Deepak Kumar vs State of H.P.

Tarlok Singh Chauhan, J.—By medium of this writ petition, the following reliefs have been claimed by the petitioner:-

(a) Direct the respondents to make the difference of payment to the petitioner as Clerk instead of Beldar w.e.f. March 1994 to May 1999 as per the equal pay for equal work.

(aa) Direct the respondents to make the difference of payment of wages to the petitioner as clerk/computer operator instead of Beldar w.e.f. June 1999 till filing of the writ petition on the principle of equal pay for equal work.

(b) Direct the respondents to consider the period of daily wager of the petitioner w.e.f. March 1994 to May 1999 in clerical nature and then consider his case for regularization in the capacity of junior technician or clerk/computer operator after completion of 10 year services w.e.f. 01.01.2004 in the pay scale of Rs. 3120-5160/- with all consequential service benefits and pay him revised pay scale w.e.f. 01.01.2006 Rs. 5910-20200/- with all consequential service benefits.

The petitioner claims to have been engaged by respondent No. 3 as Beldar on daily waged basis and continued to work as such up to May 1999. During the interregnum from March 1994 to May 1999, the services of the petitioner were utilized in clerical cadre where he worked as a Computer Operator Clerk. It is then claimed that despite issuing muster-roll of Mason w.e.f. 1999 to 2007, the petitioner''s services have again been utilized in the clerical cadre as Computer Operator Clerk and the salary for the said post has not been paid to him. It is further averred that despite the petitioner having worked as Clerk, his services were regularized as a Beldar instead of Mason or Clerk and in spite of repeated representations, the respondents have not redressed his grievances, hence present petition.

The respondents in their reply has specifically stated that petitioner during the month of March 1994 onwards has worked in different capacities which includes the service rendered by him as Beldar, Mason and even in the office as Computer Operator/Clerk, but the work put in by the petitioner as a Computer Operator/Clerk was purely a stop gap arrangement just to monitor the progress of the targeted works and therefore, the petitioner cannot claim pay scale of junior technician or/clerical/computer operator being dehors the rules.

I have heard the learned counsel for the parties and have gone through the records. The reliefs (a) and (aa) are overlapping and in view of categorical admission of the respondents themselves that petitioner has worked as Computer Operator Clerk intermittently as is clear from perusal of Annexures-PD and PF, the respondents cannot escape from their responsibility of paying the wages/pay of Computer Operator Clerk, accordingly the respondents are directed to pay the petitioner the pay of Computer Operator Clerk for the time the petitioner has actually worked as such on the principles of "equal pay for equal work".

In so far as the relief (b) seeking direction to consider the petitioner''s case for regularization in the capacity of Junior Technician or in Clerical cadre is concerned, the same is without any merit. Admittedly, the petitioner has not competed with other eligible candidates in any of the aforesaid categories for which specific rules have been framed. The mere fact that he has worked for some time in the said category would not per se make him entitled to be considered against the said post. In case the petitioner was eligible then he ought to have competed for any of the aforesaid categories and should not have at the first instance sought appointment as Beldar. Having accepted the same, the petitioner cannot now turn around and claim his entitlement to a higher post for which post he has not even competed.

Moreover, it has come in the reply of the respondents that department had amended its R&P Rules through notification dated 23.5.2009, whereby 20% vacancies to the post of Clerk were reserved for Class IV (industrial categories of HPPWD) having two years of service and requisite qualification. Many of incumbents had appeared in this limited test, but the petitioner had failed to appear in this test and therefore, no fault could be found with the action of the respondents. The petitioner at best could only be entitled to the pay for the work performed by him as a Computer Operator Clerk on the principles of "equal pay for equal work" which has already been granted to him.

In view of aforesaid discussion, the writ petition is partly allowed and petitioner is held entitled to the pay of Clerk/Computer Operator for the periods in which he has actually performed the said work. Rest of the claim of the petitioner is dismissed, leaving the parties to bear their own costs.