Research › Search › Judgment

J&K High Court · body

2001 DIGILAW 211 (JK)

Raghbeer Singh v. Union Of India

2001-09-17

S.K.GUPTA

body2001
1. The case of the petitioner in brief is that he was employed in the Indian Grass land and Fodder Research Institute as Messenger on daily wage basis on 1st February 1985. The petitioner, apart from his work as messenger was also performing semi technical job of seed cleaning and catalouging. That the petitioner alongwith other casual labourers approached the employer respondent No. 3 for regularisation of his services, respondent No. 3., employer instead of acceding to the general demands started showing them the door by terminating their services and initiated process of employing fresh incumbents as casual labourers on daily wage basis. That no order of appointment was given to the petitioner, but he continues to work uninterruptedly for the last four years and claimed the pay equal to Nanak Singh employed working on the post of messenger against a time scale of 7509-40 with other like benefits, allowances and leave facilities etc. on the principle of Equal pay for Equal work. The petitioner is being discriminated by respondent No. 3 and paid only a sum of Rs. 390/- per month at the rate of Rs. 15/- per day. 2. Through the medium of this writ petition, the writ in the nature of mandamus is prayed commanding the respondents to regularise the services of the petitioner and be given pay equivalent to the pay of the employees working in the institute in the same cadre with like benefits, all allowances and other facilities, admissibility to the regular Government Employees. 3. Respondents in their counter on the other hand submitted that Indian Grass land and redder Research Institute, is one of the concern Council Indian research society, registered under Registration societies Act and as such is not a state within the amplitude of Article 12 of the Constitution of India, thus, not amenable to the writ jurisdiction of the Court. It was denied that the petitioner ever came to be appointed as messenger. He was engaged only as a daily paid labourer for cleaning the office and burning of Bhukharies and doing other petty jobs. The petitioner was never handing over semi technical or technical work except cleaning the seeds, rendering help as was done by other labourers. That their job is technical and therefore, cannot be done by labourer(s) including the petitioner. He was engaged only as a daily paid labourer for cleaning the office and burning of Bhukharies and doing other petty jobs. The petitioner was never handing over semi technical or technical work except cleaning the seeds, rendering help as was done by other labourers. That their job is technical and therefore, cannot be done by labourer(s) including the petitioner. It was however, admitted that experience certificate was issued to the petitioner on his request to enable him to apply for a job in other departments. That the petitioner continues to work in the department and the management does not intend to disengage him. He has-been engaged only as a labourer on daily wages basis and in such event no order of appointment could be issued in his favour, nor can be paid any equivalence to what is paid to Nanak Singh a permanent employee of the Institution. That the petitioner is being paid at the rate of Rs. 18/- per day since April 1989, as a casual labourer, assigned petty works from time to time, and thus, is neither vested with legal nor statutory right to continue or for seeking regularisation of his services. 4. Heard and considered the rival contention of the parties. The petitioner has not produced any order with regard to his appointment as messenger on daily wage basis. His contention is that the appointment was made without being given written appointment by the respondents. The nature of job and other conditions of service are determinalbe only from the order of appointment, 5. Whereas, the respondents on the other hand did not dispute the engagement of the petitioner as casual labourer on daily wage basis. The petitioner also admitted in para 10 of the petition that he is being paid Rs.390/- per month at the rate of Rs. 15/- per day. This manifestly shows that the petitioner has been engaged by the respondents employer as a casual labourer to meet the exigency or on need basis. Normally a casual labourer who discharges transitory or casual duties for emergent work does not hold the post. Unless there is a pre-existing post against which he has been engaged. He cannot claim and ask for regularisation. 6. In case State of Himachal Pradesh through Secretary (Rural Development) to the Govt. of Himachal Pradesh, Shimla Vs. Normally a casual labourer who discharges transitory or casual duties for emergent work does not hold the post. Unless there is a pre-existing post against which he has been engaged. He cannot claim and ask for regularisation. 6. In case State of Himachal Pradesh through Secretary (Rural Development) to the Govt. of Himachal Pradesh, Shimla Vs. Ashwani Kumar and Ors., AIR 1997 SC 352, the Apex Court held as under:- ";...No vested right is created in temporary employment. Directions cannot be given to regularise their services in the absence of any existing vacancies nor directions be given to create posts by the State to a non-existent establishment. The Court would adopt pragmatic approach in giving directions. The directions would amount to creating of posts and continuing them in spite of non-availability of the work." 7. The contention of the petitioner, therefore, for regularisation of his services without any existing vacancy does not merit acceptance. It is next contended by the petitioner that he is entitled to the same pay as one Nanak Singh working on the post of messenger against a time scale 750-940 with all benefits on the principle of Equal pay for Equal work. As against this, the stand of the respondents is that Nanak Singh is a permanent employee of the institution and petitioners services cannot be equated with him as the petitioner has been engaged only a daily paid worker/casual worker for attending the petty work. It is also denied that the petitioner has been made to work of semi technical job and catalouging as it involves a technique besides sophistication. The petitioner is neither a public servant or drawing any pay nor working against the post and thus cannot claim any equivalence with Nanak Sing and ask for the same pay and the benefits to be paid to all permanent employee Nanak Sing on the principle of Equal pay for Equal work in such an event there is no question of discrimination on the basis of pay parity as claimed by the petitioner. An identical matter came up for consideration before the Apex court in case State of Haryana Vs. Surinder Kumar and ors,AIR2997 sc2129, held as under:- "since the respondents were appointed on contract basis on daily wages, they cannot have any right to a post as such until they are duly selected and appointed. An identical matter came up for consideration before the Apex court in case State of Haryana Vs. Surinder Kumar and ors,AIR2997 sc2129, held as under:- "since the respondents were appointed on contract basis on daily wages, they cannot have any right to a post as such until they are duly selected and appointed. Merely because they are able to manage to have the posts interchaged, they cannot become entitled to the same pay-scale which the regular clerks are holding by claiming that they are discharging their duties as regular employees. The very object of selection is to test the eligibility and then to make selection in accordance with the rules prescribed for recruitment. Obviously the respondents, recruitment was not made in accordance with the rules. This court has also pointed out in state of Haryana vs Jasmer singh, 1996(10) JT (SC) 876 in that behalf." In view, of ratio of the aforesaid judgment in the apex court, the petitioner being only engaged as a casual labourer on daily wage basis & not against the vacant substantive post with a pay scale and grade, as a public servant, not drawing any pay as public servant, cannot claim parity with the regular employee of the respondents by invoking the principle of Equal pay for Equal work. This contention of the petitioner, both factually and legally is untenable and cannot be accepted. There is in my opinion no need to dilate now upon the question as to whether the Indian Grassland and Fodder Research institute is a State within the Article 12 of the Constitution and amenable to the writ jurisdiction of the court. As has been stated and discussed above, the inevitable conclusion is reached that there is no merit in this petition and is hereby dismissed. No order as to costs.