Suresh Kumar v. State of Rajasthan — 1995 DIGILAW 710 (RAJ)

Honble MADAN, J. – The petitioner who was appointed as Sweeper (Class IV employee) as a daily wager has been continuing his services as such in the S.M.S. Hospital Jaipur since 1.5.87 at the rate of Rs. 22/- per day which was then prevailing. (2). The grievance of the petitioner is that instead of regularisation of his services by fixiing him up in the regular Pay Scale since he has been performing his duties similar to that of substantively appointed Sweepers on the principle of `equal pay for equal work as enshrined under Article 39(d) read with Article 14 and 16 of the Constitution of India, the petitioner was purposely kept on daily wage basis on order to deprive him the benefits of regular pay scale. It has been further contended in the writ petition that the petitioner is not a work-charge employee hence he is not covered by the Rajasthan Class-IV (Recruitment & other Service Condition) Rules 1963 (hereinafter to be referred as the Rules of 1963) and the said Rules are not applicable to the Medical & Health Services of the State. The petitioner has further challenged the vires of the Rules of 1963 as violative and discriminatory of Articles 14 and 16 of the Constitution of India on the ground that no scheme has been formulated by the Health Department so far with regard to the regularisation of the employees of the said Department. It has further been contended by the learned counsel for the petitioner that instead of fixing the petitioner in the regular pay scale of Class-IV on which the petitioner has been regularly dispensing his duties since 1987 the respondents have deliberately kept the petitioner on daily wage basis so that he may not claim the benefit of either regularisation of services or for fixing him in the regular pay scale so as to deprive the petitioner of the benefit of both regularisation and regular pay scale in violation of the principles of equal pay for equal work notwithstanding the fact that the petitioner has been regularly dispensing with his duties as a substantively appointed Sweeper eversince his appointment. Reliance has also been placed on the Schedule-IV appended to the Rajasthan Civil Services (Classification Control & Appeal) Rules 1958 (hereinafter to be referred as the Rules of 1958). Reliance has also been placed on the Schedule-IV appended to the Rajasthan Civil Services (Classification Control & Appeal) Rules 1958 (hereinafter to be referred as the Rules of 1958). It has been further contended in the writ petition that the case of the petitioner is covered by the Schedule-IV of class IV Services of the Rules of 1958 which deals with the various categories of Class IV employees. In support of his contentions advanced at the bar learned counsel for the petitioner has placed reliance on the D.B.Judgment of this court in the matter of Udai Lal & Others vs. State of Rajasthan & Others (1), wherein this Court while dealing with identical case of Ward Boys who were appointed on daily wage basis directed regularisation of their services by directing as under :– "The petitioners are performing the duties of an Attendant or Ward Boy or Chowkidar in the respondent Hospital. The posts of Attendant or Ward Boy or Chowkidar falls within the categories of class IV Service. We find no justification on the part of the respondent not to pay the salary of a class IV employee to the petitioner. The petitioners are entitled to get the salary of a class IV employee. In the result we allow the writ petition and direct the respondents to pay the salary of a class IV employee to the petitioners from January 1988 (when this petition was filed) and onwards so long they remain in employment." (3). Reliance has also been placed upon the Judgments of the Apex Court in the matter of Dhirendra Chamoli & Another vs. State of U.P. (2) and Surendra Singh & Another vs. Engineer in Chief CPWD & Ors. (3), on the principle of equal pay for equal work. The Apex Court directed the regularisation of the services of class-IV employees who were appointed on casual/daily rated workers on the principle of equal pay for equal work since they were performing similar duties of Class-IV employees. It was held by the Apex Court that it was not open to the Government to deny the pay scale of Class IV employees to the casual workers since such denial would be violative of Article 14 of the Constitution of India. It was held by the Apex Court that it was not open to the Government to deny the pay scale of Class IV employees to the casual workers since such denial would be violative of Article 14 of the Constitution of India. The Apex Court accordingly issued the direction to pay the same pay scales of Class-IV employees to the casual works as is being paid to the regularly appointed Class-IV employees. (4). In the case of Surendra Singh (Supra) it was held by the Apex Court that daily wage workers of CPWD were entitled to wages equal to regular and permanent employees since they were performing identical duties and it was further held as under :– "The Central Government, the State Governments and likewise? all public sector undertakings are expected to function like model and enlightened employers and arguments such as those which were advanced before us that the principle of equal pay for equal work is an abstract doctrine which cannot be enforced in a court of law should ill come from the mouths of the State and State undertakings. We allow both the writ petitions and direct the respondents as in the Nehru Yuvak Kendras case to pay to the petitioner and all other daily rated employees, to pay the same salary and allowances as are paid to regular and permanent employees with effect from the date when they were respectively employed. The respondents will pay to each of the petitioners a sum of Rs. 1000 towards their costs. We also record our regret that many employees are kept in service on a temporary daily wage basis without their services being regularized. We hope that the government will take appropriate action to regularize the services of all those who have been in continuous employment for more than six months. (5) It has been further contended on behalf of the petitioners that respondents did not issue any formal appointment order in favour of the petitioner but as per their usual practice the respondents invited applications from the respective candidates appointing the petitioner as a Sweeper and marking his attendance on the Muster Rolls. It has been further contended on behalf of the petitioner that on the principle of equal pay for equal work the petitioner is entitled to get the benefit of regular pay scale of the Sweeper Rs. It has been further contended on behalf of the petitioner that on the principle of equal pay for equal work the petitioner is entitled to get the benefit of regular pay scale of the Sweeper Rs. 750-950 as prevailing on the date of the filing of this writ petition and the action of the respondents in not providing the same is violative of the principles enunciated under Article 39(d) of the Constitution of India which is liable to be depricated and struck down. Reliance has also been placed upon the judgments of this court passed in the following matters which were allowed by this Court as under :– S. No. Name of Writ Petitions No. of SBCWPs. 1. Pancha Ram vs. State 2695/89 2. Rajendra vs. State 7522/89 3. Ashok Kumar vs. State 1040/89 4. Smt. Sita vs. State 3570/85 5. Moola Ram vs. State 5303/89 6. Udai Lal vs. State 147/85 (6). That apart from what has been stated above it has been further contended that the respondents are duty bound to frame the Service Code for its employees by virtue of the mandatory provisions of section 3 of the Industrial Employment Standing Orders Act which casts mandatory obligation upon the respondents to frame the Code stipulating service conditions of its employees.Petitioner is also the employee of the respondents which is an industrial establishment since long but it is unfortunate that the services have neither been governed under the Service Rules which are framed by the State Govt. by exercising powers conferred under Article 309 of the Constitution of India nor by any standing orders whereas it ought to be governed as per the said provisions hence the action of the respondents is contrary to the provisions. In the prayer clause the petitioner has prayed for issuance of a writ of mandamus directing the respondents to make the petitioner permanent on the post of Sweeper (Class IV) and provide him the same pay scale which is being paid to the permanent employees of this cadre and to also direct to govern the service conditions of the petitioner by framing Standing Orders as per the provi- sions of the Industrial Employment Standing Orders Act or under the Service Rules which are framed for other employees of the same Department. (7) The above contentions advanced on behalf of the petitioner have been controverted by Shri Avasthi, learned Dy. (7) The above contentions advanced on behalf of the petitioner have been controverted by Shri Avasthi, learned Dy. G.A. for the State on the ground that the petitioner was not a regularly appointed class -IV employee and therefore, the CCA Rules of 1958 are not applicable to the petitioner. In Support of his contentions advanced at the bar he has placed reliance upon the Judgment of the Apex Court in the matter of Delhi Development Horticulture Employees Union vs. Delhi Administration Delhi & Ors. (4), wherein the question which has arisen for consideration of the Apex Court was regarding regularisation of the services of the Horticulture employees which was resisted by the respondents on the ground that there was no scope for the absorption of the petitioners since they were employed on daily wages with a clear understanding that the scheme under which they were employed had no provision for regularisation of any workman. The Apex Court or examination of the facts and the contentions advanced by the respective parties arrived at the conclusion that the petitioners are not entitled for regularisation since they were appointed under a particular scheme which has since come to an end. It was further directed by the Apex Court that such workers should be kept on a panel if they are registered with the Employment Exchange and are qualified for appointment on the relevant posts which preference will be given to them as and when vacancies arise for regular posts. (8) I have given my thoughtful consideration to the contentions advanced by the learned counsel for the parties and also the principles of law enunciated by the Apex Court in the mater of Delhi Development Horticultures case (Supra). In my considered opinion the ratio of the above judgment of the Apex Court is neither attracted nor applicable to the facts of the instant case since in this case the petitioner was not given appointment in a particular scheme but he was appointed as a daily wager on the post of Sweeper which is a substantive post and has been discharging the similar duties as a regularly appointed Class-IV employee on the said post. (9). (9). In the matter of Bhagwati Prasad vs. Delhi State Mineral Developments Corporation (5), the question which had arisen for consideration of the Apex Court was as to whether daily rated workers who were though not possessing initial minimum prescribed educational qualifications at the time of appointment after having gained sufficient experience after many years of service were entitled to confirmation? It was held by the Apex Court that the relief of confirmation/regularisation cannot be denied to such workman on the ground that they did not possess the requisite qualifications. It was further held by the Apex Court as under :– "Once the appointments of petitioners were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualifications. It can be said that three year,s experience, ignoring artificial break in Service for short period/ periods created by the management in the circumstances would be sufficient for con- confirmation and re appointment that period may be excluded in the computation of the three years period. Therefore the petitioners are entitled to equal pay at par with the persons appointed on regular basis to the similar post or discharge similar duties and are entitled to the scale of pay and all allowances revised from time to time for the said posts." (10). Applying the ratio of the principles regarding regularisation of the employees this Court in SBCWP No. 1185/89 decided on 23.11.94 and in SBCWP No. 3158/90 decided on 17.11.94 directed for regularisation of class - IV employees working as daily wagers on the principle of equal pay for equal work as enshrined under Article 39(d) of the Constitution of India. (11). Mr. Avasthi learned Dy. G.A. for the State has further contended at the bar that the petitioner was appointed by verbal orders of the Medical Superintendent of the S.M.S. Hospital and hence the question of this appointment by not following the regular procedure does not arise. (12). After hearing the learned Counsel for the parties and after having examined their rival claims and contentions as well as the principles of law laid down by the Apex Court, as referred to above I am of the considered opinion that the petitioner deserves to succeed. (12). After hearing the learned Counsel for the parties and after having examined their rival claims and contentions as well as the principles of law laid down by the Apex Court, as referred to above I am of the considered opinion that the petitioner deserves to succeed. The writ petition is therefore, allowed with costs which is quantified at Rs. 2,000/- and the respondents are directed to treat the petitioner as a regularly appointed class IV employee by regularising his services on the post of Sweeper on which he has been working with effect from 1.5.87. The respondents are further directed to fix the petitioner in the regular pay scale and pay him the arrears of salary due to the petitioner on the said post with effect from the date of the filing of the writ petition i.e. 17.12.90 with all consequential benefits. The respondents shall take necessary steps to issue necessary orders within a period of 8 weeks from the date of submission of the certified copy of this order.