National Pharmaceutical Pric.A vs Garima Seth And Ors.
2019 Latest Caselaw 3772 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                            Date of Decision: 14.08.2019

+    W.P.(C) 6441/2003

     NATIONAL PHARMACEUTICAL PRIC.A         ..... Petitioner
                 Through: Mr. Umesh Sharma, Advocate.
                         versus

     GARIMA SETH AND ORS.                                  ..... Respondents
                  Through:             Mr. M.K. Bhardwaj, Mr. Shubham
                                       and Mr. Akash Dahiya, Advocates for
                                       respondent nos. 5, 7, 8 and 10.

     CORAM:
     HON'BLE MR. JUSTICE G.S.SISTANI
     HON'BLE MS. JUSTICE JYOTI SINGH

JYOTI SINGH, J. (ORAL)

1. The present petition has been filed assailing the order dated 28.1.2003 passed by the Central Administrative Tribunal in O.A. No. 153/2002 whereby the Central Administrative Tribunal has allowed the OA filed by the respondents herein and has granted them allowances at the minimum of the pay-scale of Rs.5,000-8,000/- as also one causal leave, if they serve for full one month. The Tribunal has also directed the petitioner herein to allow the respondents to continue to work without a break as long as the work so requires, in the absence of any regular posts. Liberty has however been granted to the petitioner to terminate their services, in case of indiscipline.

2. The brief facts necessary for disposal of the present writ petition are

that the petitioner NPPA is an attached office of the Ministry of Chemical and Fertilizers. It has five Divisions headed by five Directors, with other ancillary staff.

3. NPPA was formed in 1997 for implementation of the provisions of the Drugs Price Control Order, promulgated under the Essential Commodities Act, 1955. Petitioner has been delegated the power to fix prices of bulk drugs and their formulation based on guidelines under the Control Order. For fixing the bulk drug prices of scheduled drugs, studying on costing and technical and economical aspects are undertaken. For the purposes of carrying out the aforesaid functions information is collected through the available literature, fact sheets, interaction with various Companies, etc. These projects involve collation and analysis of the data and for this purpose the petitioner engages Data Entry Operators (hereinafter referred to as 'DEOs'), who are engaged on contractual basis.

4. The respondents herein were appointed as DEOs with the petitioner on contract basis. The first appointment was made in December, 1997 of the first respondent for a period of six months on a consolidated salary of Rs.5,000/- per month. Respondent nos. 2 and 3 were appointed on 20.5.1998 and 4.8.1998, respectively.

5. Appointment of the respondents were initially for a period of six months but was continued beyond the said period, without any break. It is the case of the respondents that w.e.f. December, 1998 a new officer took charge of the Administration, and soon thereafter the period of extension was reduced to 89 days instead of six months. In fact, as per the new practice, as soon as the 89 days period ended, a

break of three days was given and again an order of re-appointment for a period of 89 days, would be issued. This process continued till the filing of the O.A. by the respondents in 2002, although the last appointment letter placed on record by the respondents was with respect to their employment upto 31.1.2001.

6. It is undisputed that the respondents are Graduates with diploma/certificate in computer applications. The work entrusted to the respondents was as under:-

"a) compilation of data relating to prices of drugs;

b) preparation/compilation of monthly reports on price movements of drugs;

c) furnishing information of Market trends including fluctuation in the prices of medicines;

e) Updation/Compilation of Web-site."

7. Since the respondents were handling the same nature of job as regular DEOs in other Government Departments, they represented to the petitioner for grant of the pay scale of Rs.5,000-8,000/- as given to the EDP staff under the 6th Pay Commission. It was also their grievance that no DA, HRA, etc. was being paid to them and they were not even entitled to any leave.

8. Having received no response to their representations, the respondents filed O.A. bearing No. 156/2002 seeking the relief of grant of pay scale of Rs.5,000-8,000/- with other allowances, as admissible to the regular DEOs as well as other benefits of leave etc. A prayer was also sought for grant of age relaxation as and when the respondents applied for regular recruitment.

9. Petitioner filed its reply and opposed the application. The stand of the petitioner in the O.A. was that prices of the bulk drugs fixed by the

petitioner would remain valid for three years and after which the next study would start. The work was not of a perennial nature and as and when the work was available, the DEOs were engaged or re-engaged. The terms of their engagement was for a limited period and on a consolidated honorarium and this was clearly made known to the respondents in advance. Since the DEOs were engaged on temporary, ad hoc or contract basis, they were not entitled to the scale of Rs.5,000-8,000/- which is given to the DEOs appointed on a regular post. Reliance was placed by the petitioner on the judgment passed by the Tribunal in the case of Girish Kandpal Vs. UOI in O.A. No. 1611/1998 which related to the DEOs working in the BICP. In the said case the Tribunal had declined to give relief to the said applicants on the ground that they were appointed on contract basis, and the appointments were not against any regular vacancies. Work was not perennial but on a project to project basis. The Tribunal had partially allowed the O.A. permitting the applicants to continue working on the projects and granting them age relaxation in case they applied for regular appointment.

10. The Tribunal after hearing the parties allowed the O.A. and held that the respondents herein would be entitled to the allowances at the minimum of the pay scale of Rs.5,000-8,000/- along with one casual leave, if they served for full one month. The Tribunal extensively quoted the letters of appointment of the respondents on contract basis for short period with consolidated honorarium as well as their termination letters, resulting in a break in service. Tribunal also noted the fact that there were no Recruitment Rules in the petitioner

organisation as also the fact that pay scale for similar posts in other Government Departments admittedly was Rs.5,000-8,000/-. The Tribunal condemned the manner in which the respondents were disengaged for a short period only to be re-employed so that they could be deprived of the pay scale and continuity of service. For the grant of the pay scale the Tribunal came to a conclusion that principle of 'equal pay for equal work' was a well-recognized doctrine and relied on the judgment of the Tribunal in the case of Dr. (Mrs.) Sangeeta Narang and Ors. Vs. Delhi Administration, Etc., (1988) 6 ATC 405. On the touchstone of Article 14 and principle of 'equal pay for equal work', the respondents herein had been given the benefit of the minimum of the pay scale of Rs.5,000-8,000/-.

11. In so far as the relief of regularization was concerned, the same was declined since there were no regular sanctioned posts of DEOs in the petitioner organization and hence no Recruitment Rules.

12. Learned counsel for the petitioner contends before this Court that the petitioner organization does not have any regular sanctioned posts of DEOs or any pay scale or Recruitment Rules for the said post. He further contends that the work required to be done by the DEOs is only seasonal in nature. As and when certain projects are undertaken by the petitioner, the DEOs are engaged and are then disengaged. The nature of employment of the respondents is only contractual and they cannot stake any claim to pay scales attached to regular posts in the other departments.

13. It is contended that the Tribunal had not undertaken any exercise to compare the nature of duties and service conditions of the respondents

with those of the DEOs in the other departments before granting them the regular pay scale. In any case it is not the domain of the Tribunal to enter into the issue of fixation of pay scales or determine parity of duties, which is a complex matter and is best left to the Government. Reliance is placed on the judgment of the Apex Court in the case of State of Haryana and Anr. Vs. Tilak Raj and Ors. (2003) 6 SCC 123 as well as Union of India Vs. P.V. Hariharan (1997) 3 SCC 568 for the proposition that fixation of pay scales is the domain of the Executive and unless it is a clear case of hostile discrimination, there should be no judicial interference.

14. It is next contended that in the absence of regular sanctioned posts, fixation of pay scales at par with pay scales of regular employees of other departments cannot be given to persons working on ad-hoc or contract basis. Reliance is placed on the judgment of Ghaziabad Development Authority and Ors. Vs. Vikram Chaudhury (1995) 5 SCC 120. Learned counsel relies on the case of State of U.P. and Ors. Vs. U.P. Madhyamik Shiksha Parishad Shramik Sangh (1996) 7 SCC 34 and argues that the Apex Court has held that daily wagers engaged in exigencies to do manual work, at rates fixed under the Minimum Wages Act, although performing work, like that of a regular employee, cannot be granted parity in pay scales in the absence of specified posts, on which they are appointed. Learned counsel further submits that the Apex Court in the case of Union of India Vs. K.V. Baby (1998) 9 SCC 252 had set aside a judgment of the Central Administrative Tribunal which had granted a pay scale of regular employees to contractual employees.

15. Learned counsel further argues that the cases of Dr. (Mrs.) Sangeeta Narang and Ors. (supra) and Rattan Lal and Ors. Vs. State of Haryana and Ors. (1985) 4 SCC 43 relied upon by the respondents would not apply to the facts of the present case inasmuch as in both these cases the concerned departments had regular posts and were appointing persons on contract basis to perform identical functions.

16. It is next contended that the direction given by the Tribunal will create an additional financial burden on the petitioner and the Apex Court in Krishena Kumar Vs. Union of India AIR 1990 SC 1780 has clearly held that Courts would not issue directions to the Government which would have financial implication and are contrary to its policies. Reliance is also placed in this regard in the case of State Fishries Officers Association, W.B. and Anr. Vs. State of W.B. and Anr (1997) 9 SCC 65.

17. Per contra, learned counsel for the respondents has argued that respondents were appointed as DEOs with the petitioner-organization in the year 1997 and 1998, respectively and had been working up to the filing of the present application in the Tribunal. No doubt, the appointments were with a break of three days and at one stretch for a period of 89 days only, but this was a deliberate attempt and a camouflage by the petitioner, only to ensure that the respondents do not have continuity in service and are deprived of regular pay scales. The fact that the respondents worked for long periods shows that the work was of perennial nature and there was requirement of DEOs, else they would not have been reappointed from time to time. The break of three days between every successive appointment was only an

artificial break and should not be construed to have any adverse consequences in law on the service of the respondents.

18. Learned counsel further submits that perusal of para 4.2 of the O.A.

would clearly indicate that the nature of work performed by the respondents was identical to the work of the DEOs appointed on regular basis in other Government Departments.

19. It is submitted that the Tribunal has rightly allowed the O.A. on the doctrine of 'equal pay for equal work' and the minimum of the pay scale which was being given to the regular DEOs, has been rightly granted. The Tribunal has placed reliance on the judgment of a Co- ordinate Bench of the Tribunal, as per the doctrine of precedent wherein Doctors working on contract basis were given regular pay scales and allowances at par with the regular doctors and the said judgment had been upheld by the Apex Court.

20. Learned counsel for the respondent further relied on a recent judgment of the Apex Court in the case of State of Punjab and Ors. Vs Jagjit Singh and Ors. (2017) 1 SCC 148, wherein an identical issue was involved. It is submitted that the Apex Court has clearly held that the nature of employment being temporary/ad-hoc or contractual, cannot be the basis to deny a pay scale at par with the regular employees on the same post, as long as the qualifications and nature of duties are identical. The Apex Court has granted minimum of the regular pay scales to temporary and the contractual employees in the said judgment.

21. We have heard the learned counsels for the parties and examined their rival contentions.

22. There is no dispute between the parties that the respondents were appointed as DEOs in the petitioner-organization way back in 1997/1988. Initially the appointments were for a period of six months and were renewed from time to time. Subsequently, however, the modalities of the appointment changed with the change in the Administration. The respondents were then employed for a period of 89 days, followed by a break of 3 days and were reappointed. In our view, the Tribunal, after extensively quoting the letters of appointments, the letters of disengagement and the letters of re- employment, has rightly condemned the manner in which the respondents were being employed. The very fact that the same respondents were being re-employed, though after a short break of three days, shows that the work was perennial in nature and there was indeed requirement of DEOs in the petitioner organization. Looking at the letters, (one of which we quote hereinunder) there is no doubt in our minds that the breaks were only a camouflage to deny the respondents their claim of pay scales at par with the regular DEOs, as well as continuity of service with consequences of leave and other allowances. The Apex Court in the case of Rattan Lal and Ors. (supra) has condemned the practice of giving breaks of this nature holding the same to be violative of Article 14 of the Constitution of India:

"The normal terms and conditions of Date Entry Operators have been placed on the record, a copy of which is at Annexure AI. Clause (1), (3), (4) and (7) of the same read:-

"(1) The period of assignment will be

initially for six months/one year with effect from the date of joining in NPPA.

(3) He/She will be paid a consolidated fee of Rs.5000 (Rupees Five Thousand only) per month for his/her service to the NPPA, subject to his/her submitting pre-receipted bill in triplicate duly stamped on the original in advance.

(4) The assignment does not carry any house rent allowance, dearness allowance, city compensatory allowance, free medical facility and or any other perquisites.

(7) He/She will not be entitled for any kind of leave including casual leave."

After a person has served for the specified period, an order is issued. A representative order is at Annexure A-V. It is to the following effect:-

"The undersigned is directed to say that your services are no longer required in the NPPA due to non availability of work.

Therefore, your engagement with the NPPA will be discontinued w.e.f. 30.09.2001"

Sd/-

(B.L.Meena) Under Secretary (Admn.)"

After a few days, the same person is re-employed by passing the following order:-

"The undersigned is directed to inform that you are hereby engaged as DEO/YP purely on contract and adhoc basis w.e.f.

03.10.2001 to 31.12.2001 or till such time the work is available for you which ever is earlier. During the period of your appointment in National Pharmaceutical Pricing Authority (NPPA) you will be entitled for a consolidated honorarium of Rs.5000/-/Rs.7000/- p.m. Sd/-

(B.L.Meena) Under Secretary (Admn.)"

23. Even assuming that the appointments of the respondents was for 89 days at a stretch with breaks and was contractual in nature, yet in our opinion, this cannot deprive them of the benefit of the minimum of the pay scale granted to the regular employees of the other department.

The petitioner has not denied the fact that the qualifications and the nature of work of the respondent is in any manner different from that of the regular DEOs. Once the qualification and nature of work is similar, merely the nature of employment being contractual is not enough in law to deprive employees of a pay scale. The Tribunal, in our opinion, has rightly compared the factors of qualifications and nature of duties and has come to a correct conclusion that these factors being similar, the respondents were entitled to the pay scale demanded. Only because the petitioner chose to be lethargic and not create regular posts and hence no Recruitment Rules were framed, cannot deprive the respondents of the demanded pay scale, since it was never disputed by the petitioner that there was no work and there was no requirement of the respondents functioning as DEOs.

24. As regards the contention of the petitioner that fixation of pay scales is not the domain of the Courts, there is not and cannot be a quarrel with

the said proposition. Undoubtedly, it is for the Government, with the expertise and aid of Pay Commissions, to enter into this arena, but it is equally true that in cases where there is parity in terms of qualifications and nature of work, and yet the Employer denies regular pay scales, the Courts have interfered in their power of judicial review under the doctrine of 'equal pay for equal work'. We are fortified in this view by a recent judgment of the Apex Court in State of Punjab and Ors. (supra) on both the aspects involved in the present case, viz., interference in matters of pay scale in a judicial review and grant of regular pay scales to temporary/ad-hoc/contract employees. The Apex Court in the said case has considered all the judgments relating to the pay scales, more particularly, on the two issues mentioned hereinabove. The claim raised by the temporary/ad-hoc/contract employees in the said case was with regard to the regular pay scales and was pitched on the concept of similar duties and responsibilities as well as similar qualifications at par with those of the regular employees. After considering a whole plethora of cases on pay scales the Apex Court laid down certain broad parameters to serve as guidelines. The relevant parameters for the purpose of deciding the present controversy are as under:-

"42.1. The "onus of proof" of parity in the duties and responsibilities of the subject post with the reference post under the principle of "equal pay for equal work" lies on the person who claims it. He who approaches the court has to establish that the subject post occupied by him requires him to discharge equal work of equal value, as the reference post (see Orissa University of Agriculture & Technology case [Orissa University of Agriculture & Technology v. Manoj K. Mohanty, (2003) 5 SCC 188 :

2003 SCC (L&S) 645] , UT Chandigarh, Admn. v. Manju Mathur [U.T. Chandigarh, Admn. v. Manju Mathur, (2011) 2 SCC 452 : (2011) 1 SCC (L&S) 348] , SAIL case [SAIL v. Dibyendu Bhattacharya, (2011) 11 SCC 122 : (2011) 2 SCC (L&S) 192] and National Aluminium Co. Ltd. case [National Aluminium Co. Ltd. v. Ananta Kishore Rout, (2014) 6 SCC 756 : (2014) 2 SCC (L&S) 353] ).

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 [Randhir Singh v. Union of India, (1982) 1 SCC 618 : 1982 SCC (L&S) 119] and D.S. Nakara case [D.S. Nakara v. Union of India, (1983) 1 SCC 305 : 1983 SCC (L&S) 145] ).

42.3. The principle of "equal pay for equal work", applies to cases of unequal scales of pay, based on no classification or irrational classification (see Randhir Singh case [Randhir Singh v. Union of India, (1982) 1 SCC 618 : 1982 SCC (L&S) 119] ). For equal pay, the employees concerned with whom equation is sought, should be performing work, which besides being functionally equal, should be of the same quality and sensitivity (see Federation of All India Customs and Central Excise Stenographers case [Federation of All India Customs and Central Excise Stenographers v. Union of India, (1988) 3 SCC 91 : 1988 SCC (L&S) 673] , Mewa Ram Kanojia case [Mewa Ram Kanojia v. All India Institute of Medical Sciences, (1989) 2 SCC 235 : 1989 SCC (L&S) 329] , Grih Kalyan Kendra Workers' Union case [Grih Kalyan Kendra Workers' Union v. Union of India, (1991) 1 SCC 619 : 1991 SCC (L&S) 621] and S.C. Chandra case [S.C. Chandra v. State of

Jharkhand, (2007) 8 SCC 279 : (2007) 2 SCC (L&S) 897 : 2 SCEC 943] )."

25. In fact, the Apex Court has specifically dealt with the claim of pay parity raised by temporary employees, differently designated as work charge, daily wage, casual, ad hoc, contractual and the like from paragraphs 43 onwards. Some of the earlier judgements examined by the Supreme Court are as under:-

a) In Dhirendra Chamoli Vs. State of U.P. (1986) 1 SCC 637 the Apex Court had accepted the claim of temporary employees for pay parity with regular employees on the touch stone of Article 14 of the Constitution.

b) In Surinder Singh Vs. CPWD (1986) 1 SCC 639 it was held that right of equal wages claimed by temporary employees emerges from Article 39 of the Constitution and any discrimination would be violative of the doctrine of 'equal pay for equal work'.

c) In Bhagwan Dass Vs. State of Haryana (1987) 4 SCC 634 it was held that in a claim for equal wages, the duration of the employment and manner of selection, would not make a difference so long as the claim is based on the employee discharging similar duties and possessing similar qualifications.

d) In Daily Rated Casual Labour Vs. Union of India (1988) 1 SCC 122 it was held that under the 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 a corresponding regular cadre, along with other allowances. The classification of workers into categories of unskilled, semiskilled

etc, for differential payments of wages was held as untenable.

e) In State of Karnataka Vs. Umadevi (3), (2006) 4 SCC 1 a Constitution Bench of the Apex Court directed the daily wagers to be paid salary equal to the lowest grade being paid to the regular employees.

26. Having examined and relied on the various judgments, the Apex Court finally held that the temporary employees would be entitled to draw wages at the minimum of the pay scale extended to regular employees holding the same post. Relevant paras of the said judgment are as under:-

"58. In our considered view, it is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work cannot be paid less than another who performs the same duties and responsibilities. Certainly not, in a welfare State. Such an action besides being demeaning, strikes at the very foundation of human dignity. Anyone, who is compelled to work at a lesser wage does not do so voluntarily. He does so to provide food and shelter to his family, at the cost of his self-respect and dignity, at the cost of his self- worth, and at the cost of his integrity. For he knows that his dependants would suffer immensely, if he does not accept the lesser wage. Any act of paying less wages as compared to others similarly situate constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation.

59. We would also like to extract herein Article 7 of the International Covenant on Economic, Social and Cultural Rights, 1966. The same is reproduced below:

"7. The States Parties to the present Covenant recognise the right of everyone to the enjoyment of

just and favourable conditions of work which ensure, in particular:

(a) Remuneration which provides all workers, as a minimum, with:

(i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;

(ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant;

(b) Safe and healthy working conditions;

(c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence;

(d) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays."

(emphasis supplied) India is a signatory to the above Covenant having ratified the same on 10-4-1979. There is no escape from the above obligation in view of different provisions of the Constitution referred to above, and in view of the law declared by this Court under Article 141 of the Constitution of India, the principle of "equal pay for equal work" constitutes a clear and unambiguous right and is vested in every employee--whether engaged on regular or temporary basis.

60. 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 employees concerned (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" summarised by us in para 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 temporary employees concerned 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 summarised by us in para 42 hereinabove. There can be no doubt, that the principle of "equal pay for equal work" would be applicable to all the temporary employees concerned, so as to vest in them the right to claim wages on a par with the minimum of the pay scale of regularly engaged government employees holding the same post.

61. In view of the position expressed by us in the foregoing paragraph, we have no hesitation in holding that all the temporary employees concerned, 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 post."

27. In our view, the said judgment squarely applies to the facts of the present case as well as the issues involved. As held by the Apex Court, artificial parameters cannot be used to deny the employees the fruits of their labour. In a Welfare State it can hardly be argued by the petitioner that while the respondents are performing the same duties and possessing the same qualification as the DEOs on regular posts in other Departments, yet they would not be entitled to the same wages, only because the nature of the employment is contractual.

28. Article 7 of the International Covenant on Economic, Social and Cultural Rights, 1996 recognises the right of everyone to enjoyment of just and favourable conditions of work, which ensure in particular, remuneration at par with those identically placed and a decent living. India is a signatory to the said Covenant and the State Instrumentalities are therefore obliged to follow the said Covenant.

29. Thus it is no longer res integra that contractual employees can be granted the minimum of the regular pay-scale being drawn by a regular employee. Learned counsel for the petitioner has not been able to distinguish the judgment in the case of State of Punjab and Ors. (supra) either on facts or in law. In view of the now well settled position of law, petitioner cannot deny the minimum of the pay scale granted to the respondents on the ground that their nature of employment is contractual. Thus, in our view the judgement of the Tribunal directing the grant of minimum of the pay scale of Rs.5,000-

8,000/- in favour of the respondents suffers from no infirmity and calls for no interference.

30. The petition is accordingly dismissed, with no orders as to costs.

JYOTI SINGH, J

G.S.SISTANI, J

AUGUST 14, 2019 rd/AK/