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2013 DIGILAW 2953 (ALL)

Anil Kumar v. State of U. P.

2013-12-05

D.Y.CHANDRACHUD, DEVENDRA KUMAR ARORA

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JUDGMENT The appellants are working as Gardeners at the Rajkiya Udyan Alambagh, Lucknow. They have sought, amongst other reliefs, the relief of regularization in service and the grant of the minimum of the regular pay scale till the date of regularization. 2. On the issue of regularization, the learned Single Judge, accepting the submission of the appellants, relied upon a judgment in Vija & Ors. Vs. The State of U.P. & Ors. (Writ Petition No. 53 (S/S) of 2007 wherein following conclusion was arrived at: - "After considering the rival submissions of learned counsel for the parties, I arrive at the conclusion that in the light of the decision of the Hon'ble Supreme court rendered in the cases referred hereinabove, now the State Government or its authority cannot be compelled to regularise the services of daily wagers or ad-hoc employee under the Rules framed by the Government. Therefore, I hereby provide that as and when the vacancy arises either in the unit or in the department, either in the respective unit or in other unit governed under the department, they shall be entitled to seek the regular appointment along with other candidates and if they are found at par with other candidates, they shall be given preference/weightage to others keeping in view their long spell of working and if they had crossed the age for appointment, the age crossed during the course of rendering services by them in the department, shall be ignored and accordingly, they shall have right to be considered for appointment on the suitable posts." 3. The petition filed by the appellants was disposed of in terms of the earlier judgment. Subsequently, the appellants filed a review petition stating that since under an interim order passed by the Court they were receiving the minimum of the pay scale, they should be directed to continue to receive the minimum of the pay scale till their regularization in service. The review petition was disposed of by the learned Single Judge on 3 July 2013 with an observation that though this fact was well within the knowledge of the appellants, it was not raised before the learned Single Judge and, hence, no finding was recorded thereon. The appellants are consequently in appeal and they claim the benefit of the minimum of the pay scale. The appellants are consequently in appeal and they claim the benefit of the minimum of the pay scale. As regards their continuance in service, it has been stated that the appellants have been continued and are being provided with work. 4. The issue as to whether daily wage employees are entitled to get the minimum salary in the scale of pay from the date of their appointment or from the date of their regularization was the subject matter of various decisions, and a larger Bench of three Hon'ble Judges was constituted by the Supreme Court in State of Haryana & Ors. Vs. Charanjit Singh & Ors., (2006) 9 SCC 321 . The Bench of three learned Judges, after considering the body of the law on the subject, held that there cannot be any abstract application of the doctrine of "equal pay for equal work"' capable of being enforced in a court of law. The Supreme Court observed as follows: - "...The application of the principle of "equal pay for equal work" requires consideration of various dimensions of a given job. The accuracy required and the dexterity that the job may entail may differ from job to job. It cannot be judged by the mere volume of work. There may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities made a difference. Thus normally the applicability of this principle must be left to be evaluated and determined by an expert body. These are not matters where a writ court can lightly interfere. Normally a party claiming equal pay for equal work should be required to raise a dispute in this regards. In any event, the party who claims equal pay for equal work has to make necessary averments and prove that all things are equal. Thus, before any direction can be issued by a court, the court must first see that there are necessary averments and there is a proof. If the High Court is, on basis of material placed before it, convinced that there was equal work of equal quality and all other relevant factors are fulfilled it may direct payment of equal pay from the date of the filing of the respective writ petition. If the High Court is, on basis of material placed before it, convinced that there was equal work of equal quality and all other relevant factors are fulfilled it may direct payment of equal pay from the date of the filing of the respective writ petition. In all these cases, we find that the High Court has blindly proceeded on the basis that the doctrine of equal pay for equal work applies without examining any relevant factors." 5. Having regard to the principle of law, which has now been laid down by the Bench of three Hon'ble Judges of the Supreme Court in Charanjit Singh (supra), the learned Single Judge was not in error in holding that a direction in regard to the payment of the minimum of the applicable pay scale could not be granted at this stage. The learned Single Judge has, however, granted liberty to the appellants to claim parity with other similarly situated persons. Consequently, as daily wage employees, it is not open to the appellants to claim an abstract application of the doctrine of equal pay for equal work and to seek payment of the minimum of the pay scale at this stage. The petition has been disposed of in terms of an earlier decision under which their claim for regularization is to be considered with due preference being given, as noted in the judgment of the learned Single Judge. Pending regularization, the learned Single Judge is not in error in declining the relief of grant of the minimum of the pay scale. This view is consistent with the judgment of the Supreme Court in Charanjit Singh's case (supra). 6. In view of the above, no case for interference is made out. The appeal stands dismissed.