Community Services Department ... vs Municipal Corporation Of Delhi
1992 Latest Caselaw 240 Del

JUDGMENT

C.M. Nayar, J.

(1) The present petition is filed on behalf of Part-time Community employees of the Community Service Department of the respondent, Municipal Corporation of Delhi. The petitioner no. I is a registered Union of such part-time employees and petitioner no.2 is a member of the said Union. They are claiming relief on behalf of their members for regularisation, as well as, for equal pay for equal work.

(2) The Part-time Community employees of the Municipal Corporation of Delhi are working in the Community Services Department of the Corporation. The total sanctioned posts of part-time Community employees is 460. There are 36 employees who have put in more than 10 years of service. 160 employees have put in 5 to 10 years of service and the remaining have put in less than 5 years service. The said part-time Community employees are being paid consolidated salary of Rs.500.00 per month whereas the regular Community employees and Assistant Community Organisers, who are also performing the same job, are in the regular pay scale of Rs.950-1500 and 1350-2200 after Fourth Pay Commission recommendations. The regular employees are also entitled to all consequential benefits of regular employees such as Dearness Allowance, H.R.A. etc. The part-time employees are not entitled to any such benefits and only have to be content with consolidated salary of Rs.500.00 .

(3) It is further contended that the regular employees work for six hours a day with half an hour lunch break, whereas the part-time community employees work for four hours a day with no break and if the benefits of leave etc. are taken into consideration, the total man hours put in by regular employees in a year come to 1243 hours whereas part-time employees work for 1084 hours. There is, therefore, a marginal difference in the hours put in by the regular employees, as compared to the part-time employees, who are also deprived of the various benefits, which are given to the regular employees. The majority of part-time Community employee's are engaged in teaching job and if the benefit of leave, vacation etc. are granted to them, the said employees would have worked for more hours than the regular employees, as employed with the Corporation.

(4) Learned counsel for the petitioner has claimed the relief of regularisation and equation with the regular employees, as well as, equal pay for equal work for the members of the petitioner's Union, who constitute the category of part-time community employees. He has further cited various judgments of the Supreme Court to support the preposition that denial of minimum pay in pay scales of regularly employed employees amounts to exploitation of labour and classification of casual labourers for the purpose of different rate of wages is violative of Articles 14 and 16 of the Constitution of India. Reference may be made to the judgments as reported in Randhir Singh v. Union of India and others (1982) 3S.C.R. 298; Dhirendra Chamoli and another v. State of U.P. ; Daily Rated Casual Labour employed under P&T Department through Bhartiya Dak Tar Mazdoor Manch v. Union of India and others ; Jaipal & others v. State of Haryana & others ; Y.K.Mehta and others v. Union of India and another and Harish Chander Sharma and others v. Union of India and others 1988 (1) Delhi Lawyer 305.

(5) In Daily Rated Casual Labour (supra) their Lordships of Hon'ble Supreme Court held: "THE Government cannot take advantage of its dominant position, and compel any worker to work even as a casual labourer on starving wages. It may be that the casual labourer has agreed to work on such low wages. That he has done because he has no other choice. It is poverty that has driven him to that state.The Government should be a model employer. Therefore, the classification of employees into regularly recruited employees and casual employees rendering the same kind of service which is being rendered by the regular employees doing the same type of work by the Posts and Telegraphs Department for the purpose of paying less than the minimum pay payable to employees in the corresponding regular cadres particularly in the lowest rungs of the department where the pay scales are the lowest would not be tenable."

IN Randhir Singh (supra) the Hon'ble Supreme Court held: "It is true that the principle of "equal pay for equal work" is not expressly declared by our Constitution to be a fundamental right. But it certainly is a Constitutional goal.Article 3(d) of the Constitution proclaims "equal pay for equal work for both men and women" as a Directive principle of State Policy. "Equal pay for equal work for both men and women" means equal pay for equal work for every one and as between the sexes. Directive Principles have to be read into the fundamental rights as a matter of interpretation. Article 14 of the Constitution enjoins the State not to deny any person equality before the law or the equal protection of the laws and Article 16 declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. These equality clause's of the Constitution must mean something to everyone. To the vast majority of the people the equality clauses of the Constitution would mean nothing if they are unconcerned with the work they do and the pay they get.To them the equality clauses will have some substance if equal work means equal pay. Questions concerning wages and the like mundane they may be, are yet matters of vital concern to them and it is there, if at all that the equality clauses of the Constitution have any significance to them. The preamble to the Constitution declares the solemn resolution of the people of India to constitute India into a Sovereign Socialist Democratic Republic. Again the word 'Socialist' must mean something. Even if it does not mean 'to each according to his need', it must at least mean 'equal pay for equal work'."

(6) Reference may also be made to the judgment as reported in Dhirendra Chamoli and another (supra), wherein the Supreme Court held that it was not open to the Government to deny such benefits to casual workers on ground of acceptance of their employment with full knowledge of the disadvantage and such denial would be violative of Article 14 of the Constitution of India.

(7) In Y.K.Mehta and others (supra) the Supreme Court categorically held that equal pay for equal work as embodied in Articles 37 and 39(d) of the Constitution of India and contained in Directive principles of the State, though not enforceable by any Court, are intended to be implemented by the State on its own accord to promote welfare of the people.

(8) In Jaipal & others (supra) the Supreme Court, while dealing with the case of Haryana Education Department, came to the conclusion that nature of duties and functions performed by Instructors were similarly to those performed by squad teachers and doctrine of equal work for equal pay would apply to the premise of similar work but it does not mean that there should be complete identify in all respects. A temporary or casual employee performing the same duties and functions is entitled to the same as paid to a permanent employee. The difference in mode of selection will not affect the application of the doctrine of equal work equal pay.

(9) The respondent Corporation has explained the brief history of the recruitment of part-time community employees and has explained that the concept was synonymous as that of social community service with the aim of developing self spirit and community action programme and only the dedicated workers were selected and they were given a fixed emoluments. The part-time employees are required to work only for four hours, as against the normal 7 hours working in a day by the regular employees. They were never equated with the regular employees and, therefore, were not eligible for higher salary as was payable to the regular employees.

(10) The petitioners in the present case have been employed as community part-time employees and they put in nearly the same number of hours as are put in by the regular employees. They are paid a consolidated salary of Rs.500.00 , whereas, the regular employees are in the revised grade of Rs.950-1500 and Rs.l350- 2200 respectively. There has been total stagnation and no improvement even in the consolidated salary of the petitioners who are represented by their Union and no benefits such as Dearness Allowance, H.R.A. etc. are available to them. The jobs are also transferable.

(11) The Supreme Court has clearly settled the law that the employees cannot be discriminated on superficial grounds and they are entitled to the benefit of principles of equal pay for equal work and they cannot continuously be given a consolidated salary, which is far lower than the salary paid to the regular employees for similar work. It is established that in the present case the employees are performing the same duties and functions although it may be argued that they put in marginally lesser number of hours. I will, therefore, hold that the petitioners are entitled to the same pay and the same pay scale, as available to regular community employees, employed on regular basis by the respondent corporation. This will, however, be subject to the proportionate hours, the petitioners put in as part-time community employees. I direct that the respondent Corporation shall work out the salaries of the petitioners on this basis and award the same.This will,however, have prospective effect and the employees shall not be entitled to any arrears of pay as a result of this direction.

(12) The other point, which has been canvassed before me, is with regard to the regularisation of the employees of the petitioner no. 1. Reference may be made to the additional affidavit, filed on behalf of the respondent Corporation. Paragraph 2 of the said affidavits reads as follows:- "THAT on date there are 94 sanctioned posts of Community worker in the pay scale of Rs.950-1500 (46+48 sanctioned by the Standing Committee vide Resolution No. 423 dated 17.5.89) in the Community Service Department of the Municipal Corporation of Delhi. At present 47 posts (30+17) filled up and out of which 7 Community workers are working on current duty charge basis as Assistant Community Organiser. At present we have 47 posts which are lying vacant.As per recruitment regulations (as approved by the Corporation in concurrence with the Upsc vide its Resolution No. 265 dated 3.7.84 and enforce). The method of recruitment is 100% by promotion from amongst community Worker (Part time) with 5 years regular service in the grade failing which by direct recruitment. These RRs have been notified by Delhi Administration vide Gazette Notification No. F.9(3)/88-LSG/7682 dated 21.9.89."

(13) The relevant Rule, laying down the conditions for promotion for part-time community employees to community employees on regular basis, is contain in Regulation 11 and the same reads as follows: "11. In case of rectt. by Promotion:Community promotion/deputation/ transfer to be made: Worker(Part-time) with five years regular service in the grade

(14) The earlier Regulation 10, which laid down that 50 per cent of the posts shall be filled in by promotion and 50 per cent by direct recruitment was amended by resolution No. 136 dated June 7, 1983,and all the posts are now to be filled by promotion. The additional affidavit of the respondent corporation clearly indicates that some posts are still lying vacant and they have yet to be filled in.

(14) I, therefore, direct the respondents to fill up such posts and accommodate the petitioners as Community employees on regular basis in order of their seniority and subject to their being found eligible in terms of the Regulations as framed. The remaining part-time employees shall be accommodated as and when the vacancies arise in future and they are found eligible for the same.

(15) The petition, as a consequence, is allowed in the above terms and the rule is made absolute. The respondent Corporation shall comply with the directions within a period of two months.There shall be no order as to costs.