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2015 DIGILAW 80 (ALL)

State of U. P. v. Dhirendra Kumar

2015-01-13

ATTAU RAHMAN MASOODI, DINESH MAHESHWARI

body2015
JUDGMENT While ignoring the delay of 210 days in filing this appeal, we have heard the learned counsel for the parties on merits. 2. After having heard the learned counsel for the parties and having perused the material placed on record, we are not persuaded to consider interference in the impugned order dated 05.11.2003 passed by the learned Single Judge of this Court in Writ Petition No. 5327 (S/S) of 1993 for the reasons and circumstances indicated infra. 3. The relevant background aspects of the matter are that the writ petitioner (respondent herein) came to be engaged against the post of Junior Engineer (Minor Irrigation) on a fixed salary of Rs. 1600/- per month by an order dated 30.11.1990, issued by the Superintending Engineer, Minor Irrigation Circle, Lucknow. The order was purportedly issued for the reasons that such post of Junior Engineer (Minor Irrigation) remained vacant and thereby, boring work was being hampered. The engagement of the writ petitioner was, however, sought to be terminated by the order dated 06.07.1993 upon posting of regularly selected Junior Engineer. The writ petitioner challenged the said order dated 06.07.1993 in the aforesaid Writ Petition No. 5327 (S/S) of 1993 wherein, by way of the interim order dated 16.07.1993, the operation of the impugned orders was stayed, resulting in the writ petitioner continuously working with the appellants on consolidated salary of Rs. 1600/- per month. In the writ petition, the writ petitioner had also prayed for directions against the present appellants to continue him on the post of Junior Engineer and to pay him salary in the regular pay scale of Junior Engineer in Minor Irrigation Department; and further, to regularize him in the services. 4. In the impugned order dated 05.11.2003, the learned Single Judge of this Court, while relying on the decision of the Hon'ble Supreme Court in the case of State of U.P. and others Vs. Putti Lal, (2002) 2 UPLBEC 1595 observed that the writ petitioner was engaged against a regular Class IIIrd post and was working since 12 years discharging such functions as discharged by other Class IIIrd regular employees. Putti Lal, (2002) 2 UPLBEC 1595 observed that the writ petitioner was engaged against a regular Class IIIrd post and was working since 12 years discharging such functions as discharged by other Class IIIrd regular employees. With these observations, the learned Single Judge proceeded to dispose of the writ petition with directions to the present appellants that the writ petitioner would be entitled to minimum of the pay scale of Class IIIrd employee without any increments and other allowances; and further directed that the question of his regular absorption would be considered in accordance with Statutory Rules in case, he came within the field of eligibility. 5. The appellants have filed this appeal on 03.07.2004 questioning the aforesaid order dated 05.11.2003 so passed by the learned Single Judge of this Court. It is noticed that this appeal was filed 210 days beyond limitation with an application seeking condonation of delay whereupon notices were ordered to be issued on 05.07.2004. This appeal, thereafter, has remained pending in this Court. 6. It has been pointed out during the course of submissions that in the meantime, by an order dated 28.10.2004, the appellants though have allowed payment of Rs. 5000/- per month to the writ petitioner being the lowest in the pay scale of Rs. 5000-150-8000/- applicable to the Junior Engineer (Minor Irrigation) but have declined his prayer of regularization. It has also been stated before us during the course of submissions that seeking the relief of regularization, the present respondent has filed another writ petition bearing No. 6219 (S/S) of 2009, that remains pending in this Court. 7. The aspect relating to the claim for regularization being pending in a subsequently filed writ petition, we would not be making any comments in that relation and would leave the matter to be adjudicated in the said writ petition. Thus, the only question for consideration in this appeal is as to whether the directions given by the learned Single Judge, of allowing the writ petitioner minimum of the pay scale of Class IIIrd employee calls for interference? 8. Thus, the only question for consideration in this appeal is as to whether the directions given by the learned Single Judge, of allowing the writ petitioner minimum of the pay scale of Class IIIrd employee calls for interference? 8. The learned Standing Counsel has strenuously argued that the writ petitioner, who was merely engaged on a consolidated salary as stop gap arrangement without any regular selection process could not have been granted any relief of payment on the basis of pay scale admissible to the regularly selected employees nor could he make a claim for regularization. The learned Standing Counsel has strongly relied upon the decision of the Hon'ble Supreme Court in the case of State of Haryana and others Vs. Jasmer Singh and others, (1996) 11 SCC 77 and two of the Division Bench decisions of this Court in the cases of State of U.P. Vs. Rajendra Prasad, 2004 (100) FLR 1145 and of Special Appeal Defective No. 906 of 2013, State of U.P. and others Vs. Smt. Isratul Nisha, decided on 03.01.2014. 9. Per contra, the learned counsel for the respondent-writ petitioner has argued with reference to the decisions of the Hon'ble Supreme Court in the case of U.P. Land Development Corporation and another Vs. Mohd. Khursheed Anwar and another, AIR 2010 SCC 2287, that when the writ petitioner had been discharging the similar duties and carrying out same functions as regularly appointed incumbents, the relief of allowing minimum of pay scale prescribed for the post of Junior Engineer cannot be said to be unjustified. The learned counsel for the respondent has also submitted that in fact, the similarly placed incumbent Shri Prabhunath Singh has approached the Civil Services Tribunal and an order for regularization was passed in his favour which was not interfered by this Court and ultimately the said incumbent was regularized by the order dated 21.12.2012. 10. As indicated hereinabove, when the question of regularization of the writ petitioner is pending consideration in other writ petition, we are not making any comment in that regard herein. So far the question of grant of minimum of the pay scale is concerned, in the given set of facts and circumstances and on the principles of law applicable, we are not persuaded to consider any interference. 11. So far the question of grant of minimum of the pay scale is concerned, in the given set of facts and circumstances and on the principles of law applicable, we are not persuaded to consider any interference. 11. True it is that in the impugned order, the learned Single Judge has not elaborated on the nature of duties being performed by the writ petitioner and their identity/ equivalence with the nature of duties performed by a regular Junior Engineer but then, there appears nothing on record to show any difference in the nature of duties being performed by the writ petitioner than those which are being performed by the regularly appointed Junior Engineer. The order dated 30.11.1990 engaging the writ petitioner itself stated that he was being engaged for the reason of the post of Junior Engineer (Minor Irrigation) being vacant and there being a need to expedite the public utility work of boring and to achieve targets thereof. The indications from the order dated 30.11.1990 are only to the effect that the writ petitioner was engaged to perform the same duties and to discharge same functions as being performed and discharged by a Junior Engineer. 12. In the given fact situation, in our view, the dictum of the Hon'ble Supreme Court in the case of Mohd. Khurshid Anwar applies to the case of the writ petitioner. Therein, the Hon'ble Supreme Court has, inter alia, observed and held as under: ".........The very fact that the respondents were engaged on a consolidated salary of Rs.2,000/- per month and the prescribed pay-scale of the post of Assistant Engineer in other branches was Rs.2200-4000/- and that of the Junior Engineer was Rs.1,600 - 2,660/- gives a clear indication that they were engaged to do the work of Assistant Engineer. The appellants had neither pleaded before the High Court nor it has been shown to this Court that the respondents were not qualified for the post of Assistant Engineer. It is also not the case of the appellants that the respondents suffered from any other disability which could impede their appointment on the post of Assistant Engineer. The appellants had neither pleaded before the High Court nor it has been shown to this Court that the respondents were not qualified for the post of Assistant Engineer. It is also not the case of the appellants that the respondents suffered from any other disability which could impede their appointment on the post of Assistant Engineer. In the written statement filed before the High Court, the appellants did make a statement that the respondents were not discharging the duties of Assistant Engineer but no material was produced either before the High Court or before this Court to show any difference in the nature of duties being performed by the respondents and those which were required to be performed by an Assistant Engineer. It is, therefore, reasonable to take the view that the respondents had been arbitrarily deprived of their legitimate right to get minimum of the pay-scale prescribed for the post of Assistant Engineer." 13. We may also refer to the decision in the case of State of Haryana and others Vs. Charanjit Singh and others, (2006) 9 SCC 321 wherein the Hon'ble Supreme Court has summarized the position of law in the following: "Having considered the authorities and the submissions we are of the view that the authorities in the cases of Jasmer Singh, Tilak Raj, Orissa University of Agriculture & Technology and Tarun K. Roy lay down the correct law. Undoubtedly, the doctrine of "equal pay for equal work" is not an abstract doctrine and is capable of being enforced in a Court of law. But equal pay must be for equal work of equal value. The principle of "equal pay for equal work" has no mechanical application in every case. Article 14 permits reasonable classification based on qualities or characteristics of persons recruited and grouped together, as against those who were left out. Of course, the qualities or characteristics must have a reasonable relation to the object sought to be achieved. In service matters, merit or experience can be a proper basis for classification for the purposes of pay in order to promote efficiency in administration. A higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues is also an acceptable reason for pay differentiation. The very fact that the person has not gone through the process of recruitment may itself, in certain cases, make a difference. A higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues is also an acceptable reason for pay differentiation. The very fact that the person has not gone through the process of recruitment may itself, in certain cases, make a difference. If the educational qualifications are different, then also the doctrine may have no application. Even though persons may do the same work, their quality of work may differ. Where persons are selected by a Selection Committee on the basis of merit with due regard to seniority a higher pay scale granted to such persons who are evaluated by competent authority cannot be challenged. A classification based on difference in educational qualifications justifies a difference in pay scales. A mere nomenclature designating a person as say a carpenter or a craftsman is not enough to come to the conclusion that he is doing the same work as another carpenter or craftsman in regular service. The quality of work which is produced may be different and even the nature of work assigned may be different. It is not just a comparison of physical activity. 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." 14. Thus it emanates that on being satisfied on the basis of material placed before it that there was equal work of equal value and on other relevant factors, the High Court too, in a given case, direct payment of equal pay to a person concerned. In such matters, of course, there cannot be abstract application of the doctrine of equal pay for equal work. 15. On the reasons and considerations as had formed the basis of the decision in Mohd. Khurshid Anwar; in the present case too, we find that when the very engagement of the writ petitioner was for the specific work which was to be carried out by the Junior Engineer; and there was no other material before the Court to show if there was any difference in the nature of duties being performed by the writ petitioner, it is difficult to take exception against the direction issued by the learned Single Judge allowing minimum of the pay scale to the writ petitioner. 16. So far the decision in Jasmer Singh's case(supra) is concerned, even therein the Hon'ble Supreme Court has not laid down as an absolute rule that claim for equal pay could not be granted in any case while lying down that for applicability of the principles of equal pay for equal work, the work performed by the persons holding different jobs are required to be evaluated. Ultimately, as appears from the three Judges' Bench decision in Charanjit Singh's (supra), the doctrine cannot be mechanically applied but on relevant facts, it could indeed be applied. 17. In view of the above, the Division Bench decision of this Court cited by the learned counsel for the appellants, proceeding on their own facts and circumstances, cannot be applied as an absolute bar on the claim of the writ petitioner for equal pay. 17. In view of the above, the Division Bench decision of this Court cited by the learned counsel for the appellants, proceeding on their own facts and circumstances, cannot be applied as an absolute bar on the claim of the writ petitioner for equal pay. In the present matter, it is also noteworthy that the writ petitioner was granted the relief by writ Court in the year 2003 and the appellants allowed him minimum of the regular pay scale of Junior Engineer by an order issued on 20.10.2004. 18. In the totality of circumstances, we find no reason to consider any interference in this matter so far the relief of allowing of minimum pay scale of Junior Engineer is concerned. However, we would hasten to reiterate that we have not pronounced on the claim of regularization of the petitioner that shall be considered on its own merits by the learned Single Judge in the pending writ petition in accordance with law. 19. With the foregoing observations the appeal is dismissed. 20. No costs.