State Of U.P. And 3 Others vs Mahipal Singh And Anr.
2014 Latest Caselaw 7648 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Chief Justice's Court
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 861 of 2014
 

 
Appellant :- State Of U.P. And 3 Others
 
Respondent :- Mahipal Singh And Anr.
 
Counsel for Appellant :- S.C.,A.K. Mishra
 
Counsel for Respondent :- Jitendra Singh,Veer Singh
 

 
Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
 
Hon'ble Pradeep Kumar Singh Baghel,J.

This special appeal arises from a judgement of the learned Single Judge dated 16 April 2014 by which the State Government has been directed to take a decision in regard to the creation of a post of sweeper for the office of the Sub-Divisional Officer1, Dhampur, Bijnor within two months, on a letter which was addressed by the Board of Revenue on 8 February 1994. The learned Single Judge has also directed that from 8 February 1994 till the creation of the post, the first respondent shall be allowed salary equivalent to the salary at the lowest grade of an employee on the post of sweeper in the State, in the office of the Collector. Arrears have been directed to be worked out within a period of three months and to be paid over to the first respondent. The first respondent has also been granted continuity of service.

The first respondent was engaged as a sweeper by the SDO when a new office was established in 1986. By a letter dated 8 February 1990, the SDO requested the District Magistrate to grant him permission to appoint the sweeper. On 2 March 1990, the District Magistrate issued directions for the appointment of the first respondent on a part-time basis as a sweeper on a consolidated salary of Rs. 76/- per month. The consolidated payment has since been revised from time to time. On 24 January 1992, the District Magistrate addressed a communication to the Board of Revenue for the creation of a permanent post of sweeper in the office of the SDO at Dhampur. Correspondence ensued between the Board of Revenue and the District Magistrate. By a letter dated 8 February 1994, the Secretary, Board of Revenue forwarded the papers to the State Government for the creation of a permanent post of sweeper in the office of the SDO at Dhampur.

The first respondent had moved the State Public Services Tribunal at Lucknow by filing a claim petition2. The claim petition was dismissed by an order dated 13 February 1996 with the following observations:

"At the time of admission stage, from the record it is clear that he is part time employee and he has worked as such. He cannot show any rule under which a part time employee can be converted into a full time employee. It is also clear from record that no post has been created in which he might be considered as full time employee. It is also clear that the recommendation has been made by the lower authority of the Govt. to create the post so that the petitioner may be considered for appointment as full time employee on that post. No post has been created so far, the petitioner cannot be given a legal right to get a declaration as full time employee.

Thus for the above reasons the claim petition is not maintainable and is liable to be dismissed at the admission stage."

Eventually, a writ petition3 was filed by the first respondent. In the said writ petition, the reliefs that were claimed were for a direction in the nature of mandamus directing the appellants to regularize the services of the first respondent as a class-IV employee in the post of sweeper; for the payment of arrears of salary since 1990 as payable to a regular class-IV employee; and restraining the appellants from interfering with the discharge of duties by the first respondent.

The learned Single Judge has, after noticing the decision of the Supreme Court in Secretary, State of Karnataka and others v. Uma Devi (3) and others4, held that the first respondent was continuously working as a part-time employee since his appointment on 2 March 1990 and had completed ten years of continuous service, the Board of Revenue had also recommended to the State Government for creation of a permanent post, since there is a permanent establishment of the SDO at Dhampur but the State had delayed in taking a decision thereon. In the meantime, the petition which was filed in March 1996 remained pending. On these facts, the learned Single Judge issued the following directions while allowing the aforesaid petition:

"9...State of U.P. is directed to take decision relating to creation of post of 'sweeper' for the office of Sub-Divisional Officer, Dhampur, Bijnor within a period of two months, on the letter of Board of Revenue U.P. at Lucknow dated 08.02.1994. From 08.02.1994 till creation of the post, the petitioner be given salary equal to the salary at the lowest grade of employees of the post of sweeper in State of U.P., in the office of Collector. The arrears be worked out within three months and paid to the petitioner. The petitioner shall be entitled for other benefits of continuity in service."

Learned Standing Counsel appearing on behalf of the appellants has questioned both the direction to the State to consider the request of the Board of Revenue as well as the direction to allow salary to the first respondent from 8 February 1994 on the lowest grade of an employee in the post of sweeper in the State. It is urged that no direction can be issued for the payment of salary on the minimum of the pay scale in the case of a person who is admittedly a daily wager. It is further urged that the principle of 'equal pay for equal work' has no application where an employee is not borne on the permanent establishment, and in this regard reliance is placed on a decision of the Supreme Court in State of Haryana and another Vs Tilak Raj and others5.

On the other hand, learned Senior Advocate appearing on behalf of the first respondent relied upon the observations contained in Para-55 of the decision in Uma Devi (supra), to the following effect:

"55...We are, therefore, of the view that, at best, the Division Bench of the High Court should have directed that wages equal to the salary that is being paid to regular employees be paid to these daily-wage employees with effect from the date of its judgment. Hence, that part of the direction of the Division Bench is modified and it is directed that these daily-wage earners be paid wages equal to the salary at the lowest grade of employees of their cadre in the Commercial Taxes Department in government service, from the date of the judgment of the Division Bench of the High Court. Since, they are only daily-wage earners, there would be no question of other allowances being paid to them..."

In the first part of the direction which has been issued by the learned Single Judge, the State Government has been directed to take a decision on the request which was made by the Board of Revenue in regard to the creation of a permanent post of sweeper on the establishment of the SDO, Dhampur, Bijnor. On this aspect, the direction of the learned Single Judge, it must be noted, is not a direction either to create the post or to regularize the first respondent. Whether a post should be created or sanctioned, is a matter entirely for the State Government to decide.

In the present case, the office of the SDO was established in 1986 and since a sweeper had to be appointed, the respondent workman was engaged on a part-time basis, which arrangement has been continuing since then. The Board of Revenue had written to the State Government as far back as on 8 February 1994 recommending the creation of a permanent post. The State Government had not taken its decision. The direction of the learned Single Judge to the State Government to take a decision, therefore, cannot be faulted since the learned Single Judge has neither directed the creation of the post nor issued a mandamus for regularization of the first respondent. A direction for taking a decision, in fact, is a direction to take a decision in accordance with law and hence that part of the order is unexceptionable.

The real bone of contention in the special appeal is in regard to the direction of the learned Single Judge to pay to the first respondent the salary at the lowest grade or, in other words, in the minimum of the salary payable to a regular employee of the State holding the post of sweeper and to pay arrears w.e.f. 8 February 1994. On this direction of the learned Single Judge for payment of arrears, the learned Senior Advocate appearing on behalf of the first respondent fairly stated before the Court that this part of the order for payment of arrears from 8 February 1994 cannot be sustained but it was sought to be submitted that in consistent with the direction contained in Para-55 of the decision in Uma Devi's case (supra), a direction for the payment of salary on the minimum of the pay scale would be justified and in accordance with law. Learned Senior Advocate submitted that the direction of the Supreme Court in Para-55 of the decision in Uma Devi's case can be divided in two parts, the first in regard to the grant of minimum of the scale of pay and the second in regard to the grant of relaxation in the matter of permanent engagement Hence, it was urged that only the latter part constitutes a direction under Article 142 of the Constitution.

Before we deal with the submissions, we must, at this stage, take due note of the position which was laid down in a judgement of the Supreme Court in State of Haryana Vs Tilak Raj (supra), which has been followed since in several decisions of the Supreme Court. The Supreme Court held that a scale of pay is attached to a definite post, whereas a daily wager does not hold a post. Moreover, it was held that the doctrine of 'equal pay for equal work' applies as between equivalents and would have no application where a parity is sought by a daily wager with permanent employees. In that context, the following principles were laid down:

"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 in a mathematical formula."

The same principle, it must be noted, was laid down in an earlier decision in State of Haryana Vs Jasmer Singh6.

The decision of the Supreme Court in Uma Devi's case, more specifically Para-55, has been considered in State of Punjab Vs Surjit Singh7 by the Supreme Court. The Supreme Court has considered the entirety of the observations contained in Para-55, as extracted therein, as constituting directions which are referable to the exercise of jurisdiction under Article 142 of the Constitution. This is clear from the following extracts contained in Paragraphs 29 & 30 of the decision:

"29. It is in the aforementioned factual backdrop, this Court in exercise of its jurisdiction under Article 142 of the Constitution of India, directed: (Umadevi case8, SCC p. 43, para 55)

"55.....Hence, that part of the direction of the Division Bench is modified and it is directed that these daily-wage earners be paid wages equal to the salary at the lowest grade of employees of their cadre in the Commercial Taxes Department in government service, from the date of the judgment of the Division Bench of the High Court. Since, they are only daily-wage earners, there would be no question of other allowances being paid to them. In view of our conclusion, that the courts are not expected to issue directions for making such persons permanent in service, we set aside that part of the direction of the High Court directing the Government to consider their cases for regularisation. We also notice that the High Court has not adverted to the aspect as to whether it was regularization or it was giving permanency that was being directed by the High Court. In such a situation, the direction in that regard will stand deleted and the appeals filed by the State would stand allowed to that extent. If sanctioned posts are vacant (they are said to be vacant) the State will take immediate steps for filling those posts by a regular process of selection. But when regular recruitment is undertaken, the respondents in CAs Nos. 3595-612 and those in the Commercial Taxes Department similarly situated, will be allowed to compete, waiving the age restriction imposed for the recruitment and giving some weightage for their having been engaged for work in the Department for a significant period of time. That would be the extent of the exercise of power by this Court under Article 142 of the Constitution to do justice to them.

30. We, therefore, do not see that any law has been laid down in para 55 of the judgement in Umadevi (3) case9. Directions were issued in view of the limited controversy. As indicated, the State's grievances were limited."

In several judgements of the Supreme Court, it has been held that the principle of 'equal pay for equal work' cannot be attracted merely on the nature of the work, irrespective of the educational qualifications attached to a post or irrespective of the source of recruitment and other relevant considerations. Hence, it is now a well settled principle of law that the doctrine of 'equal pay for equal work' is not a matter of abstract application or a mathematical formula that can be applied to a case.

In this regard we may only refer, at this stage, to the decisions of the Supreme Court in Orissa University of Agriculture & Technology and another Vs Manoj K. Mohanty10, Government of W.B. Vs Tarun K. Roy and others11, and State of Haryana and others Vs Charanjit Singh and others12.

We may also note that where State legislation, such as the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 provides for a catalogue of unfair labour practices, such as engaging employees on daily wage, casual or temporary basis, the remedy under the industrial law would, in such cases, be available, as held by the Supreme Court in Maharashtra Road Transport Corporation Vs Casteribe Rajya P. Karmchari Sanghatana13. However, a general direction of the nature which was issued by the learned Single Judge in the present case cannot be issued in exercise of the writ jurisdiction under Article 226 of the Constitution.

For these reasons, we are of the view that the impugned judgement and order of the learned Single Judge would have to be set aside and is set aside to the extent it directs the State to grant to the first respondent salary equivalent to the salary payable to the lowest grade of an employee holding the post of sweeper in the State and for the payment of arrears w.e.f. 8 February 1994. We, however, direct that from the date of the decision of the learned Single Judge, namely 16 April 2014, the first respondent would be entitled to the payment of minimum wages as applicable in the State under the relevant notification, or as the case may be, Government Order holding the field.

The special appeal is, accordingly, disposed of in the aforesaid terms.

There shall be no order as to costs.

Order Date :- 17.10.2014

DS/-

(Dr. D.Y. Chandrachud, C.J.)

(P.K.S. Baghel, J.)

Chief Justice's Court

Civil Misc. Delay Condonation Application No. 335818 of 2014

IN

Case :- SPECIAL APPEAL DEFECTIVE No. - 861 of 2014

Appellant :- State Of U.P. And 3 Others

Respondent :- Mahipal Singh And Anr.

Counsel for Appellant :- S.C.,A.K. Mishra

Counsel for Respondent :- Jitendra Singh,Veer Singh

Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice

Hon'ble Pradeep Kumar Singh Baghel,J.

This is an application for condonation of 146 days' delay in filing the appeal by the State.

The explanation which has been furnished in the affidavit filed in support of the application is satisfactory. Hence, the delay in filing the appeal is condoned.

The application is, accordingly, allowed.

Order Date :- 17.10.2014

DS/-

(Dr. D.Y. Chandrachud, C.J.)

(P.K.S. Baghel, J.)