IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Writ Petition (T) No. 11768 of 2008 Date of decision: 27.4.2011. Mohan Lal Thakur …..Petitioner. Vs. State of H.P. & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the petitioner : Mr. R.S.Chandel, Advocate. For the Respondents : Mr. Hamender Chandel, Advocate for respondent No.1. Ms. Ruma Kaushik, Addl. A.G. with Mr. J.S.Rana, Assistant Advocate General, for respondent No.2. Kuldip Singh, Judge (oral). The petitioner has prayed mainly the following reliefs: (i) That the respondents may be directed to grant the pay scale of Rs.4020-6200 to the applicant w.e.f. the date of his regularization as Laboratory Assistant i.e. 15.11.2000 and to pay arrears thereof alongwith interest @ 18% per annum; (ii) That the applicant may also be held entitled to the regular pay scale w.e.f. the year 1991 when the applicant was appointed as Laboratory Assistant on daily wage basis, till the date of his regularization on the principle of “equal pay for equal work”. 2. The brief facts of the case are that the petitioner was appointed as Laboratory Assistant on daily wage basis in the Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… respondent-Corporation in the year 1991. The petitioner had been discharging the same and similar duties, which were being discharged by the regularly appointed Laboratory Assistants. The petitioner had been denied the regular pay scale of Laboratory Assistant to which he was legally entitled. The petitioner was regularized as Laboratory Assistant in the pay scale of Rs. 3120- 5160 vide office order dated 15.11.2000. The petitioner is entitled to pay scale of Laboratory Assistant i.e. Rs.4020-6200 which is being granted to the Laboratory Assistants in all the Public Sector Undertakings owned or controlled by the State of H.P. The petitioner submitted representations dated 21.4.2003, 30.6.2003, 18.11.2004 but to no effect. The action of the respondent-Corporation for not granting the pay scale of Rs. 4020-6200 from the date of regularization of the petitioner on 15.11.2000 is wrong, illegal, arbitrary and, therefore, petitioner has filed the petition. 3. The petition has been contested by respondent No.1 by filing reply. It has been denied that the petitioner was appointed as Laboratory Assistant on daily wage basis in the year 1991. As a matter of fact the petitioner was initially engaged as Plant Helper (Class IV) vide order dated 9.11.1990. It has been denied that the petitioner was discharging same and similar duties as were being discharged by regularly appointed Laboratory Assistant. The post of Assistant Technologist (Production) is to be filled up by appointment of a person who is qualified in that particular trade. Therefore, merely because the petitioner was deployed to assist the Assistant Technologist (Production) does not mean that such deployment …3… would mean appointment as Laboratory Assistant which is a technical post and to be filled up by appointment of a person qualified in the particular field. The petitioner cannot claim the wages/pay scale of the category in which he is neither appointed nor eligible to be appointed. In view of internal arrangement the designation of Laboratory Assistant was assigned to the petitioner on 28.12.1998 though the petitioner was not technically qualified to be appointed as Laboratory Assistant. 4. The petitioner was initially engaged against Class-IV and as per the Govt. policy with regard to regularization the petitioner was regularized as Class-IV category but after having put in 8 years of service the petitioner was regularized in Class-III category in the minimum pay scale of Rs.3120-5160. The petitioner for the purpose of entitlement of pay scale cannot equate his posting with the qualified Laboratory Assistant and more so when the petitioner was never engaged against the post of Laboratory Assistant on daily wage basis. It has been denied that the petitioner was to be granted the pay scale of Rs.4020-6200. The conditions of service of the petitioner are to be governed as per the Rules and Regulations as framed or applicable to the respondent-Corporation and petitioner cannot claim the rights and benefits available in the other Public Sector Undertakings. 5. The representations filed by the petitioner were misconceived and based upon untenable pleas. The petitioner cannot claim pay scale at par with the Laboratory Assistant working with the Himachal Pradesh Horticultural Produce Marketing and Processing …4… Corporation Ltd.(HPMC). The petitioner does not fulfill the qualifications prescribed for the post of Laboratory Assistant in HPMC. The petitioner cannot claim equation of his post with that of an incumbent working in HPMC as Laboratory Assistant. The respondent-Corporation has opposed the petition and has prayed for dismissal of the petition. The petitioner has filed rejoinder and reiterated his case put forward in the petition. 6. I have heard the learned counsel for the parties and have also gone through the record. It has been submitted on behalf of the petitioner that in HPMC the Laboratory Assistant is getting the pay scale of Rs. 4020-6200 and HPMC is a Public Sector Undertaking so also the respondent-Corporation. The petitioner is working as Laboratory Assistant. HPMC as well as respondent-Corporation are owned and controlled by the State of H.P., therefore, no disparity of pay scale can be made by respondent No.1-Corporation. The petitioner is entitled to the pay scale of Rs. 4020-6200 as given by HPMC to Laboratory Assistant serving in that Corporation. 7. On behalf of respondent No.1, it has been submitted that the petitioner is not entitled to parity of pay with HPMC. The Laboratory Assistant in HPMC is appointed on the basis of qualification mentioned in Annexure R-1/B and petitioner is not holding same qualification. It has also been submitted that merely on the basis of nomenclature of posts the two employees working with two employers are not entitled to same pay scale. The parity in pay scale depends upon several factors including source of recruitment, …5… financial position of the employer, responsibility of the job, qualification, experience etc. 8. In Official Liquidator Versus Dayanand and others (2008) 10 SCC 1, the Supreme Court has held as follows :- “95. The ratio of Randhir Singh v. Union of India 11 was reiterated and applied in several cases – Dhirendra Chamoli v. State of U.P 2, Surinder Singh v. CPWD 3, Daily Rated Casual Labour v. Union of India 20 ,Dharwad Distt. PWD Literate Daily Wage Employees Assn. v. State of Karnataka 21 and Jaipal v. State of Haryana 72 and it was held that even a daily-wage employee who is performing duties similar to regular employees is entitled to the same pay. However, in Federation of All India Customs and Central Excise Stenographers v. Union of India 73, Mewa Ram Kanojia v. AIIMS 74, V. Markendeya -v. State of A.P. 75, Harbans Lal v. State of H.P. 76, State of U.P. v. J.P. Chaurasia 77, Grih Kalyan Kendra Workers’ Union v. Union of India 78 , GDA v. Vikram Chaudhary 79 , State of Haryana v. Jasmer Singh 80, State of Haryana v. Surinder Kumar 81, Union of India v. K.B. Baby 82, State of Orissa v. Balaram Sahu 83, Utkal University v. Jyotirmayee Nayak 84, State of Haryana v. Tilak Raj 85, Union of India v. Tarit Ranjan Das 86, Apangashu Mohan Lodh v. State of Tripura 87, State of Haryana v. Charanjit Singh 88,Hindustan Aeronautics Ltd. v. Dhan Bahadur Singh 47, Kendriya Vidyalaya Sangathan v L.V. Subramanyeswara 46 and Canteen Mazdoor Sabha v. Metallurgical & Engg. Consultants (India) Ltd. 89, the Court consciously and repeatedly deviated from the ruling of Randhir Singh v. Union of India 11 and held that similarity in the designation or quantum of work are not determinative of equality in the matter of pay scales and that before entertaining and accepting the claim based on the principle of equal pay for equal work, the Court must consider the factors like the source and mode of recruitment/appointment, the qualifications, the nature of work, the value` judgment, responsibilities, reliability, experience, confidentiality, functional need, etc.” 11 (1982) 1 SCC 618 88 (2006) 9 SCC 321 2 (1986) 1 SCC 637 47 (2007) 6 SCC 207 3 (1986) 1 SCC 639 46 (2007) 5 SCC 326 20 (1988) 1 SCC 122 89 (2007) 7 SCC 710 21 (1990) 2 SCC 396 72 (1988) 3 SCC 354 73 (1988) 3 SCC 91 74 (1989 2 SCC 235 75 (1989) 3 SCC 191 76 (1989) 4 SCC 459 77(1989) 1SCC 121 78 (1991) 1 SCC 619 79 (1995) 5 SCC 210 80 (1996) 11 SCC 77 81 (1997) 3 SCC 633 82 (1998) 9 SCC 252 83 (2003) 1 SCC 250 84(2003) 4 SCC 760 85 (2003) 6 SCC 123 86 (2003) 11 SCC 658 87 (2004) 1 SCC 119 …6… 9. In State of Punjab and Others versus Surender Singh and another (2007) 13 SCC 231, it has been held as follows: “6. The principle of equal pay for equal work has undergone 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 services are regular. Even if a daily wage employees 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-wage 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 S.C. Chandra v. State of Jharkhand (2007) 8 SCC 279 which has referred to earlier decisions of this Court.” 10. The petitioner has failed to establish that at any point of time respondent No.1-Corporation has adopted the pay scales of HPMC. It has not been established that the Laboratory Assistant working in respondent NO.1-Corporation is discharging same and similar duties as are discharged by Laboratory Assistant working in HPMC. As per the stand of respondent NO.1-Corporation, the qualification of petitioner is not same as required for Laboratory Assistant in HPMC as per Annexure R-1/B. It has been submitted by learned counsel for petitioner that for promotee Laboratory Assistant in Annexure R-1/B no qualification has been provided. This argument is of no help to petitioner. It is not the case of petitioner that petitioner was appointed Laboratory Assistant in respondent No.1- Corporation on promotion. In addition, there is nothing on record that …7… respondent No.1 –Corporation for the post of Laboratory Assistant has adopted the pay scale of HPMC. The petitioner has failed to make out a case of parity of pay of Laboratory Assistant with the Laboratory Assistant working in HPMC. 11. In view of above, there is no merit in the petition, hence the same is dismissed. April 27, 2011. ( Kuldip Singh ), (GR) Judge.