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Judgment
Jas Raj Chopra, J.—These two special appeals are directed against the order of the learned single Judge dated 8/5/86 whereby the writ petition filed by the petitioners-appellants were dismissed at the admission stage. In both these appeals; similar question of fact and law arise and, therefore, e propose to decide them by a common order.
The petitioner--appellants were appointed as laboratory Assistants in the respondent Rajasthan Cooperative Dairy Federation Limited (for short "the federation ") in the pay sacles of Rs. 490-840 and their shift- wise, duties of four shifts are as follows:
(i) Complete testing of Milk and products in Raw milk Tankers, siolos and cream tanks at the start of the shift i.e. Fat.Snf, Alcohol test, C.OIb. Test, Acidity (before and after boiling) and MBR test.
(ii) Determination of CIP detergent tank strength and hardness of soft water and feed water.
(iii) Tenting of Incoming and outgoing milk upto 9AM.
(iv) Organoleptic evaluation of milk of various dairy co-operative societies and testing of milk received from URMUL w.r.t. fat, Snf and Acidity.
(v) Any other job assigned by quality control officer of shift in charge.
(vi) Reporting all data in writing to shift In charge.
(vii) Preparation of Lab. Chemicals/ solution as and when required.
Vide order dated 20th August, 1982, it has been stated that the regular testing of milk and milk products is not being carried out in accordance with instruction given in the Instruction Book dated 4th August, 1982, due to lack of understanding amongst the Lab. Assistant/A.P.Os. It has further been said in the office order that hence forth in all the shift, Lab. Assistants are directed to carry out the testing work as per the Schedule attached, failing which, it will be the liability of the Lab Assistants/ A.P.Os and action will be taken accordingly. This order along with Schedule has been placed on record as Annexure-1.
The petitioner-appellants grievances are that they are entitled to be paid the salary of post--Technical Assistant (Quality Control Officer Gr.II)/ A.P.O., Which is 1000-1860, as they are working on this post from very beginning and, therefore, they have claimed the payment of this salary to them based on the principle of equal pay for equal work In this regard, they filed writ petitions but the same Were dismissed by the learned single Judge without going into the averments made in those writ petitions on the sole ground that the petitioners were recruited on the post of Lab Assistants and if, some duties of Lab Assistants are analogous to the duties of the post of Technical assistants, the petitioners and others like them cannot claim the salary of a higher post without being recruited to that post in accordance with the rule. The learned single Judge further observed that in order to get the pay scale 1000-1860, one has to go'' through the process of selection simply because some of the duties which are being discharged by the Lab Assistants are identical to that of Technical Assistants (QCD.Grade-II) that will not entitle the petitioners to the salary of the post of a Technical Assistant without being regularly selected for that post and in these circumstances, the learned single Judge did not find any merit in both these petitions and dismissed the same with no order as to costs. It is this Judgment of the learned single Judge which has been challenged in these two special appeals.
Identical replies to the writ petitions have been filed by the respondents in both these special appeals separately. The appellants have also filed separate but identical rejoinders in both these special appeals.
We have heard Mr. M. Mridul, the learned Counsel appearing for the appellants and Mr. B.C.Mehta, the learned Counsel appearing for the respondents and have carefully gone through the record of the case.
Mr. M.Mridul, the learned Counsel appearing for the petitioner appellants has conceded at the very outset that the appellants are not staking any claim to be selected for the post of Technical Assistants. He has, however, submitted that though the petitioner-appellants were appointed as Lab Assistants, they were asked to perform the duties of the post of Technical--assistant from very beginning i.e. from 1-1-1978. He has further contended that promotion is not necessary but if work is taken then automatically they are entitled to get pay of that post on which they are asked to work. According to him, the learned single Judges erred in not granting higher emoluments for the higher job performed by them by applying the principle of equal pay for equal work. In support of his contention, he has placed reliance on two decisions viz., Sewa Singh and Anr. v. The Punjab State Tube well Corporation Ltd., 1987(I) SLR-691 and Ashok Kumar v. State Raj.1988(1) RLW 529.
In Sewasingh''s case (supra), some Junior Engineers who were eligible for promotion on the post of Assistant Engineers in December 1983 and who were allowed to look after the work of the post of Assistant--Engineers vide order dated 15th May 1984 and 30th September, 1984 in their respective Sub-Divisions were actually performing the duties of the post of Assistant Engineers and were not paid the emoluments of the post of Assistant Engineer but instead they were paid pay & allowances as admissible to them on the post of Junior Engineer. In those circumstances, it was held that practice of giving charge of the post of Assistant Engineer to the Junior Engineers and to take actual work on that post from them and still denying them the salary and allowances of the post of an Assistant Engineer is unjust and improper and cannot be approved.
In Ashok Kumar''s case (supra) the petitioner was initially appointed as Helper though the work of L.D.C. was being taken from him. The Court held that since the petitioner has worked as L.D.G., he is entitled for the wages of that post on the principle of equal pay for equal work. However, it was observed by a learned single Judge of this Court that a particular procedure has been provided for appointment and recruitment on the post of L.D.C. and hence mere working on the post of L.D.C. does not mean that the petitioner was appointed as L.D.C. and as such, it was observed that when the petitioner has been initially appointed as Helper then mere taking of work of L.D.C. from him does not entitle him to hold the post of L.D.C. Thus, the principle enunciated in the above authorities that a person is entitled to equal pay for equal work is not disputed by Mr. B.C. Mehta, the learned Counsel appearing for the respondent but he has submitted that in order to become entitled to the pay of the post of a Technical Assistant Grade II, the petitioner--appellants have to show that they have actually worked on that post and, therefore, the facts of the above two cases not applicable to the facts of his case.
Mr. B.CMehta, the learned Counsel appearing for the respondents has submitted that the petitioner appellants have never worked as Technical Assistants. Neither they were entrusted with any such work, which has to be performed by Technical Assistants nor they have produced any order or documents which may show that at any time, they were asked work as Technical Assistants between the years 1978 to 1984, as alleged by them. Thus, as per him it becomes a disputed question of fact as to whether the petitioners performed the job of a Technical Assistant or A.P.O. during this period, and such a disputed question of fact cannot be gone into in the writ jurisdiction under Article 226 of the Constitution. He has submitted that the only remedy available to the appellants was to file an application u/s 10 of the Industrial Disputes Act to get such disputed Questions of facts thrashed out and decided. Mr. Mehta has further submitted that since the writ petitions were dismissed in limine and there was no occasion for the non-petitioners to raise these points before the learned single Judge, they have raised them now in these appeals and as such, the petitioner-appellants are not entitled for any relief as they have filed these writ petitions as late as in the year 1986 and have stated their claim for higher pay from the period 1978 to 1984.
Mr. Mridul has submitted that as per Annexure-e 2, there were two sanctioned posts of Technical Assistants but only one person was working against this post and the Quality Section has recommended for creation two more posts. As there was acute shortage of persons to man the posts of Technical Assistants, the appellants were asked to work on those posts from the very beginning. Mr. Mridul has further submitted that the letter dated 20-8-1982 (Anx.l) makes it abundantly clear that all the Lab Assistants were directed to carry out the testing work as per Schedule attached, failing which, action was proposed to be taken against the Lab Assistants/A.P.O. He has submitted that the letter Annexure-1 dated 20.8.1982 cannot be read in isolation because it makes a reference to the Instruction Book dated 4.8.1982 and the duties assigned to the quality control Section . Under the orders of the Court, Mr. Mehta, the learned Counsel appearing for the respondents submitted the original Instruction Book as also the photo state copy of the proceedings dated 4.8.1982. The proceedings dated 4.8.1982 concerns all officers and officials of the quality control Department including Shri K.C.Kabra, Technical Officer, Shri M.M.Ranga, Lab Assistant, Shri S.L.Singal, Lab Assistant, Shri R.K.Sharma, Lab Assistant, and Shri J.Prasad, Worker. It has been enjoined upon all concerned that it has come to the notice of the In charge that Fat and s.n.f. Content of concentrate and silo milk is not being done regularly and, therefore, instructions were issued that fat and s.n.f. Content along with all other testing must be carried out at least once in each shift specially at the start of the shift and in case, the agitator is not working then it should be brought to the notice of the In charge. It was in this context that the order Annexure-1 dated 20/8/1982 was issued giving a reference to the Instruction Book dated 4.8.1982 and it was made clear that it will be the liability of the Lab Assistants / A.P.Os. To carry out the testing work as per the schedule attached, failing which, action will be taken against them. It was contended by Mr Mridul that these are the instruction meant for all the Lab Assistants working in each shift pertaining to the quality control Department. No order has been produced as to what work was assigned to these persons from 1.1.1978 to 20.8.1982. It has also not been disclosed that what were the specific duties of the Lab Assistants, Milk testers and milk recorders who have been categorized as one post and what were the duties of the A.P.Os., and Technical Assistants. Unless definite duties are assigned to each one of these posts and there after one if is asked to do the job of a higher post, which is normally not being required to be done by the Lab Assistants then of course, a claim can be made that they were required to perform duties of a higher post and still they are being given pay of the lower post.
The reference to Annexure-2 filed with the writ petition is of no avail because that is only a letter pertaining to the staff requirements of particular posts. Front the perusal of Annexure-2, it is clear that it was contemplated that the post of Lab Assistants should be abolished and instead of that, the post of Dairy Chemists, which was not earlier existing, be created in the quality control Department. It has no relation to the job requirement of a particular post. Simply because, a request was made that certain posts should be abolished and certain new posts should be created, it takes us nowhere sofar as the contention of equal pay for equal work is concerned. Much stress had been laid on Annexure-2 by Mr. Mridul. We are firmly of the view that the Annexure 2 does not furnish any guideline as to how from this statement, it can be construed that four posts of Technical Assistants have already been created and how the job requirement of the posts of Technical Assistants should be deemed to have been assigned to the Lab Assistants, whose posts were sought to be abolished. No definite duty chart of each post has come on record and that further makes it a question of facts as to what were the duties of each post and what duties were performed by the Lab Assistants. The Annexure-1 filed with the writ petition along with schedule of duties only shows that what jobs have to be performed in each shift by the Lab Assistants or the A.P.Os and if they do not perform these jobs, they will be taken to task. A.P.O. stands for Assistant Project Officer. The nomenclature of this post does not find mention in Annexure-2.In the Schedule, all posts of Cooperative Dairy Federation Ltd. have been categorized and the posts of Milk Recorder/Milk Tester and Lab Assistants have been clubbed together. It is therefore, clear from the Schedule which has been filed along with reply to the writ petition on behalf of the respondents that the job of Milk Recorder has to be performed by the Lab Assistant and, therefore, if a Lab Assistant have been asked to perform this job and to assist the Technical Assistants or the A.P.Os in discharge of their duties, it does not entitled them to higher emoluments of the higher post. It is common knowledge that some of the duties which are performed by the lower echelons of the Service are almost identical to the work that has to be performed by the persons who occupy higher posts That similarity of the job does not entitle them to the higher grade. Sofaras this case is concerned, the fact that the Lab Assistants were asked to perform duties of Technical Assistants or A.P.Os. Has been totally denied by the respondents in their reply to the writ petition, which has been filed in these appeals. Earlier, the writ petition was dismissed in limine and therefore, they had no occasion to make their stand clear. Now, they have disputed this fact, which can proper forum to decide the disputed questions of facts. We agree with the observations of the learned single Judge that if at some point of time, certain duties in a particular Department may have overlapped but that will not entitle the holder of the post to claim pay of a higher post or higher grade simply because some work that is performed by him akin to the work performed by his superior. In the reply, that has been filed on behalf of the respondents, it has been made clear what are the duties of Technical Assistants or Technical Officer Gr. II and what are the duties of Assistant Dairy Chemists and Lab Assistants and after detailing those duties, it has been contended that the Lab Assistants were never assigned the duties of Technical Assistants. Even if we accept the submission of Mr. Mridul to be correct that the Lab Assistants were asked to look after the work detailed in the Schedule annexed with Annexure-1, then too it is not clear what were the duties of the Technical Assistants or A.P.Os and unless that is made clear that these were the duties which were assigned to the Technical or A.P.Os or A.D.Cs, it cannot be said that the appellants performed the duties assigned to the Technical Assistants or A.P.Os or A.D.C. and they are entitled to the pay of the post of Technical Assistants.
Mr. B.C.Mehta, the learned Counsel appearing for the respondents has placed reliance on a decision of their lordships of the Supreme Court in P.K. Singh and Others Vs. Presiding Officer and Others, wherein the petitioner was appointed as ''C Grade fitter and he has claimed the salary of ''B'' grade Fitter. It was observed by their lordships that by merely doing the same kind of work which is done by a ''B'' Grade Fitter, a workman appointed as a ''C Grade Fitter will not be entitled to claim the wages of a ''B'' Grade Fitter Unless he is duly promoted after getting through the prescribed, trade, tests. Such a workman cannot complain that he is not being paid the salary and allowances due to a B'' Grade Fitter, since he does possess an existing right of claim it. It is. case Mr. Mridul, the learned Counsel appearing for the appellants has not claimed any promotion to the post of Technical Assistants but even for getting better grades, more similarity of job performance is not enough. One has to show that the job which he is asked to perform is not his job but is the job of a higher post. This has not been shown in this case. It is a mixed question of fact which can be made clear by leading evidence and, therefore, we are firmly of the opinion that this disputed question of fact cannot be gone into the writ jurisdiction under Article 226 of the Constitution.
Our attention has also been drawn to the Standing Order No. 22 dated 17-10-1989 (Annexure-4), which has been issued after filing of this writ petition mentioning the job chart of different posts. This circular has come into existence in the year 1989. It cannot furnish any guidelines sofaras the work that was assigned to the Lab Assistants and Technical Assistant from the year 1978 to 1986 is concerned was filed. Even if we take any assistance from it them too, it actually shows that it is the duty of the Lab Assistant to help and render assistance to the Assistant Manager (QC) and to Chemist. He is required to take sampling of the milk and to undertake the work of Chemist in his absence. Thus, helping or giving assistants to the Assistant Manager (QC) or the Chemist is the part of the job of the Lab Assistants, for which, no higher emoluments can be claimed and the case cannot be brought within the ambit of equal pay for equal work on the basis of performance of duties assigned to the higher category of persons of the same department.
The upshot the aforesaid discussion is that these appeals have no force and therefore, they are dismissed without any order as to costs.