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2012 DIGILAW 1705 (PAT)

State of Bihar v. Bihar Human Rights

2012-12-18

V.N.SINHA

body2012
ORDER State of Bihar and its officials have challenged the recommendation dated 28.5.2012 made by Chairperson, Bihar Human Rights Commission in File Nos. 547/11, 42,752,938/12, communicated to the Principal Secretary, Finance, Information Technology Department, Government of Bihar by the Deputy Secretary of the Commission under Letter No. 6361 dated 29.5.2012, Annexure-11. Aforesaid recommendation was made by the Commission considering the complaint of Data Entry Operators, Respondent No. 2 to 5 that take home remuneration of Rs. 6341/- per month payable to them is meager impinging on their livelihood. The Commission having considered the grievance recommended that Data Entry Operators at the entry level be paid remuneration at least one notch higher than the proposed wage structure at the entry level i.e. Rs. 10,086/- recommended for Grade-II, if not more. The Commission also expected the Government to take a holistic view of the matter and to accept its recommendation to pay the Data Entry Operators remuneration at least one notch higher. 2. It is submitted by the counsel for the State that the impugned recommendation made by the Commission amounts to revision of wage payable to Data Entry Operators which is the executive function of the appropriate Government in accordance with procedure laid down in the Minimum Wages Act, 1948. It is also submitted that the Commission having made the recommendation to provide dignified wage/livelihood to the Data Entry Operators usurped executive function of the appropriate Government under the Minimum Wages Act, 1948. The Commission ought not to have recommended revision of quantum of wage to be paid to contractual employees Respondent No. 2 to 5 herein when the contractual employees concerned are neither employees of the State Government nor of Bihar State Electronics Development Corporation (hereinafter referred to as “BELTRON”) rather their services have been provided to the State Government by BELTRON adopting the mode of outsourcing from private agency. The concerned employees entered into written agreement with BELTRON wherein the wages to be paid to them were clearly specified. They agreed to receive the quantum of wage by accepting the contractual employment. 3. Counsel for the State with reference to the judgment of the Supreme Court in the case of Chandra Bhawan Boarding and Lodging House Vs. The concerned employees entered into written agreement with BELTRON wherein the wages to be paid to them were clearly specified. They agreed to receive the quantum of wage by accepting the contractual employment. 3. Counsel for the State with reference to the judgment of the Supreme Court in the case of Chandra Bhawan Boarding and Lodging House Vs. State of Mysore AIR 1970 Supreme Court 2042 paragraph 9 submitted that the main object of the Minimum Wages Act is to prevent exploitation of unorganized labour as the Act proceeds on the basis that it is the duty of the State to see that at least Minimum Wages are paid to the employees irrespective of the capacity of the Industry or Unit to pay the same. The mandate of Article 43 of the Constitution is that the State should endeavour to secure by suitable legislation or economic organization or in any other way to all workers agricultural, industrial or otherwise, work a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities. The fixing of minimum wage is just the first step in that direction. With reference to the aforesaid observations made in the judgment of the Supreme Court it is submitted that State Government having already fixed wage of the Data Entry Operators higher than the minimum wage fixed by the appropriate Government, there was hardly any occasion for the Commission to recommend still higher remuneration to be paid to the Data Entry Operators. 4. In this connection learned counsel for the State relied on the Constitution Bench judgment of the Supreme Court in the case of Secretary, State of Karnataka Vs. Uma Devi (3) (2006)4 SCC Page-1 paragraph 45 to 48. It appears from perusal of Paragraph 45 relied upon by the learned counsel for the State that Supreme Court having considered the nature of engagement of temporary, contractual or casual workers observed that the temporary, casual or contractual worker is aware of the nature of his employment as he accepts the employment with open eyes……… If the Court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power that too would not enable the Court to grant any relief to that employee. A total embargo on casual or temporary employment is not possible giving the exigencies of administration and if imposed would only mean that some people who at least get employment temporarily, contractual or casual would not be getting even that employment when securing of such employment bring at least some succour to them. It has further been observed that when a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules he is aware of the consequences of the appointment being temporary, casual or contractual in nature……. 5. Having held as above Supreme Court in Paragraph 47 of the judgment observed that theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection. 6. In Paragraph 48 of the judgment Supreme Court considered the case of the daily wage employees that they have been unfairly treated by employing them on less than minimum wages and extracting work from them for a pretty long hours in comparison to those directly recruited who are getting more wage or salary for doing similar work and observed that the employees before the Court were engaged on daily wage in department concerned on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wage form a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. 7. With reference to the contents of order dated 20.12.2011, 16.1.2012 passed by the Commission in the present matter it is submitted that in view of the contents of the complaint filed by the respondents, it was wholly inappropriate for the Commission to have observed under its order dated 20.12.2011 that the monthly salary paid to the Data Entry Operators is meager impinging on their livelihood and involved violation of human rights of a large number of employees persuading the Commission to go into the larger issues suo motu even though those issues were not the subject matter of complaint. 8. 8. Learned counsel further submitted that even survey conducted by the Government Corporation BELTRON with regard to wage structure of similarly situate Data Entry Operators in Letter No. 8732 dated 7.8.2012, Annexure-12 would reveal that wages paid to the complainant/respondents is higher than the other Data Entry Operators serving private sector, companies, institutions. 9. Learned counsel for the State next submitted that Data Entry Operators are neither the employee of the State Government nor of BELTRON nor they have been appointed on contract basis against sanctioned post in the Government rather their services are provided by BELTRON through private service provider to different departments as per demand on the basis of work load and in such background there was no occasion for the Commission to have made the impugned recommendation concerning an issue which was not even the subject matter of complaint petition filed by the respondents. 10. Learned counsel for the State further submitted that the impugned recommendation to revise the remuneration payable to Data Entry Operators at entry level at least one notch higher as per the proposed wage structure i.e. Rs. 10,086/- which is payable to the Data Entry Operators of Grade-II if not more for the present does not appear to be based on any intelligible determining factor. There is no reason deducible from the impugned recommendation as to why the Commission has recommended for payment of wages one notch higher in respect of Data Entry Operators. 11. It is next submitted by learned counsel for the State that the recommendation of the Commission shall not only entail additional financial burden on the limited resources of the State but the same shall also have cascading effect as other group of persons engaged through agency may raise similar demands and in case the recommendation is acted upon by the State Government the State Government will have to pay Rs. 11,918/- per month to Data Entry Operators serving in the Basic Grade i.e. Grade-III and take home amount for the Data Entry Operators shall be Rs. 10,086/- per month which will further increase the monthly wage payable to Data Entry Operators of Grade-II and Grade-I and, accordingly, those of other categories of Programmer, Stenographer will also have to be revised accordingly. 12. 10,086/- per month which will further increase the monthly wage payable to Data Entry Operators of Grade-II and Grade-I and, accordingly, those of other categories of Programmer, Stenographer will also have to be revised accordingly. 12. Learned counsel for the State with reference to the observations of the Hon’ble Supreme Court in Paragraph 19 of the judgment in the case of Uma Devi (supra) submitted that the State is also controlled by economic considerations and financial implications of any public employment. The State works out the scheme taking into consideration the financial implications and the economic aspects. According to learned counsel for the State the observations of the Hon’ble Supreme Court in Paragraph 19 of the judgment rendered in the case of Uma Devi (supra) are to the effect that if the Courts impose financial burden on the State by insisting on regularization or permanence in employment the burden may become so heavy that the undertaking itself may collapse under its own weight. It has further been observed that the Court ought not to impose financial burden on the State by such directions as directions may turn counter productive. Learned counsel for the State, however, conceded that in the instant writ petition issue of regularization or permanence in employment is not in question but submitted that the same set of arguments and line of thinking would equally be applicable in cases like the present one where the issue of raising the remuneration of the contractual employee is involved. 13. Finally, learned counsel for the State submitted that the impugned recommendation made by the Commission suffers from jurisdictional infirmity inasmuch as the same appears to be beyond the scope of the powers conferred on the Commission in terms of the provisions of the Protection of Human Rights Act, 1993. In this connection, it is further pointed out that fixation of remuneration and/or pay structure as also decision with regard to service conditions are to be examined and decided by the appropriate Government or by this Court, if so required and the impugned recommendation of the Commission is wholly without jurisdiction. 14. For appreciating the submissions noted above, it is necessary to peruse the contents of the writ petition and the annexures appended therewith. 14. For appreciating the submissions noted above, it is necessary to peruse the contents of the writ petition and the annexures appended therewith. From perusal of Paragraph 3 of the writ petition it appears that Respondent No. 2 submitted representation dated 10.3.2011 addressed to Hon’ble Chief, Deputy Chief (Finance) Minister of the State Government dated 10.3.2011, Annexure-1, copy whereof was also submitted to the Hon’ble Chairperson of Bihar Human Rights Commission. Perusal of the said representation (Annexure-1) would indicate that Respondent No.2 was initially engaged in the Provident Fund Directorate of the State in February, 1999 for completing the back log data entries on Job Rate basis. Under Order No. 1908 dated 22.2.2002 of the Provident Fund Directorate Respondent No. 2 was deputed in the Nirman Bhawan Treasury of the State for online data entry of the accounts maintained by the Provident Fund Directorate. He continued to serve the Nirman Bhawan Treasury of the State until issue of Provident Fund Directorate Letter No. 3129 dated 29.10.2008, 3130 dated 29.10.2008 and Finance Department Letter No. 10061 dated 02.12.2008 and Letter No. 11038 dated 29.12.2008, whereunder his service was shifted from Provident Fund Directorate to the Facilitation Centre of the Nirman Bhawan Treasury of the State where he continued to serve till the date of representation i.e. 10.3.2011. It has further been stated in the representation that Respondent No. 2 is not being paid his monthly salary/wage from November, 2008, result being that he is undergoing grave financial hardship, unable to maintain his family by discharging his responsibilities towards the family members. 15. In the 3rd paragraph of the representation Respondent No. 2 referred to Letter No. 267/F(2) dated 12.1.2011 in compliance whereto 3 G.P.F. Data Entry Operators serving in the Bhojpur Treasury, Arrah were paid their monthly wage on the basis of allotment received from the Finance Department in favour of the Treasury Officer, Bhojpur. Having enclosed copy of the aforesaid letter dated 12.1.2011 with the representation Respondent No. 2 requested the authorities in Paragraph 4 of the representation to ensure payment of his salary/wage through the Nirman Bhawan Treasury of the State so as to enable him to maintain his livelihood and responsibilities to an extent towards the other family members. Having enclosed copy of the aforesaid letter dated 12.1.2011 with the representation Respondent No. 2 requested the authorities in Paragraph 4 of the representation to ensure payment of his salary/wage through the Nirman Bhawan Treasury of the State so as to enable him to maintain his livelihood and responsibilities to an extent towards the other family members. Having received copy of the representation of Respondent No. 2 (Annexure-1) File No. 547/11 was initiated and Commission issued notice to the State Government in response whereto Finance Department under Letter No. 5341 dated 15.6.2011 (Annexure-2) informed the Commission that services of the Data Entry Operators is being provided in the Treasuries, Sub Treasuries of the State on contractual basis by BELTRON through service provider and the Data Entry Operators are paid their wage/salary from the amount made available by the Finance Department on the basis of the bill submitted by BELTRON. 16. It is further stated in letter dated 15.6.2011 that report has been received from BELTRON under Letter No. 3648/11 dated 14.6.2011 that Respondent No. 2 has been paid his salary/wage until March, 2011. In paragraph 2 of the letter dated 15.6.2011 it is further stated that the three Data Entry Operators serving in the Bhojpur Treasury at Ara were paid salary through the Treasury itself as they refused to accept the payment of salary through BELTRON. Having terminated their service arrears of salary/wage was paid through Treasury. It was further clarified in the said paragraph that no Data Entry Operator serving in the Treasury is being paid remuneration through Treasury. 17. In Paragraph 6 of the writ petition it has been further averred that subsequently BELTRON furnished information under Letter No. 7138 dated 12.12.2011 (Annexure-3) to the Finance Department that Respondent No. 2 has been paid salary/wage through authorized service provider M/s Electronic NET until October, 2011 giving details of the cheque no. and the date on which the same was issued. Arrears of salary from July, 2008 till March, 2011 amounting to Rs. 1,66,016/- was released under Cheque No. 360126 dated 11.6.2011. Arrears of salary from April, 2011 till October, 2011 was released under Cheque No. 361645 dated 9.12.2011. and the date on which the same was issued. Arrears of salary from July, 2008 till March, 2011 amounting to Rs. 1,66,016/- was released under Cheque No. 360126 dated 11.6.2011. Arrears of salary from April, 2011 till October, 2011 was released under Cheque No. 361645 dated 9.12.2011. It is, thus, quite evident that the salary/wage of Respondent No. 2 is not being released regularly on monthly basis, as such, it is quite obvious that it would have been difficult if not impossible for Respondent No. 2 to maintain himself and his family members during the period (months) he was not paid his wage/salary infracting his right to life and livelihood. Employees engaged by the Government may be on contract basis, are required to be paid salary/wage on the last date of the month for which the employee is being paid salary/wage or in any case in the first week of the succeeding month. 18. During consideration of the complaint of Respondent No. 2 by the Commission Respondent No. 3 filed his separate complaint before the Commission asserting that the amount paid to the Data Entry Operators as remuneration is meager impinging on their livelihood. On the basis of the aforesaid complaint of Respondent No. 3 File No. 42/12 was initiated by the Commission which was also dealt with along with File No. 547/11 initiated on the basis of the copy of the complaint received from Respondent No. 2, as is evident from the order dated 16.1.2012 passed by the Commission (Annexure-13). 19. Subsequently, Respondent No. 4, 5 also filed their separate complaint asserting that the remuneration paid to the Data Entry Operators is meager on the basis of which File No. 752, 938/12 was initiated by the Commission and dealt with along with the file initiated on the basis of the copy of the complaint of Respondent No. 2, as is evident from the impugned recommendation dated 28.5.2012 forwarded by the Deputy Secretary of the Commission to the Principal Secretary, Finance, Information and Technology Department of the State Government under Letter No. 6361 dated 29.5.2012 (Annexure-11). 20. Perusal of the aforesaid order dated 16.1.2012 indicates that thereunder Commission referred to its observation made under order dated 20.12.2011 that the amount of Rs. 20. Perusal of the aforesaid order dated 16.1.2012 indicates that thereunder Commission referred to its observation made under order dated 20.12.2011 that the amount of Rs. 6,341/-, Take Home Remuneration of Data Entry Operators, is meager impinging on their livelihood and Commission had reservations about the methodology of calculating the net take home remuneration of the Data Entry Operators which involved human rights of a large number of employees. The Commission decided to go into the larger issues suo motu even though they were directly not the subject matter of complaint. Before any response from the State Government in the light of the order of the Commission dated 20.12.2011 could be received, Respondent No. 3 filed a complaint stating that wage/salary paid to the Data Entry Operators require to be increased which was entertained by the Commission in File No. 42/12 and was considered along with the complaint of Respondent No. 2 in File No. 547/11. Notice was issued to hear the Principal Secretary, Finance Department who appeared before the Commission on 13.1.2012 and the matter was heard by the Commission at length. Having heard the Principal Secretary, Finance Department, the Commission observed under order dated 16.1.2012 that apart from the question of meager remuneration paid to the Data Entry Operators systemic changes need to be brought about to improve the service condition of the Data Entry Operators. Having considered the Take Home Remuneration of the Data Entry Operators Rs. 6,341/- the Commission further observed in the order dated 16.1.2012 that it is difficult to visualize how a person can sustain himself and the family from such a meager amount. Data Entry Operators, according to the Commission, in the present setup are the main stay in the working of any office and in the days to come as the importance of computers and online services increase, their utility is likely to increase further. Taking note of the qualification and the duties performed by the Data Entry Operators, the Commission observed that the Data Entry Operators are not inferior to if not better than the regular employees and the remuneration paid to them is unjust and degrading. The Commission also observed that there is a need to fix the service conditions of Data Entry Operators. The Commission also observed that there is a need to fix the service conditions of Data Entry Operators. Having observed as above, the Commission noted the submission of the Principal Secretary that the Data Entry Operators are not employees of the Government and it is not possible to frame rules or otherwise fix their service conditions. In absence of post, it is also not possible to absorb them in the establishment or to pay them salary from the funds of the particular office/department where they are working. 21. Having noted the submission of the Principal Secretary, the Commission further noted the submission of the Data Entry Operators that the practice of making deductions of the amount of employer’s share to the E.P.F./E.S.I. from the remuneration paid to the Data Entry Operators is anomalous and improper. The Commission having noted the issues briefly in the order dated 16.1.2012 observed that the same cannot be sorted out overnight and require policy decision at the highest level. The Commission further observed that it has no doubt that the Government will take just and pragmatic decision consistent with the human rights of the employees/Data Entry Operators even though they may not be employees of the Government and entitled to the status of the Government employee but it is desirable to provide them some kind of job security and respectable remuneration and adjourned the proceedings by eight weeks for appropriate decision in the matter by the Government. 22. The observations of the Commission made under order dated 16.1.2012 was considered by the Committee of the senior officers of the Government headed by the Principal Secretary, Finance Department and the Committee of the officers under Memo No. 407 dated 23.3.2012 (Annexure-9) reiterated their proceedings dated 14.12.2011 and recommended that the workers, namely, Programmer, Stenographer, Data Entry Operator, I.T. Boys, whose services have been provided by BELTRON on the basis of outsourcing from private agency be categorized under Category-Grade-I, II, III. Grade-I is the basic grade in which Data Entry Operator be allowed salary of Rs. 7,649/- and after deduction of E.P.F., E.S.I. contribution made by the Data Entry Operator, he be paid take home salary of Rs. 6,341/-. After serving three years in the basic grade and having passed the examination he be given the status of Grade-II and paid salary of Rs. 7,649/- and after deduction of E.P.F., E.S.I. contribution made by the Data Entry Operator, he be paid take home salary of Rs. 6,341/-. After serving three years in the basic grade and having passed the examination he be given the status of Grade-II and paid salary of Rs. 11,918/- and after deduction of the E.P.F., E.S.I. contribution take home salary of Rs. 10,086/-. Having served 10 years and having passed examination, Grade-II Data Entry Operator be given the status of Grade-I with total salary payable at Rs. 15,193/- and after deduction of E.P.F., E.S.I. contribution take home salary of Rs. 12,880/-. 23. In the light of the proceedings of the senior officers of the Government dated 14.12.2011 the matter was considered by the Commission under the impugned recommendation dated 28.5.2012 when the Principal Secretary of the Information, Technology and Finance Department of the Government made separate submissions. 24. Principal Secretary of the I.T. Department submitted that allowing the claim of the Data Entry Operators will have a cascading effect as other group of employees may raise similar demands. It was also stated by him that for similar jobs in companies and undertaking including in the Private Sector persons are being paid almost the same amount or even less. It was pointed out that Data Entry Operators are not Government Servant as their services are made available by the service provider for a period of only one year. Reference was made to the categorization and it was submitted that after completing three years of service depending on their satisfactory performance the contractual employee will get substantial raise in their emolument. 25. Principal Secretary, Finance submitted about similar rights of those who are out of the system i.e. those who have not been able to get employment under the Government and, therefore, are not even getting what Data Entry Operators are presently getting. 26. The Commission considered the submission of the officers and observed that the complaint of the Data Entry Operators that they are getting meager take home salary of Rs. 6,341/- is required to be considered from human rights angle i.e. on humanitarian grounds. Administration and finance no doubt are legitimate concerns of the Government but the human rights of the person or the group must be the first and the foremost consideration. 6,341/- is required to be considered from human rights angle i.e. on humanitarian grounds. Administration and finance no doubt are legitimate concerns of the Government but the human rights of the person or the group must be the first and the foremost consideration. Data Entry Operators may not be Government employees as such, but it is the Government-its departments or agency which takes work from them and if work is taken from them, they must be paid remuneration consistent with their human rights. Human rights are supreme in every civilized polity and the system must be adapted in tune with the concept. Right to life means right to live with dignity and it is difficult to visualize as to how a person-his family included can live a dignified life with a monthly take home salary of meager Rs. 6,341/-. Comforts and luxuries of life apart-which are dispensable, the basic needs of all human beings/employees are the same. Everybody has to run the kitchen, provide education to the children, make provision for the health care and so on. 27. The submission made by the Principal Secretary, Finance about similar rights of those who are out of system was rejected by the Commission observing that right to employment cannot be treated as part of human rights as Commission is of the view that job under the State is not the only way to earn livelihood and means of right to live. There are many better ways to earn livelihood and for this reason, the Commission does not entertain complaints relating to employment. The Commission, however, observed that those who are part of the establishment or system in some form or the other stands on different footing. They have a right to ventilate their grievance and claim, better service conditions consistent with concept of human rights. The Commission has before it the complaint of a group of employees (Data Entry Operators) which is required to be considered without being bogged down by the result of its intervention. 28. Having observed as above, the Commission noted with regret that the take home salary of the Data Entry Operators remains the same i.e. Rs. The Commission has before it the complaint of a group of employees (Data Entry Operators) which is required to be considered without being bogged down by the result of its intervention. 28. Having observed as above, the Commission noted with regret that the take home salary of the Data Entry Operators remains the same i.e. Rs. 6,341/- at the entry level as per the recommendation of the Committee of the officers headed by the Principal Secretary, Finance vide proceedings dated 14.12.2011 wrongly typed under recommendation dated 28.5.2012 as 24.12.2011 and apparently observations of the Commission made under order dated 16.1.2012 was not taken into consideration by the State Government while notifying the proceedings of the senior officers dated 14.12.2011 under Memo No. 407 dated 23.3.2012, Annexure-9 issued by the Information and Technology Department and having given due consideration to the complaint of the respondents and the submission advanced on behalf of the departments, the Commission observed that Data Entry Operators at the entry level should be paid remuneration at least one notch higher as per Memo dated 23.3.2012 at Rs. 10,086/- which has been recommended for Grade-II, if not more for the present. 29. The impugned recommendation dated 28.5.2012 made by the Commission to pay the Data Entry Operators at the entry level take home salary as Rs. 10,086/- and the submission in opposition made by the counsel for the State is required to be examined in the light of the provisions of the Protection of Human Rights Act, 1993 (hereinafter referred to as the “Act”). 30. Bihar Human Rights Commission has been constituted under Section 21 of the Act. Sub-section (1)(d) of Section 2 of the Act defines human rights to mean the rights relating to life, liberty, equality and dignity of individual guaranteed by the Constitution or embodied in the International Covenant and enforceable by Courts in India. Sub-section (1)(f) of Section 2 of the Act defines International Covenant to mean the International Covenant on civil and political rights and the international covenant on economic, social and cultural rights adopted by the General Assembly of United Nations. Functions and powers of the State Commission is provided under Section 29 read with Section 12 of the Act. Sub-section (1)(f) of Section 2 of the Act defines International Covenant to mean the International Covenant on civil and political rights and the international covenant on economic, social and cultural rights adopted by the General Assembly of United Nations. Functions and powers of the State Commission is provided under Section 29 read with Section 12 of the Act. Close perusal of the two Sections would indicate that State Commission is empowered to enquire suo motu or on a petition presented to it by a victim or any person on his behalf alleging violation of human rights or abatement thereof within the meaning of human rights defined under sub-section (1)(d),(f) of Section 2 of the Act. 31. Respondent No. 2 submitted representation dated 10.3.2011 before Hon’ble Chief, Deputy Chief (Finance) Minister of the State, copy whereof was also sent to the Commission for intervention in the matter of payment of his pending salary since November, 2008. The Finance Department submitted a brief report dated 15.6.2011, Annexure-2 stating that Data Entry Operators are made available by BELTRON through service providers on contract basis and they are paid remuneration from the fund provided by the Finance Department of the Government on the basis of bills submitted by BELTRON. As regards the grievance of Respondent No. 2 regarding non-payment of remuneration, the report stated that he has been paid remuneration up to March, 2011. Copy of the complaint of Respondent No. 2 and the report dated 15.6.2011 was taken up for consideration by the Commission on 20.12.2011 when another report dated 12,15.12.2011 (Annexure-3) was submitted stating that Respondent No. 2 is serving as Data Entry Operator in the Facilitation Centre of the Nirman Bhawan Treasury of the Government and his salary/wages have been paid until October, 2011 on the basis of the bills submitted by BELTRON through service provider M/s Electronic NET. The Commission in its order dated 20.12.2011 observed that the amount of Rs. 6,341/- paid to the Data Entry Operators as monthly salary/wage is meager impinging on their livelihood and suo motu issued notice to the Government as the Commission had reservations about the methodology of calculating net take home remuneration paid to the Data Entry Operators and it involved violation of human rights of a large number of employees. 6,341/- paid to the Data Entry Operators as monthly salary/wage is meager impinging on their livelihood and suo motu issued notice to the Government as the Commission had reservations about the methodology of calculating net take home remuneration paid to the Data Entry Operators and it involved violation of human rights of a large number of employees. It further appears from perusal of copy of the representation of Respondent No. 2 dated 10.3.2011 (Annexure-1) that Respondent No. 2 was initially engaged as Data Entry Operator in February, 1999 in the Provident Fund Directorate of the Government and his remuneration was payable on Job Rate basis. Under Order No. 1908 dated 22.2.2002 services of Respondent No. 2 was deputed by the Provident Fund Directorate in the Nirman Bhawan Treasury of the State for online Data Entry of the accounts maintained by the Provident Fund Directorate. Respondent No. 2 continued to serve the Nirman Bhawan Treasury of the State until issue of Provident Fund Directorate Letter No. 3129 dated 29.10.2008, 3130 dated 29.10.2008 and Finance Department Letter No. 10061 dated 2.12.2008 and Letter No. 11038 dated 29.12.2008, whereunder services of Respondent No. 2 was shifted from Provident Fund Directorate to the Facilitation Centre of the Nirman Bhawan Treasury where Respondent No. 2 continued to serve till the date of representation i.e. 10.3.2011. Respondent No. 2 having not been paid salary/wage from November, 2008 suffered grave financial hardship as during the said period on account of non-payment of salary he could not discharge his responsibility towards family members. 32. In the light of the order dated 20.12.2011 passed by the Commission, matter was heard on 13.1.2012 but before that date Respondent No. 3 filed his complaint highlighting the adverse service conditions of the Data Entry Operators including payment of meager salary/wage to them on the basis of which File No. 42/12 was initiated by the Commission which was also considered on 13.1.2012 along with the copy of the complaint of Respondent No. 2 when Principal Secretary, Finance Department submitted that Data Entry Operators are not the employees of the Government and, therefore, it is not possible to frame rules or otherwise fix their service conditions. In absence of posts, it is also not possible to absorb them in the establishment or to pay them salary from the funds of the particular office/department where they are working. 33. In absence of posts, it is also not possible to absorb them in the establishment or to pay them salary from the funds of the particular office/department where they are working. 33. The Commission having noted the submission of Principal Secretary, Finance Department made on 13.1.2012 appreciating the definition of the human rights as defined under the Act as also the take home salary of the Data Entry Operators Rs. 6,341/- observed under order dated 16.1.2012 that it is difficult to visualize how a person can sustain himself and the family from such meager amount. Data Entry Operators in the present set up are the main stay in the working of any office and in the days to come as the importance of computers and online services increase, their utility is likely to correspondingly increase. Having regard to their qualification and the duties performed by them which are not inferior to, if not better than the regular employees, the remuneration would appear to be unjust and degrading. Having observed as above, the Commission under order dated 16.1.2012 required the Government to fix the service conditions of Data Entry Operators in the light of the observations made in order dated 16.1.2012 and for such purpose adjourned the matter by 8 weeks. 34. Before the matter could be considered by the Commission in the light of its order dated 16.1.2012 Respondent Nos. 4,5 also filed their complaint highlighting the meager payment of monthly wage/salary to the Data Entry Operators on the basis of which File No. 752, 938/12 was initiated by the Commission which was also heard on 24.5.2012 along with the complaint of Respondent Nos. 2, 3 when Principal Secretary, Information Technology Department of the Government submitted that allowing the claim of the Data Entry Operators will have a cascading effect as other group of employees may raise similar demand. It was also stated by the Principal Secretary, Information Technology that for similar jobs in companies and undertakings including in the private sector persons are being paid almost the same amount or even less. It was also pointed out by the Principal Secretary, Information Technology that Data Entry Operators are not Government servants and their services are made available by service provider for a period of only one year. It was also submitted that after completing three years of satisfactory service, Data Entry Operators will get substantial raise in their emoluments. It was also pointed out by the Principal Secretary, Information Technology that Data Entry Operators are not Government servants and their services are made available by service provider for a period of only one year. It was also submitted that after completing three years of satisfactory service, Data Entry Operators will get substantial raise in their emoluments. 35. Principal Secretary, Finance submitted about similar rights of those who are out of system i.e. those who have not been able to get employment under the Government, and therefore, are not even getting what Data Entry Operators are presently getting. 36. The Commission considered the submission of the two Principal Secretaries in the light of the definition of the human rights, as provided under sub-section 1(d), (f) of Section 2 of the Act and observed that administration and finance no doubt are legitimate concerns of the Government but the human rights of the person or the group must be the first and foremost consideration. Data Entry Operators may not be Government employees as such, but it is the Government, its department or directorate which takes work from them and if work is taken from them, they must be paid remuneration consistent with their human rights. Human rights are supreme in every civilized polity and the system must be adapted in tune with the concept. Right to life means right to live with dignity and it is difficult to visualize as to how a person, his family included can live a dignified life with a monthly take home salary of Rs. 6,341/-. Comforts and luxuries of life apart which are dispensable, the basic needs of all human beings/employees are the same. Everybody has to run the kitchen, provide education to the children, make provisions for the health care and so on. 37. Submission of the Principal Secretary, Finance about the rights of those who have not been able to get employment under the Government, and therefore, are not even getting what Data Entry Operators are presently getting was rejected by the Commission observing that equality of opportunity is undoubtedly meant for everybody, but right to employment cannot be treated as part of human rights. Job under the State is not the only way to earn livelihood and means of right to live. There are many better ways to earn livelihood. Job under the State is not the only way to earn livelihood and means of right to live. There are many better ways to earn livelihood. The Commission does not entertain complaints relating to employment but those who are part of the establishment or system stand on different footing. They have a right to ventilate their grievance and claim better conditions of service consistent with concept of human rights. Having observed as above, the Commission noted with regret that the take home salary of the Data Entry Operators remains the same i.e. Rs. 6,341/- at the entry level despite observations of the Commission made under order dated 16.1.2012 which have not been taken into consideration by the Government and directed that the Government should pay the Data Entry Operators remuneration at least one notch higher at Rs. 10,086/-, if not more. 38. Perusal of the definition of human rights i.e. sub-section (1)(d),(f) of Section 2 of the Act would indicate that human rights mean rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution of India or embodied in the International Covenant on economic, social and cultural rights adopted by the General Assembly of the United Nations. Rights relating to life, liberty, equality and dignity of the individual is guaranteed under Articles 21, 14 of the Constitution of India. Article 7 of International Covenant on Economic, Social and Cultural Rights, 1966 require the State to secure fair wage and equal remuneration for work of equal value without distinction of any kind, as is provided under sub-clause (d) of Article 39 of the Constitution of India i.e. equal pay for equal work which is in Part-IV of the Constitution and fundamental in the governance of the State. 39. The Commission having considered the aforesaid definition of the human rights observed right to life means right to live with dignity and it is difficult to visualize as to how Data Entry Operators and their family members can live a dignified life with a monthly take home salary of Rs. 6,341/-. Comforts and luxuries of life apart which are dispensable the basic needs of all human beings are the same. Everybody has to run the kitchen, provide education to the children, make provisions for the health care and so on. 6,341/-. Comforts and luxuries of life apart which are dispensable the basic needs of all human beings are the same. Everybody has to run the kitchen, provide education to the children, make provisions for the health care and so on. For achieving such object by the Data Entry Operators engaged by the Government through service provider the Commission made the impugned recommendation recommending that the Data Entry Operators at the entry level should be paid remuneration at least one notch higher i.e. Rs. 10,086/-, if not more for the present. 40. It is not disputed by the State authorities either before the Commission or before this Court that Respondent No. 2 to 5 and others have been serving as Data Entry Operator either in the office of the Director, Provident Fund of the State or in the different Treasury/Sub-Treasury of the State or in the Facilitation Centre of the Treasury of the State under the control of the officers of the Government from February, 1999 till date i.e. for more than 12 years and have been paid salary from the funds of the Finance Department. It is also not disputed either before the Commission or before this Court that the services of Respondent Nos. 2 to 5 and other Data Entry Operators have been satisfactory throughout. It is also not disputed either before the Commission or before this Court that monthly salary/wage of Rs. 6,341/- payable to Data Entry Operators engaged through the service provider is not only meager but also insufficient to meet the different needs of the Data Entry Operators and their family members. 41. The only objection which has been taken against the Data Entry Operators engaged through service provider is that they are not the employees of the Government as their services are made available by the service provider for a period of only one year, as such, it is not possible to frame rules or otherwise fix their service conditions. It is further submitted that in absence of posts it is not possible to absorb them in the establishment or to pay them salary from the funds of the particular office/department where they are working. It is further submitted that in absence of posts it is not possible to absorb them in the establishment or to pay them salary from the funds of the particular office/department where they are working. Data Entry Operators appointed through service provider being casual employees are entitled to minimum wage fixed by the appropriate Government for technical worker in the light of the provisions of Minimum Wages Act, 1948 and are not entitled to salary in the Pay Band-I (Rs. 5,200-20,200/-) which is payable to Data Entry Operators appointed against sanctioned post of Data Entry Operator after undergoing selection process conducted by the Bihar Public Service Commission. 42. The take home salary payable to Data Entry Operator engaged through service provider amounting to Rs. 6,341/- being higher than the minimum wage fixed by the appropriate Government for the technical workers as also higher or similar to the wage paid to the Data Entry Operators engaged by the private sector which is evident from the survey conducted by BELTRON vide report dated 7.8.2012 (Annexure-12) there is no justification for the impugned recommendation made by the Commission. 43. Part-III of the Constitution provides for fundamental rights. Article-14 of the Constitution of India grants equality before law or equal protection of the laws to any person within the territory of India. Article 21 of the Constitution of India grants protection of life and personal liberty to every person. Article 21 of the Constitution requires the State not to deprive any person of his life or personal liberty except by procedure established by law, which is just, fair and reasonable. Directive principles of State policy in Part-IV of the Constitution reflects the hopes and aspirations of the people. Although the provisions of Part-IV of the Constitution are not enforceable by any Court, the principles laid down therein including Article 39(d) akin to Article 7 of International Covenant on Economic, Social and Cultural Rights, 1966, is nevertheless fundamental in governance of the country and the State is under obligation to apply them. 44. Conjoint reading of Part-III, IV of the Constitution of India would indicate that it guarantees equality, abhors discrimination, protection of life and personal liberty including protection from exploitation in any form. Respondent Nos. 44. Conjoint reading of Part-III, IV of the Constitution of India would indicate that it guarantees equality, abhors discrimination, protection of life and personal liberty including protection from exploitation in any form. Respondent Nos. 2 to 5 and other Data Entry Operators engaged through service provider are serving the State Government and its different offices i.e. Directorate of Provident Fund, Treasury/Sub-Treasury and presently the Facilitation Centre for over 12 years at a salary which is much less than the salary payable to a regularly appointed Data Entry Operator. Respondent Nos. 2 to 5 and other Data Entry Operator have suffered exploitation at the instance of the State only because the Government has chosen not to sanction post of Data Entry Operator in the office in which Respondent Nos. 2 to 5 and other Data Entry Operators are serving. Perennial need of Data Entry Operators exist in the Government departments as Government having appreciated the importance of computers and online services is already using computers in a big way and continue to engage Respondent Nos. 2 to 5 and other Data Entry Operators on contractual basis for 12 years or more which is nothing but exploitation. Exploitation of the contractual worker also infracts right to equality, protection of life and personal liberty violating Articles 14, 21 of the Constitution of India. Exploitation of the contractual worker in any form including failure to pay a living, dignified wage to contractual worker on administrative, financial concern of the State is anathema to Part-III, IV of the Constitution of India and cannot be permitted only because other similarly situate Data Entry Operators serving in the private sector is paid less or similar wage, as is evident from the survey conducted by BELTRON vide report dated 7.8.2012, Annexure-12. Government being model employer having taken work from Respondent Nos. 2 to 5 and other Data Entry Operators for over 12 years and paid them meager salary/wage, is required to undo the exploitation and pay them as per the recommendation of the Human Rights Commission dated 28.5.2012 if not more i.e. salary payable to regularly appointed Data Entry Operators. 45. Reliance placed by the counsel for the State over the judgment of the Supreme Court in the case of Chandra Bhawan Boarding and Lodging House (supra) paragraph-9 is misconceived as Respondent Nos. 45. Reliance placed by the counsel for the State over the judgment of the Supreme Court in the case of Chandra Bhawan Boarding and Lodging House (supra) paragraph-9 is misconceived as Respondent Nos. 2 to 5 and other Data Entry Operators were initially engaged for one year through service provider on contract basis but have continued for longer period as such cannot be compared with daily wage earner. Similarly reliance placed by the State counsel over the judgment of Supreme Court in the case of Secretary, State of Karnataka (supra) paragraph 45 to 48 is also misconceived as in Paragraph 45 to 48 of the said judgment Supreme Court dealt with the rights of temporary, contractual or casual employee for being confirmed in the post on which temporary, contractual or casual employee was serving when appointments to the post could be made only by following rules. In paragraph 55 of Uma Devi (supra) Supreme Court considered the direction of the Division Bench of the High Court in cases relating to daily wage earners of commercial taxes department for payment of salary of regular employee with effect from the date of engagement and observed as follows:- “We are, therefore, of the view that, at best, the Division Bench of the High Court should have directed that wages equal to the salary that is being paid to regular employees be paid to these daily wage employees with effect from the date of its judgment”. 46. In view of my observations in paragraphs 36 to 45 above, the writ petition of the State of Bihar challenging the recommendation of the Human Rights Commission made in File No. 547/11, 42,752, 938/12 communicated to the Principal Secretary of the Finance, Information Technology Department of the State Government by the Deputy Secretary of the Commission under Letter No. 6361 dated 29.5.2012, Annexure-11 is dismissed in limine and the recommendation of the senior officers of the Government contained in Memo No. 407 dated 23.3.2012, Annexure-9 and the order of the Information Technology Department contained in Memo No. 965 dated 18.7.2012, Annexure-10 is modified in the light of the recommendation of the Commission dated 28.5.2012.