Prakash Lal vs State Of Uttarakhand And Another
2021 Latest Caselaw 4686 UK

          HIGH COURT OF UTTARAKHAND
                  AT NAINITAL
              Writ Petition (S/S) No. 1440 of 2020
Prakash lal                                              ...      Petitioner
                                Vs.
State of Uttarakhand and Another                         ... Respondents
Advocates :   Mr. Subhash Upadhyay, Advocate, for the petitioner
              Mr. Sushil Vashisth, Standing Counsel, for the State
              Mr. Pankaj Miglani, Advocate, for the respondent/Uttarakhand High
              Court


Hon'ble Sharad Kumar Sharma, J.

The brief facts as engages consideration in the present writ petition are that the petitioner has come with the factual case, that he was initially engaged with the respondent/High Court of Uttarakhand, as a daily wager employee, in the capacity of Chaukidar in the scale of Rs. 1250/- per month. Petitioner submits that after his initial induction, he had been rendering his services satisfactorily and as a consequence thereto, the services of the petitioner was regularised as Chaukidar, in the pay scale of Rs. 2550-3200/- w.e.f. 1st November 2006.

2. Case of the petitioner is that after having been appointed in the said capacity in 2004 and after having being regularised in 2006, the petitioner ever since then he was called upon to discharge the functions and duties that of a driver; for which it is the case of the petitioner, that he was otherwise too holding the requisite qualifications as per the prevalent rules. Ultimately, the petitioner continued to discharge the duties of a driver and still continues to do so, which is a fact not in dispute, that still continues to work as a driver.

3. Learned counsel for the petitioner submits, that since the post of a driver is a Class-III post and it carries a higher pay scale, than what is admissible to Class-IV employee, he would be

entitled to be paid with the salary admissible to the post of driver on which, he contends that he has been admittedly working consistently and since there was a non consideration of the claim of the petitioner for payment of equal salary, he had submitted his representation before the respondent, wherein he has contended that since he was allowed to discharge his duties as driver since May 2004, he may be remunerated with the salary payable and admissible to a driver as per law, as it has been paid to the other regular drivers.

4. In order to retrieve the details with regard to the nature of services being discharged by the petitioner, he contends, that he has filed an application under the Right to Information Act on 26th April 2018, in order to retrieve the details of log-book to substantiate his stand in the writ petition about the nature of work and of the duties discharged by him; but that has not been supplied to the petitioner; hence the petitioner claimed for an equal pay for equal work under the principles enshrined under Article 14 to be read with Article 39(1)(d) of the Constitution of India, contending thereof, that since he was discharging the responsibilities of a post superior to the post of his induction as Chowkidar, may be by way of an arrangement still he would be entitled to be considered for being granted the superior scale of a driver.

5. When his claim was not considered, he simultaneously based his claim upon a judgement which has been rendered in Writ Petition (S/S) No. 196 of 2012, Ghanshyam Vs. State of Uttarakhand, as decided on 16th March 2017, wherein based on an identical principle the co-ordinate Bench of this Court has held, that the salary cannot be denied to the post of a driver once the work of a driver has been taken from an incumbent, though

he might have been appointed to a post or to a cadre lower to the post of driver. But, since it is a work which has being taken of a higher post, he would be entitled to be paid with the pre requisites and the salary as admissible to the said post under the principles of 'equal pay for equal work'. Accordingly, the writ petition was allowed by the judgement dated 16th March 2017, and the arrears were directed to be paid to the petitioner therein, with interest payable on arrears @ 8% per annum.

6. Learned counsel for the petitioner had simultaneously addressed the Court, almost on an akin issue which was under consideration before the Hon'ble Apex Court in the judgement as reported in 2017 (1) SCC 148, State of Punjab and others Vs. Jagjit Singh and others, wherein, particularly, a reference may be had to para 6, as well as para 42 of the said judgement, which are extracted hereunder:-

"6. The issue which has arisen for consideration in the present set of appeals, necessitates a bird's eye view on the legal position declared by this Court, on the underlying ingredients, which govern the principle of 'equal pay for equal work'. It is also necessary for resolving the controversy, to determine the manner in which this Court has extended the benefit of "minimum of the regular pay-scale" alongwith dearness allowance, as revised from time to time, to temporary employees (engaged on daily-wage basis, as ad-hoc appointees, as employees engaged on casual basis, as contract appointees, and the like). For the aforesaid purpose, we shall, examine the above issue, in two stages. We shall first examine situations where the principle of 'equal pay for equal work' has been extended to employees engaged on regular basis. And thereafter, how the same has been applied with reference to different categories of temporary employees.

42. All the judgments noticed in paragraphs 7 to 24 hereinabove, pertain to employees engaged on regular basis, who were claiming higher wages, under the principle of 'equal pay for equal work'. The claim raised by such employees was premised on the ground, that the duties and responsibilities rendered by them, were against the same post for which a higher pay-scale was being allowed, in other Government departments. Or alternatively, their duties and responsibilities were the same, as of other posts with different designations, but they were placed in a lower scale.

Having been painstakingly taken through the parameters laid down by this Court, wherein the principle of 'equal pay for equal work' was invoked and considered, it would be just and appropriate, to delineate the parameters laid down by this Court. In recording the said parameters, we have also adverted to some other judgments pertaining to temporary employees (also dealt with, in the instant judgment), wherein also, this Court had the occasion to express the legal position with reference to the

principle of 'equal pay for equal work'. Our consideration, has led us to the following deductions:-

(i) 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 - the Orissa University of Agriculture & Technology case10, Union Territory Administration, Chandigarh v. Manju Mathur15, the Steel Authority of India Limited case16, and the National Aluminum Company Limited case18).

(ii) The mere fact that the subject post occupied by the claimant, is in a "different department" vis-a-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 Government (see - the Randhir Singh case1, and the D.S. Nakara case2).

(iii) The principle of 'equal pay for equal work', applies to cases of unequal scales of pay, based on no classification or irrational classification (see - the Randhir Singh case1). For equal pay, the concerned employees with whom equation is sought, should be performing work, which besides being functionally equal, should be of the same quality and sensitivity (see

- the Federation of All India Customs and Central Excise Stenographers (Recognized) case3, the Mewa Ram Kanojia case5, the Grih Kalyan Kendra Workers' Union case6 and the S.C. Chandra case12).

(iv) Persons holding the same rank/designation (in different departments), but having dissimilar powers, duties and responsibilities, can be placed in different scales of pay, and cannot claim the benefit of the principle of 'equal pay for equal work' (see - the Randhir Singh case1, State of Haryana v. Haryana Civil Secretariat Personal Staff Association9, and the Hukum Chand Gupta case17). Therefore, the principle would not be automatically invoked, merely because the subject and reference posts have the same nomenclature.

(v) In determining equality of functions and responsibilities, under the principle of 'equal pay for equal work', it is necessary to keep in mind, that the duties of the two posts should be of equal sensitivity, and also, qualitatively similar. Differentiation of pay-scales for posts with difference in degree of responsibility, reliability and confidentiality, would fall within the realm of valid classification, and therefore, pay differentiation would be legitimate and permissible (see - the Federation of All India Customs and Central Excise Stenographers (Recognized) case3 and the State Bank of India case8). The nature of work of the subject post should be the same and not less onerous than the reference post. Even the volume of work should be the same. And so also, the level of responsibility. If these parameters are not met, parity cannot be claimed under the principle of 'equal pay for equal work' (see - State of U.P. v. J.P. Chaurasia4, and the Grih Kalyan Kendra Workers' Union case6).

(vi) For placement in a regular pay-scale, the claimant has to be a regular appointee. The claimant should have been selected, on the basis of a regular process of recruitment. An employee appointed on a temporary basis, cannot claim to be placed in the regular pay-scale (see - the Orissa University of Agriculture & Technology case10).

(vii) Persons performing the same or similar functions, duties and responsibilities, can also be placed in different pay-scales. Such as - 'selection grade', in the same post. But this difference must emerge out of a legitimate foundation, such as - merit, or seniority, or some other relevant criteria (see - State of U.P. v. J.P. Chaurasia4).

(viii) If the qualifications for recruitment to the subject post vis-a- vis the reference post are different, it may be difficult to conclude, that the duties and responsibilities of the posts are qualitatively similar or comparable (see - the Mewa Ram Kanojia case5, and Government of W.B. v. Tarun K. Roy11). In such a cause, the principle of 'equal pay for equal work', cannot be invoked.

(ix) The reference post, with which parity is claimed, under the principle of 'equal pay for equal work', has to be at the same hierarchy in the service, as the subject post. Pay-scales of posts may be different, if the hierarchy of the posts in question, and their channels of promotion, are different. Even if the duties and responsibilities are same, parity would not be permissible, as against a superior post, such as a promotional post (see - Union of India v. Pradip Kumar Dey7, and the Hukum Chand Gupta case17).

(x) A comparison between the subject post and the reference post, under the principle of 'equal pay for equal work', cannot be made, where the subject post and the reference post are in different establishments, having a different management. Or even, where the establishments are in different geographical locations, though owned by the same master (see - the Harbans Lal case23). Persons engaged differently, and being paid out of different funds, would not be entitled to pay parity (see - Official Liquidator v. Dayanand13).

(xi) Different pay-scales, in certain eventualities, would be permissible even for posts clubbed together at the same hierarchy in the cadre. As for instance, if the duties and responsibilities of one of the posts are more onerous, or are exposed to higher nature of operational work/risk, the principle of 'equal pay for equal work' would not be applicable. And also when, the reference post includes the responsibility to take crucial decisions, and that is not so for the subject post (see - the State Bank of India case8).

(xii) The priority given to different types of posts, under the prevailing policies of the Government, can also be a relevant factor for placing different posts under different pay-scales. Herein also, the principle of 'equal pay for equal work' would not be applicable (see - State of Haryana v. Haryana Civil Secretariat Personal Staff Association9).

(xiii) The parity in pay, under the principle of 'equal pay for equal work', cannot be claimed, merely on the ground, that at an earlier point of time, the subject post and the reference post, were placed in the same pay- scale. The principle of 'equal pay for equal work' is applicable only when it is shown, that the incumbents of the subject post and the reference post, discharge similar duties and responsibilities (see - State of West Bengal v. West Bengal Minimum Wages Inspectors Association14).

(xiv) For parity in pay-scales, under the principle of 'equal pay for equal work', equation in the nature of duties, is of paramount importance. If the principal nature of duties of one post is teaching, whereas that of the other is non-teaching, the principle would not be applicable. If the dominant nature of duties of one post is of control and management, whereas the subject post has no such duties, the principle would not be applicable.

Likewise, if the central nature of duties of one post is of quality control, whereas the subject post has minimal duties of quality control, the principle would not be applicable (see - Union Territory Administration, Chandigarh v. Manju Mathur15).

(xv) There can be a valid classification in the matter of pay-scales, between employees even holding posts with the same nomenclature i.e., between those discharging duties at the headquarters, and others working at the institutional/sub-office level (see - the Hukum Chand Gupta case17), when the duties are qualitatively dissimilar.

(xvi) The principle of 'equal pay for equal work' would not be applicable, where a differential higher pay-scale is extended to persons discharging the same duties and holding the same designation, with the objective of ameliorating stagnation, or on account of lack of promotional avenues (see

- the Hukum Chand Gupta case17).

(xvii) Where there is no comparison between one set of employees of one organization, and another set of employees of a different organization, there can be no question of equation of pay-scales, under the principle of 'equal pay for equal work', even if two organizations have a common employer. Likewise, if the management and control of two organizations, is with different entities, which are independent of one another, the principle of 'equal pay for equal work' would not apply (see - the S.C. Chandra case12, and the National Aluminum Company Limited case18)."

7. The above paragraphs, which had almost laid down an identical principle, that an employer since being in a dominant position cannot mis-utilized his dominant power and extract the service carrying more responsibilities from an employee, who has been otherwise appointed to a post lower to the post for which the work has been taken. The underlying principles under Article 14 to be read with Article 39(d)(1) of the Constitution of India is, that if an employee is being asked upon to discharge the duty of a driver, as it happens in the instant case, he would be entitled for the salary of a driver as payable to the post of driver under law.

8. In view of the aforesaid principle, laid down in the judgement of Hon'ble Apex Court and even the contention, which has been raised by the learned counsel for the petitioner in the writ petition, that if the decision which has been taken on the representation, which has been submitted by the petitioner, raising a claim for the remittance of the salary which is otherwise

payable to the post of a driver, in fact, no rationale logic or an application of mind is reflected from the impugned order, while denying the benefit to the petitioner for the grant of parity of scale and hence this writ petition is allowed; the impugned orders are quashed; writ of mandamus is issued to the respondent No. 2, to pay the arrears of salary to the petitioner with effect from 2004, as admissible to the post of driver along with interest payable on it @ 8% per annum.

9. Subject to the above observations, the writ petition stands allowed.

10. After conclusion of the judgement, the learned counsel for the respondent had called upon the Court to meet his objection to the writ petition from two perspectives. One, that the claim of the petitioner for the grant of parity of salary suffers from laches, because the petitioner has contended, that he has been serving as a driver since May 2004, hence raising of his claim in 2020, would be barred by laches. This contention of the learned respondent's counsel is not acceptable for the reason being that it is an accrual of financial benefit to an employee on account of discharge of a duty to a superior post, which is an entitlement created under law under the principles of 'equal pay for equal work', and since that being a continuous discharge of duties in nature till the time the petitioner was regularised as a driver in 2006, his claim will not be barred by laches at all.

11. Secondly, it has been argued by the learned counsel for the respondent that admittedly it is the case of the petitioner that he was appointed as a Chaukidar (a Class-IV employee) way back in 2004, but later on, his services were regularised in 2006 as Chaukidar and once he has accepted his regularisation in 2006,

still it will be casting a deprivation on him to claim a scale of a driver once he has accepted his regularization as Chaukidar. This Court is of the view that regularization of service as a Chaukidar; much is distinct to the claim of the petitioner for the salary for the nature of work which he has admittedly discharged as a driver in the institution and particularly the aforesaid fact further stands fortified when the respondent, on their own action have regularised the services of the petitioner as a driver by an order dated 5th August 2016. The argument of the learned counsel for the respondent that the claim suffers from laches is not acceptable for the reason being that further relief is of grant of an entitlement of salary earned in lieu of the work already performed; it is not a liability which the petitioner is seeking to be pressed upon by filing a writ petition, hence this contention of the learned counsel for the respondent cannot be accepted.

12. The controversy as raised by the petitioner's counsel would be, looked into from other perspectives particularly that when the petitioner had particularly tried to pressed upon his statutory relief, as contemplated to be granted by the various precedents providing for the payment of equal pay for equal work and if an employer is admittedly and apparently deriving the services of a higher post from a person, who was initially appointed in a lower cadre, the employer cannot be placed at a position to duress an employee to work on a lower salary; than what he would have been otherwise legally entitled to or would have been payable to a driver who has been regularly appointed. Apart from it, in fact, by virtue of the representation dated 22.03.2018, as well as dated 26.02.2020, the petitioner had tried to press upon his rights, which would be obviously a right of a civil nature, entitling the consideration of his claim for the payment of salary for the actual services rendered by him. If that claim at all it was to be

considered, it has to be considered by logical application of mind by the respondent No. 2. But, if the impugned order dated 17.08.2020, is taken into consideration, it is cryptic, non- speaking, without any logic or reasons assigned in it, and not even considering or dealing with the grounds, which has been taken by the petitioner for grant of salary for the post of a driver, the services which, he had rendered.

13. Even if the Committee's decision dated 13.07.2020 is taken into consideration, where the impact of Rule 11 of Uttaranchal Government Servant Service Rule 2003, was being considered from the perspective of the qualification, which an employee is supposed to have for the purposes of being appointed as a driver i.e. a qualification of Class 8, and admittedly according to the observations made in the Committee's decision, the High Court Rules in itself does not provide any qualification or mode of recruitment on the post of drivers, the recourse to the Rules, as applicable to the State Government in itself would widely be applied the principles of equal pay for equal work and thus the decision of the Committee taken on the representation of the petitioner cannot be said to have been arrived at by assigning any plausible and rationale application of mind.

14. Even if the controversy is looked into from yet another perspective of the preamble of the Constitution of India, which ensures, justice which is inclusive of a justice apart from social, political also economic justice. The concept of 'economic justice', as contemplated under the preamble of the Constitution of India, which is the basic federal structure envisaging a welfare concept of the country, its basic intention and purpose would be defeated if taking the advantage of unemployment situation prevailing in the country, if an employer misutilises the services

or derives the services of a higher responsibility from an employee, while remunerating him with lesser scale, than what would have been otherwise admissibly payable would fall to be within the ambit of the unfair labour practices as it has been contemplated under the Industrial Disputes Act.

15. Now, this principles of remuneration of an employee of being granted with the equal pay for equal work has been widely considered by the Hon'ble Apex Court in the light of the principles enshrined under Article 39(d) to be read with Article 14 and 16 of the Constitution of India, in a judgment reported in AIR 2019 SC 2020, Sabha Shanker Dube Vs. Divisional Forest Officer and others, wherein the wider principles of the same has been laid down in para 10 & 11 of the said judgment which was based upon yet again a prior judgment of the Hon'ble Supreme Court as reported in AIR 2016 SC 5176, State of Punjab & Ors. Vs. Jagjit Singh & others, the relevant para Nos. 8, 9, 10 & 11 of Sabha Shanker Dube (Supra) are extracted hereunder:-

"8. The daily wagers relied upon a judgment of this Court in Putti Lal (supra) and submitted that the same relief may be extended to them. It is relevant to note that the judgment in Putti Lal (supra) relates to a dispute similar to that involved in this case. Daily rated wage earners in the Forest Department in the State of Uttar Pradesh approached the High Court for regularization of their services. The Division Bench of the High Court of Allahabad directed the State Government to constitute the Committee as directed in order to frame the scheme for regularization. The judgment of the High Court that the daily rated wage workers shall be paid at the minimum of the pay scales was affirmed by this Court on the principle of equal pay for equal work. The Division Bench of the High Court while deciding Special Appeal No.1530 of 2007 referred to the judgment in Putti Lal (supra) but placed reliance on a later judgment of this Court Tilak Raj (supra). The Division Bench of the High Court also cited the case of Surjit Singh (supra) to hold that the daily wagers cannot seek the benefit of the judgment of Putti Lal (supra) case in view of the subsequent decisions of this Court wherein, according to the High Court, it was held that daily wage employees were not entitled to the minimum of the pay scales.

9. On a comprehensive consideration of the entire law on the subject of parity of pay scales on the principle of equal pay for equal work, this Court in Jagjit Singh (supra) held as follows:

"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."

10. The issue that was considered by this Court in Jagjit Singh (supra) is whether temporary employees (daily wage employees, ad hoc appointees, employees appointed on casual basis, contractual employees and likewise) are entitled to the minimum of the regular pay scales on account of their performing the same duties which are discharged by those engaged on regular basis against the sanctioned posts. After considering several judgments including the judgments of this Court in Tilak Raj (supra) and Surjit Singh (supra), this Court held that temporary employees are entitled to draw wages at the minimum of the pay scales which are applicable to the regular employees holding the same post.

11. In view of the judgment in Jagjit Singh (supra), we are unable to uphold the view of the High Court that the Appellants-herein are not entitled to be paid the minimum of the pay sales. We are not called upon to adjudicate on the rights of the Appellants relating to the regularization of their services. We are concerned only with the principle laid down by this Court initially in Putti Lal (supra) relating to persons who are similarly situated to the Appellants and later affirmed in Jagjit Singh (supra) that temporary employees are entitled to minimum of the pay scales as long as they continue in service."

16. Its' not even that, if the Constitution Bench's judgment of the Hon'ble Apex Court as reported in 2006 (4) SCC 1, Secretary, State of Karnataka and others Vs. Umadevi (3) and others, is taken into consideration, it yet again in its para 5, has rather advocated that constitutional scheme of a public employment provides an equitable consideration of an individual for the purposes of being remunerated in consonance to the services rendered by him. Para 5 of the said judgment is extracted hereunder:-

"5. This Court has also on occasions issued directions which could not be said to be consistent with the Constitutional scheme of public

employment. Such directions are issued presumably on the basis of equitable considerations or individualization of justice. The question arises, equity to whom? Equity for the handful of people who have approached the Court with a claim, or equity for the teeming millions of this country seeking employment and seeking a fair opportunity for competing for employment? When one side of the coin is considered, the other side of the coin, has also to be considered and the way open to any court of law or justice, is to adhere to the law as laid down by the Constitution and not to make directions, which at times, even if do not run counter to the Constitutional scheme, certainly tend to water down the Constitutional requirements. It is this conflict that is reflected in these cases referred to the Constitution Bench."

17. Lastly, an identical principle was widely considered by the Hon'ble Apex Court in a judgment reported in 2006 (9) SCC 337, State of U.P. and others Vs. Putti Lal, which too in its para 5, has dealt with an issue as to what would be the scope of entitlement of daily wagers to be paid with the salary admissible to the post on which the service has been discharged by an employee. Para 5 of the said judgment is extracted hereunder:-

"5. In several cases, this Court, applying the principle of equal pay for equal work has held that a daily-wager, if he is discharging the similar duties as those in the regular employment of the Government, should at least be entitled to receive the minimum of the pay-scale though he might not be entitled to any increment or any other allowance that is permissible to his counterpart in the Government. In our opinion, that would be the correct position and we, therefore, direct that these daily-wagers would be entitled to draw at the minimum of the pay-scale being received by their counter-part in the Government and would not be entitled to any other allowances or increment so long as they continue as daily-wager. The question of their regular absorption will obviously be dealt with in accordance with the statutory rule already referred to."

18. In that view of the matter and for the reasons aforesaid, the action of the respondent No. 2, denying the claim by a non- speaking order which apparently reflects a non application of mind also would be arbitrary and the employer cannot be placed at a superior position to misutilise its dictates and authority to deprive from an employee of being benefited with the remuneration admissible to the post for which the services has been rendered by an employee. In that eventuality and for the aforesaid reasons, the very action of the respondent which is under challenge in the present writ petition is against the

constitutional mandate, which ensures providing not only social but even economic justice too to a citizen of the country and economic justice herein would according to the opinion of this Court, would be a justice which could be extended from the view point of the income accruing to an employee out of the services rendered and because it is economics which would ultimately affect the right of an employee, who is not being appropriately paid salary for the post or for the service which he is discharging in an organisation. Hence, also, the action of the respondent would be bad in the eyes of law.

19. In that eventuality, merely because of the fact that the services of the petitioner were later on regularised in 2006, as a Chaukidar, it will have no adverse bearing with regard to his claim for the salary payable to the post of a driver for the work already done by the petitioner. Hence, the objection raised by the learned counsel for the respondent is not acceptable by this Court. The writ petition is allowed. A writ of mandamus is issued. The respondent No. 2 is directed to remit the entire arrears of salary to the petitioner from May 2004 till 5th August 2016, as admissible and payable at the relevant point of time to the post of driver along with interest payable on it @ 8% per annum.

(Sharad Kumar Sharma, J.) 23.11.2021 Mahinder/