Research › Search › Judgment

Gauhati High Court · body

2025 DIGILAW 203 (GAU)

S Elang Konyak v. State of Nagaland

2025-02-06

KAKHETO SEMA

body2025
JUDGMENT : (KAKHETO SEMA, J.) Heard Mr. Supongwati Walling, learned counsel for the petitioner and Ms. B. Kithan, learned Government Advocate for the State respondents. 2. The present writ petition has been filed seeking for a direction to the State respondents to grant the minimum scale of pay to the petitioner in the light of the judgment dated 26/10/2016 passed by the Hon’ble Supreme Court in the case of State of Punjab & Others -versus- Jagjit Singh & Others, reported in 2017 (1) GLT (SC) 47. 3. That by the order dated 03/07/1991, the petitioner was appointed as W/C Semi Skilled Labour in the Office of the Executive Engineer (PWD), Aboi Division, Aboi, Nagaland. The petitioner is continuously serving the department for about 31 years without any break in service and is presently paid the revised fixed pay of Rs. 6000/- p.m. 4. That the petitioner submitted the application dated 23/06/2022 to the Chief Engineer, Road & Bridges, NPWD, Nagaland, Kohima, for granting the scale of pay. The application submitted by the petitioner has however not evoke any response, hence the present petition. 5. Mr. Supongwati Walling, the learned counsel for the petitioner has submitted that the petitioner is performing the same works and duties as any other regular W/C employees and/or the work-charged employees in the department who are getting the scale of pay but whose service are yet to be regularised, but the petitioner has been discriminated by the respondents by only paying a meagre fixed pay of Rs. 6000/- p.m inspite of the petitioner continuously serving the department for about 31 years. It is also submitted that the petitioner is now on the verge of retirement. 6. Mr. Supongwati Walling has also taken this Court to the affidavit-in-reply filed by the petitioner and has referred to the information dated 09/08/2023 furnished by the department under the RTI Act, 2005 to show that in between the year 2000 to 2023, 723(seven hundred twenty three) fixed pay W/C employees has been granted the scale of pay by the respondents. Mr. Supongwati has further referred to the information furnished by the Executive Engineer PWD (R&B), Aboi Division under the RTI Act to show that the nature and duties of work performed by the fixed pay W/C employees, scale pay W/C employees (whose service are not regularised) and the regular W/C employees are same and identical. Mr. Supongwati has further referred to the information furnished by the Executive Engineer PWD (R&B), Aboi Division under the RTI Act to show that the nature and duties of work performed by the fixed pay W/C employees, scale pay W/C employees (whose service are not regularised) and the regular W/C employees are same and identical. The learned counsel accordingly submits that the State respondents cannot adopt a pick and choose policy for granting the scale of pay to the similarly situated work-charged employees in the department when all the work-charged employees in the department perform the same nature of works, duties and responsibilities. 7. Ms. B. Kithan, the learned Government Advocate, on the other hand, has submitted that the petitioner is not entitled to receive the minimum scale of pay as the State Government has not adopted any policy for granting scale of pay to W/C fixed pay employees as such an exercise will involve huge financial implications. It is further submitted that the petitioner fully knowing the nature of the appointment has accepted the appointment and therefore, serving the department for more than 31 years does not give any right to the petitioner for claiming the scale of pay. It is also submitted that the Government has constituted a high level committee by the notification dated 16/02/2024 to formulate a suitable policy for regulation of pay, remuneration and conditions of service of contingency and fixed pay employees in the department and therefore, the Government may be allowed some more time to finalise the policy. 8. Heard the learned counsel for the parties. 9. The petitioner is continuously in the service of the department for about 31 years and is presently paid the revised fixed pay of Rs. 6000/- p.m. 10. This Court has perused the information dated 09/08/2023 furnished by the department to the application dated 18/07/2023 filed by the learned counsel for the petitioner under the RTI Act, 2005. The information reveals that in between the year 2000 to 2023, seven hundred and twenty three fixed pay work-charged employees in the department, in which the petitioner is presently serving, has been granted the scale of pay. The information reveals that in between the year 2000 to 2023, seven hundred and twenty three fixed pay work-charged employees in the department, in which the petitioner is presently serving, has been granted the scale of pay. On a pointed query to the learned Government Advocate as to what was the method and/or the criteria adopted by the respondents to grant the scale of pay to the 723(seven hundred twenty three) fixed pay work-charged employees in the department, no explanation is forthcoming from the learned counsel for the State. 11. Secondly, the information furnished by the Executive Engineer, PWD (R&B), Aboi Division, Aboi, Nagaland, to the application dated 08/08/2023 filed by the petitioner under the RTI Act is reproduced below; “ Department : EE PWD(R&B) Aboi Division Details of information under RTI Act, 2005 Sl.No. Particulars Details 1 Total Number of Fixed paid Employees engaged under the department till date 13 2 Total Number of Fixed pay Employees who has been granted Scale of Pay till date Nil 3 Nature and details performed by Fixed pay Employees Maintenance of road like jungle cutting, clearing of block drainage 4 Nature and duties performed by scale employees (whose service are not regularised) Attached to S.A’s and maintenance of road like jungle cutting, clearing of block drainage 5 Present salaries of fixed employees 5280 6 Nature and duties performed by fixed and regular employees Maintenance of road like jungle cutting, clearing of block drainage, weekly site inspection of road under their jurisdiction and reporting to their superior officers. From the information furnished above, it is clear that the nature of works and duties performed by the fixed pay W/C employees, scale pay W/C employees (whose service have not been regularised) and the regular W/C employees are same and identical. The State respondents has not filed any rejoinder affidavit rebutting the information furnished to the petitioner under the RTI Act. This Court can therefore safely infer that the petitioner performs the same nature of works, duties and responsibilities as that of the scale pay W/C employees (whose service have not been regularised) and the regular W/C employees in the department. The State respondents has not filed any rejoinder affidavit rebutting the information furnished to the petitioner under the RTI Act. This Court can therefore safely infer that the petitioner performs the same nature of works, duties and responsibilities as that of the scale pay W/C employees (whose service have not been regularised) and the regular W/C employees in the department. This Court accordingly holds that the petitioner is entitled to the same pay and benefits extended to the work-charged employees who have been granted the scale of pay but whose service are yet to be regularised, on the principle of equal pay for equal work. 12. The State respondents in their affidavit has taken the stands that the scale of pay cannot be granted to the petitioner as the State Government has not adopted any policy for granting scale of pay to W/C fixed pay employees and such exercises will involve huge financial implications for the State if the fixed W/C employees in the department who are similarly circumstanced as the petitioner are all granted the scale of pay. This stands taken by the Government is belied by their own action in granting the scale of pay to 723(seven hundred twenty three) fixed pay employees in between the year 2000 to 2023. If there is no policy adopted by the Government to grant scale of pay to fixed pay employees, what prudent or rational yardstick was adopted by the State to grant scale of pay to those favoured fixed work-charged employees. The respondents have not been able to explain this position. The State cannot be allowed to approbate and reprobate for denying the scale pay to the petitioners vis-à-vis those favoured with the scale of pay. The principle of equal pay for equal work has been repeatedly emphasized by the Hon’ble Supreme Court and accordingly, the sole factor which requires the determination of this Court for deciding the present case is as to whether the petitioner is rendering similar and identical duties and responsibilities as discharged by the work-charged employees in the department holding the same/corresponding post. The question has been answered in the affirmative in the preceding paragraphs of this order. This Court accordingly holds that the petitioner shall be entitled to the same scale of pay as paid to the work-charged employees who have been granted the scale of pay but whose service are yet to be regularised. The question has been answered in the affirmative in the preceding paragraphs of this order. This Court accordingly holds that the petitioner shall be entitled to the same scale of pay as paid to the work-charged employees who have been granted the scale of pay but whose service are yet to be regularised. It is encouraging to note that the State Government has constituted a high level committee to formulate suitable policy for regulation of pay, remuneration and conditions of service for contingency and fixed paid employees in the department and this Court expects that the State Government will soon come out with a beneficial policy for the employees like the petitioner who are struggling in their day to day life. However, the constitution of a high level committee to formulate a policy with regard to the pay and allowances payable to the contingency and fixed pay W/C employees by itself will not be a ground to deprive the payment of the minimum scale of pay to the petitioner. 13. In the case of Dhirendra Chamoli & Another -versus- State of U.P reported in (1986) 1 SCC 637 , the Hon’ble Supreme Court examined a claim for pay parity raised by temporary employees for wages equal to those being disbursed to regular employees. The prayer was accepted by holding that the action of not paying the same wage despite the work being the same was considered as violative of Article 14 of the Constitution and it was further held that such action amounted to exploitation in a welfare State committed to a socialist pattern of society. The relevant portion of paragraph-2 of the said judgment is extracted as under; “2. …………………..The argument envisaged in the counter affidavit is that since there are no sanctioned posts to which regular appointments can be made, the casual employees employed by different Nehru Yuvak Kendras cannot claim to receive the same salary and perquisites as Class IV employees appointed regularly to sanctioned posts. But while raising this argument, it is conceded in the counter affidavit that "the persons engaged by the Nehru Yuvak Kendras perform the same duties as is performed by Class IV employees appointed on regular basis against sanctioned posts”. But while raising this argument, it is conceded in the counter affidavit that "the persons engaged by the Nehru Yuvak Kendras perform the same duties as is performed by Class IV employees appointed on regular basis against sanctioned posts”. If that be so, it is difficult to understand how the Central Government can deny to these employees the same salary and conditions of service as Class IV employees regularly appointed against sanctioned posts. It is peculiar on the part of the Central Government to urge that these persons took up employment with the Nehru Yuvak Kendras knowing fully well that they will be paid only daily wages and therefore they cannot claim more. This argument lies ill in the mouth of the Central Government for it is an all too familiar argument with the exploiting class and a Welfare State committed to a socialist pattern of society cannot be permitted to advance such an argument. It must be remembered that in this country where there is so much unemployment, the choice for the majority of people is to starve or to take employment on whatever exploitative terms are offered by the employer. The fact that these employees accepted employment with full knowledge that they will be paid only daily wages and they will not get the same salary and conditions of service as other Class IV employees, cannot provide an escape to the Central Government to avoid the mandate of equality enshrined in Article 14 of the Constitution. This Article declares that there shall be equality before law and equal protection of the law and implicit in it is the further principle that there must be equal pay for work of equal value. These employees who are in the service of the different Nehru Yuvak Kendras in the country and who are admittedly performing the same duties as Class IV employees, must therefore get the same salary and conditions of service as Class IV employees. It makes no difference whether they are appointed in sanctioned posts or not. So long as they are performing the same duties, they must receive the same salary and conditions of service as Class IV employees.” 14. In the recent case decided by the Hon’ble Apex Court in State of Punjab & Others -versus- Jagjit Singh & Others , reported in (2017) 1 SCC 148 , the Supreme Court held as under; “44.6. So long as they are performing the same duties, they must receive the same salary and conditions of service as Class IV employees.” 14. In the recent case decided by the Hon’ble Apex Court in State of Punjab & Others -versus- Jagjit Singh & Others , reported in (2017) 1 SCC 148 , the Supreme Court held as under; “44.6. In State of Karnataka case43, a Constitution Bench of this Court set aside the judgment of the High Court, and directed that daily wagers be paid salary equal to the lowest grade of salary and allowances being paid to regular employees. Importantly, in this case, this Court made a very important distinction between pay parity and regularization. It was held that the concept of equality would not be applicable to issues of absorption/regularization. But, the concept was held as applicable, and was indeed applied, to the issue of pay parity – if the work component was the same. The judgment rendered by the High Court, was modified by this Court, and the concerned daily wage employees were directed to be paid wages, equal to the salary at the lowest grade of the cadre concerned. 49.1. We are of the considered view, that in para 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. 57. There is no room for any doubt that the principle of ‘equal pay for equal work’ has emerged from an interpretation of different provisions of the Constitution. This deficiency was made good by making such a direction. 57. There is no room for any doubt that the principle of ‘equal pay for equal work’ has emerged from an interpretation of different provisions of the Constitution. The principle has been expounded through a large number of judgments rendered by this Court, and constitutes law declared by this Court. The same is binding on all the courts in India under Article 141 of the Constitution of India. The parameters of the principle have been summarized by us in para 42 hereinabove. The principle of ‘equal pay for equal work’ has also been extended to temporary employees (differently described as work-charge, daily wage, casual, ad-hoc, contractual, and the like). The legal position, relating to temporary employees, has been summarized by us, in para 44 hereinabove. The above legal position which has been repeatedly declared, is being reiterated by us, yet again. 58. In our considered view, it is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work cannot be paid less than another who performs the same duties and responsibilities. Certainly not, in a welfare State. Such an action besides being demeaning, strikes at the very foundation of human dignity. Any one, who is compelled to work at a lesser wage does not do so voluntarily. He does so to provide food and shelter to his family, at the cost of his self respect and dignity, at the cost of his self worth, and at the cost of his integrity. For he knows that his dependents would suffer immensely, if he does not accept the lesser wage. Any act of paying less wages as compared to others similarly situate constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation. 59. We would also like to extract herein Article 7 of the International Covenant on Economic, Social and Cultural Rights, 1966. The same is reproduced below: “7. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation. 59. We would also like to extract herein Article 7 of the International Covenant on Economic, Social and Cultural Rights, 1966. The same is reproduced below: “7. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular: (a) Remuneration which provides all workers, as a minimum, with: (i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work; (ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant; (b) Safe and healthy working conditions; (c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence; (d) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays.” India is a signatory to the above Covenant, having ratified the same on 10-4-1979. There is no escape from the above obligation, in view of different provisions of the Constitution referred to above, and in view of the law declared by this Court under Article 141 of the Constitution of India, the principle of “equal pay for equal work” constitutes a clear and unambiguous right and is vested in every employee– whether engaged on regular or temporary basis. 60. 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, ad-hoc appointees, employees appointed on casual basis, contractual employees and the like), the sole factor that requires our determination is, whether the employees concerned (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 para 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 para 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 para 42 hereinabove. There can be no doubt, that the principle of “equal pay for equal work” would be applicable to all the temporary employees concerned, so as to vest in them the right to claim wages on a par with the minimum of the pay-scale of regularly engaged Government employees holding the same post. 61. In view of the position expressed by us in the foregoing paragraph, we have no hesitation in holding that all the temporary employees concerned, 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.” 15. In view of the discussions made above and in the light of the law laid down by the Hon’ble Supreme Court, this Court has no hesitation in holding that the petitioner who discharges the same nature of works, duties and responsibilities as that of the W/C employees who are granted the scale of pay (but whose service are yet to be regularized) are entitled to the pay parity on the principle of equal pay for equal work. 16. This Court accordingly directs the State respondents to pay to the petitioner the scale of pay which is paid to the W/C employees (whose service are yet to be regularized) along with the arrears from the date of filing of the present writ petition. All exercise for carrying out the directions of this Court shall be completed within a period of 90(ninety) days from the date of passing of the order. 17. Writ petition allowed. No cost.