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Rajasthan High Court · body

2003 DIGILAW 986 (RAJ)

Mahendra Singh v. State of Rajasthan

2003-07-17

SUNIL KUMAR GARG

body2003
Honble GARG, J.–This writ petition has been filed by the petitioner under Article 226 of the Constitution of India against the respondents on 31.5.2001 with a prayer that by an appropriate writ, order or direction, the respondents may be directed to pay the scale of the post of driver to the petitioner and difference amount with interest with effect from 17.11.94 on which date the petitioner had assumed the charge of the post of driver. (2). The facts of the case as put forward by the petitioner are as under:- i) That the petitioner was initially appointed as Sais in Dist. Animal Husbandry Department, Churu under the Rajasthan Animal Husbandry (subordinate Service) Rules, 1977 (hereinafter referred to as the Rules of 1977 vide order dtd. 5.5.93 (Annex.1). ii) Further case of the petitioner is that since the post of driver was lying vacant with the respondent-Department and the petitioner being Higher Secondary qualified and had good experience of driving as well as was possessing driving licence, meaning thereby the was possessing requisite qualification for appointment on the post of Driver, he was given the charge as Driver in the respondent - Department vide order dtd. 17.11.94 (Annex.2) passed by the Regional Dy. Director. iii) Further case of the petitioner is that vide order dtd. 9.1.95 (Annex.3) passed by the Regional Dy. Director, the petitioner was ordered to drive the departmental vehicles till further orders. iv) Further case of the petitioner is that no doubt he was initially appointed on the post of Sais which is equivalent to Class IV employee, but there is material difference between the post of Class IV employee and the post of driver. v) Further case of the petitioner is that on 8.1.1999, a seniority list of Class IV employees was issued by the respondents in which the name of the petitioner was shown at serial No. 14, but the petitioner made a request before the respondents that he should be paid the salary of post of Driver. vi) Further case of the petitioner is that on 26.3.99 a letter (Annex.5) was issued by the Director, Animal Husbandry Department (respondent No.1) regarding filling up of post of Driver from amongst Class IV employees. vii) Further case of the petitioner is that in pursuance of letter dated 26.3.99 (Annex.5), the petitioner submitted an application (Annex.6) on 8.4.99 to the respondent No. 1 (Director). vii) Further case of the petitioner is that in pursuance of letter dated 26.3.99 (Annex.5), the petitioner submitted an application (Annex.6) on 8.4.99 to the respondent No. 1 (Director). However, since 1999, there was no progress in this matter. viii) Further case of the petitioner is that vide order dtd. 30.10.99 (Annex.7) passed by the Assistant Director (Live Stock Development (respondent No.4) the actual formal charge of the post of driver was given to the petitioner and in pursuance of this order dtd. 30.10.99 (Annex.7), the petitioner had taken the charge and all the tools belonging to the vehicles vide handing over-taking over charge report dtd. 30.10.99 (Annex.8). ix) It may be stated here that a perusal of the order dtd. 30.10.99 (Annex.7) would reveal that on the eve of retirement of Shri Sumer Dan, Driver, the petitioner was given the charge of the post of Driver. x) Further case of the petitioner is that he has been discharging the duties of the driver since 17.11.94. xi) Further case of the petitioner is that through order dtd. 2.12.2000 (Annex.9), the petitioner was directed to make appropriate maintenance from motor-garage. xii) Further case of the petitioner is that through order dtd. 4.4.2001, the petitioner was directed to perform the duties in the office of Dist. Collector (Pool), Bikaner and thus since 17.11.94, he is continuously working as Driver, but he is being paid the salary of the post of Class IV employee. Hence, thus writ petition with the above mentioned prayer. (3). In this writ petition the main submission of the learned counsel for the petitioner is that non-payment of salary of the post of driver with effect from 17.11.94 is perse illegal and violative of provisions of Articles 14, 16 and 39 (d) of the Constitution of India and on the principle of ``Equal Pay for Equal work. the petitioner is entitled to salary of post of Driver with effect from 17.11.94 and hence, this writ petition should be allowed. (4). the petitioner is entitled to salary of post of Driver with effect from 17.11.94 and hence, this writ petition should be allowed. (4). A reply to the writ petition was filed by the respondents and the respondents have admitted the all the annexures produced by the petitioner, but their case is that the petitioner has no right to claim the salary of the post of Driver as since the post of driver was lying vacant, therefore, the petitioner was directed to discharge the duties of Driver till regular selection was made and apart from this, no other Class IV employee has been promoted on the post of driver, therefore, there is no question of discrimination and hence the writ petition should be dismissed. (5). Heard and perused the record. (6). So far as factual position of the case if concerned, there is no dispute on the point that the petitioner was initially appointed on the post of Sais under the provisions of Rules of 1977 and that post is equivalent to the post of Class IV employee. (7). There is also no dispute on the point that Since 17.11.94 by written order (Annex.2), the petitioner has been discharging the duties of the post of Driver and further more on the retirement of Sumer dan who was regular driver in the respondent-department, the charge of the post of Driver which was being held by Sumer Dan was handed over to the petitioner vide order dtd. 30.10.99 (Annex.7). (8). There is also no dispute on the point that though the petitioner is discharging the duties of the post of Driver since 17.11.94, yet he is being paid the salary of the post of Class IV employee and not the salary of the post of Driver till the writ petition was filed. (9). Now the question which arises for consideration is whether in the facts and circumstances just mentioned above, the petitioner is entitled to salary of the post of driver with effect from 17.11.94 on the principle of ``Equal Pay for Equal Work or not. (10). Before proceeding further something should be said about the words ``Equal Pay for Equal Work Doctrine of Equal Pay for Equal Work (11). (10). Before proceeding further something should be said about the words ``Equal Pay for Equal Work Doctrine of Equal Pay for Equal Work (11). Construing Articles 14 and 16 in the light of Preamble and Article 39(d), it is clear that the principle ``Equal work is deducible form those Articles and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though those drawing the different scales of pay do identical work under the same employer. It is true that equation of post and equation of pay are matter primarily for the Executive Government and expert bodies like the Pay Commissioner and not for Courts, but where all things are equal that is where all relevant considerations are the same, persons holding identical posts may not be treated differentially in the matter of their pay merely because they belong to different departments. Of course, if officers of same rank perform dissimilar functions and the powers, duties and responsibilities of the posts held by them vary, such officers may not be heard to complaint of dissimilar pay merely because the posts are of same rank and the nomenclature is the same. It is well known that there can be and there are different grades in a service, with varying qualifications for entry into a particular grade, the higher grade often being a promotional avenue for officers of the lower grade. The higher qualifications for the higher grade, with may be either academic qualifications or experience based on length of service reasonably sustain the classification of the officers into two grades with different scales of pay. The principle of equal pay for equal work would be an abstract doctrine not attracting Article 14 if sought to be applied to them. (12). The principle of equal pay for equal work cannot be invoked invariably in every kind of service and is inapplicable especially in the field of professional services such a medical service. (13). It need not be impressed that the principle of equal pay for equal work can be enforced, only after the persons claiming, satisfy the Court that not only the nature of work is identical, but in all to her respects they belong to the same class and there is no apparent reason to treat equals as unequals. (13). It need not be impressed that the principle of equal pay for equal work can be enforced, only after the persons claiming, satisfy the Court that not only the nature of work is identical, but in all to her respects they belong to the same class and there is no apparent reason to treat equals as unequals. Unless a very clear case is made out and the Court is satisfied that the scale provided to a group of persons on the basis of the material produced before it amounts to discrimination. (14). The principle of ``Equal Pay for Equal Work is not fundamental right but intended to bring a socio economic transformation and social justice. Article 39(a) of the Constitution proclaimed the doctrine of equal pay for equal work for both men and women under the provisions of directive principles as a State policy. This principle of equal pay for equal work has been accepted by the Supreme Court in number of cases such as Y.K. Mehta vs. Union of India (1). (15). The aim object of applicability of principle of equal pay for equal work is to fulfill and being the social economic and social justice to the society but the qualitative difference with regard to the reliability and responsibility can also not be rules out. (16). For establishing equal pay for equal work many things like responsibility skill effort, condition of work are required to be considered as has been held by Honble Supreme Court in the case of State of M.P. vs. Pramod Bartiya (2). (17). Nature of work may be more or less same but scale of pay may vary based on academic qualification or experience which justifies classification - principle of ``Equal pay for equal work would not be applied in a mechanical or casual manner for which the decision of Honble Supreme Court in the case of Shyam Babu Verma vs. Union of India (3), may be referred to. (18). In Bhagwan Das and Ors. vs. State of Haryana and Ors. (4), the Honble Supreme Court made the following observations: 1) Where the nature and function and the work of two persons are similar, the fact that the mode of recruitment of employee was different has no relevance from the point of view of equal pay for equal work. (18). In Bhagwan Das and Ors. vs. State of Haryana and Ors. (4), the Honble Supreme Court made the following observations: 1) Where the nature and function and the work of two persons are similar, the fact that the mode of recruitment of employee was different has no relevance from the point of view of equal pay for equal work. 2) Doctrine of ``Equal work and equal pay is applicable to the employees irrespective of their being temporary, if once it is established that the nature of duties and functions discharged and the work done is similar. 3) Where the supervisors in Education Department were appointed on six months basis with a break of one day or two, after completion of each period under a temporary scheme, they cannot claim for absorption as regular employee but they are justified in claiming pay on the basis of length of service disregarding the breaks. 4) It is not relevant that whether the appointment under Adult Education Scheme were made part time or full time, but where the functions of the same were similar to those of whole time supervisors, they are entitled for equal pay and cannot be denied the benefit on the ground of their appointments not made on regular basis. (19). The Honble Supreme Court in the case of Surinder Singh vs. The Engineer in Chief, PWD (5), has held that the doctrine of equal work and equal pay is applicable to the persons employed on daily wages and all other daily rates employees are entitled to the same salary and allowances as are paid to regular and permanent employees. (20). In view of the discussion just made hereinabove, if the case of the petitioner is examined, it appears reasonable that the petitioner should be given the pay of the post of driver with effect from 11.11.94 on the principle of ``Equal Pay for Equal Work because of the following reasons: i) The petitioner had the requisite qualification for appointment on the post of Diver when he was given the charge of the post of Driver vide order dtd. 17.11.94 (Annex.P/2). ii) Since 17.11.94, the petitioner has been discharging the duties of the post of Driver by written orders of the respondents and he has been transferred from one place to another place, but he is always discharging the duties of the post of Driver. 17.11.94 (Annex.P/2). ii) Since 17.11.94, the petitioner has been discharging the duties of the post of Driver by written orders of the respondents and he has been transferred from one place to another place, but he is always discharging the duties of the post of Driver. iii) That on the even of retirement of Shri Sumer Dan, regular driver in the respondent - department, the petitioner was given regular charge of the post of Driver vide Order dtd. 30.10.99 (Annex.7) (21). In my considered opinion, the principle of equal pay for equal work in some exceptional cases can be applied, where question of equation of duties and responsibilities are involved and present case is one of them. (22). Apart from this if the petitioners case is examined from the point of responsibility, skill effort and condition of work, the petitioner passes all the tests and the facts and circumstances just mentioned above and legal position discussed above, only lead to the only conclusion that for all purposes, the petitioner was treated as driver though he was appointment on the post of Class IV employee. (23). The case of the respondents that the petitioner was holding the temporary charge of the post of Driver would not affect the principle as enshrined under Article 39(d) of the Constitution of India and hence this argument would not be helpful to the learned counsel for the respondents. (24). For the reasons mentioned above, it is held that the petitioner is entitled to the salary of the post of Driver with effect from 17.11.94 on the principle of ``Equal Pay for Equal Work when the petitioner was given the charge of post of Driver vide order dtd. 17.11.94 (Annex.2) Accordingly the present writ petition is allowed to the extent that the respondents are directed to pay the petitioner the salary of the post of Driver with affect from 17.11.94 with all consequential benefits. No order as to costs.