The State Of Rajasthan vs Yogendra Kumar Kanojiya
2021 Latest Caselaw 19059 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Spl. Appl. Writ No. 68/2021

1. The State Of Rajasthan, Through Secretary, Law And Legal Affairs Department, Government Of Rajasthan, Secretariat, Jaipur.

2. The Special Secretary To The Govt. Law, Government Of Rajasthan, Jaipur.

3. The Principal Secretary, Finance Department, Government Of Rajasthan, Jaipur.

4. Advocate General, Rajasthan High Court, Jodhpur.

----Appellants Versus

1. Yogendra Kumar Kanojiya S/o Sh. Suraj Narayan Kanojiya, R/o 8-A, Bheru Vilas, Sardar Club Road, Airforce, Jodhpur.

2. Amit Dave S/o Sh. Kamlesh Kumar Dave, (Since Wrongly Shown In The Order As Amit Vyas), R/o Vaidhyo Ka Chowk, Brahmpuri, Jodhpur.

3. Natwar Daiya S/o Sh. Jugal Kishore Daiya, R/o Kakhara Bazar, Jodhpur.

4. Bhawani Singh S/o Sh. Rajendra Singh, R/o 103, Sh. Ram Nagar, Khasra No. 96/120, Near Ramdeo Temple , Banar Road, Nandri Road, Jodhpur.

                                                                 ----Respondents


For Appellant(s)          :     Mr. Sandeep Shah, AAG
For Respondent(s)         :     Mr. Kuldeep Mathur



          HON'BLE MR. JUSTICE SANDEEP MEHTA
             HON'BLE MR. JUSTICE SAMEER JAIN

                                     Order

15/12/2021

The State of Rajasthan has approached this Court by way of

this intra-court appeal for assailing the order dated 25.02.2020

whereby, the writ petition preferred by the respondents was

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accepted and the appellant department was directed to make

payment of minimum of pay-scale to the respondents who are

employed in the Government Advocate office at Jodhpur, on

contractual basis on the following posts:-

S. NO. Name                                        Post
1         Yogendra Kumar Kanojiya                  LDC
2.        Amit Dave                                LDC
3.        Natwar Daiya                             Book Lifter
4.        Bhawani Singh                            Book Lifter

The respondents are serving in the offices of Additional

Advocate Generals, Government Counsels and Government

Advocates in their respective capacities since the year 2008/09.

Having sincerely provided their services for a period of about 7 to

8 years, the respondents-writ petitioners filed the writ petition

with a prayer for payment of the minimum of the pay-scale in

their respective bracket.

For almost four years, reply was not forthcoming and in the

meantime, the writ petition No.20710/2013 (Rajendra Saini & Ors.

Vs. State of Rajasthan & Anr.) filed by similarly placed employees

came to be accepted by order dated 08.11.2019 and in light

thereof, the writ petition of the respondents-writ petitioners was

also accepted by order dated 25.02.2020 which is assailed in this

appeal.

Shri Shah, learned AAG representing the appellants

contended that as the respondents are not regularly selected

employees, they cannot be awarded regular pay-scales. He

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submitted that the Appeal No.183/2020 preferred by the State of

Rajasthan against the order passed in the case of Rajendra Saini

and similarly situated employees has been admitted and stay

order has been passed on 23.02.2021.

Per contra, Shri Kuldeep Mathur, learned counsel

representing the respondents vehemently and fervently urged that

the instant writ petition cannot be entertained for the sole reason

that the appeal against the order passed in the case of Rajendra

Saini (supra) has been admitted. He prayed that the case be

decided on merits. In support of his contentions, he placed

reliance on the judgment rendered by Hon'ble the Supreme

Court in the case of State of Punjab & Ors. vs. Jagjeet Singh

& Ors.: 2017 1 SCC 148 and urged that the said judgment was

not brought to the notice of learned Division Bench when the

appeal was admitted. He submitted that the right of the

employees akin to the respondents-writ petitioners to receive fair

wages with equal remuneration for work of equal value without

distinction of any kind has been recognized by Hon'ble the

Supreme Court and thus, there is no justification whatsoever

calling for interference in the impugned order.

We have heard and considered the submissions advanced by

learned counsel for the parties and have gone through the

material placed on record.

The factual aspect of the matter that the respondents herein

after having been appointed on contractual basis are satisfactorily

serving the Government Advocate's offices since the year 2007-08

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is not in dispute. They are working against sanctioned posts and

no effort has been made to fill these posts by a process of regular

selection. In this background, it is our firm view that the

controversy involved in this appeal is squarely covered by the ratio

of the Supreme Court judgment in the case of State of Punjab &

Ors. vs. Jagjeet Singh and Ors., wherein Hon'ble the

Supreme Court held as below:

"52. In view of all our above conclusions, the decision rendered by the full bench of the High Court in Avtar Singh v. State of Punjab & Ors. (CWP no. 14796 of 2003), dated 11.11.2011, is liable to be set aside, and the same is hereby set aside. The decision rendered by the division bench of the High Court in State of Punjab & Ors. v. Rajinder Singh & Ors. (LPA no. 337 of 2003, decided on 7.1.2009) is also liable to be set aside, and the same is also hereby set aside. We affirm the decision rendered in State of Punjab & Ors. v. Rajinder Kumar (LPA no. 1024 of 2009, decided on 30.8.2010), with the modification, that the concerned employees would be entitled to the minimum of the pay- scale, of the category to which they belong, but would not be entitled to allowances attached to the posts held by them.

53. We shall now deal with the claim of temporary employees before this Court.

54. There is no room for any doubt, that the principle of 'equal pay for equal work' has emerged from an interpretation of different provisions of the Constitution. The principle has been expounded through a large number of judgments rendered by this Court, and constitutes law declared by this Court. The same is binding on all the courts in India under Article 141 of the Constitution of India. The parameters of the principle, have been summarized by us in paragraph 42 hereinabove. The principle of 'equal pay for

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equal work' has also been extended to temporary employees (differently described as work-charge, daily-wage, casual, ad-hoc, contractual, and the like.) The legal position, relating to temporary employees, has been summarized by us, in paragraph 44 hereinabove. The above legal position which has been repeatedly declared, is being reiterated by us, yet again.

55. In our considered view, it is fallacious to determine artificial paramters 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 stae. Such an action besides being demeaning, strikes at the very foundation of human dignity. Any one, 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 dependents 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.

56. 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:- "Article 7

The States Parties to the present Covenant recognize 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:

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(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."

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.

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

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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

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the pay-scale (- at the lowest grade, in the regular pay- scale), extended to regular employees, holding the same post."

Shri Shah, learned AAG representing the appellants is not in

a position to dispute the fact that the respondent employees

unquestionably have the right to stake a claim for minimum of the

pay-scale in light of the binding precedent in the case of Jagjeet

Singh (supra).

In view of the above discussion, we are of the firm opinion,

the impugned order dated 25.02.2020 whereby, the learned Single

Bench accepted the writ petition preferred by the respondents-writ

petitioners and directed payment of minimum of pay-scales to

them does not suffer from any infirmity whatsoever warranting

interference.

As an upshot of the above discussion, the appeal fails and is

hereby dismissed as being devoid of merit. There shall be no

order as to costs.

                                   (SAMEER JAIN),J                                            (SANDEEP MEHTA),J


                                    49-/Sudhir Asopa/Akshay/-









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