ORDER A.K. Sikri, J.
1. All these writ petitions are filed by various employees against the same employer, namely. Jawahar Lal Nehru University (hereinafter to be referred as "University" for short). Petitioners in all these petitions are working on daily wage basis and they are claiming the same relief, namely: (1) regularisation of their services on the ground that they have worked for 240 days or more and (2) payment of wages/salary at par with regular employees w.e.f. the dates of their initial appointment. All these writ petitions are, therefore, taken up and disposed of together by common judgment.
2. For sake of convenience, facts of CWP. No. 5589-98 are taken.
3. This writ petition is filed by 8 petitioners. They were engaged on different dates in April, May and August,1996 as Junior Assistant-cum- Typist on daily wage basis Admittedly, the names were not requisitioned from Employment Exchange and the petitioners did not undergo any selection process as per the Recruitment Rules of the University. Petitioners, however, claim that Written English Test and Typing Test were taken before their joining and they had qualified the same. The University issued Circular dated 12.8.1997 as per which it was decided to consider the cases of such daily wagers who had put in 240 days of service as daily wager to form a panel for appointing them as Junior Assistant-cum-Typist on regular basis. It was further stipulated that all those who fulfill these conditions may appear at the Typewriting Test to be conducted on Thursday the 11th September,1997 at 3 P.M. and those who qualify the Typewriting Test will have to appear in the Written Tests in General English and General Knowledge on a date to be notified later. It was also mentioned that those who have cleared any of these tests earlier and do not want to appear in that test(s) again, need not take that test(s) again. and may inform the authorities. Thereafter, letter dated 30.9.97 was addressed to those who applied, including the petitioners for appearing in the test which was scheduled for 9.10.97. However, vide letter dated 7.10.97 it was informed that the said test has been postponed to 2.1.98. Test scheduled for 2.1.98 was not held and again postponed vide letter dated 17.12.97 informing that fresh date and time would be intimated. However, no fresh date was intimated and present petition was filed in October,1998 seeking twin reliefs mentioned above.
4. In the counter affidavit filed by the respondents, it is mentioned that direct recruitment of Junior Assistants-cum-Typists is made only as per the rules in force in the University. The rules require the incumbent to pass the following three tests:
Paper-I : General English 100 marks Duration 3 Hrs.
Paper-II : General Knowledge 50 marks Duration 1 Hr.
Paper-III: Typewriting Test 30 w.p.m. for 5 minutes.
5. It is further stated that regular employment can be given only when there is a vacant post available and after undergoing the selection process as per the Recruitment Rules of the University and, therefore, the relief which the petitioners are seeking i.e. regularisation of their services without passing the prescribed test cannot be given. It is also mentioned that petitioner No.1 had earlier filed CWP. No. 4533 of 1998 praying that they should be regularised. The said writ petition was withdrawn and present writ petition seeking similar reliefs was not maintainable.
6. Admittedly, respondents have their Recruitment Rules and for employment on regular basis, a candidate has to undergo the selection by regular process as per the said Recruitment Rules. No person can claim appointment on regular basis without passing the procedure contained in those rules. The law on this point is well settled and need no elaboration. It may be sufficient to refer to the following judgments:
1. Narendra Rai Vs. Secretary U.P. State Electricity Board and others [(1999 (1) E.S.C.408 ALL].
2. Randhir Singh Vs. Union of India .
3. Bhagwan Das Vs. State of Haryana .
4. Grih Kalyan Kendra Workers' Union Vs. Union of India .
5. Ashwani Kumar and others Vs. State of Bihar and others .
6. State of U.P. and others Vs. Ajay Kumar .
7. B.L. Gupta and another Vs. M.C.D. .
8. Life Insurance Corporation of India and another Vs. Ramesh Chandra Sharma [1999 (1) E.S.C. 697 (ALL)].
7. Therefore, the petitioners cannot be straight forward regularised unless they undergo the selection process.
8. Insofar as the claim of the petitioners for payment of salary, which is paid to regular employees, this also cannot be granted. Law on this point is now well settled by series of judgments of the Apex Court. Reference can be made to the judgment of State of Haryana Vs. Jasmer Singh in which Supreme Court has held that :
"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. Dailyrated workers are not required to possess the qualifications prescribed for regular workers, nor do they have to fulfill the requirement relating to age at the time of recruitment. They are not selected in the manner in which regular employees are selected. In other words the requirements for selection are not as rigourous. 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 dailyrated workmen are not subject 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."
9. Similarly in another judgment of the Apex Court in the case of State of Haryana Vs. Surinder Kumar and Ors. the Supreme Court has held that :
"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."
10. Reference can also be made to the judgment of Full Bench of Punjab & Haryana High Court in the case of Ranbir Singh & Anr. Vs. State of Haryana & Ors. reported in 1998(4) SLR page 11 in which it is held that.
"After noticing the aforesaid authorities, the Apex Court went to observe as under :
"8. It is, therefore, clear that the quality of work performed by different sets of persons holding different jobs will have to be evaluated. There may be differences in educational or technical qualifications which may have a bearing on the skills which the holders bring to their job although the designation of the job may be the same. There may also be other considerations which have relevance to efficiency in service which may justify differences in pay scales on the basis of criteria such as experience and seniority, or a need to prevent stagnation in the cadre, so that good performance can be elicited from persons who have reached the top of the pay scale. There may be various other considerations which may have a bearing on efficient performance in a job. This Court has repeatedly observed that evaluation of such jobs for the purpose of pay scale must be left to expert bodies and, unless there are any mala fides, its evaluation should be accepted.
9. xxx xxx xxx
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 works the requirements for selection are not as rigourous. 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."
5.A Division Bench of this Court, in which one of us (R.S. Mongia,J.) was a member in C.W.P. No. 9766 of 1995, decided on November 8, 1995, after noticing the judgment of the Apex Court in Ghaziabad Development Authority's case (Supra) had held that a daily wage employee cannot be equated with a regular employee for the purpose of pay scale. It was observed that "a daily wage employee is not subject to disciplinary control of the employer inasmuch as he may come for work on a particular day or may not come and still the employer would have no right to take any disciplinary action against such an employee who may be absent for a day or for a longer period. He is not required to take any leave from the employer for a particular day on which he does not wish to come."
6. In view of the authoritative pronouncement of the Apex Court, we are of the opinion that the view expressed by the Division Bench in C.W.P. No.17741/1991 and C.W.P. No. 9192 of 1995 and in any other judgment to the same effect would be no longer good law and would stand over ruled. Consequently, the petitioner would not be entitled to claim the same salary as is being paid to a regular Ticket Verifier.
11. Reference can be made to the judgment of Supreme Court in the case of Associated Banks Officers Association Vs. State Bank of India & Ors. for the proposition that principle of equal pay for equal work was not justifiable as per Article 37. Stretching of doctrine was to be done with caution and unless there is identifiable discrimination, doctrine should not be applied as mere difference is not discrimination. Similarly in another judgment of Apex Court in the case of Chief Superintendent, Government Livestock Farm Hissar Vs. Ramesh Kumar reported in (1997) 11 SCC 363 it is said that in absence of regular post in the establishment, daily wager could not invoke the principle of equal pay for equal work to claim parity in the pay and allowances with regular employee.
12. However, before concluding, it may be mentioned that the University had itself issued circular for holding the requisite test for the purpose of giving these petitioners appointment on regular basis. The said test was postponed and no fresh date was fixed. No reasons are stated in the counter-affidavit as to why it was postponed. Therefore, the only direction which can be given in these cases is that if there are vacancies available with the University on regular basis, the University can initiate the process of filling up of the regular vacancies by giving chance to these petitioners to appear in the test/interview etc. as per its Recruitment Rules. These writ petitions otherwise are dismissed.
No orders as to costs.