Tripura High Court

Sri Litan Shil vs The State Of Tripura & 2 Ors on 24 May, 2022

                             HIGH COURT OF TRIPURA
                                   AGARTALA

                            WP (C) No. 799 of 2021
Sri Litan Shil
                                                                   ........Petitioner
       Versus

The State of Tripura & 2 Ors.
                                                                 .......Respondent

For Petitioner(s)            :     Ms. R Purkayastha, Adv.

For Respondent(s)            :     Mr. K De, Addl. GA.

                       HON'BLE MR. JUSTICE S. TALAPATRA
                                    Order


24.05.2022

Heard Ms. R Purkayastha, learned counsel appearing for the

petitioner and Mr. K De, learned Addl. GA appearing for the respondents.

There is no dispute about the basic facts as averred in this writ

petition. The petitioner has been appointed on fixed pay of Rs.12,000/- per

month in the post of Group-D (Class-IV) under Die-in-harness scheme in the

Directorate of Secondary Education, Government of Tripura by

memorandum dated 29.06.2020 (Annexure-A to the writ petition). According

to the petitioner, he is entitled to get the fixed pay @ of Rs.16,000/- per month

as the minimum in the pay scale for the regular Group-D employees.

Ms. Purkayastha, learned counsel has pointed out that in order

to truncate the fixed pay, the respondents have relied on the memorandum

dated 06.04.2002 (Annexure -D to the writ petition). The said memorandum

has stipulated that in continuation of the memorandum dated 15.12.2001

(Annexure-C to the writ petition), the government has taken a decision that

fixed pay in case of appointment to Group-C and Group-D employees will

be 65% and 75% respectively is of the minimum of the scale of concerned

post. Accordingly, the petitioner pay‟s was fixed at Rs.12,000/- on 75% of the

pay of the pay scale of the direct regular Group D employee.

According to Ms. Purkayastha, learned counsel, this is grossly

against the concept of equal pay for equal work. Even the memorandum

dated 15.12.2020 (Annexure-C to the writ petition) has been challenged as

by the said memorandum it has been provided that Group C and Group D

posts on fixed pay basis will be available for the Die-in-harness scheme

meaning, those employment will also be guided by the government policy

that the regular pay scale will be available after completion of five years as

the fixed pay employees of that category.

Even though the said memorandum dated 29.06.2020 has been

challenged, there is no ground in respect of the constitutionality of the said

memorandum dated 26.12.2015 (Annexure-B to the writ petition). In the writ

petition, it has been averred that the appointments under the Die-in-harness

scheme shall only be made against the regular post and if required, by

creating supernumerary post.

But it has not been denied that in cases of all direct recruitments

to the regular post [borne in the Group C & D category] it is made keeping

the regular pay scale in abeyance. For the first five years only the fixed pay is

paid and no regular scale is given to the direct recruitee. Therefore, the

persons who are appointed under the Die-in-harness scheme cannot be put

on a higher pedestal inasmuch as the direct recruits are appointed on merit

whereas the appointments under the Die-in-harness scheme are made for

compassionate ground.

But the contention of Ms. Purkayastha, learned counsel is

absolutely correct that such pay cannot be in defiance of the doctrine of

„equal pay for equal work‟. In this regard Ms. Purkayastha, learned counsel

has relied the decision of the apex court in State of Punjab & Others vs. Jagjit

Singh and Others reported in (2017) 1 SCC 148 where in the apex court has

categorically observed that where the temporary employees are appointed

in regular selection post after undergoing through the selection process and

where though appointments of the temporary employees were not against

regular selection post but their services were used continuously with notional

breaks by the state government or its instrumentalities for a period of ten

years or more, the work was perennial in nature and having worked for a

long period, equitable right is created in their favour.

It has been observed in Jagjit Singh (supra) that there is no room

for any doubt that the principle of "equal pay for equal work" has emerged

from interpretation of different provisions of the Constitution. The principle has

been expounded through a large number of judgments rendered by the

apex Court. So it constitutes law being declared by the apex court. The

same is binding on all the courts in India under Article 141 of the Constitution

of India. 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 situated, 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.

Finally, the following passage in Jagjit Singh (supra) it has been

observed as follows:

"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."

[Emphasis added]

Mr. K De, learned Addl. GA has submitted that the state has

been applying the policy in making payment of the fixed pay for the first five

years to the direct recruits and according to the memorandum dated

160.10.2007 such fixed pay is determined. Mr. Dey has also admitted that in

recent times, some changes has been made. He has pointed out to the

memorandum dated 16.10.2007 (Annexure-R2 to the reply filed by the

respondents). In the said memorandum dated 16.10.2007, it has been

provided that the fixed pay amount will be determined under formula of

75% of the initial basic pay in the time scale of the group-D employees and

65% of the initial basic pay in the same time scale for the group-C

employees. Further, a number of fixed pay posts including supernumerary

posts were also created for providing job under the die-in-harness scheme or

extremist violence scheme.