforementioned decided cases, the position is clear that to substantiate a claim of higher scale of pay/salary on the basis of the principle equal pay for equal work the petitioners will have to establish that they are equally placed in all respects with the person or persons whose scale of pay/salary they claim. They must allege and prove that the mode of recruitment, eligibility qualifications prescribed, the nature of duties, responsibilities discharged and the service rules if any applicable to the two posts are similar. They cannot succeed in the case merely by showing that they have been discharging the same duties which are being discharged by persons holding the other class of posts."
28. The above decision has been approved by a Full Bench of this Court in Ajai Kumar Jaitly v. State of U.P., 1999 (1) AWC 1 : (1999) 1 UPLBEC 388.
29. In Shyam Babu Verma v. Union of India, JT 1994 (1) SC 574, it has been held that the nature of work may be more or less the same but the scale of pay may vary based on academic qualification or experience which Justifies classification.
30. In State of Haryana v. Tilak Raj and Ors., (2003) 6 SCC 123, the Supreme Court pointed out that the principle of equal pay for equal work is not always easy to apply. There are Inherent difficulties in comparing and evaluating the work done by different persons in different organisations or even in the same organisation.
31. In Federation of All India Customs and Central Excise Stenographers v. Union of India, (1988) 3 SCC 91, the Supreme Court explained the principle of equal pay for equal work by holding that differentiation in pay scales among Government servants holding the same posts and performing similar work on the basis of difference in the degree of responsibility, reliability and confidentiality would be a valid differentiation. The same amount of physical work may entail different quality of work, some more sensitive, some requiring more tact, some less, etc. The judgment of the administrative authorities concerning responsibility which attach to the posts and the degree of reliability expected of an Incumbent would be a value judgment of the authorities concerned which if arrived at bona fide, reasonably and rationally, was not open to interference by the Court.
32. In State of U.P. v. J.P. Chaurasia, (1989) 1 SCC 121, it was pointed out that the principle of equal pay for equal work requires consideration of various dimensions of a given Job. The accuracy required and the dexterity that the job requires may differ from job to job. It must be left to be evaluated and determined by an expert body. The same view was expressed in Ghaziabad Development Authority v. Vikram Chaudhary, (1995) 5 SCC 210.
33. In State of Haryana v. Jasmer Singh. 1997 (1) AWC 2.145 (NOC) : (1996) 11 SCC 77, the Supreme Court observed that daily rated workmen cannot be equated with regular employees for the purpose of wages nor can they claim the minimum pay scale of the regular employees. The High Court therefore, was not right in directing that the respondents should be paid same salary and allowance as are being paid to the regular employees holding similar posts from the date when the respondents were employed.
34. In State of Orissa v. Balram Sahu, 2003 (1) AWC 273 (SC) : 2003 (1) SCC 250, the Supreme Court reiterated the principle laid down in the case of State of Haryana v. Jasmer Singh (supra).
35. In State of Haryana v. Tilak Raj (supra), the Supreme Court (in paragraph 11 of its decision) observed that a scale of pay is attached to a definite post and in case of a daily wager, he holds no post. Hence, he cannot be compared with the regular and permanent staff for any or all purposes including a claim for equal pay and equal allowances. Equal pay for equal work is a concept which requires for its applicability complete and wholesale identity between a group of employees claiming identical pay scale and the other group of employees who have already earned such pay scales. The problem about equal pay cannot always be translated into a mathematical formula.
36. In State Bank of India v. M.R. Ganesh Babu, (2002) 2 UPLBEC 1680, the Supreme Court observed that the principle of equal pay for equal work must depend upon the nature of work done and it cannot be judged by the mere volume of work. There may be qualitative difference as regards reliability and responsibility. The functions may be the same but the responsibilities make a difference. One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as such value Judgment is made bona fide, reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination.
37. In State of Tamil Nadu v. M.R. Alagappan. JT 1997 (4) SC 515, the Supreme Court observed that the Deputy Agricultural Officers cannot be given the same pay scales as the Agricultural Officers although they may be substantially discharging the same type of duties and their place of work may be interchangeable. The Deputy Agricultural Officers are recruited by promotion from the lower category of Assistant Agricultural Officers. They remain non-gazetted employees in the subordinate service while the Agricultural Officers are directly recruited to a Gazetted service. The qualifications are different, and though substantially they carry out the same type of work and duties, the important assignments are exclusively entrusted to Agricultural Officers.
38. In the present case also even if it is assumed that the respondent Nos. 2 to 34 are carrying out substantially the same duties as the regular employees but it appears that important assignments and confidential work (as stated in the writ petition) are entrusted to the regular ministerial staff only. Hence, the principle of equal pay for equal work will not be applicable.
39. In Chandigarh Administration v. Anita Sood, 1995 (Supp) 3 SCC 613, the Supreme Court observed that even though the lecturers may be teaching the same subject as Professors the quality and standard of teaching by a Professor is bound to be of a much higher standard than that of a lecturer, and hence a lecturer cannot claim the same pay scale as of Professor. Similarly, Teaching Assistant Is a different class of teacher as compared to a lecturer.
40. In State of West Bengal v. Manirujjaman Mullik and Ors., (1996) 10 SCC 56, the Supreme Court observed that where the method of appointment, the source of recruitment etc, are different, the principle of equal pay for equal work will not apply.
41. In State of West Bengal v. D.K. Mukherjee. AIR 1995 SC 1889, it was observed by the Supreme Court that even though the duties performed by the Inspectors in two grades may be the same no fault can be found with the classification, since the classification in the cadre on the ground of selection based on merit is permissible.
42. In the present case, also the respondent Nos. 2 to 34 cannot claim the same pay scale as regular clerks because the latter had been appointed after being selected on merit, whereas the former were appointed without any selection.
43. In State of U.P. v. J.P. Chaurasia, 1989 (1) SCC 121, the Supreme Court observed that the principle of equal pay for equal work has no mechanical application in every case of similar work. In service matters merit and experience could be the proper basis for classification.
44. In State of Haryana v. Surender Kumar, 1997 (3) AWC 1492 (SC) : (1997) 2 SCC 633, the Supreme Court observed that the respondents were appointed on contract basis on daily wages and hence 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 the rules. Since the respondent's recruitments were not made in accordance with the rules they cannot claim equal pay.
45. The ratio of the above decision is also applicable to the present case as the respondent Nos. 2 to 34 in the present case were not regularly appointed after selection in accordance with the Rules.
46. In Union of India v. P.V. Hariharan, JT 1997 (3) SC 569, the Supreme Court observed that the Tribunals are often interfering with pay scales without proper reason and without being conscious of the fact that fixation of pay is not their function. It is the function of the Government which normally acts on the recommendation of " a Pay Commission. Change of pay scale of a category has a cascading effect. Several other categories similarly situated, as well as those situated above and below will put forward their claims on the basis of such change. The Tribunal should realise that interfering with the prescribed pay scales is a serious matter. The Pay Commission goes into the problem at great depth and it is the proper authority to decide upon the issue. Very often the doctrine of equal pay for equal work is also being misunderstood and misapplied freely revising and enhancing the pay scales across the Board.
47. In State of U.P. v. Ramashyraya Yadav, AIR 1996 SC 1188, the Supreme Court observed that the employees appointed to temporary posts are not entitled to pay scale equivalent to the regular employees.
48. Having noted the above decisions we are of the opinion that the Tribunal was not justified in giving the direction which it has given in the Impugned order. The respondent Nos. 2 to 34 were only daily wagers and hence in view of the decisions referred to above, they could not claim the same pay scale as regular class III employees nor other benefits admissible to other regular employees. For getting regular appointment and regular pay scale, respondent Nos. 2 to 34 have to face a regular selection in accordance with the Rules and they cannot be regularised without such selection in accordance with the Rules, nor can they get the regular pay scale.
49. No doubt in certain decisions, the Courts have given directions for regularising daily wagers or casual/temporary employees but in our opinion such directions do not amount to a precedent vide Indian Council of Agricultural Research v. Raja Balwant Singh College, 2003 (1) AWC 750 ; 2003 (1) ESC 424 ; Delhi Administration V. Manoharlal, AIR 2002 SC 3088, etc. What is a binding precedent is a principle of law which has been laid down in a decision of the Court, and a mere direction without laying down any principle of law is not a precedent. A case is an authority for what it actually decides vide Goodyear India Ltd. v. State of Haryana, AIR 1990 SC 781 ; Sreenivasa General Traders v. State of A.P., AIR 1983 SC 1246 (Para 29) ; Union of India v. Dhanwanti Devi, (1996) 6 SCC 44 (paragraphs 9 and 10) ; Amar Nath Om Prakash v. State of Punjab and Ors., AIR 1985 SC 218, etc. Everything in a decision is not a precedent (vide State of Punjab v. Baldeo Singh, 1998 (4) AWC 68 (SC) : 1999 SCC (Crl) 1080).
50. Hence, a mere direction of the Supreme Court to regularise an employee without laying down any principle of law will not amount to a binding precedent.
51. The regular clerks were appointed after facing a selection which was held after advertising the posts and after following the rules. The daily wagers were not appointed in that manner at all. In fact, the respondents appear to be purely ad hoc appointees appointed when there was heavier load of work, e.g., during the examination time, but without undergoing any selection in accordance with the rules. Hence, they cannot claim parity with the regularly selected employees.
52. In view of the above, we are of the opinion that the impugned judgment of the Tribunal dated 15.6.1987 cannot be sustained and it is hereby quashed. The petition is allowed. No order as to costs.