HIGH COURT OF UTTARANCHAL AT NAINITAL (Court’s order whether the case is or not approved for reporting) (Chapter VIII Rule 32 (2)(b) Description of the case. W.P. 1189 of 2003 (SS) Sri Satendra Singh Rawat vs. Garhwal Mandal Vikash Nigam Approved for reporting. _______________________ Not approved for reporting Date of decision. 19/112003 Initial of Judge HIGH COURT OF UTTARANCHAL AT NAINITAL. Writ Petition No. 1189 of 2003 (SS) Sri Satendra Singh Rawat & 7 others ……… Petitioners Versus Garhwal Mandal Vikas Nigam Ltd; & Others ……….. Respondents Writ Petition No. 962 of 2003 (SS) Deepak Singh Panwar …….……… Petitioner Versus Garhwal Mandal Vikas Nigam Ltd & others ……… Respondents Writ Petition No. 285of 2003 (SS) Km. Rajani Kandari & others ….……… Petitioners Versus Garhwal Mandal Vikas Nigam Ltd & others ……… Respondents Writ Petition No. 838 of 2003 (SS) Radha Ballabh Chamoli ….…………. Petitioner Versus Garhwal Mandal Vikas Nigam Ltd & others ……… Respondents Writ Petition No. 1191 of 2003 (SS) Budhi Singh & others ….………… Petitioners Versus Garhwal Mandal Vikas Nigam Ltd & others ……… Respondents Writ Petition No. 1109of 2003 (SS) Surat Singh Rawat & others …….……… Petitioners Versus Garhwal Mandal Vikas Nigam Ltd & others ……… Respondents Writ Petition No. 1107 of 2003 (SS) Harpal Singh & others ….………… Petitioners Versus Garhwal Mandal Vikas Nigam Ltd & others ……… Respondents Writ Petition No. 999 of 2003 (SS) Prem Singh Kandari & others ….………… Petitioners Versus Garhwal Mandal Vikas Nigam Ltd & others ……… Respondents Writ Petition No. 907 of 2003 (SS) Smt. Madhu ….………… Petitioner Versus Garhwal Mandal Vikas Nigam Ltd & others ……… Respondents Writ Petition No. 905 of 2003 (SS) Vinod Pokhariyal ….………… Petitioners Versus Garhwal Mandal Vikas Nigam Ltd & others ……… Respondents Writ Petition No. 1009 of 2003 (SS) Devi Prasad Purohit & others ….………… Petitioners Versus Garhwal Mandal Vikas Nigam Ltd & others ……… Respondents Writ Petition No. 831 of 2003 (SS) Ram Kunwar & others ….………… Petitioners Versus Garhwal Mandal Vikas Nigam Ltd & others ……… Respondents Writ Petition No. 335 of 2003 (SS) Laxman Singh & others ….………… Petitioners Versus Garhwal Mandal Vikas Nigam Ltd & others ……… Respondents Writ Petition No. 86 of 2003 (SS) Hukam Singh Sajwan ….………… Petitioner Versus Garhwal Mandal Vikas Nigam Ltd & others ……… Respondents Writ Petition No. 241 of 2003 (SS) Shiv Kumar Singh ….………… Petitioner Versus Garhwal Mandal Vikas Nigam Ltd & others ……… Respondents Writ Petition No. 242 of 2003 (SS) Ajay Kumar Chauhan & others ….………… Petitioners Versus Garhwal Mandal Vikas Nigam Ltd & others ……… Respondents Writ Petition No. 294 of 2003 (SS) Dinesh Malasi ….………… Petitioner Versus Garhwal Mandal Vikas Nigam Ltd & others ……… Respondents Writ Petition No. 295 of 2003 (SS) Dinesh Juyal ….………… Petitioner Versus Garhwal Mandal Vikas Nigam Ltd & others ……… Respondents Writ Petition No. 333 of 2003 (SS) Rajendra Prasad ….………… Petitioners Versus Garhwal Mandal Vikas Nigam Ltd & others ……… Respondents Writ Petition No. 284 of 2003 (SS) Nikhil Sharma ….………… Petitioner Versus Garhwal Mandal Vikas Nigam Ltd & others ……… Respondents Writ Petition No. 717 of 2003 (SS) Umed Singh & others ….………… Petitioners Versus Garhwal Mandal Vikas Nigam Ltd & others ……… Respondents Writ Petition No. 4729 of 2001 (SS) Smt. Bimla Naudiyal ….………… Petitioner Versus Garhwal Mandal Vikas Nigam Ltd & others ……… Respondents Writ Petition No. 4739 of 2001 (SS) Bhagwati Prasad ….………… Petitioner Versus Garhwal Mandal Vikas Nigam Ltd & others ……… Respondents Writ Petition No. 4750 of 2001 (SS) Satish Chandra ….………… Petitioner Versus Garhwal Mandal Vikas Nigam Ltd & others ……… Respondents Writ Petition No. 1745 of 2002 (SB) Ved Prakash Dimari ….………… Petitioner Versus Garhwal Mandal Vikas Nigam Ltd & others ……… Respondents Writ Petition No. 1755 of 2002 (SB) Smt. Vimla Rawat ….………… Petitioner Versus Garhwal Mandal Vikas Nigam Ltd & others ……… Respondents Writ Petition No. 1504 of 2002 (SB) Dinesh Kumar Mishra ….………… Petitioner Versus Garhwal Mandal Vikas Nigam Ltd & others ……… Respondents Writ Petition No. 1498 of 2002(SB) Rajpal Singh ….………… Petitioners Versus Garhwal Mandal Vikas Nigam Ltd & others ……… Respondents Writ Petition No. 11 of 2003 (SS) Ram Chandra ….………… Petitioner Versus Garhwal Mandal Vikas Nigam Ltd & others ……… Respondents Writ Petition No. 04 of 2003 (SS) Vijay Semwal ….………… Petitioner Versus Garhwal Mandal Vikas Nigam Ltd & others ……… Respondents Writ Petition No. 26 of 2003 (SS) Sameem Ahmad ….………… Petitioner Versus Garhwal Mandal Vikas Nigam Ltd & others ……… Respondents Writ Petition No. 12 of 2003 (SS) Anil Nautiyal ….………… Petitioner Versus Garhwal Mandal Vikas Nigam Ltd & others ……… Respondents Writ Petition No. 03 of 2003 (SS) Natha Singh Rauthan ….………… Petitioner Versus Garhwal Mandal Vikas Nigam Ltd & others ……… Respondents Writ Petition No. 261 of 2003 (SS) Kaushla Nand Dimari ….………… Petitioner Versus Garhwal Mandal Vikas Nigam Ltd & others ……… Respondents Writ Petition No. 22 of 2003 (SS) Harendra Kentura & others ….………… Petitioner Versus Garhwal Mandal Vikas Nigam Ltd & others ……… Respondents Writ Petition No. 50 of 2003 (SS) Trilok Singh & others ….………… Petitioners Versus Garhwal Mandal Vikas Nigam Ltd & others ……… Respondents Writ Petition No. 05 of 2003 (SS) Prakash Chandra Gairola ….………… Petitioner Versus Garhwal Mandal Vikas Nigam Ltd & others ……… Respondents Writ Petition No. 02 of 2003 (SS) Ravindra Singh Kandari ……… Petitioner Versus Garhwal Mandal Vikas Nigam Ltd & others ……… Respondents Writ Petition No. 21 of 2003 (SS) Hoshiyar Singh ….………… Petitioner Versus Garhwal Mandal Vikas Nigam Ltd & others ……… Respondents Sri Paresh Tripathi, B.P.S. Mer, Sri V.K. Bisht, Sri B.S. Negi, Sri Tanuj Semwal Sri B. P. Nautiyal and Sri R.P. Nautiyal, Advocates, for the petitioners. Sri U.K. Uniyal, Advocate for the respondents. Sri M.C. Pant, counsel for the petitioners. Dated:-19.11.2003 Hon’ble Rajesh Tandon, J. Heard the learned counsel for the parties. By the present writ petitions the petitioners have prayed for the issue of a writ, order or directions in the nature of mandamus directing the respondents to pay them regular pay scale and to consider them for regularisation. Briefly stated the facts giving rise to the present writ petitions are that the petitioners were appointed by the respondents as Class III and Class IV employees in the respondents corporation Garhwal Mandal Vikas Nigam with effect from 1994 to 1997 and still continuing their services with the respondents. According to the petitioners the respondents issued an order dated 6.7.1998 that daily wager employees be given consolidated salary according to the minimum of pay scale of class III and class IV. The order dated 6.7.1998 is quoted below: funs'kd e.My dh 72oh cSBd fnukad 19-5-98 esa fu.kZ; fy;k x;k fd fuxe esa nSfud @lesfdr osru esa dk;Zjr deZpkfj;ksa dks mudh lEcfU/kr Js.kh ds fuEre osrueku ds izkjfEHkd ewy osru fnu0 1-6-98 dks iznku fd;k tk;A r`rh; Js.kh dk fuEure osrueku 950-1500 rFkk prqFkZ Js.kh dk osrueku 750- 940 gS A bl izkdj 31-12-90 rd r`rh; ,oa prqFkZ Js.kh ds tks deZpkjh fujRrjrk ds vk/kkj ij nSfud@lesfdr osru esa dk;Zjr jgs gSa vkSj vkt dh frfFk rd Hkh dk;Zjr gS mUgsa funs’kd e.My ds fu.kZ; ds vuqlkj r`rh; Js.kh dk #0 3200@& #I;s rhu gtkj nks lkS ek= izfrekg rFk prqFkZ Js.kh dk #0 2600@& A#0 nks gtkj N% lkS ek=A izfrekg lesfdr osru fnukad 1-6-98 ls Hkqxrku djus ds vkns”k ikfjr fd;s tkrs gSa A lEcfU/kr vuqHkkxkf/kdkjh mijksDr lesfdr osru lacf/kr Js.kh ds deZpkfj;ksa dks izFke ckj Hkqxrku djus ls iwoZ mu deZpkfj;ksa dh lwph vf/k"Bku vuqHkkx dks vfuok;Zr% miyC/k djkuk lqfuf’pr djsaxsa A mijksDr vkns’k izcU/k funs”kd egksn; dh iz”kklfud Lohd`fr ds v/khu tkjh fd;s tk jgs gSa A Further order was passed on 26.4.2001 by which the employees working as on 19.5.1998 or before that date was given minimum of pay scale. The order is quoted below: funs'kd e.My dh 82oha cSBd fnukad 20-2-2001 dh en la0 27 nSfud lesfdr@U;wUre osru esa lsok;ksftr deZpkfj;ksa ds dk;ksZtu vfxze vkns’kksa rd c<k;sa tkus lEcU/kh izLrko ij fd;s x;s fu.kZ; ds vuqlkj nSfud@lesfdr@U;wUre osru esa fnukad 19-5-98 vFkok mlls iwoZ dk;kZsftr fd;s x;s deZpkfj;ksa dks dk;kZstu vfxze vkns”kksa rd c<k;k tkrk gS A lEcfU/kr foHkkxk/;{k vius v/khuLFk deZpkfj;ksa ds vkns’k vius Lrj ls fuxZr djsaxs vkSj vkns”k fuxZr djus ds iwoZ ;k izekf.kr djuk lqfuf”pr djsaxs fd lEcfU/kr deZpkjh fnukad 19-5-98 vFkok mlls iwoZ nSfud @lesfdr@U;wUre osru esa dk;Zjr jgs A lacf?kr foHkkxk/;{k izR;sd fuxZr vkns’k dh izfr eq[;ky; vf/k"Bku dks Hkh vfHkys[kkFkZ Hkstsaxs A The petitioners have stated that they have made several representations to the respondents for their regularisation in the corporation but the respondents have not taken any decision. It has been stated by the petitioners that 275 posts in Class III and Class IV are lying vacant with the respondents but no steps have been taken to fill up these posts. The petitioners are engaged against these posts and thus they have a legitimate right for regularisation against these posts. The petitioners have referred that between respondent corporation and office bearers of the Union a minutes of meeting was recorded on 6th February 2003 where it was agreed that grant of equal pay to the daily wage workers shall be paid after the approval of the Board of Directors and the decision on regularisation shall be taken after the meeting of Board of Directors. The Board of Directors has yet not been constituted. The minutes of meeting reads as under: La0 1& o"kZ 1983& 84 ls dk;Zjr nSfud@U;wure@lesfdr osru ij dk;Zjr deZpkfj;ksa dks fu;fer fd;k tkuk fuxe esa fjDr inksa dks Hkjus ds lacU/k esa izLrko funs”kd e.My dh vkxkeh cSBd esa j[kk tkuk gS fuxe dk funs”kd e.My fof/kor xfBr ugh gS A 'kklu }kjk funs”kd e.My xfBr fd;s tkus ds mijkUr izkFkfedrk ds vk/kkj ij izLrko cSBd esa j[kk tk;sxk rRi”pkr funs”kd e.My ds fu.kZ; ij gLrk{kj gksus ds ,d ekg ds vUnj fu;ekuqlkj miyC/k fjDr inksa ds foijhr nSfud@lesafdr@U;wqure osru esa dk;Zjr deZpkfj;ksa dks mudh Js.kh ds vuqlkj fuEure osrueku esa fu;fefrdj.k dh dk;Zokgh dh tk;sxh A The petitioners have further stated that inaction on the part of the Government by not constituting Board of Directors; the petitioners are being deprived from their legal right of regularisation. It has been submitted by the petitioners that since in the year 2000 there was no Board of Directors, hence the process of regularisation has been interrupted and the benefit of 5th Pay Commission is also being deprived to the petitioners. The petitioners further submitted that in the year 1992 respondents have decided to grant minimum of pay scale to daily wagers who have entered in service up to 1990. In the year 1995 this process was stopped and thereafter consolidated salary was being paid on the basis of minimum wages. Respondents have filed counter affidavit and have stated that regularisation of the petitioners will be subject to the availability of the vacant posts as according to the eligibility criteria and of daily wagers and reservation policy. It has also been stated that the persons employed since before 19.5.1998 are being paid minimum of pay scale and similar other daily wagers are getting minimum wages. The word minimum pay has also been considered for daily rated workmen in the case of State of U.P. vs. Putti Lal 2002 (1) E.L.C. 524 (SC) where it has been observed as under: “In several cases this Court applying the principle of equal pay for equal work has held that a daily wager, if he is discharging the similar duties as those in the regular employment of the Government, should at least be entitled to receive the minimum of the pay scale though he might not be entitled to any increment of any other allowance that is permissible o his counter part in the Government.” The doctrine of ‘equal pay for equal work’ has been interpreted in the case of Mewa Ram Kanojia vs. AIIMS (1989)2 SCC 235where the Apex Court after relying upon the judgment in the case of Randhir Singh vs. Union of India and others (1982) 1 SCC 618, held as under: “The doctrine of “Equal pay for equal work” is not expressly declared a fundamental right under the Constitution. But Article 39 (d) read with Article 14 and 16 of the Constitution declares the Constitutional goal enjoining the State not to deny any peson equality before law in matters relating to employment including the scales of pay. Article 39(d) read with Article 14 and 16 of the Constitution enjoins the State that where all thing are equal, persons holding identical posts, performing identical and similar duties under the same employer should not be treated differently in the matter of their pay. The doctrine of ‘Equal pay for equal work’ is applicable when employees holding the same rank perform similar functions and discharge similar duties and responsibilities are treated differently. The application of the doctrine would arise where employees are equal in every respect but they are denie equality in matters relating to the scale of pay. The principle of “Equal pay for equal work” has been enforced by this Court in Randhir Singh v. Union of India, Dhirendra Chamili v. State of U.P. V.J. Thomas vs. Union of India, P. Savita vs. Union of India, Bhagwan Dass vs. State of Hryana and Jaipal vs. State of Haryana. In all these cases this Court granted relief on the application of the doctrine of ‘Equal pay for equal work’ it has to be borne in mind that it is open to the State to classify employees on the basis of qualifications, duties and responsibilities of the posts concerned. If the classification has reasonable nexus with the objective sought to be achieved, efficiency in the administration, the State would be justified in prescribing different pay scale but if the classification does not stand the test of reasonable nexus and the classification is founded on unreal, and unreasonable basis it would be violative of Article 14 and 16 of the Constitution. Equality must be among the equals. Unequal cannot claim equality.” The grievance of the petitioners is that although they are daily wagers but some of them are getting minimum of pay and some of them are getting only minimum of wages. The concept of fair wages has been interpreted in the case R.B. Employees Association vs. Reserve Bank AIR 1966 SC 305, where the Apex Court has held that the concept of fair wages involves a rate sufficiently high to enable the worker to provide “a standard family with food, shelter, clothing, medical care and education of children appropriate to his status in life. In the aforesaid case the Apex Court has relied upon the judgment in the case of AIR 1958 SC 30 and held as under: “The national Tribunal in adjudicating on this part of the case referred to the Crown Aluminium Works v. Workmen, 1958-1 Lab L.J. 1: (AIR 1958 SC 30), where at page 6 this Court observes:- “Though social and economic justice is the ultimate ideal of industrial adjudicating, its immediate objective in an industrial dispute as to the wage structure is to settle the dispute by constituting such a wage structure as would do justice to the interest of both labour and capital, would establish genuine and wholehearted co- operation in the task of production…………” In the Apex Court in the case State of Haryana and others vs. Piara Singh and others AIR 1992 SC 2130, it has been held by the Apex Court as under: “So far as the work charged employees and casual labour are concerned, the effort must be to regularise them as far as possible and as early as possible subject to their fulfilling the qualifications, if any, prescribed for the post and subject also to availability of work. If a casual labourer is continued for a fairly long spell-say two or three years- a presumption may arise that there is regular need for his services. In such situation it becomes obligatory for the concerned authority to examine the feasibility of his regularisation. While doing so, the authorities ought to adopt a positive approach coupled with an empathy for the person. As has been repreatedly stressed y this Court security to tenure is necessary for an employee to give his best to the job” In the case of Randhir Singh vs. Union of India and others (1982) 1 SCC 618 has held that ‘Equal pay for equal work for both men and women’ in Article 39(d) means equal pay for every one. The Apex Court has held as under: “It is true that the principle of ‘equal pay for equal work’ is not expressly declared by our Constitution to be a fundamental right, But it certainly is a constitutional goal. Article 39(d) of the Constitution proclaims “equal pay for equal work for both men and women” as a directive principle of State Policy. ‘Equal pay for equal work for both men and women means equal pay for equal work for everyone and as between the sexes. Directive Principles, as has been pointed out in some of the judgments of this Court have to be read into the fundamental rights as a matter of interpretation. Article 14 of the Constitution enjoins the State not to deny any person equality before the law or the equal protection of the laws and Article 16 declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. These equality clauses of the Constitution must mean something to everyone. To the vast majority of the people the equality clauses of the Constitution would mean nothing if they are unconcerned with the work they do and the pay they get. To them the equality clauses will have some substance if equal work means equal pay. Whether the special procedure prescribed by a statute for trying alleged robber- barons and smuggler kings or for dealing with tax evaders is discriminatory, whether a particular governmental policy in the matter of grant of licences or permits confers unfettered discretion on the Executive, whether the take-over of the empires of industrial tycoons is arbitrary and unconstitutional and other questions of like nature, leave the millions of people of this country untouched. Question concerning wages and the like, mundane they may be, are yet matters of vital concern and it is there, if at all that the quality clauses of the Constitution have any significance to them. The Preamble to the Constitution declares Socialist Democratic Republic. Against the word ‘Socialist’ must mean something. Even if it does not mean ‘to each according to his need’, it must at least mean ‘equal pay for equal work’. “The principle of ‘equal pay for equal work’ is expressly recognized by all socialist system of law, e.g. Section 59 of the Hungarian Labour Code, para 2 of section 111 of the Czechoslovak Code, Section 67 of the Bulgarian Code, Section 40 of the Code of the German Democratic Republic, para 2 of Section 33 of the Rumanian Code. Indeed this principle has been incorporated in several western Labour Codes too. Under provisions in section 31 (g. No. 2d) of Book I of the French Code du Travail, and according to Argentinian law, this principle must be applied to female workers in all collective bargaining agreements. In accordance with section 3 of the Grundgesetz of the German Federal Republic and Clause 7, Section 123 of the Mexican constitution, the principle is given universal significance” (vide International Labour Law by Istvan Szaszy, p. 265). The Preambel to the Constitution of the International Labour Organisation recognizes the principle of ‘equal remuneration for work of equal value, as constituting one of the means of achieving the improvement of conditions “involving such injustice, hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperiled”. Construing Article 14 and 16 in the light of the Preamble and Article 39(d), we are of the view that the principle, ‘equal pay for equal work’ is deducible form those Article and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though those drawing the different scales of pay do identical work under the same employer.” ……………… ……………………. …………. The only answer of the respondents is that the drivers of the Delhi Police Force and the other drivers belong to different departments and that the principle of ‘equal pay for equal work’ is not a principle which the courts may recognise and act upon. We have shown that the answer is unsound. The clarification is irrational. We, therefore, allow the writ petition and direct the respondents to fix the scale of pay of the petitioner that of the drivers of the Railway Protection Force.” The aforesaid principles of law has been referred in the judgment of State of U.P. vs. J.P. Chaurasia (1989) 1 SCC 121. The petitioners have relied upon the judgment of Apex Court in the case of Daily Rated Casual Labour vs. Union of India (1998) 1 SCC 122 as under: “In is a socialist republic. It implies the existence of certain important obligations, which the State has to discharge. The right to work, the right to free choice of employment the right to just and favourable conditions of work, the right to protection against unemployment, the right of everyone who works to just and favourable remuneration ensuring a decent living for himself and his family, the right of everyone without discrimination of any kind to equal pay for equal work, the right to rest, leisure, reasonable limitation on working hours and periodic holidays with pay, the right to form trade unions and the right to join trade unions of one’s choice and the right to security of work are some of the rights which have to be ensured by appropriate legislative and executive measures. It is true that all these rights cannot be extended simultaneously. But they do indicate the socialist goal. The degree of achievement in this direction depends upon the economic resources, willingness of the people to produce and more than all the existence of industrial peace throughout the country. Of those rights the question of security of work is of utmost importance. If a person does not have the feeling that he belongs to an organization engaged in production he will not put forward his best effort to produce more. That sense of belonging arises only when he feels that he will not be turned out of employment the next day at the whim of the management. It is for this reason it is being repeatedly observed by those who are in charge of economic affairs of the countries in different parts of the world that as far as possible security of work should be assured to the employees so that they may contribute to the maximisation of production. It is again for this reason that managements and governmental agencies in particular should not allow the workers to remain as casual labourers or temporary employees for an unreasonable long period of time.” In the case of State of U.P. & others vs. Putti Lal 2002(1) E.L.C. 524 (SC) the Apex Court has held that the daily wagers would be entitled to draw at the minimum of the pay scale being received by their counter part in the Government and the question of their regular absorption will obviously be dealt with in accordance with the statutory rule. The order is mutatis mutandis apply to the State of Uttaranchal as held by the Apex Court as under: “So far as the State of Uttaranchal is concerned, a scheme for regularisation of daily workers has been produced before us which prima facie does not appear to be objectionable excepting the provision regarding qualification for regularisation. Be it stated that the qualification essential for being regularised would be the qualification as was relevant on the date a particular employee was taken in as a daily