Chattisgarh High Court

Bhupendra Yadav vs State Of Chhattisgarh And Ors on 19 June, 2024

         Neutral Citation
         2024:CGHC:20394

                                          1

                                                                              NAFR
                 HIGH COURT OF CHHATTISGARH, BILASPUR
                                 WPS No. 1369 of 2015
      Bhupendra Yadav S/o Moharlal Yadav Aged About 39 Years Presently
       Working As Radiographer, District Hospital, Ambikapur, Sarguja
       Chhattisgarh.                                     ---- Petitioner

                                       Versus

     1. State Of Chhattisgarh S/o Through The Secretary, Department Of Health
        Mahanadi Mantralaya, Naya Raipur Post Office And Plice Station Naya
        Raipur District Raipur Chhattisgarh.

     2. Director Directorate Of Health Chhattisgarh Raipur Chhattisgarh.

     3. Collector Ambikapur Sarguja Chhattisgarh,

     4. Joint Director Health Ambikapur Sarguja Chhattisgarh.

     5. Chief Medical And Health Officer District Hospital Ambikapur Sarguja
        Chhattisgarh.

     6. Civil Surgeon District Hospital Ambikapur Sarguja Chhattisgarh.

                                                                 ---- Respondents

(Cause-title taken from Case Information System)

For Petitioner : Mr. H. S. Ahluwalia, Advocate For Res./State : Mr. Kalpesn Ruparel, Panel Lawyer.

Hon'ble Mr. Justice Rakesh Mohan Pandey Order on Board 19.06.2024

1. The present writ petition has been filed by the petitioner with the

following prayer(s):-

"i. That, this Hon'ble Court may kindly be pleased to quash the order dated 8/12.2014 bearing No. Legal/5643/2014(AnnexureP/1) passed respondent No. 5/Chief Medical & Health Officer, District Hospital, Ambikapur, Sarguja. ii. That, this Hon'ble Court may kindly be pleased to direct the respondents to make entire payment of different pay with interest, as has been granted to similarly situated employees with the petitioner.

iii. Any other relief, which this Hon'ble Court deems fit and proper."

2. Learned counsel appearing for the petitioner would submit that the Neutral Citation 2024:CGHC:20394

petitioner was initially appointed to the post of Radiographer on a contract

basis under the respondent / department vide order dated 16.07.2002 after

following due procedure of law. He would further submit that the Chhattisgarh

Civil Sewa (Samvida Niyukti) Niyam, 2004 came into force in the year 2004

(henceforth "Rule, 2004") which provides a certain fixed pay scale for

contractual employees. He would further submit that the petitioner is still

working on the post of Radiographer, but he is being paid the salary contrary to

the Rules, 2004, which was later modified in the year 2012 also. He would also

submit that Hon'ble Supreme Court in the matter of State of Punjab Vs. Jagjit

Singh reported in 2017 (1) SCC 148 held that the principle of 'equal pay for

equal work' has also been extended to temporary employees, daily-wage

employees, casual, ad-hoc, contractual and the like. He would further argue

that the petitioner was getting a fixed honorarium amount of Rs. 1000/- since

the date of his appointment and recently, the State has increased the amount

of honorarium from Rs. 1000/- to Rs. 5,000/-. He would also argue that the

State being a welfare State ought to have given wages to the petitioner, which

is being paid to a Skilled Labour i.e. around Rs. 350/- per day.

3. On the contrary, learned State Counsel while opposing the submissions

made by counsel for the petitioner would submit that the proposal with regard

to enhancement of honorarium amount was placed before the concerned and

the Committee, after due consideration, enhanced the amount of honorarium

from Rs. 1,000/- to Rs. 5,000/-. He would further submit that since the

petitioner is not a government servant, he is not entitled to get a fixed salary;

therefore, this petition is liable to be dismissed.

4. I have heard learned counsel appearing for the parties and perused the

material available on the record.

5. Admittedly, the petitioner was appointed as a contract employee in the Neutral Citation 2024:CGHC:20394

year 2002 on the post of Radiographer at a fixed honorarium of Rs. 1,000/-.

The petitioner is still working on the post of Radiographer, but recently, his

honorarium has been enhanced from Rs. 1,000/- to Rs. 5,000/- based on the

recommendation made by the Committee.

6. A Skilled Labourer, who is working as a daily-wager under the State, is

getting around Rs. 350/- per day. The petitioner is a Radiographer, earlier he

was getting Rs. 1,000/- now it has been enhanced to Rs. 5,000/-.

7. The Hon'ble Supreme Court in the matter of Jagjit Singh (supra), while

dealing with a similar issue held that the principle of 'equal pay for equal work'

has also been extended to temporary employees including work-charged, daily-

wage, casual, ad-hoc, contractual and the like.

8. The Hon'ble Supreme Court in the afore-cited case summarized the

conclusion drawn in cases where a claim for pay parity was raised. Relevant

paragraphs i.e. 44.1 to 44.9 and thereafter paragraphs 57 & 58 are reproduced

herein below for reference:-

44.1. In the Dhirendra Chamoli case this Court examined a claim for pay parity raised by temporary employees, for wages equal to those being disbursed to regular employees. The prayer was accepted. The action of not paying the same wage, despite the work being the same, was considered as violative of Article 14 of the Constitution. It was held, that the action amounted to exploitation - in a welfare state committed to a socialist pattern of society.

44.2. In the Surinder Singh case this Court held, that the right of equal wages claimed by temporary employees emerged, inter alia, from Article 39 of the Constitution. The principle of 'equal pay for equal work' was again applied, where the subject employee had been appointed on temporary basis, and the reference employee was borne on the permanent establishment. The temporary employee was held entitled to wages drawn by an employee on the regular establishment.

In this judgment, this Court also took note of the fact, that the above proposition was affirmed by a Constitution Bench of this Court, in the D.S. Nakara case.

44.3. In the Bhagwan Dass case this Court recorded, that in a claim for equal wages, the duration for which an employee would remain (- or had remained) engaged, would not make any difference. So also, the manner of selection and appointment would make no difference. And therefore, whether the selection was made on the basis of open competition or was limited to a cluster of villages, was considered Neutral Citation 2024:CGHC:20394

inconsequential, insofar as the applicability of the principle is concerned. And likewise, whether the appointment was for a fixed limited duration (six months, or one year), or for an unlimited duration, was also considered inconsequential, insofar as the applicability of the principle of 'equal pay for equal work' is concerned. It was held, that the claim for equal wages would be sustainable, where an employee is required to discharge similar duties and responsibilities as regular employees, and the concerned employee possesses the qualifications prescribed for the post. In the above case, this Court rejected the contention advanced on behalf of the Government, that the plea of equal wages by the employees in question, was not sustainable because the concerned employees were engaged in a temporary scheme, and against posts which were sanctioned on a year to year basis.

44.4. In the Daily Rated Casual Labour Employed under P&T Department through Bhartiya Dak Tar Mazdoor Manch case this Court held, that under principle flowing from Article 38(2) of the Constitution, Government could not deny a temporary employee, at least the minimum wage being paid to an employee in the corresponding regular cadre, alongwith 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.

44.5. In State of Punjab v. Devinder Singh this Court held, that daily- wagers were entitled to be placed in the minimum of the pay-scale of regular employees, working against the same post. The above direction was issued after accepting, that the concerned employees, were doing the same work as regular incumbents holding the same post, by applying the principle of 'equal pay for equal work'. 44.6. In the Secretary, State of Karnataka case, a Constitution Bench of this Court, set aside the judgment of the High Court, and directed that daily-wagers be paid salary equal to the lowest grade of salary and allowances being paid to regular employees. Importantly, in this case, this Court made a very important distinction between pay parity and regularization. It was held that the concept of equality would not be applicable to issues of absorption/regularization. But, the concept was held as applicable, and was indeed applied, to the issue of pay parity - if the work component was the same. The judgment rendered by the High Court, was modified by this Court, and the concerned daily-wage employees were directed to be paid wages, equal to the salary at the lowest grade of the concerned cadre.

44.7. In State of Haryana v. Charanjit Singh, a three-Judge bench of this Court held, that the decisions rendered by this Court in State of Haryana v. Jasmer Singh, State of Haryana v. Tilak Raj, the Orissa University of Agriculture & Technology case, and Government of W.B. v. Tarun K. Roy, laid down the correct law. Thereupon, this Court declared, that if the concerned daily-wage employees could establish, that they were performing equal work of equal quality, and all other relevant factors were fulfilled, a direction by a Court to pay such Neutral Citation 2024:CGHC:20394

employees equal wages (from the date of filing the writ petition), would be justified.

44.8. In State of U.P. v. Putti Lal, based on decisions in several cases (wherein the principle of 'equal pay for equal work' had been invoked), it was held, that a daily-wager discharging similar duties, as those engaged on regular basis, would be entitled to draw his wages at the minimum of the pay-scale (drawn by his counterpart, appointed on regular basis), but would not be entitled to any other allowances or increments.

44.9. In the Uttar Pradesh Land Development Corporation case this Court noticed, that the respondents were employed on contract basis, on a consolidated salary. But, because they were actually appointed to perform the work of the post of Assistant Engineer, this Court directed the employer to pay the respondents wages, in the minimum of the pay-scales ascribed for the post of Assistant Engineer.

57. Having traversed the legal parameters with reference to the application of the principle of 'equal pay for equal work', in relation to temporary employees (daily-wage employees, ad-hoc appointees, employees appointed on casual basis, contractual employees and the like), the sole factor that requires our determination is, whether the concerned employees (before this Court), were rendering similar duties and responsibilities, as were being discharged by regular employees, holding the same/corresponding posts. This exercise would require the application of the parameters of the principle of 'equal pay for equal work' summarized by us in paragraph 42 above. However, insofar as the instant aspect of the matter is concerned, it is not difficult for us to record the factual position. We say so, because it was fairly acknowledged by the learned counsel representing the State of Punjab, that all the temporary employees in the present bunch of appeals, were appointed against posts which were also available in the regular cadre/establishment. It was also accepted, that during the course of their employment, the concerned temporary employees were being randomly deputed to discharge duties and responsibilities, which at some point in time, were assigned to regular employees. Likewise, regular employees holding substantive posts, were also posted to discharge the same work, which was assigned to temporary employees, from time to time. There is, therefore, no room for any doubt, that the duties and responsibilities discharged by the temporary employees in the present set of appeals, were the same as were being discharged by regular employees. It is not the case of the appellants, that the respondent-employees did not possess the qualifications prescribed for appointment on regular basis. Furthermore, it is not the case of the State, that any of the temporary employees would not be entitled to pay parity, on any of the principles summarized by us in paragraph 42 hereinabove. 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.

58. In view of the position expressed by us in the foregoing paragraph, we have no hesitation in holding, that all the concerned temporary employees, in the present bunch of cases, would be entitled to draw wages at the minimum of the pay-scale (- at the lowest grade, in the regular pay- scale), extended to regular employees, holding the same Neutral Citation 2024:CGHC:20394

post.

9. The representation of the petitioner was rejected on the ground that the

petitioner is not a Government servant, but at the same time, citizens of the

State cannot be exploited by the State Instrumentalities. The petitioner worked

for more than 20 years at a low honorarium of Rs. 1,000/- per month and no

effective steps were taken by the State to increase the honorarium.

10. Taking into consideration the above-stated facts and the law laid down by

the Supreme Court in the matter of Jagjit Singh (supra), this petition is

allowed. The impugned order dated 08.12.2012 (Annexure P-1) passed by

respondent No. 5 is set aside. The State / competent authority is directed to

consider and decide the claim of the petitioner in light of the observations made

hereinabove and taking into consideration the provisions of the Chhattisgarh