Research › Search › Judgment

Andhra High Court · body

2023 DIGILAW 973 (AP)

G D R T P Aditya v. State of Andhra Pradesh

2023-07-04

D.RAMESH

body2023
ORDER: This Writ Petition under Article 226 of the Constitution of India is filed for the following relief:- “……to declare the action of the respondents in not extending the minimum timescale to the petitioner in the cadre of Technical Work Inspector (Civil) in the establishment of Sri Venkateswara Swamy Vari Devasthanam, Dwaraka Tirumala, West Godavari District as bad, illegal, arbitrary and violative of articles 14, 16 & 21 of constitution of India and consequently direct the respondents to extend the minimum time scale to the petitioner and to extend all consequential service and monetary benefits by regularizing his services and pass such order or orders……” 2. Heard the learned counsel for the petitioner and learned Government Pleader appearing for the respondent Nos.1 & 2 and Sri K.Madhava Reddy, learned counsel for respondent No.3. 3. The petitioner is initially appointed in the year 2016 as Technical Work Inspector. Thereafter, due to the work load in the respondent No.3 temple, the petitioner was directed to be paid from PS (Provisional sums or Prime cost) charges as per the Trust Board resolution in Rc.No.E1/1897/2013 dated 21-11-2018 and as per the Resolution No.315 dated 21-11-2018. 4. Accordingly, the petitioner was allowed to maintain the M-Book and permitted to record measurements as per the Trust Board vide resolution dated 10.11.2019. Accordingly, the executive officer has issued proceedings on 22.12.2019 wherein the petitioner was allotted civil works in the cadre of Technical Work Inspector. Thereafter, the Executive Officer has allotted another civil works vide proceedings dated 27.12.2019, 14.02.2020, 27.12.2020 and 14.02.2021. 5. Accordingly, the petitioner is performing his duties assigned to a regular Technical Work Inspector and there is no difference between the duties performed between the petitioner and the regular Technical Work Inspector. Hence, the petitioner is entitled for the minimum time scale as per the law laid down by the Hon’ble Apex Court in Jagjit Singh vs. State of Punjab, 2017(1) SCC 148 . 6. After notice the respondent have filed their counter. Hence, the petitioner is entitled for the minimum time scale as per the law laid down by the Hon’ble Apex Court in Jagjit Singh vs. State of Punjab, 2017(1) SCC 148 . 6. After notice the respondent have filed their counter. In counter it is made that the petitioner was appointed in the year 2016 as Technical Work Inspector and thereafter due to work load it was directed to pay from PS charges as per the trust board resolution and presently he has been paid Rs.1,170 per day in the cadre of Technical Work Inspector with effect from 01.12.2018 and thereafter he was allowed to maintain the M-Book and permitted to record measurements as per the trust board resolution. Further the petitioner cannot be considered basing on the judgment of the Hon’ble Apex Court in Jagjit Singh vs. State of Punjab (Refer supra 1), as there is a difference between the nature of the work done by the regular employee, the contract employee and the PS charges employees. 7. Learned counsel for the petitioner has contended that the petitioner is working and discharging his duties like regular employee and accordingly he is entitled for the minimum time sale, as per the observations of the Hon’ble Apex Court in Jagjit Singh vs. State of Punjab (Refer supra 1). To support the contentions the learned counsel for the petitioner has relied on the Para 57 and 58 of the above judgment, which reads as under:- “57. Having traversed the legal parameters with reference to the application of the principle of equal pay for equal work, in relation to temporary employees (daily-wage employees, adhoc appointees, employees appointed on casual basis, contractual employees and the like), the sole factor that requires our determination is, whether the concerned employees (before this Court), were rendering similar duties and responsibilities, as were being discharged by regular employees, holding the same/corresponding posts. This exercise would require the application of the parameters of the principle of equal pay for equal work summarized by us in paragraph 42 above. However, insofar as the instant aspect of the matter is concerned, it is not difficult for us to record the factual position. This exercise would require the application of the parameters of the principle of equal pay for equal work summarized by us in paragraph 42 above. However, insofar as the instant aspect of the matter is concerned, it is not difficult for us to record the factual position. We say so, because it was fairly acknowledged by the learned counsel representing the State of Punjab, that all the temporary employees in the present bunch of appeals, were appointed against posts which were also available in the regular cadre/establishment. It was also accepted, that during the course of their employment, the concerned temporary employees were being randomly deputed to discharge duties and responsibilities, which at some point in time, were assigned to regular employees. Likewise, regular employees holding substantive posts, were also posted to discharge the same work, which was assigned to temporary employees, from time to time. There is, therefore, no room for any doubt, that the duties and responsibilities discharged by the temporary employees in the present set of appeals, were the same as were being discharged by regular employees. It is not the case of the appellants, that the respondent-employees did not possess the qualifications prescribed for appointment on regular basis. Furthermore, it is not the case of the State, that any of the temporary employees would not be entitled to pay parity, on any of the principles summarized by us in paragraph 42 hereinabove. There can be no doubt, that the principle of equal pay for equal work would be applicable to all the concerned temporary employees, so as to vest in them the right to claim wages, at par with the minimum of the pay-scale of regularly engaged Government employees, holding the same post”. “58. In view of the position expressed by us in the foregoing paragraph, we have no hesitation in holding, that all the concerned temporary employees, in the present bunch of cases, would be entitled to draw wages at the minimum of the pay-scale (- at the lowest grade, in the regular pay-scale), extended to regular employees, holding the same post.” 8. In view of the position expressed by us in the foregoing paragraph, we have no hesitation in holding, that all the concerned temporary employees, in the present bunch of cases, would be entitled to draw wages at the minimum of the pay-scale (- at the lowest grade, in the regular pay-scale), extended to regular employees, holding the same post.” 8. Learned counsel for the petitioner has submitted that as per the above observations of the Hon’ble Apex Court in Jagjit Singh vs. State of Punjab (Refer supra 1) the petitioner is entitled to consider for minimum time scale and accordingly, requested to direct the respondents to pay the minimum time scale to the petitioner. 9. In reply to the said contentions the learned counsel appearing on behalf of the respondents submitted that the petitioner is not entitled for minimum time scale as the petitioner is not a regular employee. In the bunch of appeal Jagjit Singh vs. State of Punjab (Refer supra 1) the petitioners were completed 10 years. But, in the present case the petitioner was appointed in the year 2016 and he has not even completed 10 years, hence, he is not eligible for consideration of minimum time scale. Further, she has relied on the para 57 of the above mentioned judgment, wherein it is stated that the respondents has to consider the case of the employees based on the observations and instructions issued at para 42, where it is divided into categories from (i) to (xvii) which reads as follows:- “42. All the judgments noticed in paragraphs 7 to 24 hereinabove, pertain to employees engaged on regular basis, who were claiming higher wages, under the principle of equal pay for equal work. The claim raised by such employees was premised on the ground, that the duties and responsibilities rendered by them, were against the same post for which a higher pay-scale was being allowed, in other Government departments. Or alternatively, their duties and responsibilities were the same, as of other posts with different designations, but they were placed in a lower scale. Having been painstakingly taken through the parameters laid down by this Court, wherein the principle of equal pay for equal work was invoked and considered, it would be just and appropriate, to delineate the parameters laid down by this Court. Having been painstakingly taken through the parameters laid down by this Court, wherein the principle of equal pay for equal work was invoked and considered, it would be just and appropriate, to delineate the parameters laid down by this Court. In recording the said parameters, we have also adverted to some other judgments pertaining to temporary employees (also dealt with, in the instant judgment), wherein also, this Court had the occasion to express the legal position with reference to the principle of equal pay for equal work. Our consideration, has led us to the following deductions:- (i) The onus of proof, of parity in the duties and responsibilities of the subject post with the reference post, under the principle of equal pay for equal work, lies on the person who claims it. He who approaches the Court has to establish, that the subject post occupied by him, requires him to discharge equal work of equal value, as the reference post (see the Orissa University of Agriculture & Technology case, Union Territory Administration, Chandigarh v. Manju Mathur, the Steel Authority of India Limited case, and the National Aluminum Company Limited case). (ii) The mere fact that the subject post occupied by the claimant, is in a different department vis-a-vis the reference post, does not have any bearing on the determination of a claim, under the principle of equal pay for equal work. Persons discharging identical duties, cannot be treated differently, in the matter of their pay, merely because they belong to different departments of Government (see the Randhir Singh casei, and the D.S. Nakara case). (iii) The principle of equal pay for equal work, applies to cases of unequal scales of pay, based on no classification or irrational classification (see the Randhir Singh case i). For equal pay, the concerned employees with whom equation is sought, should be performing work, which besides being functionally equal, should be of the same quality and sensitivity (see the Federation of All India Customs and Central Excise Stenographers (Recognized) case, the Mewa Ram Kanojia case, the Grih Kalyan Kendra Workers Union case and the S.C. Chandra case). For equal pay, the concerned employees with whom equation is sought, should be performing work, which besides being functionally equal, should be of the same quality and sensitivity (see the Federation of All India Customs and Central Excise Stenographers (Recognized) case, the Mewa Ram Kanojia case, the Grih Kalyan Kendra Workers Union case and the S.C. Chandra case). (iv) Persons holding the same rank/designation (in different departments), but having dissimilar powers, duties and responsibilities, can be placed in different scales of pay, and cannot claim the benefit of the principle of equal pay for equal work (see the Randhir Singh case, State of Haryana v. Haryana Civil Secretariat Personal Staff Association, and the Hukum Chand Gupta case). Therefore, the principle would not be automatically invoked, merely because the subject and reference posts have the same nomenclature. (v) In determining equality of functions and responsibilities, under the principle of equal pay for equal work, it is necessary to keep in mind, that the duties of the two posts should be of equal sensitivity, and also, qualitatively similar. Differentiation of payscales for posts with difference in degree of responsibility, reliability and confidentiality, would fall within the realm of valid classification, and therefore, pay differentiation would be legitimate and permissible (see the Federation of All India Customs and Central Excise Stenographers (Recognized) case and the State Bank of India case). The nature of work of the subject post should be the same and not less onerous than the reference post. Even the volume of work should be the same. And so also, the level of responsibility. If these parameters are not met, parity cannot be claimed under the principle of equal pay for equal work (see - State of U.P. v. J.P. Chaurasia, and the Grih Kalyan Kendra Workers Union case). (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. An employee appointed on a temporary basis, cannot claim to be placed in the regular pay-scale (see the Orissa University of Agriculture & Technology case). (vii) Persons performing the same or similar functions, duties and responsibilities, can also be placed in different pay-scales. Such as-selection grade, in the same post. An employee appointed on a temporary basis, cannot claim to be placed in the regular pay-scale (see the Orissa University of Agriculture & Technology case). (vii) Persons performing the same or similar functions, duties and responsibilities, can also be placed in different pay-scales. Such as-selection grade, in the same post. But this difference must emerge out of a legitimate foundation, such as merit, or seniority, or some other relevant criteria (see-State of U.P. v. J.P. Chaurasia). (viii) If the qualifications for recruitment to the subject post vis-a-vis the reference post are different, it may be difficult to conclude, that the duties and responsibilities of the posts are qualitatively similar or comparable (see the Mewa Ram Kanojia cases, and Government of W.B. v. Tarun K. Roy). In such a cause, the principle of equal pay for equal work, cannot be invoked. (ix) The reference post, with which parity is claimed, under the principle of equal pay for equal work, has to be at the same hierarchy in the service, as the subject post. Pay-scales of posts may be different, if the hierarchy of the posts in question, and their channels of promotion, are different. Even if the duties and responsibilities are same, parity would not be permissible, as against a superior post, such as a promotional post (see Union of India v. Pradip Kumar Dey, and the Hukum Chand Gupta case). (x) A comparison between the subject post and the reference post, under the principle of equal pay for equal work, cannot be made, where the subject post and the reference post are in different establishments, having a different management. Or even, where the establishments are in different geographical locations, though owned by the same master (see the Harbans Lal case). Persons engaged differently, and being paid out of different funds, would not be entitled to pay parity (see - Official Liquidator v. Dayanand). (xi) Different pay-scales, in certain eventualities, would be permissible even for posts clubbed together at the same hierarchy in the cadre. As for instance, if the duties and responsibilities of one of the posts are more onerous, or are exposed to higher nature of operational work/risk, the principle of equal pay for equal work would not be applicable And also when, the reference post includes the responsibility to take crucial decisions, and that is not so for the subject post (see the State Bank of India case). (xii) The priority given to different types of posts, under the prevailing policies of the Government, can also be a relevant factor for placing different posts under different pay-scales. Herein also, the principle of equal pay for equal work would not be applicable (see - State of Haryana v. Haryana Civil Secretariat Personal Staff Association). (xiii) The parity in pay, under the principle of equal pay for equal work, cannot be claimed, merely on the ground, that at an earlier point of time, the subject post and the reference post, were placed in the same pay-scale. The principle of equal pay for equal work is applicable only when it is shown, that the incumbents of the subject post and the reference post, discharge similar duties and responsibilities (see - State of West Bengal v. West Bengal Minimum Wages Inspectors Association). (xiv) For parity in pay-scales, under the principle of equal pay for equal work, equation in the nature of duties, is of paramount importance. If the principal nature of duties of one post is teaching, whereas that of the other is non-teaching, the principle would not be applicable. If the dominant nature of duties of one post is of control and management, whereas the subject post has no such duties, the principle would not be applicable. Likewise, if the central nature of duties of one post is of quality control, whereas the subject post has minimal duties of quality control, the principle would not be applicable (see - Union Territory Administration, Chandigarh v. Manju Mathur). (xv) There can be a valid classification in the matter of pay-scales, between employees even holding posts with the same nomenclature i.e., between those discharging duties at the headquarters, and others working at the institutional/sub-office level (see the Hukum Chand Gupta case), when the duties are qualitatively dissimilar. (xvi) The principle of equal pay for equal work would not be applicable, where a differential higher payscale is extended to persons discharging the same duties and holding the same designation, with the objective of ameliorating stagnation, or on account of lack of promotional avenues (see the Hukum Chand Gupta case). (xvi) The principle of equal pay for equal work would not be applicable, where a differential higher payscale is extended to persons discharging the same duties and holding the same designation, with the objective of ameliorating stagnation, or on account of lack of promotional avenues (see the Hukum Chand Gupta case). (xvii) Where there is no comparison between one set of employees of one organization, and another set of employees of a different organization, there can be no question of equation of pay-scales, under the principle of equal pay for equal work, even if two organizations have a common employer. Likewise, if the management and control of two organizations, is with different entities, which are independent of one another, the principle of equal pay for equal work would not apply (see the S.C. Chandra case, and the National Aluminum Company Limited case)”. If the person concerned falls in the above said category then only para 57 would applicable. 10. Considering the submissions made by both the counsels and also on perusal of the of the directions issued by the Hon’ble Apex Court in the above said case the present Writ Petition is disposed of directing the respondents to consider the case of the petitioner for minimum time scale as per the observations made by the Hon’ble Apex Court in para 57 and 58, by following the instructions issued in para 42 and pass appropriate orders within a period of four week (04) from the date of receipt of the order. With the above said directions, the present Writ Petition is disposed of. There shall be no Order as to costs. Miscellaneous petitions pending, if any, in this Writ Petition shall stand closed.