IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL COURT'S ORDER WHETHER THE CASE IS OR IS NOT APPROVED FOR REPROTING [Chapter VIII, Rule 32(2) (b)] Description of case W.P. No. 745 of 2007 (S/S) Decided on: March 19, 2008 A.F.R. (Approved for Reporting) Not approved for Reporting Date: 19.03.2008 (Initial of Judge) Note: Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 745 of 2007 (S/S) 1. Mahesh Ram S/o Hari Ram 2. Sri Virendra S/o Gulab Ram 3. Sri Virendra So late Puran Lal 4. Sri Sanjeev So Charan Singh All are Class IV employees in Guest House, Nainital Club, Nainital. ......................... Petitioners Versus 1. State of Uttarakhand through Secretary Estate Department Uttarakhand Shasan Dehradun. 2. Senior Management Officer Estate Guest House, Nainital Club, Nainital. ...................... Respondents Mr. U.K. Uniyal, Sr. Advocate assisted by Mr. S. Saharia, learned counsel for the petitioners. Mr. N.P. Sah, Standing Counsel for the respondents. Hon'ble Prafulla C.Pant, J. By means of this writ petition, the petitioners have sought writ in the nature of certiorari quashing the order dated 10.12.2006 (Annexure 3 to the writ petition), whereby the order dated 11th October 2006, directing to pay minimum pay of Rs. 2,550/- per month by the Government, is cancelled. A mandamus has also been sought directing the respondents to pay wages to the petitioners equivalent to the wages / salary being paid to the regular Class IV employees in the respondent department along with admissible allowances. 2) Heard learned counsel for the parties. 3) Petitioners are Safai Karamcharies working on daily wages with the respondent No. 2 Earlier they filed a writ petition No. 537 of 2006 (S/S) for similar relief, which was dismissed vide order dated 30.11.2006. The same reads as under: "Learned counsel for the parties are present. Heard. The petitioners, who are working as Safai Karamchari on daily wages with the respondent department, have sought regular salary in the scale of Rs. 2550-3200 with all allowances, admissible to Class IV employees. In view of the principle of law laid down in Secretary State of Karnataka Vs. Uma Devi, reported in (2006) 4 Supreme Court Cases, Pg 01, wherein it has been held that the workers on daily wages or the persons who get employed without undergoing regular selection process, should not be permitted to be absorbed or regularized against the constitutional scheme of public employment, this Court is not inclined to issue direction to regularize services of the petitioners as such, the petition is liable to be dismissed. The writ petition is dismissed with the observation that the petitioners may seek remedy available under any law to them or may make representation to the concerned authorities in the matter. Interim order dated 19.04.2006, stands hereby vacated. (All pending applications also stand disposed of)." 4) It appears that during pendency of said Writ petition No. 537 of 2006 (S/S) an interim order dated 19.04.2006 was passed in pursuance of which the respondents were making payment of Rs. 2,550/- per month (minimum pay payable to the regular employees) which is now withdrawn by the impugned order challenged in this writ petition. 5) Learned counsel for the petitioner drew attention of this Court to Para 55 of Secretary, State of Karnataka Vs. Uma Devi; (2006) 4 Supreme Court Cases 01, in which it has been observed 'We are, therefore, of the view that, at best, the Division Bench of the High Court should have directed that wages equal to the salary that is being paid to regular employees be paid to these daily-wage employees with effect from the date of its judgment. Hence, that part of the direction of the Division Bench is modified and it is directed that these daily-wage earners be paid wages equal to the salary at the lowest grade of employees of their cadre in the Commercial Taxes Department in government service, from the date of the judgment of the Division Bench of the High Court." On the other hand, learned Standing Counsel argued that the observations of the Apex court in Uma Devi's case (supra) is being misinterpreted, as the same is to be read with reference to the context of the case. 6) Having gone through the judgment delivered in Uma Devi's Case (supra) by the Apex court, certain paragraphs are necessary to be quoted here to interpret the observation relied by the petitioners, correctly. The same are reproduced hereunder: Para 3 of the judgment reads as under: "A sovereign Government, considering the economic situation in the country and the work to be got done, is not precluded from making temporary appointments or engaging workers on daily wages. Going by a law newly enacted, the National Rural Employment Guarantee Act, 2005, the object is to give employment to at least one member of family for hundred days in a year, on paying wages as fixed under that Act. But, regular process of recruitment or appointment has to be restored to, when regular vacancies in posts, at a particular point of time, are to be filled up and the filling up of those vacancies cannot be done in a haphazard manner or based on patronage or other considerations, Regular appointment must be the rule." In para 19, the Apex court observers, as under:- "One aspect arises. Obviously, the State is also controlled by economic considerations and financial implications of any public employment. The viability of the department or the instrumentality of the project is also of equal concern for the State. The State works out the scheme taking into consideration the financial implications and the economic aspects." The Apex court in Para 20 further observes that 'we have given unto ourselves a system of governance by rule of law'. In Para 21 quoting the Dharwad Case; (1990) 2 Supreme Court Cases 396, the Apex court has quoted Para 24 of said judgment, in Uma Devi's case, wherein it is observed: "Under the scheme of the Constitution the purse remains in the hands of the executive. The legislature of the State controls the Consolidated Fund out of which the expenditure to be incurred, in giving effect to the scheme, will have to be met. The flow into Consolidated Fund depends upon the policy of taxation depending perhaps on the capacity of the payer. Therefore, unduly burdening the State for implementing the constitutional obligation forthwith would create problems which the Sate may not be able to stand." In Para 44, interpreting the concept of 'equal pay for equal work', the Apex court has observed, as under: "The concept of 'equal pay for equal work' is different from the concept of conferring permanency on those who have been appointed on ad hoc basis, temporary basis, or based on no process of selection as envisaged by the rules. This Court has in various decisions applied the principle of equal pay for equal work and has laid down the parameters for the application of that principle. The decisions are rested on the concept of equality enshrined in our Constitution in the light of the directive principles in that behalf. But the acceptance of that principle cannot lead to a position where the court could direct that appointments made without following the due procedure established by law, be deemed permanent or issue directions to treat them as permanent. Doing so, would be negative of the principle of equality of opportunity." 7) In Para 45, the Apex court observes regarding nature of job of the daily wage workers and casual workers and observers as under: "While directing that appointments, temporary or casual, be regularized or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or causal in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain - not at arm's length -since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets." 8) Para 47 of the Uma Devi's case again clarifies that "When a person enters a temporary employment or gets engagement as a contractual a casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature." 9) At the end of Para 48, the Apex court further observes "the right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled." 10) Now, I come to Para 55 of the judgment delivered in Uma Devi's case, which is replied by learned counsel for the petitioners. It is pertinent to quote the lines before and after the observations relied by the petitioners from said Para. The same are quoted below: "In cases relating to service in the Commercial Taxes Department, the High Court has directed that those engaged on daily wages, be paid wages equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively appointed. The objection taken was to the direction for payment from the dates of engagement. We find that the High Court had clearly gone wrong in directing that these employees be paid salary equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively engaged or appointed. It was not open to the High Court to impose such an obligation on the State when the very question before the High Court in the case was whether these employees were entitled to have equal pay for equal work so called and were entitled to any other benefit. They had also been engaged in the teeth of directions not to do so. We are, therefore, of the view that, at best, the Division Bench of the High Court should have directed that wages equal to the salary that is being paid to regular employees be paid to these daily-wage employees with effect from the date of its judgment. Hence, that part of the direction of the Division Bench is modified and it is directed that these daily-wage earners be paid wages equal to the salary at the lowest grade of employees of their cadre in the Commercial Taxes Department in government service, from the date of the judgment of the Division Bench of the High Court. Since, they are only daily-wage earners, there would be no question of other allowances being paid to them." 11) After the judgment of Uma Devi, Supreme Court in State of Punjab and another Vs. Surinder Singh and another; 2007 (115) FLR 1003, in Para 4, observes as under:- "The principle of equal pay for equal work has gone a sea change. Earlier the view of this Court was that if two persons are discharging the same functions, they will be entitled to same wages. Subsequently, this view has been changed and now the view of this Court is that there should be complete and total identity between the two persons similarly situated so as to grant equal pay for equal work. Recently this Court has held that identity between two persons has to be complete and total. In case of a regular appointee, he has undergone a selection process and his service are regular. Even if a daily wage employee is discharging the same functions as a regular employee the authorities are not bound to grant equal pay to such a person who is appointed on daily wages basis, i.e. is appointed for a short term and has not faced the selection process. Thus, the principle of equal pay for equal work has to be granted only if there is a total and complete identity between the two persons. In this view, we are supported by a decision of this Court in the case of S.C. Chandra and others Vs. State of Jharkhand and others, which has referred to earlier decisions of this Court." 12) With the above observations, the Apex court says in State of Punjab Vs. Surinder Singh (supra) that "the view taken by the High Court granting pay scale of regular employees to the daily wage employees does not appear to be well founded." 13) In view of the observations of the Apex court, quoted above, this Court does not find any merit in this writ petition, which is liable to be dismissed. Therefore, the writ petition is dismissed. (Prafulla C. Pant, J.) Dt. March 19, 2008. H.Negi