JUDGMENT S. Rafat Alam and Vikram Nath, JJ.
1. These four intra court appeals have been filed by the State of U.P. against the judgment and order of the learned Single Judge dated 24.02.1998, passed in connected Writ Petition No. 15949 of 1996 Suresh and 3 Ors. v. State of U.P., Civil Misc. Writ Petition No. 15745 of 1996 Radhey Shyam and 12 Ors v. State of U.P., Civil Misc. Writ Petition No. 15746 of 1996 Ram Prasad and 2 Ors. v. State of U.P. and Civil Misc. Writ Petition No. 15813 of 1996 Prithvi Pal and 32 Ors. v. State of U.P.
2. The writ petitioners (respondents in all the appeals) were working in Public Works Department in district Fatehpur on class IV posts. Their initial engagement was on daily wage basis, however in due course of time they were brought on temporary Muster Roll and in some cases they were brought on permanent Muster Roll. The grievance raised by the writ petitioners was that they were not being paid salary as admissible to the regular employees working in the same department and discharging the same duties and also that such regular employees were being provided the benefits of medical leave, earned leave, leave encashment or bonus, provident fund and also the Employees State Insurance Scheme but, the same was not being provided to the writ petitioners. The prayer sought in the writ petition was to pay the equal emoluments as the employees engaged on regular basis as well as other service benefits admissible to them. As the question raised and the reliefs claimed in all the writ petitions were similar, the learned Single Judge clubbed all the writ petitions and decided them by common judgment whereby, he allowed the writ petitions and directed that the petitioners would be entitled to the same salary and allowances as are being paid to their counter parts who were appointed on regular basis, with all consequential benefits.
3. The petitioners in Writ Petition No. 15744 of 1996 and 15746 of 1996, were initially appointed as Beldars on daily wage basis, later on their names were placed in the temporary muster roll and subsequently in permanent muster roll and were being paid a fixed sum of Rs. 1825/- per month as wages whereas their counter parts who were employed on regular basis were being paid higher salary and other benefits. The petitioners in other two writ petitions namely 15949 of 1996, 15745 of 1996, were initially engaged as Beldar on daily wage basis and subsequently their names were brought on the temporary Muster Roll and were being paid wages @ Rs. 36/- per day whereas the regular class IV employees were drawing higher salary. The learned Single Judge framed single question for consideration that being whether the petitioners are legally entitled to equal pay for equal work and other benefits and privileges. The question as framed by the learned Single Judge is as follows :
The moot point which arises for consideration is whether the petitioners are legally entitled to 'equal pay for equal work' and other benefits and privileges as are admissible to the other regular employees of the department of the same category/cadre or should there be a distinction in the emoluments of the employees working on Muster Roll basis and the regular employees of the department?
4. The learned single Judge relying upon a catena of decisions of the Apex Court came to the conclusion that all the petitioners working on temporary/permanent Muster Roll are performing the same duties and are shouldering the same responsibilities, as their regular counter parts and, therefore, there can be no discrimination in the pay scale being given to them as compared to the pay scale being given to the similarly situate employees engaged on regular basis, allowed the writ petitions and directed for payment of same salary and allowances as were being paid to their counter parts.
5. The State of U.P. has preferred these appeals questioning the validity and the correctness of the said judgment of the learned Single Judge mainly on the ground that the principle of equal pay for equal work does not apply to daily wagers as they have not faced the regular selection process and, therefore, could not claim parity in pay scale and allowances with employees who have been selected on regular basis after facing Selection Committee.
6. We have heard Sri R. K. Tewari, learned Standing Counsel for the State appellant and Sri P. N. Saxena, learned senior counsel for the respondents in all the appeals.
7. At the out set it may be mentioned that there is no dispute with regard to the facts which include the time of initial engagement of the petitioners, they being placed in the temporary Muster Roll and permanent muster roll and being paid lesser salary than class IV employees selected on regular basis. The only question to be determined in this appeal is as to whether the principles of equal pay for equal work can be applied in the case of the petitioners as they are discharging the same duties and shouldering the same responsibilities as the regularly selected candidates or as per case of the appellants the petitioners would not be entitled to pay parity as their entry is not through regular selection process but is on account of back door entry.
8. Learned Counsel for the appellants further submits that the State Government has already framed rules for regularization of daily wage appointees on Group 'D' posts and such rules is named as U.P. Regularization of Daily Wages Appointments on Group D Posts Rules 2001 (in short 2001 Rules) and therefore the respondents if entitled to regularisation under the said rules should apply for the same and their cases will be considered in accordance with their eligibility, vacancies etc. in accordance with the 2001 Rules.
9. The question of regularization in the present case is not in issue. It was for the respondents to consider and take a decision as to whether or not the petitioners were entitled to regularization and were covered under the provisions of the said rules. It appears from the perusal of the writ petitions that all the petitioners were appointed prior to 1991 as it is undisputed case that they were placed in the list either of temporary or permanent Muster Roll in the year 1988 and 1989. The other conditions mentioned in the regularization rules for getting its benefit may be considered by the appellant State. However, no material has been brought on record by the appellant either to show that the case of the petitioners have been individually considered by the appellant for regularization, or that the petitioners after consideration were either found unfit or found fit and that they have been regularized.
10. Learned Counsel for the appellant has relied upon the following 4 decisions:
1. (2004) 1 UPLBEC 60, State of U.P. and Anr. v. Rajendra Prasad and Ors.
2. 2004 All. LJ. 232, State of U.P. and Ors. v. Uttar Pradesh Madhyamik Shiksha Parishad Shramik Sangh and Ors.
3. [(2005) 1 UPLBEC 513] Mahendra L. Jain and Ors. v. Indore Development Authority and Ors.
4. A Umarani v. Registrar, Cooperative Societies and Ors.
11. On the other hand learned Counsel for the respondents has relied upon the same judgment of State of U.P. v. Madhyamik Shiksha Parishad Shramik Sangh and Ors. (supra) relied upon by the appellants and also on the judgment reported in JT 1996 (10) SC 976 State of Haryana and Ors. v. Jasmer Singh and Ors.
12. Let us now examine the law as relied upon by the counsel for the parties one by one.
13. In the case of State of U.P. v. Rajendra Prasad and Ors. (supra) the relief claimed by the petitioners therein was for regularization and for grant of same salary as the regular employees. The learned Single Judge allowed the writ petition and directed that the petitioners therein may be given regular posts and that they should be given salary not less than minimum pay scales prescribed for the posts. The Division Bench hearing the special appeal did not agree with the view taken by the learned single Judge and was of the view that in the absence of any scheme for regularization there can be no direction to appoint on regular posts and to pay the same salary relying upon the judgment of the Apex Court in case of State of Haryana and Ors. v. Jasmer Singh and Ors. (supra).
14. In case of State of U.P. v. Uttar Pradesh Madhyamik Shiksha Parishad Shramik Sangh and Ors. (supra) the Division Bench was considering the correctness of the judgment of UP Public Service Tribunal which had allowed he claim of the daily wagers for regularization and also for same salary as the regular staff. The Division Bench again relying upon the judgment of the State of Haryana v. Jasmer Singh and Ors. (supra) held that daily wage workers cannot claim equality with regular employees for purposes of wages nor claim minimum pay scale.
15. In case of Mahendra L. Jain and Ors. v. Indore Development Authority and Ors. (supra) the Apex Court was considering the question as to whether the Sub Engineers appointed by the Indore" Development Authority on daily wages basis and subsequently on fixed salary, and not working against any substantive vacancies, could be allowed regularization and the same salary as the regularly appointed Sub Engineer. The Labour Court had allowed the claim of the Sub Engineers the High Court had allowed the writ petition of the Development Authorities holding that the Sub Engineers appointed on daily wages basis were not against the sanctioned posts and as such could not claim regularisation nor were entitled to equal pay for equal work. Aggrieved by the judgment of the High Court the daily wage Sub Engineers approached the Apex Court. The Apex Court dismissing the appeals of the Sub Engineers held that the Sub Engineers were not entitled for regularization.
16. In case of A. Umarani v. Registrar, Cooperative Societies and Ors. (supra) the Supreme Court held that appointments made on daily wages basis, if were contrary or in violation of the service rules which provided for filling up for such vacancies, the daily wagers would not have any right for being regularized. The order denying equal pay for equal work as their initial appointment was bad in law, was challenged before the Single Judge and also before the Division Bench of the Madras High Court where the daily wagers failed. Thereafter they approached the Apex Court. The Apex Court dismissing the appeals held that the appellants could not be given any relief as their appointments were not in accordance with the rules.
17. In the authority relied upon by the respondents in the case of State of Haryana and Ors. v. Jasmer Singh and Ors. (supra) before the Apex Court it was pointed out that the State Government has already issued notification for regularization of daily wage workmen and in the said notification large number of the daily wage workers who were also respondents before the Apex Court had been regularized and, therefore, the Court was of the view that it was for the State Government to permit such policy and provide for regularization and it was not open to the Court to direct for regularisation. Further this is the case which deals with daily wagers claim of pay parity with regular employees of the same class, and has been the basis of claim by both sides. The ratio laid down in para 10 and 11 of the said judgment is as follows:
10. The respondents, therefore, in the present appeals who are employed on daily wages cannot be treated as on a par with persons in regular service of the State of Haryana holding similar posts. Daily- rated workers are not required to possess the qualifications prescribed for regular workers, nor do they have to fulfill the requirement relating to age. They are not selected in the manner in which regular employees are selected. In other words the requirements for selection are not as rigorous. There are also other provisions relating to regular service such as the liability of a member of the service to be transferred, and his being subject to the disciplinary jurisdiction of the authorities as prescribed, which the daily -rated workmen are not subjected to. They cannot, therefore, be equated with regular workmen for the purposes for their wages. Nor can they claim the minimum of the regular pay-scale of the regularly employed.
11. The High Court was, therefore, not right in directing that the respondents should be paid the same salary and allowances as are being paid to regular employees holding similar posts with effect from the dates when the respondents were employed. If a minimum wage is prescribed for such workers, the respondents would be entitled to it if it is more than what they are being paid.
18. Considering the regularisation Rules 2001 framed by the State Government and the decision of the Apex Court in the case of State of Haryana and Ors. v. Jasmer Singh and Ors. it can be safely concluded that the petitioner-respondents if covered under the said Rules of 2001 may be considered for regularisation in accordance with law and the appellants after examining individual cases may pass appropriate orders in that regard if not already passed within a period of three months from the date of production of certified copy of this judgment.
19. Now coming to the question whether the petitioner-respondent were entitled to the relief granted by the learned single Judge for equal salary and benefits as admissible to the regular employees. Learned Counsel for the respondents has submitted that the judgments relied upon by the appellants do not apply to the facts of the present case and are clearly distinguishable in as much as the petitioners are no longer daily wage employees, rather they have acquired the status of temporary or permanent muster roll employees and are getting a fixed salary and further that they are not back door entrants, but for appointment as regular employees the appointments are made from the permanent muster roll. It is further submitted that undisputedly there are no service rules governing appointment of regular class IV employees. The initial entry point is appointment on daily wage basis. With time the daily wagers are placed into the list of temporary Muster Rolls and are paid fixed salary. Later on with seniority they are placed into the list of permanent Muster Rolls and are still paid a fixed salary but higher than temporary Muster Roll employees and lower than the regular employees. Thereafter upon existence of substantive vacancies in the regular cadre, the employees in the permanent Muster Roll in accordance with their seniority are absorbed in the regular cadre. For all the above reasons, the learned Counsel for the petitioner respondent submits that the authorities relied upon by the appellant which relates to the daily wage employees do not apply to the facts of the present case and the decision of the learned single Judge based upon large number of authorities cannot be faulted with.
20. In the counter affidavit filed by the state in the writ petitions it is stated in paragraph 8 and 10 that daily wagers are appointed on their own request and their engagement is not against any sanctioned posts. It is purely temporary and they can be removed at any time or on completion of the project/work. It is also averred in the same paragraphs that considering the experience and seniority the daily wagers are included in the list of temporary and permanent muster rolls and are paid fixed salary. Further it is stated that pursuant to Government Orders issued from time to time and depending upon the existence of vacancies regular appointments are made from the employees placed in the permanent muster roll.
21. Again in the affidavit of M.C. Govil, Executive Engineer filed in support of the stay application in the appeal it has been categorically stated in paragraph 8 that permanent muster roll employees are placed on regular cadre on availability of the post through selection by a Committee consisting of the Executive Engineer and Employment Exchange Officer of the district from the seniority list maintained for the entire district. For sake of convenience paragraphs 6 to 9 of the said affidavit are quoted hereunder:
6. That in the Public Works Department there is no provision for appointment against the regular post of Beldar, Mate, Chaukidar etc.
7. That the procedure which is adopted in the department is that firstly the employees are kept on daily wages and on availability of fund, work and post they are placed on PMR employee.
8. That from Permanent Muster Roll employees are placed on regular cadre on the availability of the post and through selection which is held by the selection committee which comprises of the Executive Engineer of the district and Employment Exchange Officer. 9. That selection for the PMR and regular post is done for the whole district employees as seniority is maintained for the whole district.
22. Further in paragraph 11 and 12 of the same affidavit it has been stated there are no vacant posts available and as when posts in the regular cadre fall vacant the employees from the permanent muster roll will be selected according to seniority.
23. Yet another aspect has been highlighted by the state in its affidavit that if such equality is permitted in that event there would be an additional financial burden on the state nearing Rs. 1 crore annually as it will have to pay it to all the muster roll employees senior to the petitioners also.
24. The writ petition filed by the petitioners does not contain any documentary proof except the extracts from the list of the permanent/temporary muster roll employees to show that their names are included in such list. Apart from it there is an averment to the effect that there is absolutely no difference in the nature of duties of the employees placed in the permanent muster roll and the regular ones. The State has although not denied this specifically but has laid out foundation in the counter affidavit that there is basic difference in the service conditions and the mode of selection/appointment of the employees in the muster roll and the regular employees. The learned single Judge has recorded a finding that the nature of duties and the responsibilities shouldered by the muster roll employees and the regular employees is the same but at the same time failed to draw the distinction/difference in the manner of selection/appointment, the length of service etc. of the two categories, which it is submitted has been held to be a sufficient and valid ground for different pay scales.
25. The argument of the petitioners that the four tier system from initial entry as daily wager to final appointment as regular employee itself defeats their claim of pay parity. Each stage is a stepping stone for the next higher/better stage which depends upon their work, experience and seniority. Therefore, by moving to the next stage the petitioners keep gaining financially as also more stability in their service. Thus if each stage has a different level of wages, it cannot be said to be discriminatory. It is like a feeder cadre for the next higher grade till one reaches the final regular cadre.
26. The Apex Court in the case of State of Haryana v. Tilak Raj after considering the relevant case laws relating to claim of equal pay for equal work in respect to daily wage employees, was of the view that as a daily wager does not hold any post and a pay scale is attached to a definite post and therefore he cannot claim parity of pay and allowances. The Apex Court following the law laid down in the case of State of Haryana v. Jasmer Singh (supra) for applying the principle of pay parity with regard to daily wager held as follows in paragraphs 11 and 12 of the judgment:
11. A scale of pay is attached to a definite post and in case of a daily-wager, he holds no posts. 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-a-vis an alleged discrimination. No material was placed before the High Court as to the nature of the duties of either categories and it is not possible to hold that the principle of "equal pay for equal work" is an abstract one.
12. "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.
27. In the present case the petitioners are not appointed against any substantive posts. They were appointed on daily wage basis and subsequently with passage of time have been placed on the temporary and permanent muster rolls. The length of service according to the case of the petitioners themselves is not equal to the regular employees as they would be getting chance to become regular upon vacancies being available and further that regular employees have also passed through the same channel as the petitioners are passing through. The manner/mode of selection/appointment in the two categories is also different as regular appointments are made on the recommendation of the Selection Committee as stated in paragraphs 8 and 9 of the affidavit filed by the appellant State. In the circumstances the law as laid down by the Apex Court in the cases of State of Haryana v. Jasmer Singh and State of Haryana v. Tilak Raj (supra) will squarely apply in the present case.
28. The learned Single Judge, it appears failed to take into consideration the mode of selection of the PMR and regular employees. Further, it appears that the judgment of the Apex Court in the case of State of Haryana v. Jasmer Singh (supra) laying down the ratio with regard to grant or refusal of applying the principles of equal pay for equal work was not brought to the notice of the learned Single Judge, even though it was reported in the journals in 1996, where as the impugned judgment is of the year 1998.
29. It may also be worth noticing that a Division Bench of this Court in the case of State of U.P. v. Rajendra Prasad reported in 2004 (1) UPLBEC 60, which was a case of the daily wage employees of the PWD (same as the petitioners) relying upon the Supreme Court decision in the case of State of Haryana v. Jasmer Singh (supra) had held against the daily wage employees claiming equal pay for equal work with the regular employees.
30. In the light of the discussion made above and in particular the law laid down by the Apex Court in the case of State of Haryana v. Jasmer Singh (supra) and State of Haryana v. Tilak Raj (supra) the judgment of learned single Judge cannot be sustained and has to be set aside, however the petitioners would be entitled to minimum of wages as may be fixed from time to time by the State Government and also entitled for being considered for regularisation in accordance with law and in accordance with the existing vacancies, which exercise the appellant must complete within 3 months from the date of production of certified copy of this judgment.
31. Accordingly the special appeals are allowed with the observations/directions as stated above, but there shall be no order as to costs.