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2008 DIGILAW 608 (ORI)

MD. ZAMILUR RAHAMAN v. STATE OF ORISSA

2008-07-29

B.P.DAS, R.N.BISWAL

body2008
JUDGMENT : B.P. Das, J. - This writ petition has been filed by the Petitioner with a prayer to quash the order dated 9.3.2007 passed by the Engineer-in Chief-cum-Secretary to Government, Works Department, vide Annexure-7 and direct the O. Ps. to extend the benefit of wages at the rate of minimum of pay scale with D.A. applicable to the regular employees of the corresponding cadre under the Orissa Revised Scale of Pay Rules, 1998 (herein after referred:to as 'ORSP Rules, 1998'). 2. The facts of the case, as delineated in this writ application, tend to reveal as follows: The Petitioner was appointed as a Junior Clerk under O.P4- Superintending Engineer (Central R & B Circle), on D.L.R. basis and he has been continuing as such in the said post. The Petitioner along with others moved this Court in O.J.C. Nos. 4131 of 1989, 4132 of 1989 and 1633 of 1989 claiming regularization of their services and equal pay for equal work. This Court made an analogous hearing of the aforesaid writ petitions, in which there were altogether fifty six numbers of N.M.R. employees of the Irrigation Department of the State Government and by its judgment dated 11.11.1992 allowed their prayer and directed to give them the equal pay at par with their counterparts in regular establishment. Paragraphs-9 & 10 of the said judgment are extracted hereunder: 9. We, therefore, grant the prayer of equal pay. It may be stated here that while dealing with the claim of equal pay, question of financial involvement is not relevant, as follows from the various decisions of the apex Court as well as of this Court for the simple reason that the fundamental right cannot be denied on this ground, as it is Article 14 which comes into play, and not Article 19. The further question is about the date from which the opposite parties should be directed to implement this order there has been no uniformity in the decisions of this Court regarding the date of implementations. This Court has been determining this date keeping in view the facts and circumstances of each case including the extent of financial involvement. We are of the opinion that, keeping in view the present financial stringency through which the State is passing, the just date to be fixed in the present cases would be the date of pronouncement of the judgment, and we do so. 10. We are of the opinion that, keeping in view the present financial stringency through which the State is passing, the just date to be fixed in the present cases would be the date of pronouncement of the judgment, and we do so. 10. In the result, the prayer for regularization is allowed qua Petitioner Nos. 28 and 29 (they being the two senior most of the six tracers before the Court. We have allowed the prayer of two, as two posts of tracers are available from the general category.), 33 and 34 (they being typists/clerks) and 12 and 54 (they being watchmen). (We have taken these numbers from the memo filed by Shri Misra on 16.11.1992.) The prayer for wages equal to those of their counterparts in regular employment is, however, allowed qua all the Petitioners with the observation that this would be made available from today. Against the said judgment of this Court, the State Government moved the apex Court in Civil Appeal Nos. 2541-42 of 1994 (State of Orissa and Ors. -vrs- Upal Krishna Reddy and Ors.). The Respondents of the said Appeal were the Petitioners in O.J.C. No. 4131 of 1989. The apex Court while disposing of the Civil Appeals on 18.4. 1994 passed the following orders: Heard Parties. The only thing that needs to be clarified is that the Respondents/Workmen who were directed to be paid the same wages as 'the regular employees would be placed only on the minimum of pay scales, which is prescribed for the regular employees belonging to the same categories. The impugned order of the High Court is modified accordingly and the appeal is allowed to the above extent. There will be no order as to costs. Thereafter, on 28.10.1995 the Government implemented the order of the apex Court dated 18.4. 1994 after taking concurrence from the Finance Department. Accordingly, the present Petitioner along with others was allowed the minimum of pay scale along with D.A. paid to the regular employees. Then some of the employees like the Petitioner approached the Orissa Administrative Tribunal in T.A. Nos. Thereafter, on 28.10.1995 the Government implemented the order of the apex Court dated 18.4. 1994 after taking concurrence from the Finance Department. Accordingly, the present Petitioner along with others was allowed the minimum of pay scale along with D.A. paid to the regular employees. Then some of the employees like the Petitioner approached the Orissa Administrative Tribunal in T.A. Nos. 18(C) of 1993 and 20(C) of 1993 and O.A. No. 2756(C) of 1993 for regularization of their services and equal pay for equal work and orders were passed in terms of the order of this Court as well as the order of apex Court as indicated above and the said orders of the Tribunal were also implemented by the State Government since 31.5.1997. On 17.4.1998 the ORSP Rules came into force and the State Government allowed the revised scale of pay to its employees with effect from 1.1.1996. As the said benefit was not granted to the General Electrical Division (G.E.D.) emplpyees, who work under the Works Department, they approached this Court in a contempt application bearing Original Criminal Misc. Case No. 3 of 1996 (Sankarsan Mohanty -vrs. State) and on 8.8.2002 the Government extended the benefit of minimum of pay scale as per the ORSP Rules, 1998 along with 410/0 of D.A. to the similarly placed employees in GED. As the benefit under the ORSP Rules, 1998 was granted to the GED employees, the Petitioners, who are the employees of Works Department, and the beneficiaries of the judgment of the apex Court as well as order of the Tribunal, approached the State Government to extend the same benefit to them. On 13.11.2006 the Government allowed the minimum of pay scale at the revised rate under the ORSP Rules, 1998 to the present Petitioner with prospective effect. Accordingly, the Engineer-in-Chief, Civil, Orissa revised the minimum of pay scale of 84 employees, who had been earlier allowed the minimum pay scale in terms of the ORSP Rules, 1989, vide order dated 30.11.2006. On 9.3.2007, all of a sudden the Government stopped the minimum of pay scale allowed earlier in terms of the ORSP Rules, 1998 to the present Petitioner but continued to pay the same to the GED employees. Hence, this writ petition. 3. A counter affidavit has been filed by O.P.5-Executive Engineer, Khurda (R & B) Division for himself as well as O. Ps.1 to 4. Hence, this writ petition. 3. A counter affidavit has been filed by O.P.5-Executive Engineer, Khurda (R & B) Division for himself as well as O. Ps.1 to 4. O. Ps.1 to 4 are Engineer-in-Chief-cum-Secretary to Government, Works Department, Principal Secretary to Government, Finance Department, Engineer-in-Chief (Civil) and the Superintending Engineer (Central R & B Circle). Even though it is a matter pertaining to financial implication, the Finance Department chose not to file any counter affidavit through its own Officer but authorised the Executive Engineer, O.P.5 to file the same. In the said counter affidavit it is stated that the State Government had decided to pay the minimum wages to the DLR/NMR employees relying upon the case of State of Haryana Vs. Jasmer Singh and others wherein the apex Court held that the daily wages employees cannot be treated at par with their counterparts in regular employment and as such they are not entitled to equal pay as that of regular employees. In paragraph-6 of the counter affidavit, it has been stated that the daily rated workers are being paid wages uniformly at the rate as fixed by the Government in Labour & Employment Department for scheduled employment under the Minimum Wages Act 1948. However, some NMR/DLR workers approached this Court including the Petitioner in OJC No. 1633/89, 4131/89, 4132/89 (filed by the present Petitioner), 2061/89 and 4302 of 1989, inter-alia, claiming equal pay for equal work and this Court by a common judgment dtd.11.11. 92 allowed them wages equal to those of their counterparts in regular employment which was subsequently modified by the Hon'ble Supreme Court in Civil Appeal Nos. 2541-42 of 1994 in its order dtd.18.4.94 with a direction to place them on the minimum of the pay scale prescribed for the employees belonging to the same categories. According to the O. Ps., the Petitioner and Ors. who were parties to the case, were allowed the minimum of the pay scale with D.A., vide Annexure-2. Accordingly they have been getting wages at the minimum pay scale as prescribed under the ORSP Rules 1989. As such, the order of the apex Court was complied with letter and spirit. According to the O. Ps., the Petitioner and Ors. who were parties to the case, were allowed the minimum of the pay scale with D.A., vide Annexure-2. Accordingly they have been getting wages at the minimum pay scale as prescribed under the ORSP Rules 1989. As such, the order of the apex Court was complied with letter and spirit. It is further indicated in the counter that earlier there was disparity in wages between the DLRs who were parties in the judgments, and the DLRs who were not parties there inasmuch as the former were getting wages at the minimum pay scale whereas the latter were getting wages at the rate as fixed in the Minimum Wages Act, although both the categories of employees were doing the same and similar work. The apex Court in Jasmer Singh's case (supra) decided that the daily rated workers cannot be treated at par with their counterparts in regular service and relying upon the aforesaid judgment, decision was taken by the State in issuing the impugned order in Annexure-7. It would be worthwhile to quote the relevant portion of he affidavit which reads as follows: The judgment was pronounced on 7.11.96 which is subsequent to the judgment dt.18.4.94 passed in Civil Appeal No. 2541-42 of 1994 on the basis of which the Petitioner is getting wages at the minimum of the pay scale as prescribed under ORSP Rule 1989. Therefore, it may kindly be appreciated that the Petitioner has not further claim in view of the subsequently law laid down by the Hon'ble apex court of India and that too the ORSP Rules 1989 exclude the persons who are being paid out of contingency. Further, enhancement of the wages of the Petitioner would increase the disparity and prejudicial to other DLR workers who are getting wages at the rate as fixed from time to time under the minimum wages act. For equitable justice there should not be any increase in the wages of the Petitioner. Further, enhancement of the wages of the Petitioner would increase the disparity and prejudicial to other DLR workers who are getting wages at the rate as fixed from time to time under the minimum wages act. For equitable justice there should not be any increase in the wages of the Petitioner. In paragraph-7 of the counter affidavit, the same stand has been taken and further it is indicated that the intention of issuing Annexure-7 was to maintain parity among all the DLR workers, i.e., to pay them uniformly as per the rates as fixed from time to time under the Minimum Wages Act and the decision has been taken after due consultation with the Finance Department as well as the Law Department. 4. The sum and substance of the argument of the learned Counsel for the State, basing upon the counter affidavit filed by the O. Ps., is that in view of the decision- of the apex Court in Jasmer Singh's case (supra), the State Government decided to withdraw the benefit granted to the Petitioners by virtue of the decision of this Court in O.J.C. Nos. 4131 and 4132 of 1989 (Upal Krishna Reddy (supra) and the order of the apex Court dated 18.4. 1994 passed in Civil Appeal Nos. 2541-42 of 1994. But the allegations of the present Petitioner that the same benefit granted to a set of DLR employees working under the same Department in GED went unanswered save and except saying that the matter is under review as to under what circumstances those workers were allowed wages at the minimum of the pay scale under the ORSP Rules, 1998 with D.A. of 41 % in spite of the provision under the ORSP Rules, 1998 to exclude the persons paid out of contingency. It is informed by the learned Counsel for the Petitioner that those employees are availing the said benefit. 5. While issuing notice to the O. Ps., this Court as an interim measure directed that the Petitioner would be allowed to draw the minimum scale at the revised rate as per Annexures-5 & 6 till next date subject to his furnishing an undertaking before the authority that in the event of his unsuccessful in the present writ petition, he would refund the excess amount to the employer and the employer would also have the right to recover the differential amount from his monthly pay. The aforesaid interim order is continuing till date. In course of hearing, we called for the records and accordingly, the Deputy Secretary, Works Department, produced it on 13.9.2007. The said record was kept with the Additional. Government Advocate and is placed before us today. On perusal of the aforesaid records, we find that an opinion has been taken from the Department of Law, which has relied upon the recent decision of the apex Court in Secretary, State of Karnataka and Others Vs. Umadevi and Others, and the Administrative Department has also taken the decision, as indicated earlier, basing upon the judgment in Jesmer Singh (supra). 6. Now the question that falls for our consideration is whether the O. Ps. in compliance of the orders of this Court and the apex Court having granted the benefits of the ORSP Rules, 1989 and 1998 to their employees, can withdraw the same subsequently relying on a later judgment of the apex Court. From the record, we find that a conscious decision has been taken in this regard so also the financial approval while implementing the order of the apex Court dated 18.4.1994 passed in Civil Appeal Nos. 2541-42 of 1994. The counter affidavit clearly indicates the reason for withdrawal of the benefit by virtue of the judgment in Jasmer Singh (supra), as already indicated in the foregoing paragraph. Now the O. Ps. have relied upon the judgment and withdrawn the aforesaid benefit. 7. In a recent decision of the apex Court in Union of India v. Madras Telephone SC & ST Social Welfare Association and Union of India (UOI) Vs. Madras Telephone SC and ST Social Welfare Association wherein a similar question was raised, it was held that since the rights of such applicants were determined in a duly constituted proceeding, which determination has attained finality, a subsequent judgment of a Court or Tribunal taking a contrary view will not adversely affect the applicants in whose cases the orders have attained finality. This being the view of the apex Court, in our considered opinion, the right of the Petitioner having been determined by the apex Court in its order dated 18.4.1994 passed in Civil Appeal Nos. 2541-42 of 1994, which has attained finality, the O. Ps. cannot take away that right by virtue of a subsequent judgment of the apex Court, particularly where the Petitioner was nota party. 2541-42 of 1994, which has attained finality, the O. Ps. cannot take away that right by virtue of a subsequent judgment of the apex Court, particularly where the Petitioner was nota party. Accordingly, the writ petition is allowed and resultantly, the order dated 9.3.2007 passed by the Engineer-in-Chief-cum Secretary to Government, Works Department, vide Annexure-7 is quashed. R.N. Biswal, J. 8. I agree.