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1992 DIGILAW 295 (PAT)

Vijay Kumar Singh v. State of Bihar

1992-08-19

B.P.SINGH, S.K.CHATTOPADHYAYA

body1992
JUDGMENT B. P. Singh, J. These two petitions have been heard together and are 'therefore, being disposed of by this common judgment. The respondents have filed their counter-affidavit and after hearing the counsel for the parties at length, we are disposing of these writ petitions at the admission stage itself with their consent. 2. In C. W. J. C. No. 6415 of 1991 there are two petitioners who were appointed as Assistant in the respondent Bihar State Cooperative land Development Bank. According to the petitioners, petitioner no. 1 was appointed as an Assistant on daily wage basis of 9.6.1982. From the rejoinder affidavit it appeals that petitioner no. 2 was appointed own earlier as an Assistant on 29-8-1980 also on daily wage basis. Both of them claim that ever since their appointment as Assistant on daily wage basis they have been working continuously without any break, It is the case of petitioner no. 1 that at the time of his appointment he had only Intermediate qualification, but in the hope that he will be regularised in service in the year 1983 he graduated and obtained a B. A. degree. It is also the case of the petitioners that persons, who jointed service later on daily wage basis, were regularised, but the cases of the petitioners were not considered for regularisation. They moved from pillar to post, which resulted only in futile correspondence without any firm decision. It is stated that respondent no. 3 by Memo dated 21-4-1984 terminated the appointment of several persons who had been appointed on daily wage basis between 1-1-1983 and 31-3-1984. This obviously did not include the petitioners, who had been appointed much earlier. The petitioners further claim that after their appointment they worked at different places from time to time, they were transferred as other employees of the Bank, and were also granted bonus as and when bonus was paid to the employees of the Bank. By Memo dated 30th August, 1986, the daily wage was raised from Rs. 15-per day to Rs. 25/-per day. Despite their long continuance in service with satisfactory record of service, they have not been regularised despite their several representations. By Memo dated 30th August, 1986, the daily wage was raised from Rs. 15-per day to Rs. 25/-per day. Despite their long continuance in service with satisfactory record of service, they have not been regularised despite their several representations. The grievances is that other Assistants working in the Bank, and performing same duties are paid their pay and allowances according to the pay scale prescribed for the post of Assistant but the petitioners, though they perform the same duties and shoulder the same responsibilities and are treated in the same manner as other employees, draw a much lesser amount since they are only entitled to payment of daily wages and are not given the benefit of regular pay scale admissible to Assistant in the Bank. 3. A counter-affidavit has been filed on behalf of the Bank and its officers (respondent nos. 2 to 5). It is stated in the counter affidavit that the petitioners were appointed without following the procedure for appointment. The posts were never advertised nor were the petitioners interviewed. Appointments were made in violation of Articles 14 and 16 of the Constitution of India. Persons were appointed as and when they approached the bank for appointment. The appointments were not made from the headquarters, but by the the Regional, Manager who had no authority to make such appointments. In nutshell it was submitted that since the appointments were illegal, and made by an incompetent authority, the services of the petitioners had not been regularised by the Bank. The petitioners being the backdoor entrants, they cannot be given that benefit. It is also stated that there are seven persons senior to petitioner no. 1 and eight persons senior to petitioner no. 2, who are still working on daily wage basis, since they had also been appointed in the same manner as the petitioners. Moreover, the Registrar of Cooperative Societies has banned fresh employment in the Bank. Even the work load does not justify regularisation of appointments because the Bank is over staffed, and its financial position does not permit it to allow further appointment or regularisation. 4. The facts of C. W. J. C. No. 6416 of 1991 are also similar. There are four petitioners in the writ petition, who were appointed as peons on daily wage basis in the years 1980 and 1981. 4. The facts of C. W. J. C. No. 6416 of 1991 are also similar. There are four petitioners in the writ petition, who were appointed as peons on daily wage basis in the years 1980 and 1981. They have been working continuously without any break, and are still working on daily wage basis. It is not necessary to repeat the facts since they are more or less the same as in the connected writ petition. The counter-affidavit filed on behalf of the respondent-Bank and its officers is also on the same lines. 5. The petitioners pray that their services should be regularised. Very often regularisation of service is equated with confirmation or permanence in service. This impression must be dispelled. As early as in 1972 (2) SCR 799 (R.N. Nanjudappa vs. T. Thimmiah) the Supreme Court cautioned that if an appointment is made in infraction of the rules, or if it is made in violation of the provisions of the Constitution, such appointments being illegal cannot be regularised. An irregular appointment is different from an appointment which is illegal where there has been some non-compliance with procedure or manner which does not go to the root of the appointment the irregularity can be subsequently cured. Obviously therefore, if the appointment itself is illegal and not irregular, it cannot be regularised, Regularisation, as has been held by the Supreme Court, cannot be said to be a mode of recruitment. Again in B. N. Nagarjan and others vs. State of Karnataka ( AIR 1979 S.C. 1676 ) the Supreme Court negatived the argument that regularisalion of the promotion gave it the colour of permanence. It observed that the words 'regular' or 'regularisation' do not cannot permanence. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to the methodology followed in making the appointments. They cannot be construed as to convey an idea of the nature of the tenure of the appointments. 6. Having regard to the legal position, and. having regard to the fact that in the counter-affidavit it was pleaded that these appointments had been made in breach of Articles 14 and 16 of the Constitution of India, learned counsel for the petitioners fairly submitted that the petitioners did not seek any relief from this Court for making their appointment substantive or permanent. having regard to the fact that in the counter-affidavit it was pleaded that these appointments had been made in breach of Articles 14 and 16 of the Constitution of India, learned counsel for the petitioners fairly submitted that the petitioners did not seek any relief from this Court for making their appointment substantive or permanent. He invoked the principle of equal pay for equal work and submitted that the prayer for regularisation in the writ petitions must be limited to the petitioners being granted the same pay-scale and other benefit, which are admissible to other employees such as the petitioners, who are regularly appointed. The argument proceeds on the basis that the petitioners in the two writ petitions, who are working as Assistants and Peons respectively, perform the same duties as are performed by other Assistants and peons. They are transferred in the same manner as others are, and they are also given the benefit of bonus as and when payable. These fads have not been controverted in the counter-affidavit, and therefore I must proceed on the factual basis that the petitioners in these writ petitions perform the same duties and shoulder the same responsibilities as other Assistants and peons do, who have been appointed regularly. 7. Counsel for the respondent-Bank contended that since these appointments were illegal, the petitioners will not be entitled to regularisation of their services. As observed earlier the petitioners did not claim permanency in service. All that they claim is that if they perform the same duties and shoulder the same responsibilities, they should be given the same pay and allowances which regularly appointed Assistants and peons are getting. The submission urged on behalf of the petitioners must prevail. It is no doubt true that in appropriate case the question as to whether the petitioners have been validly appointed, and whether appointments are not merely irregular but illegal may have to be gone into. In the instant cases, however, those questions do not arise, because their services have not been terminated and they are still working in the Bank as Assistants and peons. One could understood the plea of the Bank if the services of the petitioners were terminated on the ground of the appointments being illegal and that action was sought to be defended in the writ petition. One could understood the plea of the Bank if the services of the petitioners were terminated on the ground of the appointments being illegal and that action was sought to be defended in the writ petition. That not being the case the only question which, has to be considered is whether the petitioners will be entitled to the same pay-scales and allowances which are admissible to other Assistants and peons performing the same or similar duties and responsibilities. The principle of equal pay equal work is so deeply embedded in Articles 14 and 16 of the Constitution that it is futile to urge that persons discharging the same duties and responsibilities can be treated differently in the matter of payment of wages. It may be that in a particular case it may be shown that the duties being per-formed by the twp categories of persons namely, those on daily wage basis and those regularly appointed are different either qualitatively or otherwise. In such a case, perhaps, the principle of equal pay for equal work may not be applicable. But where it is not disputed that for long years those appointed on daily wage basis have been performing the same duties and shouldering the same responsibilities as those regularly appointed, the principle must apply and those working on daily Wage basis must not be discriminated in the matter of payment of wages. 8. In the instant cases the petitioners have been working for over ten years while the continuance of such employment on daily wage basis must be deprecated because it virtually amounts to exploitation, one cannot lose sight of the realities. Recently, the Supreme Court was constrained to observe that the appointment on daily wage basis is a source of corruption and Courts can take judicial notice that such employment is given and taken on monetary considerations. However, since the appointments have not been terminated, the petitioners cannot be discriminated in the matter of payment of wages. when there is no dispute that they perform the same duties and shoulder the same responsibilities as those regularly appointed. 9. Having regard to the fact that the petitioners have worked for over ten years on daily wage basis, it would be unfair to deny to them the benefit of regular pay-scales admissible to Assistants and peons working in the Bank as long as they continue to serve the Bank. 10. 9. Having regard to the fact that the petitioners have worked for over ten years on daily wage basis, it would be unfair to deny to them the benefit of regular pay-scales admissible to Assistants and peons working in the Bank as long as they continue to serve the Bank. 10. I, therefore, allow these writ petit ions and direct that the petitioners in C.W.J.C. No. 6415 of 1991 are entitled to the pay-scale admissible to the Assistants working in the respondent Bank who have been appointed on regular basis similarly, the petitioners in C.W.J.C. No. 6416 of 1991 are declared to be entitled to the pay-scale admissible to peons working in the respondent-Bank. Both these writ petitions were filed on 17.9.1991. For the purpose of fixation of their initial pay, it shall be deemed that they were appointed as Assistant or peon, as the case may be on 17-9-1991 and their pay and allowance shall be determined accordingly. However, the benefit of the pay scales shall be extended to them with effect from 1st may, 1992. They shell not be entitled to any arrears of pay, but for the purpose of fixation of pay as on 1st May, 1992, it shall be deemed they were appointed on 17-9-1991, the date of filing of the writ petitions we make it clear that grant of such relief to the petitioners shall not be construed to mean that this Court has expressed any opinion on the question as to whether they were validly appointed. We have not gene into that question, because that does not arise for consideration in the instant petitions. 11. These writ petitions are allowed to the extent indicated above. There will be no order as to costs. Applications allowed in part.