Pintu Kumar Jha vs The State Of Jharkhand
2021 Latest Caselaw 2214 Jhar

                  N THE HIGH COURT OF JHARKHAND AT RANCHI
                                     W.P. (S) No. 79 of 2017

           1.   Pintu Kumar Jha
           2.   Shashi Kumar Gupta                             ...         Petitioners
                             VERSUS-
          1. The State of Jharkhand
          2. The Deputy Commissioner, Hazaribag
                                                                   ...     Respondents

           CORAM: HON'BLE MR. JUSTICE DR S. N. PATHAK
                        (Through : Video Conferencing)
            For the Petitioner            : Mr. Saurabh Shekhar, Advocate
            For the Respondents           : Mr. J.F Toppo, SC-VII
                                   ------

06/06.07.2021 Petitioners have approached this Court with a prayer for quashing of order passed by respondent no. 2, as contained in Memo No. 28, dated 17.05.2016, whereby and whereunder claim of the petitioners for regularization of their services in permanent services has been rejected ignoring the fact that they have been continuously discharging their duties since 01.08.1985 till date. Petitioners have further prayed for a direction upon the respondents to regularize their services on the basis that they have completed 10 years of services as daily wagers since the year, 2003, when they were appointed to the post of Driver in the Hazaribag Collectorate or in alternative, to consider their cases for appointment on regular basis pursuant to fresh selection process, if advertised, by giving appropriate age relaxation. Further prayer has been made for a direction upon the respondents to consider the case of petitioners who have been working as daily wagers, for grant of minimum of pay scale admissible to regular employees holding the same post on the principle of equal pay for equal work.

Factual matrix as enumerated in the writ petition is that petitioners have been working as daily wagers under the respondent authorities since 2003 to the post of Driver and since then they have regularly worked for the respondents. The petitioners have earlier approached this Court in W.P.(S) No. 4047 of 2010, which was disposed of on 27.11.2015 directing the respondents to consider their cases in view of Circular dated 13.02.2015 which provides for regularization of daily wagers in service. However, even after orders of this Court, the claim of the petitioners have been rejected vide memo no. 28, dated 17.05.2016 on the ground that petitioners are not working against the sanctioned posts.

Mr. Saurabh Shekhar, learned counsel appearing for the petitioners strenuously urges that petitioners have been continuously working for more

than 10 years and by now petitioner no.1 is over aged for any other employment while petitioner No.2 has died during the pendency of the writ petition. Learned counsel further submits that it is surprising that even after working for more than 10 years, the posts have not yet been sanctioned and petitioners have been made to suffer. Petitioners are discharging the work regular in nature and they cannot be deprived of the benefits after crossing the age limits. Respondents have been taking regular work of driving official vehicles and as such, at this stage, plea taken by them is illegal and arbitrary and in the teeth of orders passed by the Hon'ble Apex Court. Learned counsel submits that petitioner no. 1 is still discharging the work to the utmost satisfaction of the respondents and he cannot be deprived of legitimate expectations. Even if posts are not sanctioned, it is failure on part of the respondents and for this petitioners cannot be made to suffer. The reasoning given by the respondents that posts are not sanctioned is totally misconceived and shows lackadaisical approach of the respondents and is against the principles of justice and a fit case to be interfered. Referring to para 44.5 to 44.7 of order /Judgment passed by the Hon'ble Apex Court in case of State of Punjab Vs. Jagjit Singh, reported in (2017) 1 SCC 148, it is submitted that the petitioners are entitled for minimum of the pay scale of regular employees working against the same post as the petitioners were doing the same work as regular incumbents holding the same post by applying the principle of 'equal pay for equal work'.

Per contra no counter affidavit has been filed. However, Mr. Jayant Franklin Toppo, learned counsel appearing on behalf of the respondents vehemently opposes contention of learned counsel for the petitioners and argues that there is no illegality or any infirmity in rejecting claim of petitioners. He further submits that same impugned order has already been challenged before this Hon'ble Court in W.P.(S) No. 4574 of 2016 [Kashi Mahto Vs. The State of Jharkhand & Ors] and this Hon'ble Court vide order dated 06.12.2018 dismissed the said writ petition and as such, this writ petition is also fit to be dismissed in view thereof.

Be that as it may, having gone through rival submission of the parties and on perusal of the records, this Court is not inclined to interfere and accede to the prayer of the petitioner regarding regularization of services as the similar issue fell for consideration before this Hon'ble Court in W.P.(S) No. 4574 of 2016 and vide its order dated 06.12.2018 a coordinate bench of this Court rejected the case of that petitioners wherein same impugned order was under challenge. Accordingly, in view of Principle of judicial discipline, no interference is warranted.

However, so far as grant of salary equal to the lowest grade of salary is concerned, the same issue fell for consideration before the Hon'ble Apex Court in case of State of Punjab Vs. Jagjit Singh (supra) in which it has been held thus:

44.5 ......... 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 employees concerned were doing the same work as regular incumbents holding the same post by applying the principle of 'work pay for equal work'.

44.6. .........., 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 daily-wage employees concerned were directed to be paid wages equal to the salary at the lowest grade of the cadre concerned.

44.7. .........Thereupon, this Court declared that if the daily-wage employees concerned 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 employees equal wages (from the date of filing the writ petition) would be justified.

As a cumulative effect of the aforesaid judicial pronouncement, the petitioner no. 1 is entitled for minimum of the pay scale of regular employees working against the same post from the date of filing of the present writ petition and the same shall be fixed by the respondent-authorities, within a period of six weeks from the date of receipt of a copy of this order. So far as the petitioner No.2 is concerned, no orders can be passed in favour of a dead person, however, his legal heirs, if any, shall be at liberty to pursue the case before appropriate forum, if so advised.

Resultantly, this writ petition stands disposed of.

(Dr. S.N. Pathak, J.) punit/-