Punjab-Haryana High Court
Harmel Singh And Others vs State Of Punjab And Others on 17 February, 2021
CWP-496-2021(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-496-2021(O&M)
Date of decision: 17.02.2021
Harmel Singh and others
.......Petitioners
Versus
State of Punjab and others
......Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present:- Mr.Pawan Kumar Mutneja, Advocate for the petitioners
Mr. Nikhil Chopra, Addl. AG, Punjab
for respondent no.1, 2 and 4
Mr. Saurabh Kapoor, Advocate for respondent no.3
ANIL KSHETARPAL, J.
This writ petition has been filed by six petitioners seeking
the following substantive reliefs:-
"(i) issue of a writ in the nature of
mandamus directing the respondents to regularize the
services of the petitioners working with the
respondent No.3 Society.
(ii) issue of a writ in the nature of
mandamus directing the respondents to fix the service
conditions of the petitioners by amending the bye-
laws of the respondent society and make the service
conditions equivalent to the employees working with
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the Department of Defence Services Welfare, Punjab
as both are similarly situated persons with same
duties and responsibilities."
It is the pleaded case of the petitioners that the respondents-
State formed a Society namely Maharaja Ranjit Singh War Museum
Society (hereinafter referred to as 'the Society') in the year 1997-98,
which was registered on 14.01.1998. The Society was constituted for
managing a War Museum of International Standards at Ludhiana,
established as a gesture to pay tribute to the gallant soldiers. The
petitioners have also pleaded that the governing body of the Society
includes Government officials and therefore, it is an instrumentality of
the State. The petitioners were appointed on various dates and posts.
The particulars given by the petitioners in para 9 are extracted as under:-
Sr. Name Father's DOB Appointment Post
No Name date
1. Sh. Harmel Singh Sh.Malkit 04.10.1983 23.05.2006 Computer
Singh Operator
2. Sh. Ashok Kumar Sh. Sukhbir 13.3.1979 Dec. 1998 Safai/Sewak
Kumar
3. Sh.Balwinder Singh Sh. Ajit 17.7.1976 23.1.2017 Security
Singh Guard
4. Sh. Raju Khan Sh. Zalil 12.1.1981 June, 1999 Mali
Khan
5. Sh. Jagga Singh Sh.Teja 02.02.1962 1998 Security
Singh Guard
6. Sh. Om Parkash Harbans Year 1961 1999 Mali
Tiwari
It is the pleaded case of the petitioners that there are no
rules and regulations governing the service conditions of the writ
petitioners.
First relief sought by the petitioners is to issue a direction to
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the respondents to regularize the services of the petitioners. Learned
counsel for the petitioners relies upon the judgments passed by the
Hon'ble Supreme Court in 'Narayan Kumar Tiwari vs. State of
Jharkhand' (2018) 8 SCC 238, 'Union of India vs. Central
Administrative Tribunal' (2019) 4 SCC 290 and 'State of Karnatka
vs. M.C Kesari and others' (2010) 9 SCC 247 and submits that a
necessary direction is required to be issued in view of the fact that the
petitioners are working for more than 10 years.
This Court has considered the submissions of the learned
counsel for the petitioners. It may be noted here that a Five Judges
Bench of the Hon'ble Supreme Court in 'Secretary, State of Karnatka
and others vs. Uma Devi and others' (2006) 4 SCC 1 directed that the
Court should not issue directions to regularize the services of employees.
The Hon'ble Supreme Court, however, carved out an exception in para
53 of the report. It was observed as under:-
"53. One aspect needs to be clarified.
There may be cases where irregular appointments
(not illegal appointments) as explained in S.V.
Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC
1071] , R.N. Nanjundappa [(1972) 1 SCC 409 :
(1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4
SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937]
and referred to in para 15 above, of duly qualified
persons in duly sanctioned vacant posts might have
been made and the employees have continued to work
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for ten years or more but without the intervention of
orders of the courts or of tribunals. The question of
regularisation of the services of such employees may
have to be considered on merits in the light of the
principles settled by this Court in the cases above
referred to and in the light of this judgment. In that
context, the Union of India, the State Governments
and their instrumentalities should take steps to
regularise as a one-time measure, the services of
such irregularly appointed, who have worked for ten
years or more in duly sanctioned posts but not under
cover of orders of the courts or of tribunals and
should further ensure that regular recruitments are
undertaken to fill those vacant sanctioned posts that
require to be filled up, in cases where temporary
employees or daily wagers are being now employed.
The process must be set in motion within six months
from this date. We also clarify that regularisation, if
any already made, but not sub judice, need not be
reopened based on this judgment, but there should be
no further bypassing of the constitutional requirement
and regularising or making permanent, those not duly
appointed as per the constitutional scheme."
In M.C.Kesari (supra), the writ petitioners were appointed
between 1985 to 1987. They filed a writ petition in 2002 seeking
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regularization which was allowed. The direction was issued to consider
the representation of the petitioners for regularization. A writ appeal
against the judgment of the Single Bench was dismissed. The dismissal
was ordered before the judgment was passed by the Supreme Court in
Uma Devi's (supra). In those circumstances, the Court held that para 53
of the judgment is to be given effective meaning. Thus, the Supreme
Court directed the respondents to consider the case of the petitioners
before the High Court.
Next judgment relied upon by the learned counsel for the
petitioners is in Narayan Kumar Tiwari (supra). In the aforesaid case,
certain rules were framed for carrying out the directions of the Supreme
Court in Uma Devi's case (supra). The Court found that such rules
framed were impractical. In those circumstances, the Court issued
directions.
In Union of India (supra), the Supreme Court found that
certain persons, who were juniors to the employees before it, have been
regularized excluding them from consideration. In those facts, the Court
issued directions.
It may be noted here that the petitioners have themselves
pleaded that there are no rules and regulations governing the service
conditions of the petitioners. None of the petitioners had completed 10
years of service on the date when judgment (10.04.2006) in Uma Devi's
case (supra) was delivered. As noticed above, petitioner no.1 and 3
came to be appointed after the judgment in Uma Devi's case whereas
petitioner no.2, 4, 5, 6 were appointed before the judgment in Uma
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Devi's case. Still further, the respondent is only a Society. In such
circumstances, in the absence of a policy or any rules or regulations, the
Court does not find it appropriate to issue directions, particularly, in
view of the judgment passed by Five Judges in Uma Devi's case (supra).
It may be noted here that the petitioners have not pleaded that there are
any sanctioned posts against which the petitioners are working. The
petitioners have not pleaded as to how and in what manner they came to
be appointed.
Next relief sought by the petitioners is with respect to
payment of salary equivalent to the employees working with the
Department of Defence Services Welfare, Punjab. It may be noted here
that the aforesaid Department is a Department of the State and its
employees are public servants. Whereas the petitioners are only
temporary employees of the Society. The petitioners cannot claim to be
public servants merely because the Society is an instrumentality of the
State. In any case, the employees of a Department constitute a different
category. Learned counsel for the petitioners relies upon the judgment
passed in State of Punjab vs. Jagjit Singh (2017) 1 SCC 148 to
contend that on the basis of the principle of equal pay for equal work,
the petitioners are entitled to be paid an equal pay. This Court has
carefully read the judgment in the case of Jagjit Singh's case (supra). It
may be noted here that the aforesaid judgment is not related to the
employees of different employers. The principle of equal pay for equal
work has not been ordered amongst the employees of different
organizations. Still further, the Supreme Court in a subsequent judgment
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in State of Bihar and others vs. Bihar Secondary Teachers Struggle
Committee, Munger and others (2019) 18 SCC 301 has considered the
judgment in Jagjit Singh's case (supra) and laid down as under:-
"96. Analysis of the decisions referred to
above shows that this Court has accepted the
following limitations or qualifications to the
applicability of the doctrine of "equal pay for equal
work":
96.1. The doctrine of "equal pay for
equal work" is not an abstract doctrine.
96.2. The principle of "equal pay for
equal work" has no mechanical application in every
case.
96.3. The very fact that the person has
not gone through the process of recruitment may
itself, in certain cases, make a difference.
96.4. The application of the principle of
"equal pay for equal work" requires consideration of
various dimensions of a given job.
96.5. Thus, normally the applicability of
this principle must be left to be evaluated and
determined by an expert body. These are not matters
where a writ court can lightly interfere.
96.6. Granting pay scales is a purely
executive function and hence the court should not
interfere with the same. It may have a cascading
effect creating all kinds of problems for the
Government and authorities.
96.7. Equation of posts and salary is a
complex matter which should be left to an expert
body.
96.8. Granting of pay parity by the court
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may result in a cascading effect and reaction which
can have adverse consequences.
96.9. Before entertaining and accepting
the claim based on the principle of equal pay for
equal work, the Court must consider the factors like
the source and mode of recruitment/appointment.
96.10. In a given case, mode of selection
may be considered as one of the factors which may
make a difference."
In view of the aforesaid recent pronouncement of the
Hon'ble Supreme Court, it is apparent that the writ Court is not expected
to equate the posts for the purpose of salary.
In view of the aforesaid, no ground to issue the directions as
prayed for is made out.
Hence, the writ petition is dismissed.
17.02.2021 (ANIL KSHETARPAL)
rekha JUDGE
Whether speaking/reasoned Yes /No
Whether Reportable Yes / No
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