Andhra Pradesh High Court - Amravati
Mahanthi Vijaya Lakshmi And Others vs Jagjit Singh2. Wherein on 30 August, 2024
1
APHC010357072020
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3310]
(Special Original Jurisdiction)
FRIDAY, THE THIRTIETH DAY OF AUGUST
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE DR JUSTICE K MANMADHA RAO
WRIT PETITION NO: 23711 OF 2020
Between:
Mahanthi Vijaya Lakshmi and Others ...PETITIONER(S)
AND
The Muncipal Administration And Urban Development ...RESPONDENT(S)
and Others
Counsel for the Petitioner(S):
1. K MADHAVA REDDY
2. P LAKSHMANA RAO
Counsel for the Respondent(S):
1. K.MADHAVA REDDY (SC FOR GVMC)
2. GP FOR SERVICES IV
The Court made the following:
ORDER:
-
This petition is filed under Article 226 of the Constitution of India for the
following relief:-
"to issue an order direction or writ more particularly one in the nature of Writ of
Mandamus to call for the records vide letter Rc.No.
Rc.No.16394/P.O
16394/P.O (Balyam) dated
19.06.2017 as illegal, arbitrary, unreasonable, unconstitutional and it amounts to
violative of Articles 14, 16, 21, 39(d) of the Constitution of India, contrary to principles
of natural justice and set aside the same, direct the respondents to regularizing the
services of the petitioners in terms of Hon'ble Supreme Court Judgment in the case of
Amarkant Rai v. State of Bihar, 2015(8) SCC 265 the petitioners are falling within
exception carved out in Uma Devi, 2006 4 SCC 1 with all consequential benefits in
terms of Hon'ble Supreme Court State of Punjab and Others v. Jagjit Singh and
others reported in AIR 2016 SC 5176 with interest in the interest of justice and pass
such other order or orders......."
2. The precise case of the petitioners is that they were appointed as
Balwadi Aayas and working under Greater Visakhapatnam Municipal
Corporation and assigned to promote adult education and non formal
education (drop out) and educate 3 to 5 years children. The respondent
authorities are utilizing their services in elections, senses work etc., organized
by the corporation apart from prescribed duties. The respondent authorities
have not been paid any additional remuneration for allotting other than actual
duties. The petitioners are eligible and qualified to hold the posts of Balayam
Aayas, but the respondents did not take steps to regularize their services,
inspite of several requests and also not paying the salary attached to the post
is contrary to the Hon'ble Apex Court judgments. Hence, inaction of the
respondents is questioned in this writ petition and requested to allow the
same.
3. Heard Mr. P. Lakshmana Rao, learned counsel for the petitioners and
Mr. K. Madhava Reddy, learned Standing Counsel for the respondents.
4. During hearing learned counsel for the petitioners reiterated the
contents urged in the writ affidavit and requested to allow the writ petition.
Whereas, learned Standing Counsel for the respondents vehemently opposed
to allow the writ petition and in support of his contention, he relied on a
decision of the Hon'ble Apex Court in "Oswal Fats and Oils Limited v.
Additional Commissioner (Administration), Bareilly Division, Bareilly and
Others"1 and requested to dismiss the writ petition.
5. Perused the record.
6. During hearing learned counsel for the petitioners mainly contended
that the petitioners are working for the corporation since long time with a hope
to get their employment permanent. The respondents issued G.O.Ms.No. 542,
dated 31.08.2009 sanctioning minimum time scale to 310 employees working
in the different categories i.e NMR/ contract workers etc., but ignoring services
of the petitioners, it amounts to violation of articles, 14, 16, 21 of the
Constitution of India. It is further contended that the Government had issued
G.O.Rt.No.333, dated 07.03.2011 enhancing the remuneration of the contract/
out sourcing employee working in Municipalities and Corporations to Rs.
6,700/- and the Municipal Standing Committee had approved and passed
resolution No. 547 of 2011, dated 09.11.2011 that as per G.O.Rt.No.333,
dated 07.03.2011 Balayam Teachers should be paid maximum of Rs. 6,700/-
and Aayas should be paid Rs. 2,000/-. Therefore, the petitioners are eligible
and entitled for regularization with all consequential benefits.
7. Learned counsel for the petitioners relied on a decision of the Hon'ble
Supreme Court in the case of "State of Punjab Vs. Jagjit Singh2. Wherein
(2010) 4 SCC 728
2017(1) SCC 148
the Hon'ble Apex Court discussed various aspects considered by the various
Hon'ble Courts and held as follows:
"42.2. The mere fact that the subject post occupied by the claimant is
in a "different department" vis-à-vis the reference post does not have any
bearing on the determination of a claim under the principle of "equal pay
for equal work". Persons discharging identical duties cannot be treated
differently in the matter of their pay, merely because they belong to
different departments of the Government (see Randhir Singh Case and
D.S.Nakara Case).
...
42.5. In determining equality of functions and responsibilities under
the principle of "equal pay for equal work", it is necessary to keep in mind
that the duties of the two posts should be of equal sensitivity, and also,
qualitatively responsibility, reliability and confidentiality, would fall within the
realm of valid classification, and therefore, pay differentiation would be
legitimate and permissible (See Federation of All India Customs and
Central Excise Stenographers case and SBI's case). The nature of work of
the subject post volume of work should be the same. And so also, the level
of responsibility. If these parameters are not met, parity cannot be claimed
under the principle of "equal pay for equal work".....
.....
44.4. In Daily Rated Casual Labour case, this Court held, that under
the principle flowing from Article 38(2) of the Constitution, the Government
could not deny a temporary employee, at least the minimum wage being
paid to an employee in the corresponding regular cadre, along with
dearness allowance and additional dearness allowance, as well as, all the
other benefits which were being extended to casual workers. It was also
held, that the classification of workers (as unskilled, semi-skilled and
skilled), doing the same work, into different categories for payment of
wages at different rates, was not tenable. It was also held, that such an act
of an employer would amount to exploitation. And further that the same
would be arbitrary and discriminatory, and therefore, violative of Articles 14
and 16 of the Constitution.
.....
49.1 We are of the considered view, that in Para 44 extracted above,
the Constitution Bench clearly distinguished the issues of pay parity and
regularization in service. It was held, that on the issue of pay parity, the
concept of "equality" would be applicable (as had indeed been applied by
the Court, in various decisions), but the principle of "equality" could not be
invoked for absorbing temporary employees in government service, or for
making temporary employees regular/ permanent. All the observations
made in the above- extracted paragraphs, relate to the subject of
regularization/ permanence, and not, to the principle of "equal pay for
equal work". As we have already noticed above, the Constitution Bench
unambiguously held, that on the issue of pay parity, the High Court ought
to have directed that the daily-wage workers be paid wages equal to the
salary, at the lowest grade of their cadre. This deficiency was made good
by making such a direction.
.....
.....
54.1. A perusal of the above conclusion drawn in the impugned
judgment (passed by the Full Bench), reveals that the Full Bench carved
out an exception for employees, who were not appointed against regular
sanctioned posts, if their services had remained continuous (with notional
breaks, as well) for a period of 10 years. This category of temporary
employees was extended the benefit of wages at the minimum of the
regular pay scale. In Umadevi case, similarly, employees who had
rendered 10 years service were granted an exception (refer to para 53 of
the judgment extracted in the proceeding paragraph). The above position
adopted by the High Court reveals, that the High Court intermingled the
legal position determined by this Court on the subject of regularization of
employees, while adjudicating upon the proposition of pay parity, emerging
employees, while adjudicating upon the proposition of pay parity, emerging
under the principle of "equal pay for equal work". In our view, it is this mix-
up, which has resulted in the High Court recording its afore-extracted
conclusions".
7. It is contended by the learned counsel for the petitioners that the
Hon'ble Apex Court rightly held in the decision cited supra that there is no
room for any doubt that the principle of "equal pay for equal work" has
emerged from an interpretation of different provisions of the Constitution,
which is binding in this case also. The parameters of the principle have been
extended to the temporary employees viz., contract, casual, ad hoc etc., and
therefore in the case of the petitioners also, they are eligible and entitled for
the relief as claimed in the writ petition.
8. Learned counsel for the petitioners draws the attention of this Court
to consider the services of the petitioners for regularization with all
consequential benefits in terms of the decision "State of Punjab and Others
Vs. Jagjit Singh and Others, wherein it was held as follows:
"10. ...When the services of the respondent had not been
regularized, his appointment was on temporary basis on consolidated pay
and he had not undergone the process of regular recruitment, direction to
give regular pay-scale could not be given that too without examining the
relevant factors to apply the principles of "equal pay for equal work". It is
clear from the averments made in the writ petition extracted above, nothing
is stated as regards the nature of work, responsibilities attached to the
respondent without comparing them with the regularly recruited Junior
Assistants. ., "
9. Having traversed the legal parameters with reference to the
application of principle of "equal pay for equal work" in relation to temporary
employees i.e daily wage employees, ad-hoc appointees, employees
appointed on casual basis etc., the sole factor that requires for determination
would be whether the petitioners is rendering similar duties and
responsibilities, as he being discharged by regular employees, holding the
same posts. This exercise would require the application of the parameters of
the principle of 'equal pay for equal work'. There can be no doubt, that the
principle of 'equal pay for equal work' would be applicable to all the
concerned temporary employees, so as to vest in them the right to claim
wages, at par with the minimum of the pay-scale of regularly engaged
Government employees, holding the same post. But the 2nd respondent
without considering the case of the petitioners, simply passed impugned
order dated 19.06.2017, which is highly illegal and arbitrary.
10. This Court finds that an employee engaged for the same work
cannot be paid less than another who performs the same duties and
responsibilities. Such act besides being demeaning, strikes at the very
foundation of human dignity. Any act of paying less wages as compared to
other similarly situate constitutes an act of exploitative enslavement, emerging
out of a domineering position. In similar circumstances of this case in nature,
this Court passed several judgments to direct the respondents to extend the
benefit to the employees by reckoning their services from the date of
completion of five years of service on or before 25.11.1993 for the purpose of
pension and pensaionary benefits, but shall not be entitled to actual monetary
benefits for the said period in the form of arrears of pay or allowances.
11. Having regard to the facts and circumstances of the case, upon
perusal of the material on record and considering the submissions of both the
learned counsel, this Court has no hesitation to allow the writ petition as
prayed for in the light of the decisions relied on by the petitioners.
12. Accordingly, the Writ Petition is allowed, while setting aside the
impugned order dated 19.06.2017 issued by the 2nd respondent is declaring as
illegal and arbitrary and same is hereby set aside. The respondents are
directed to regularize the services of the petitioners from the date of
completion of five years of their respective service with all consequential
benefits, within four (04) months from the date of receipt of a copy of this
order. There shall be no order as to costs.
As a sequel, miscellaneous applications pending, if any, shall also stand
closed.
_______________________
DR.K. MANMADHA RAO, J
Date: 30.09.2022
KK
