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2023 DIGILAW 1026 (AP)

Commissioner, Kadapa Municipal Corporation v. A. Sreenivasulu

2023-07-10

K.MANMADHA RAO, RAVI NATH TILHARI

body2023
JUDGMENT : Ravi Nath Tilhari, J. We have heard Sri P. Anand Surya, learned counsel, representing Sri Kalava Suresh Kumar Reddy, learned counsel for the petitioner and Ms. Y. Mahalakshmi, learned counsel, representing Sri Mahadeva Kanthrigala, learned counsel for the respondent No.1 and perused the material on record. 2. The respondent No.1, A. Srinivasulu, was initially appointed as part-time Attender in the sanctioned post on fixed pay of Rs.1,000/- p.m. in the Chemmumiahpet Gram Panchayat, Kadapa, Kadapa District, which was later on converted and merged into Kadapa Municipal Corporation. 3. The respondent No.1 herein filed O.A.No.7087 of 2010 for direction to the respondents to regularise the services and to sanction the minimum time scale of pay attached to their regular post borne on the last grade service along with the usual allowances with arrears from the date of completion of five (05) years of service and continue to pay the same in future pending the regularization of the services. 4. It was the case of the respondent No.1, before the Tribunal that the Standing Committee of the Kadapa Municipal Corporation passed a resolution No.301, dated 06.06.2009, enhancing the minimum wages from Rs.3,000/- to Rs.4,500/-. It was further submitted that the Government issued several G.Os extending minimum time scale to the daily wage employees/fixed pay employees/temporary employees in other Municipalities/Municipal corporations. He claimed to be similarly situated person and entitled for minimum time scale of pay. 5. The O.A was disposed of by judgment dated 01.08.2013 directing the respondents to sanction and pay the minimum time scale of pay attached to the post of last grade service to the applicants within the specified time. 6. Challenging the order dated 01.08.2013, the present writ petition was filed. 7. Learned counsel for the petitioner submits that minimum time scale could not be granted as the same is interlinked with regularisation where as the respondents in the present case were not regularly recruited nor their services were regularized. 8. Learned counsel for the petitioner however does not dispute that the Government has issued several G.Os extending minimum time scale to the daily wage employees/ fixed pay employees/temporary employees of the Municipalities/Municipal corporations. 9. 8. Learned counsel for the petitioner however does not dispute that the Government has issued several G.Os extending minimum time scale to the daily wage employees/ fixed pay employees/temporary employees of the Municipalities/Municipal corporations. 9. In Uma Devi vs. State of Karnataka, (2006) 4 SCC 1 on pay parity, it was held that the daily wage earners should be paid wages equal to the salary at the lowest grade of the cadre concerned, but without any allowances. In Jagjit Singh (supra), the Hon’ble Apex Court held that the temporary employees would be entitled to the minimum of the pay scale, of the category to which they belong, but would not be entitled to allowances attached to the posts held by them. 10. In Ram Naresh Rawat vs. Ashwani Roy and others, (2017) 3 SCC 436 , the Hon’ble Apex Court referring to Uma Devi (supra) and Jagjit Singh (supra), reiterated that even if the principle of equal pay for equal work is applicable to temporary employees and the pay in the regular pay scale is admissible to such employees, they would be entitled to minimum of the regular pay scale which is attached to the post but without any increments. 11. It is apt to refer paragraphs 15 to 17 of Ram Naresh (supra) as under : “15. At this stage, reference is made to the aforesaid judgment in the case of Jagjit Singh (supra) for the purpose that even if principle of 'equal pay for equal work' is applicable and the pay in the regular pay-scale is admissible to such employees, these employees would be entitled to minimum of the regular pay-scale and not the increments. This case is taken note of and discussed in Jagjit Singh (supra) in the following manner: “36. Secretary, State of Karnataka v. Umadevi [ (2006) 4 SCC 1 ], decided by a five-Judge Constitution Bench: Needless to mention, that the main proposition canvassed in the instant judgment, pertained to regularization of government servants, based on the employees having rendered long years of service, as temporary, contractual, casual, daily-wage or on ad-hoc basis. It is, however relevant to mention, that the Constitution Bench did examine the question of wages, which such employees were entitled to draw. In paragraph 8 of the judgment, a reference was made to civil appeal nos. It is, however relevant to mention, that the Constitution Bench did examine the question of wages, which such employees were entitled to draw. In paragraph 8 of the judgment, a reference was made to civil appeal nos. 3595-612 of 1999, wherein, the respondent-employees were temporarily engaged on daily-wages in the Commercial Taxes Department. As they had rendered service for more than 10 years, they claimed permanent employment in the department. They also claimed benefits as were extended to regular employees of their cadre, including wages (equal to their salary and allowances) with effect from the dates from which they were appointed. Even though the administrative tribunal had rejected their claim, by returning a finding, that they had not made out a case for payment of wages, equal to those engaged on regular basis, the High Court held that they were entitled to wages, equal to the salary of regular employees of their cadre, with effect from the date from which they were appointed. The direction issued by the High Court resulted in payment of higher wages retrospectively, for a period of 10 and more years. It would also be relevant to mention, that in passing the above direction, the High Court had relied on the decision rendered by a three-Judge bench of this Court in Dharwad District PWD Literate Daily-Wage Employees Association v. State of Karnataka [ (1990) 2 SCC 396 ]. The Constitution Bench, having noticed the contentions of the rival parties, on the subject of wages payable to daily-wagers, recorded its conclusions as under:- “55. In cases relating to service in the commercial taxes department, the High Court has directed that those engaged on daily wages, be paid wages equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively appointed. The objection taken was to the direction for payment from the dates of engagement. We find that the High Court had clearly gone wrong in directing that these employees be paid salary equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively engaged or appointed. We find that the High Court had clearly gone wrong in directing that these employees be paid salary equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively engaged or appointed. It was not open to the High Court to impose such an obligation on the State when the very question before the High Court in the case was whether these employees were entitled to have equal pay for equal work so called and were entitled to any other benefit. They had also been engaged in the teeth of directions not to do so. 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. Hence, that part of the direction of the Division Bench is modified and it is directed that these daily-wage earners be paid wages equal to the salary at the lowest grade of employees of their cadre in the Commercial Taxes Department in government service, from the date of the judgment of the Division Bench of the High Court. Since, they are only daily-wage earners, there would be no question of other allowances being paid to them. In view of our conclusion, that Courts are not expected to issue directions for making such persons permanent in service, we set aside that part of the direction of the High Court directing the Government to consider their cases for regularization. We also notice that the High Court has not adverted to the aspect as to whether it was regularization or it was giving permanency that was being directed by the High Court. In such a situation, the direction in that regard will stand deleted and the appeals filed by the State would stand allowed to that extent. If sanctioned posts are vacant (they are said to be vacant) the State will take immediate steps for filling those posts by a regular process of selection. But when regular recruitment is undertaken, the respondents in C.A. Nos. If sanctioned posts are vacant (they are said to be vacant) the State will take immediate steps for filling those posts by a regular process of selection. But when regular recruitment is undertaken, the respondents in C.A. Nos. 3595-3612 and those in the Commercial Taxes Department similarly situated, will be allowed to compete, waiving the age restriction imposed for the recruitment and giving some weightage for their having been engaged for work in the Department for a significant period of time. That would be the extent of the exercise of power by this Court under Article 142 of the Constitution to do justice to them.” We have extracted the aforesaid paragraph, so as not to make any inference on our own, but to project the determination rendered by the Constitution Bench, as was expressed by the Bench. We have no hesitation in concluding, that the Constitution Bench consciously distinguished the issue of pay parity, from the issue of absorption/regularization in service. It was held, that on the issue of pay parity, the High Court ought to have directed, that the daily-wage workers be paid wages equal to the salary at the lowest grade of their cadre. The Constitution Bench expressed the view, that the concept of equality would not be applicable to the issue of absorption/regularization in service. And conversely, on the subject of pay parity, it was unambiguously held, that daily-wage earners should be paid wages equal to the salary at the lowest grade (without any allowances). ” 16. Another significant reason for referring to the judgment of Jagjit Singh (supra) is that the Court culled out the principles of 'equal pay for equal work' from the earlier judgments on the subject and collated them at one place. Further, the Court also drew an important distinction between the grant of benefit of 'equal pay for equal work' to temporary employees on the one hand and the status of regular employees on the other hand. Insofar as parameters of principles of 'equal pay for equal work' deduced by the Court are concerned (para 42), our purpose of deduction stated in sub-para vi thereof is important, which is reproduced below: “(vi) For placement in a regular pay-scale, the claimant has to be a regular appointee. The claimant should have been selected, on the basis of a regular process of recruitment. The claimant should have been selected, on the basis of a regular process of recruitment. An employee appointed on a temporary basis, cannot claim to be placed in the regular pay-scale (see – Orissa University of Agriculture & Technology Vs. Manoj K. Mohanty [ 2003 5 SCC 188 ]).” 17. Insofar as distinction between pay parity and regularisation of service is concerned, referring to the Constitution Bench judgment in Uma Devi (supra), the Court made the following observations: “49.1. We are of the considered view, that in paragraph 44 extracted above, the Constitution Bench clearly distinguished the issues of pay parity, and regularization in service. It was held, that on the issue of pay parity, the concept of "equality" would be applicable (as had indeed been applied by the Court, in various decisions), but the principle of "equality" could not be invoked for absorbing temporary employees in Government service, or for making temporary employees regular/permanent. All the observations made in the above extracted paragraphs, relate to the subject of regularization/permanence, and not, to the principle of "equal pay for equal work". As we have already noticed above, the Constitution Bench unambiguously held, that on the issue of pay parity, the High Court ought to have directed, that the daily-wage workers be paid wages equal to the salary, at the lowest grade of their cadre. This deficiency was made good, by making such a direction.” Thus, it follows that even if principle of “equal pay for equal work” is applicable, temporary employee shall be entitled to minimum of the pay-scale which is attached to the post, but without any increments.” 12. In view of the aforesaid, the 1st respondent was entitled to minimum of the pay scale which was attached to the post but without any increments or/and allowances. 13. In para 49.1, the Hon’ble Apex Court held that the Constitution Bench clearly distinguished the issues of pay parity and regularization in service. It was held that on the issue of pay parity, the concept of “equality” would be applicable (as had indeed been applied by the Court, in various decisions), but the principle of “equality” could not be invoked for absorbing temporary employees in government service, or for making temporary employees regular/permanent. 14. It was held that on the issue of pay parity, the concept of “equality” would be applicable (as had indeed been applied by the Court, in various decisions), but the principle of “equality” could not be invoked for absorbing temporary employees in government service, or for making temporary employees regular/permanent. 14. In Jagjit Singh (supra), the Hon’ble Apex Court clearly laid down in para 51.1 “……….the Constitution Bench would, in the above situation, be deemed to have concluded that to do complete justice to the cause of temporary employees, they should be paid the minimum wage of a regular employee discharging the same duties. It needs to be noticed that on the subject of pay parity, the findings recorded by this Court in Umadevi (supra) were limited to the conclusions recorded in para 55 thereof (which we have dealt with above, while dealing with the case law on the principle of “equal pay for equal work”). 15. In view of this, we do not find force in the submission of the learned counsel for the petitioner that the minimum time scale could not be granted as the same is interlinked with the regularization and the respondents’ service were not regularized and therefore they were not entitled for minimum time scale. The said submission is contrary to the law laid down by the Hon’ble the Apex Court in the aforesaid judgments. 16. Consequently, the submission that the minimum time scale could not be granted as the same is interlinked with regularization, is misconceived and legally unsustainable. 17. Learned counsel for the petitioner submits that different claimant/applicant filed O.A.No.7036 of 2010, assailing the action of the petitioner Corporation in not regularizing their services in various categories of posts. The Tribunal disposed of their O.A. by order dated 01.08.2013 directing the respondents therein to sanction minimum time scale of pay attached to the regular posts borne on the last grade service. Challenging the order dated 01.08.2013 the Corporation filed W.P.No.37564 of 2013, Commissioner, Kadapa Municipal Corporation vs. K. Nagaraju. This Court vide judgment dated 17.04.2018 disposed of the writ petition modifying the order of the Tribunal, and directing the Corporation to extend to the applicants therein the wages equivalent to the salary payable to the lowest grade of employee in the cadre in the Corporation from the date of the judgment of the Tribunal. 18. This Court vide judgment dated 17.04.2018 disposed of the writ petition modifying the order of the Tribunal, and directing the Corporation to extend to the applicants therein the wages equivalent to the salary payable to the lowest grade of employee in the cadre in the Corporation from the date of the judgment of the Tribunal. 18. From perusal of the order of the Tribunal, we find that the O.A. was disposed of as per direction in Para 8, as under:- “8. In the light of the above facts and circumstances of the case, the O.A. is disposed of directing the respondents to sanction and pay the minimum time scale of pay attached to the post of last grade service to the applicants within a period of four weeks from the date of receipt of a copy of this order.” 19. Thus the Tribunal directed the respondents before it, to sanction and pay the minimum time scale of pay attached to the posts of last grade service to the applicants. 20. The prayer for regularization of services has not been granted by the Tribunal. Learned counsel for the petitioner refers to Para-7 of the judgment in O.A, to contend that the respondent No.1 (applicant in O.A) is held to be similarly situated person and entitled for minimum time scale of pay and regularization of his services. We are not convinced. In Para-7, only the submission of the learned counsel for the applicant before the Tribunal has been recorded. Para-7 reads as under:- “7. The learned counsel for the applicants submit that the Government has issued several G.Os extending minimum time scale to the daily wage employees/fixed pay employees/temporary employees in other Municipalities/Municipal corporations. The applicant in this O.A is also similarly situated person and is entitled for minimum time scale of pay and for regularization of his services.” 21. So, the grievance of the writ petitioners in the writ petition cannot be with respect to what has not been granted by the Tribunal i.e. regularization of services or/and increments & allowances. 22. The applicant in this O.A is also similarly situated person and is entitled for minimum time scale of pay and for regularization of his services.” 21. So, the grievance of the writ petitioners in the writ petition cannot be with respect to what has not been granted by the Tribunal i.e. regularization of services or/and increments & allowances. 22. The respondent No.1 is entitled for the minimum of the time scale of the pay attached to the post of last grade service as has been awarded by the Tribunal which direction is also as per the judgment of this Court in K. Nagaraju (supra) and the judgment of Hon’ble the Apex Court in Jagjit Singh (supra) & Ram Naresh Rawat (supra). 23. With the aforesaid observations and clarification, we do not find any illegality in the order of the Tribunal. The Writ Petition is dismissed. 24. If the order of the Tribunal has yet not been complied with the same shall be complied within eight (08) weeks from the date of receipt of copy of this order. 25. No order as to costs. As a sequel thereto, miscellaneous petitions, if any pending, shall also stand closed.