U.P. Rajya Setu Nigam Karmchari Parishad vs State of U.P. and Others

Rakesh Tiwari, J.—Heard learned Counsel for the parties and perused the record.

This petition has been filed by the U.P. Rajya Setu Nigam Karmchari Parishad, Branch Varanasi, which is a registered Union/Association of the workmen working in the U.P. State Bridge Corporation Ltd.

The U.P. State Bridge Corporation Limited (hereinafter referred to as the Corporation) has been established by the State Government for construction and maintenance of bridges in the State of Uttar Pradesh. It is claimed that the Petitioner is a Union/Association of the employees working in the Corporation as Chaukidars, Beldars, Helpers, Work Agents, Khalasis, Crane Operators, Fitters, Linemen, Drivers, Dockers, Meths, Store Keepers, etc. The workmen members of the Union/Association are working from in-between 1979 and 1983 and have completed about 15 to 25 years of service. Some of them have been paid a fixed pay of Rs. 3,200 and rest the daily rated charges at the rate of Rs. 2,000 per month.

The grievance of the Petitioner is that the regularly selected counter-parts of its members in Government employment are getting much higher pay scale than them even though the nature of work of the daily rated employees and the regular employees is almost similar except that the nomenclature of the members of the Petitioner-Union/Association is work charge or muster roll.

It is prayed by the Petitioner that a direction be issued to the Respondents to regularize the services of the members of the Petitioner-Union/Association on their respective posts with all service benefits and further pay them equal pay as is being paid to their counterparts in Government services who have been directly appointed through selection or pay them at least minimum pay scale in view of State of Orissa and Others Vs. Balaram Sahu and Others, etc. etc., ; State of Haryana and Anr. v. Tilak Raj and Ors. 2003 AIR SCW 3382: 2003 (4) AWC 2597 (SC) and State of Haryana and Others Vs. Jasmer Singh and Others, , wherein it has been held that the High Court cannot grant parity in pay to daily wagers and in view of State of Punjab and Ors. v. Sardara Singh (1998) 9 SCC 709, the High Court cannot direct for regularization of daily wagers under Article 226 of the Constitution. Furthermore, the Petitioners have not been appointed against any sanctioned post and are either on fixed pay or on daily wages and in view of G.O. No. 24/9-1-91-48/9 dated 6.12.1991, no appointment of daily wagers can be made. Furthermore, the question whether the Petitioners are working since 15 to 25 years requires finding of fact on the basis of evidence which cannot be recorded under Article 226 of the Constitution.

In State of Punjab and Others Vs. Savinderjit Kaur, it has been held that the doctrine of equal pay for equal work would not apply where it has not been established that duties and functions of two categories of employees are at par. In State of Haryana and Anr. v. Tilak Raj and Ors. 2003 AIR SCW 3382 : 2003 (4) AWC 2597 (SC), it has been held that the claim by daily wagers in comparison with regular and permanent staff is not tenable since daily wager holds no post and scale of pay is attached to a definite post. In Federation of All India Customs and Central Excise Stenographers (Recognised) and others Vs. Union of India and others, the Apex Court explained the principle of "equal pay for equal work" by holding that differentiation in pay scales among Government servants holding the same posts and performing similar work on the basis of difference in the degree of responsibility, reliability and confidentiality would be a valid differentiation. In Harbans Lal and Others Vs. State of Himachal Pradesh and Others, it is held that a mere nomenclature designating a person as a carpenter or a craftsman was not enough to come to a conclusion that he was doing the work as another carpenter in regular service. A comparison cannot be made with counterparts in other establishments with different managements or even in the establishments in different locations though owned by the same management. The accuracy required and the dexterity that the job requires may differ from job to job. In Ghaziabad Development Authority and others Vs. Sri Vikram Chaudhary and others, it has been held that it must be left to be evaluated and determined by an expert body. In State of U.P. and Others Vs. J.P. Chaurasia and Others, it is pointed out that the principle of "equal pay for equal work" has no mechanical application in every case of similar work. In the case of State of Haryana and Others Vs. Jasmer Singh and Others, it has been held that the daily wage employees cannot be treated as on a par with persons in regular service holding similar posts.

Recently a Division Bench of this Court in a Special Appeal No. 334 of 2004 arising out of the order and judgment in Writ Petition No. 37747 of 2002, quashed the order and judgment of the learned single Judge in so far as it treated the daily wage employees of the Public Service Commission at par with the regularly appointed employees and held:

We do not agree with certain other directions given in the said judgment. For instance, the learned single Judge after giving the direction that the Petitioners should be considered for regularisation has thereafter in the same sentence given a direction that the Petitioners are also entitled to regular wages in the regular pay scale from 17.2.2001. Thus, we find that there is a contradiction in the same sentence of the learned single Judge. In our opinion the learned single Judge could not validly direct that the Petitioners be regularized. He could only direct that the Petitioners should be considered for regularization. Having directed that the Petitioners should be considered for regularization, we fail to understand how he came in the same sentence say that the Petitioners are entitled to regular pay scale. This direction for payment of regular wages and regular pay scale in the impugned judgment cannot be sustained and is hereby set aside.

We are further of the opinion that direction Nos. 4 and 5 at the end of the judgment of the learned single Judge also cannot be sustained. The learned single Judge has directed in direction No. 4 in the impugned judgment that the Petitioners whose services are not regularized shall be allowed to continue in minimum of the pay scale. This direction is clearly illegal as has been held by the Supreme Court and this Court in a series of decisions, which have been referred to in the Division Bench decision of this Court in State of U.P. and Others Vs. U.P. Madhyamik Shiksha Parishad Shramik Sangh and Others, . That decision was followed in State of U.P. and Another Vs. Rajendra Prasad and Others, The aforesaid decisions have relied on several Supreme Court decisions which have held that an employee who is not a regular employee cannot be given the minimum of the pay scale. The minimum of the pay scale can only be given to the employees who have been regularized. For the same reason the direction No. 5 contained in the impugned judgment of the learned single Judge that the Petitioners should be given minimum of pay scale is also illegal. In fact none of the Petitioner can be given minimum of the pay scale, and only those who are subsequently regularized can be given the minimum of the pay scale as and when they are regularized. Those who are not regularized will not be given the minimum of pay scale at all in view of the aforesaid decisions.

For the reasons given above, this special appeal is partly allowed. No order as to costs.

Sd. M. Katju, J. Sd. R. S. Tripathi, J. 27.4.2004

In State of Punjab and Others Vs. Savinderjit Kaur, a three Judge Bench of the Apex Court held:

even the doctrine of equal pay for equal work would not apply where it has not been established that duties and functions of two categories of employees are at par.

In this writ petition it is not the argument of the Petitioner that he is not being paid minimum wages, which are admissible to daily rated employees notified by the appropriate Government. Only parity is claimed in the pay scale which can only be paid to an employee holding permanent post. In case the Petitioner is discharging the duties of a regular employee he may approach to the labour court for adjudication of the disputed question of fact.

The judgments of the Apex Court as well as of Division Bench of this Court are binding upon this Bench. Thus, the Petitioner is not entitled to the pay scale at par with the regular employees in the Public Service Commission.

The writ petition is dismissed on the ground of alternative remedy. No order as to costs.