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2006 DIGILAW 1087 (PAT)

Bhado Paswan v. State Of Bihar

2006-11-17

RAMESH KUMAR DATTA

body2006
Judgment 1. Heard Mr. Sanjeev Kumar Mishra, learned counsel for the petitioner and learned Standing Counsel No. 21, for the State. 2. The petitioners seek quashing of the order contained in memo no. 1475 dated 26.7.1999 (Annexure-5) passed by the Water Resources Department by which the petitioners have been allowed payment of salary at the lowest scale of the time scale of pay but it has been stated that they shall not be paid dearness allowance, other allowances and increments in the time scale. The petitioners are aggrieved by the non-grant of the dearness allowance and other allowances. 3. By an interlocutory application no. 5432/2002 the petitioners have also prayed for a direction upon the respondents to consider their cases for regularisation in view of the order passed by this Court in an earlier writ petition being CWJC No. 10514/1997. 4. So far as the issue of grant of dearness allowance and other allowances are concerned, learned counsel for the petitioners relies upon several decisions, namely, Randhir Singh vs. Union of India and Others: AIR 1982 SC 879 , Dhirendra Chamoli and Another vs. State of U.P. : (1986)1 SCC 637 and Haryana State Adhyapak Sangh and Ors. vs. State of Haryana and Ors.: AIR 1988 SC 1663 . The first two of the abovementioned cases relate to the principle of equal pay for equal work and in both the cases it has been laid down that daily wagers who have been working under the Government or governmental authorities are entitled to the same scale of pay as regularly employed persons doing the same type of work. So far as the third case reported in AIR 1988 SC 1663 is concerned, the same relates to teachers of private aided schools who had been denied dearness allowance at par with those of the teachers of Government schools and it was directed in the said case that such teachers of a private aided school shall also be entitled to the dearness allowance at par with teachers of the Government schools. 5. Opposing the said stand, learned counsel for the State has argued that a sea change has come about and the recent views have been expressed in various decisions of the Supreme Court. 5. Opposing the said stand, learned counsel for the State has argued that a sea change has come about and the recent views have been expressed in various decisions of the Supreme Court. In this context he relies upon decisions in the case of State of Orissa and Others vs. Balram Sahu and Others: (2003)1 SCC 250 , State of Haryana and Anr. vs. Tilak Raj and Ors.: (2003)6 SCC 123 , Mahendra L. Jain and Others vs. Indore Development Authority and Others: (2005)1 SCC 639 and State of Madhya Pradesh and Ors. vs. Yogesh Chandra Dubey and Ors.: 2006(4) PLJR 216 (SC). In Balram Sahus case the Supreme Court held that the respondent-workers cannot be held to hold any post or claim even any comparison with the regular and permanent staff for any or all purposes including the claim for equal pay and allowances. In Tilak Rajs case it was held by the Apex Court that scale of pay is attached to a definite post and in case of a daily-wager, he holds no posts. Therefore, the respondent-workers cannot be held to hold any posts to claim even any comparison with the regular and permanent staff for any or all purposes including a claim for equal pay and allowances. It was further held that equal pay for equal work is a concept which requires for its applicability complete and wholesale identity between a group of employees claiming identical pay scales and the other group of employees who have already earned such pay scales. On the basis of the said principles the High Courts order granting equal pay for equal work was struck down as clearly indefensible and it was directed that the appellant-State has to ensure that minimum wages are prescribed for such workers and the same is paid to them. In Mahendra L. Jains case the Apex Court has held in para 43 of the judgment as follows: "The appellants having been employed on daily wages did not hold any post. No post was sanctioned by the State Government. They were not appointed in terms of the provisions of the Statute. They were not, therefore, entitled to take recourse to the doctrine of "equal pay for equal work" as adumbrated in Articles 14 and 39(d) of the Constitution. No post was sanctioned by the State Government. They were not appointed in terms of the provisions of the Statute. They were not, therefore, entitled to take recourse to the doctrine of "equal pay for equal work" as adumbrated in Articles 14 and 39(d) of the Constitution. The burden was on the appellants to establish that they had a right to invoke the said doctrine in terms of Article 14 of the Constitution. For the purpose of invoking the said doctrine, the nature of the work and responsibility attached to the post are some of the factors which were bound to be taken into consideration. Furthermore, when their services had not been regularised and they had continued on a consolidated pay on ad hoc basis having not undergone the process of regular appointments, no direction to give regular pay scale could have been issued by the Labour Court." 6. In the case of State of M.P. and Others vs. Yogesh Chandra Dubey (supra) the issue involved was whether the respondents who were engaged on daily wages are entitled to claim minimum of pay scale attached to the post in which they had been working with applicable allowances. After considering various decisions the Apex Court came to the conclusion that the respondent-workmen did not hold any post and thus they were not entitled to any scale of pay. 7. On consideration of the aforesaid four decisions relied upon by the learned counsel for the State, it is evident that the case of the petitioners stands on the same footing as of the workmen invoved in those cases. The petitioners also being daily wage employees do not hold any post and thus cannot claim the same pay scale and the benefit of allowances as other employees of the Government. They are at best entitled to minimum wages. Learned cousel for the petitioners has not been able to show that the minimum of the pay scale granted to the petitioner is less than the minimum wages prescribed for such class of persons. In the circumstances, no relief regarding dearness allowance can be granted to the petitioners. 8. Learned counsel for the petitioners thereafter sought to advance argument regarding regularisation taking into account the fact that the petitioners have been working as daily wagers without any interuption or break since 1979, 1980 and 1981 respectively, that is, for more than 25 years. In the circumstances, no relief regarding dearness allowance can be granted to the petitioners. 8. Learned counsel for the petitioners thereafter sought to advance argument regarding regularisation taking into account the fact that the petitioners have been working as daily wagers without any interuption or break since 1979, 1980 and 1981 respectively, that is, for more than 25 years. In view of the law laid down by the Apex Court in the case of Secretary, State of Karnataka and Others vs. Uma Devi (3) and Others: [ 2006(4) SCC 1 [:2006(2) PLJR (SC) 363] no such blanket direction for regularisation can be given to any person. However, in this regard the one-time exception made by the Apex Court as contained in para 53 of the said judgment may be noted as given below: "One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regulari-sation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above-referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub-judice need not be reopened based on this judgments, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme." 9. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub-judice need not be reopened based on this judgments, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme." 9. In view of the aforesaid direction of the Supreme Court, the State-respondents are directed to consider the cases of the petitioners also as a one-time measure for regularisation in the light of the directions of the Supreme Court as contained in Uma Devis case. 10. The writ application is accordingly partly allowed with the aforesaid direction.