Chhako Devi vs Director General, Medical Health and Family Welfare and Others

Sunil Ambwani, J.—Heard Sri Prakash Padia for Petitioner and learned standing counsel for Respondents.

It is admitted in the counter-affidavit that the Petitioner Smt. Chhako Devi was appointed as Part Time Cook, after interview by Departmental Selection Committee, by the then Chief Medical Officer, Varanasi on 21.12.1987, on consolidated pay of Rs. 350 per month, and that since then she is working regularly. Dr. M. G. Singh, Deputy Chief Medical Officer, Varanasi, however, in this counter-affidavit dated 5.5.2003 has disputed the fact that the Petitioner is working on full time basis and that her pay could not be revised as the State Government has not revised the salary of part time cooks fixed by the Government order dated 15.1.1986, which has been annexed as Annexure-CA 2.

A perusal of the Government order dated 15.1.1986, shows that by this order of the Joint Secretary, Health and Deputy Project Coordinator, Government of U. P. had communicated to the Project Director and Family Welfare Officer II, National Census Project, Lucknow, with the sanctioned posts and the pay scales applicable in the project. In the present case, the Petitioner has been appointed and working in the District Hospital, Varanasi. She has not been appointed in any project, nor the appointing order makes any reference to any such project or fixed terms in the condition of her appointment. The reference to the Government order dated 15.1.1986 is clearly misplaced.

The Petitioner has prayed for a direction to regularize her services as full time employee and pay salary to her in the regular pay scale of class IV employees. Sri Padia has relied upon the judgment of this Court in Civil Misc. Writ Petition No. 2646 of 2002, Smt. Awadhrani v. Director of Education (Basic) and Ors., decided on 24.1.2002, in which it was held that the payment on a less than minimum wages fixed by the State Government for its employees is violative of Article 23 of the Constitution of India.

In People''s Union for Democratic Rights and Others Vs. Union of India (UOI) and Others, ; Sanjit Roy Vs. State of Rajasthan, and Bandhua Mukti Morcha Vs. Union of India (UOI) and Others, , it was held that payment of less than minimum wages not only violates Convention No. 105 of International Labour Organization 1957, which had expanded the definition of forced labour and Article 4 of Europeon Convention of Human Rights and Article 8 of International Convention on Civil and Political Rights, but is also violative of Article 23 of the Constitution of India, which prohibits ''begar'' in any form.

In the present case, there are clear averments in paragraph 25 that the Petitioner is working on full time basis. The reply given in the counter-affidavit does not given the number of hours, and the nature of work performed by the Petitioner, nor there is any reference to the Government order or Fundamental Rules which may provide for any part time employment with the State Government. A cook in District Hospital catering to indoor patients performs a full time job.

The Chief Medical Officer referred the Petitioner''s representation to the State Government on which the Director General, Medical and Health, Government of U. P. expressed his inability to increase the salary. He avoided any decision in the matter, in his letter dated 25.2.2002 sent to the Chief Medical Officer, Varanasi.

The Petitioner has a fundamental right under Article 23 of the Constitution of India to be paid minimum wages fixed by the State Government for its employees on the recommendation of the Pay Commissions. At present all Class IV employees of the State Government are getting minimum pay in the time scale of Rs. 2,550-3,200 and admissible allowance. Any employee appointed, after selection, on a sanctioned class IV post, cannot be paid less than minimum of pay fixed by the State Government. In the present case, it is established on record that the Petitioner was appointed on a sanction post, after selection, and is working on full time basis. The nomenclature of the job as ''part time employment'' is only to deprive her of minimum pay, not only violates Articles 14 and 16 but also Article 23 of the Constitution of India which prohibits ''begar'' in any form.

The writ petition is consequently allowed. The Petitioner is held entitled to the minimum pay scale along with all other allowances payable to a class IV employee of the State Government. Since she had made the first demand by making a representation on 3.9.1997, she will be entitled to the minimum pay and allowances with effect from 3.9.1997. The entire arrears worked out on the basis of minimum pay and allowances paid to the class IV employees w.e.f. 3.9.1997, shall be paid to her within three months. The Petitioner shall also be entitled to costs of the writ petition.