Bishwanath Ram vs Zila Parishad and Another

Vikramaditya Prasad, J.—The petitioner has filed this writ application for issuance of a direction to the respondents to pay the difference between the pay scale of the Disinfector and the Assistant since 17.5.1986 as also the arrears of salary since 1.1.1997 and also for payment of provident fund, bonus along with interest 18% per annum.

The short question to be answered in this writ application is whether in the event of the petitioner discharging the duties of a higher post of Assistant, is entitled to salary therefore on the doctrine of equal pay for equal work.

Undisputedly, the petitioner was appointed as a Disinfector. He was confirmed to that post and subsequently he was deputed to work as an Assistant for three months with a condition that he will not be entitled to any additional honorarium, nor he will be entitled to claim any promotion on that basis (Annexure 3). His performance during the period of deputation was found satisfactory and consequently the District Engineer sought instruction from the Secretary, District Board, Palamau, in this regard, Annexure 4. There was a Government notification that the class IV Government employees, who were also proficient in typing, could be given promotion on preferential basis (Annexure-5). Then the petitioner made a statement showing the difference of salary between the post of Assistant and Disinfector, Annexure 6 and presented it before the authorities for payment of the difference of salary. His provident fund amount used to be deducted, but with effect from 1.1.1997 his salary was stopped. He made representations before the authorities, Annexure 8 and 9, for payment of bonus, arrears of salary so that he could arrange the marriage of his daughter and could sustain his family members but that representations were not allowed. Subsequently, it transpired that the petitioner was transferred to Bishrampur Block in the same capacity, which is at a distance of 50 kms. from the place of residence of the petitioner and according to the petitioner, in the absence of payment of salary, it was not possible for him to join to his job at Bishrampur Block, but he had no objection to join this post, if the arrears of salary are paid.

The respondents have not disputed the aforesaid facts. The respondents have simply averred that there is no fund with the Zila Parishad therefore, not only this petitioner but other employees of the Board are not being paid and if and when the fund is made available by the Government, the payment shall be made to the petitioner. With regard to the appointment to the class III post of Assistant, the case of the respondents is that the petitioner is not at all entitled to claim any promotion and the petitioner has never been promoted to the post of Assistant. It has been stated by the respondents that the salary to the Zila Parishad employees are not being paid since, 1997 due to non- availability of fund. As the question of transfer was raised by filing a supplementary affidavit by the petitioner, this was not countered by the respondents. This means that the order of transfer of the petitioner from the place of present posting to Bishrampur Block is an admitted position.

Annexure-3 by which the petitioner was deputed to work on the post of Assistant itself lays down a condition that it will not entitle him (petitioner) to claim any promotion, nor it will entitled him to any extra financial benefit. These two conditions were known to the petitioner from the very beginning and in this background, the petitioner worked on the deputed post. So the petitioner cannot say that he was misled and there was no such terms and conditions in the order of deputation.

Section 15 of the Bihar Panchayat Samiti and Zila Parishad Act, 1961, (hereinafter referred to as the Act) empowers the District Board to create the posts of officers and employees with the previous sanction of the Government. Section 53 of the Act provides for the sources of income to the District Board and Section 54(1)(i) provides that the District Board will make payment or salary and allowances to its officials and employees. Nothing has been shown by the petitioner that the post against which the petitioner was working was a post previously sanctioned by the Government. Therefore, irrespective of the fact that the petitioner worked for long 13 years on deputation on the higher post of Assistant, this does not entitle him to claim promotion for the two simple reasons that the deputation letter had a clause that the petitioner shall not be entitled to claim any promotion and secondly there is nothing to show that the post on which he was working was a sanctioned post by the Government. Thus, the claim of promotion of the petitioner cannot be sustained.

No doubt, there were Government instructions that preference will be given to the class IV employees in the matter of promotion of class III, but there is no document brought on record by the petitioner to show that during the period he had worked on deputation for such a long 13 years, any appointment to the post of Assistant was made by the respondent District Board but his case was not considered on preferential basis. So this claim of the petitioner also goes in the absence of any fresh appointment to the post of Assistant having been averred or proved.

Since the deputation letter itself indicated that no extra remuneration will be admissible to the petitioner for working on deputation on the post of Assistant, this becomes a bar against the petitioner. The petitioner has relied upon a decision reported in 2002 (2) JCR 192. In that case, the aggrieved persons were displaced persons and the services were given to them in lieu of their displacement on account of land acquisition and subsequently, there appointments were terminated. Therefore, the facts and circumstances of that case was widely different from that of the present case and the ratio laid down therein does not apply to the present case.

The respondents relied on a decision reported in Ashwani Kumar and Others Vs. State of Bihar and Others, to show that if the appointment is made in excess without following the procedure, then that appointment is ultra vires. In the instant case, the appointment has not at all been made. Deputation does not mean or is equal to an appointment. Consequently, this decision is of no help to the respondents.

It is the admitted fact as stated above show that the petitioner has worked as an Assistant and the Annexure 3 shows that his services was found satisfactory. Then the question is whether the petitioner is entitled to the pay scale of a regular Assistant on the basis of which he has prepared the arrear statement of salary and other allowances, rather this is the main question to be answered in this writ application. In the case of State of Punjab and Others Vs. Devinder Singh and Others, . almost a similar situation was dealt with by the Apex Court. The daily wage Ledger Keepers had sought a scale of regular Ledger Keeper on the basis of equal pay for equal work. The Apex Court held that the petitioners therein could get minimum salary in the scale of the regular Ledger Keepers but they could not get the regular running scale of the regular employee. The Apex Court also held that they could not be given any running time scale as they were not regularly appointed as Ledger Keepers (in this case it will mean regular Assistant). Therefore, applying that principle, the following directions are made/given :

"(1) The petitioner cannot claim equal pay and allowance that are admissible to the regular Assistant on the doctrine of equal pay for equal work.

(ii) The petitioner shall also be entitled to the minimum of salary that is admissible to a regular Assistant in the running time scale of pay at the relevant time and subsequently thereto.

(iii) The petitioner may approach the respondents to regularise his services as Assistant."

The question set earlier in this writ application is answered accordingly.

Before I part with this judgment, I must express my concern that any employee of any cadre, who works under the Board, expects his legitimate salary and it is shocking to note that the District Board (respondent) admitted shamelessly that its employees are not being paid right from the year 1997 for want of allotment from the Government. Section 53 of the Act provides many sources of income to the District Board. One of the sources is the allotment made by the Central or State Government. It is also distasteful to note that even after creation of the State of Jharkhand, no fund has been allotted to the District Board and consequently, the employees of the District Board are suffering and are at the brink of penury, they are unable to discharge their family responsibilities and as has been in this case that the petitioner has not been able to solemnize the marriage of his daughter. Since the State of Jharkhand has not been made a party respondent in this case and it has not been heard, it is not desirable on my part to direct the State of release its share of fund to the District Board so that the employees of the District Board do not die of starvation. But nevertheless it is expected that the Government will look into the urgency of the matter. So far the transfer of the petitioner is concerned, it is not at all an illegal order and no relief Can be given to the petitioner in this regard. As soon as the funds are available, the petitioner shall be given the arrears of salary, provident fund amount along with interest @ 18% per annum on the arrear being calculated on the basis of the directions given earlier in this judgment.

With aforesaid observations/directions, this application is allowed.