CWP NO.116 of 2009 etc. 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: 09.7.2009 1.CWP NO.116 of 2009 Rajinder Kumar and others ...Petitioners VERSUS State of Punjab & Others …Respondents 2.CWP No.13772 of 2008 Tej Pal Singh and others ...Petitioners VERSUS State of Punjab & Others …Respondents 3.CWP No.7853 of 1999 Jaswinder Singh etc. ...Petitioners VERSUS State of Punjab etc. …Respondents 4.CWP No.12553 of 1999 Daan Singh and others ...Petitioners VERSUS State of Punjab & Others …Respondents 5.CWP No.19195 of 2008 Manjit Singh and others ...Petitioners VERSUS State of Punjab & Others …Respondents 6.CWP No.5461 of 2009 Narinder Singh and others ...Petitioners CWP NO.116 of 2009 etc. 2 VERSUS State of Punjab & Others …Respondents 7.CWP No.117 of 2009 Jagjit Singh and others ...Petitioners VERSUS State of Punjab & Others …Respondents 8.CWP No.5472 of 2009 Hira Lal and others ...Petitioners VERSUS State of Punjab & Others …Respondents 9.CWP No.82 of 2003 Bhola Singh and others ...Petitioners VERSUS State of Punjab & Others …Respondents 10.CWP No.15217 of 2008 Subhash Chand and others ...Petitioners VERSUS State of Punjab & Others …Respondents 11.CWP No.15204 of 2008 Raj Kumar and others ...Petitioners VERSUS State of Punjab & Others …Respondents 12.CWP No.19726 of 2008 Makhan Singh and others ...Petitioners VERSUS State of Punjab & Others …Respondents 13.CWP No.107 of 2003 CWP NO.116 of 2009 etc. 3 Hans Raj and others ...Petitioners VERSUS State of Punjab & Others …Respondents 14.CWP No.16772 of 2008 Shinder Pal and others ...Petitioners VERSUS State of Punjab & Others …Respondents CORAM HON'BLE MR.JUSTICE PERMOD KOHLI PRESENT: Mr.K.L.Arora, Mr.N.D.Sammi, Mr.G.S.Bal, Mr.R.S.Manhas, Mr.Ramesh Goel, Mr.M.L.Sammi, Mr.N.L.Sammi, Advocates for the petitioner (s) Ms.Charu Tuli, Sr.DAG, Punjab for respondents Permod Kohli, J. Since common questions of law and facts are involved in these writ petitions, the same are disposed of by this common order. For the sake of brevity, facts are being taken from CWP No.116 of 2009. The petitioners in these petitions are working on daily wage basis in different capacities in the State of Punjab, particularly, the Department of Water Supply and Sanitation. The prayers in all these petitions are for grant of wages at the minimum of the pay scale as revised from time to time alongwith allowances and arrears of salary for a period of three years, preceding the filing of the writ petitions. The petitioners had earlier filed CWP No.11211 of 2002 which came to be disposed of vide order dated 22.11.2007 with a direction to respondent no.2-Superintending Engineer, P.W.D. Public Health, RWS Circle, CWP NO.116 of 2009 etc. 4 Gurdaspur to take a decision on the issue involved keeping in view the decision rendered by the Supreme Court in the case of Secretary State of Karnataka vs. Uma Devi and others, 2006 (3) SLR 1 by passing a well reasoned speaking orders within six months from the date of receipt of a certified copy of the order. On the basis of the aforesaid order, the Superintending Engineer, Water Supply and Sanitation Circle, Ludhiana vide his order dated 25.3.2008 (Annexure P-12) allegedly rejected the claim of the petitioners for regularisation at this stage. It has been held that under the Government Policy dated 15.12.2006, the regularization is to be ordered on completion of 10 years or more service strictly according to their seniority in the concerned category against the available regular sanctioned vacant posts with the Department. It has been mentioned that regularization has been made in different categories against the available vacancies. For Pump Operators. Regularization has been made upto 638, for Mali Cum Chowkidar upto 570 and for Fitter Coolie upto 72 of the senority list whereas the petitioners' numbers are much below and the petitioners' case will be considered as and when their turn comes according to their seniority. It is further stated that none of the junior persons to the petitioners have been regularized. Learned counsel for the petitioners have vehemently argued that the claim of the petitioners in the aforesaid writ petitions was not for regularization, but for the grant of the minimum of the pay scale which has been extended to similarly situated persons and large number of persons engaged on daily wage basis later in time than the petitioners, have been granted such benefits while denying the same treatment to the petitioners. This fact is also evident from paragraph one of the judgment dated CWP NO.116 of 2009 etc. 5 22.11.2007 passed in CWP No.11211 of 2002 filed by the petitioners. The petitioners have accordingly filed this petition challenging the aforesaid order (Annexure P-12) and have sought the relief for the grant of wages at the minimum of the pay scale. In all the other petitions also, the relief is for grant of wages at the minimum of the pay scale. The petitioners have relied upon various judgments of this Court and the Hon'ble Supreme Court earlier passed. However, the claim of the petitioners is opposed and resisted by the respondents on the ground that the petitioners are not entitled to the same wages as are granted to the regularly appointed employees of the State. Ms.Charu Tuli, learned counsel for the respondents has submitted that in the light of the judgment of the Hon'ble Supreme Court in the case of Uma Devi (supra), the petitioners are not entitled to be regularised. It has further been argued on behalf of the respondents that by granting similar pay scales would amount to treating the unequals with equals which itself is in contravention to the provisions of Articles 14 and 16 of the Constitution of India. I have heard learned counsel for the parties. It is not disputed that the petitioners are working in various capacities as Pump Operators, Mali-cum- Chawkidar, Fitter Coolie, Fitter Helper, Store Munshi and on such other capacities. It is admitted position that the petitioners are working on daily wage basis for the last number of years, in some cases may be more than two decades. It is pleaded in the writ petition that there is homogeneous group of thousands of employees working on daily wage basis in the State of Punjab. The duties and responsibilities of the employees in their respective categories are same. They perform identical functions and share CWP NO.116 of 2009 etc. 6 similar responsibilities. Even the duties amongst the employees in their categories are inter-changed. They are employees of the same State. State wise seniority lists have been prepared for different categories and all the petitioners are borne on the joint seniority lists. A large number of daily wagers even engaged later in time stand regularized whereas others are getting minimum of pay scale under various judgments of this court and the Hon'ble Apex Court. The petitioners have referred to a large number of judgments passed by Hon'ble Supreme Court and this Court. Some of such judgments are noticed here under:- In the case of State of Punjab & Others vs. Devinder Singh & Others (Civil Appeal No.4492 of 1997 decided on 21.7.1997), the Hon'ble Supreme Court has made following observations:- “.....In our view, the principle of “Equal Pay for Equal Work” can ensure to the respondents to the limited extent that when they were found to have been giving similar work as Ledger Clerks/Ledger Keepers, they could have been paid the minimum of the pay scale of a Ledger Keeper which was available to regularly appointed Ledger Keepers/Ledger Clerks. Learned counsel for the respondents could not successfully contend that such an order should not have been passed. We, therefore, allow this appeal to the limited extent that though the respondents are held limited on the principle of “Equal Pay for Equal Work” to get the salary available to the Ledger Keepers/Ledger CWP NO.116 of 2009 etc. 7 Clerks who are regularly recruited, they would be entitled to the minimum of the pay scale of the Ledger Keepers which may be available to the regularly appointed Ledger Keepers and they cannot be straightway paid the running time scale as they were not regularly appointed as Ledger Keepers/Ledger Clerks....” On the basis of the aforesaid judgment, CWP No.10017 of 1995 was decided vide judgment dated 20.8.1998 passed by this Court wherein following observations have been made:- “...Accordingly, I allow the writ petition and direct the respondents to pay the minimum pay scale to the petitioners as is available to the regular Octroi Clerks with permissible allowances on the basis and the difference between the emoluments already paid to each of the petitioners shall be paid for a period of three years prior to the filing of the writ petition i.e. from 12.2.1992. The arrears, so calculated, shall be paid within four months. There will be no order as to costs.” A similar order came to be passed by Hon'ble Supreme Court in the case of Nagar Panchayat, Bhikhiwind vs. Kulbir Singh & Others (Civil Appeal No.1879/1999 decided on 30.3.1999) wherein it has been observed as under:- “...Respondents are employees under the appellant, approached the High Court for the relief that they are entitled to the scale of pay as is available to CWP NO.116 of 2009 etc. 8 regular employees in the corresponding scale. The learned Single Judge granted the said relief. On appeal, the Division Bench has come to conclusion that there is no justification to interfere with the order of the learned Single Judge, but further clarified that so far as the arrears are concerned, the respondents would be entitled to draw at the minimum of the scale of pay for a period of 3 years prior to date of the filing of the writ petition....” A Division Bench of this Court allowed CWP No.7807 of 1999 on 14.2.2000 relying upon the above mentioned judgments and made following observations:- “....The doctrine of equal pay for equal work enshrined in “Article 39(d) of the Constitution imposes a duty on the public employer to pay similar wages to the employees doing similar work and in view of the fact that the duties being performed by the petitioners are similar to those Clerks/Octroi Clerks and Drivers who are being paid salary in the regular time scale, we find merit in the claim of the petitioners that they are entitled to be paid salary in the regular pay scale. Hence, the writ petition is allowed. The respondents are directed to pay to the petitioners minimum of the regular pay scales prescribed for the posts of Clerks/Octroi Clerks and Drivers. CWP NO.116 of 2009 etc. 9 They shall also be paid Dearness Allowance and other allowances as may be admissible to such employees under the Rules. The different between the emoluments already paid to the petitioners and which may be payable to them in terms of the order shall be confined to a period of three years prior to the date of filing of the writ petition. The arrears shall be paid to the petitioners within a period of four months from the date of receipt of a certified copy of this order.” The petitioners have placed on record a number of other judgments of this Court and Hon'ble Supreme Court wherein the aforesaid judgments have been relied upon which are not being adhered to. To the contrary Ms.Charu Tuli, learned counsel for the respondents has relied upon State of Haryana and another v. Tilak Raj and others, AIR 2003 Supreme Court 2658. In the aforesaid judgment, while considering the desirability of application of doctrine of “Equal Pay for Equal Work” qua the daily wagers in comparison with the regular and permanent staff, Hon'ble Supreme Court made following observations:- “13.”Equal Pay for equal work” is a concept which requires for its applicability complete and wholesale identity between a group of employees claiming identical pay scales and the other group of employees who have already earned such pay scales. The problem about equal pay cannot always be translated into a mathematical formula.” CWP NO.116 of 2009 etc. 10 Reference is also made to the judgment passed in the case of State of Orissa and others vs. Balaram Sahu and others, (22003) 1 Supreme Court Cases 250 wherein Hon'ble Supreme Court made following observations:- “11.... Though “equal pay for equal work” is considered to be a concomitant of Article 14 as much as “equal work for unequal work” will also be a negation of that right, equal pay would depend upon not only the nature or the volume of work, but also on the qualitative difference as regards reliability and responsibility as well and though the functions may be the same, but the responsibilities do make a real and substantial difference. XXX XXX XXX XXX 13.....To claim a relief on the basis of equality, it is for the claimants to substantive a clear-cut basis of equivalence and a resultant hostile discrimination before becoming eligible to claim rights on a par with the other group vis-a-vis an alleged discrimination......” Another judgment relied upon by Ms.Charu Tuli is in the case of State of Punjab and others vs. Surinder Singh and another, 2007 (4) SCT 628 wherein following observations have been made:- “6.The principle of equal pay for equal work has gone a sea change. Earlier the view of this Court CWP NO.116 of 2009 etc. 11 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 of 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 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 wage basis i.e. 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 & Others vs. State of Jharkhand and others, 2007 (4) SCT 76; 2007 (9) SCR 130; JT 2007 (10) SC 272, which has been referred to earlier in decisions of this Court. XXX XXX XXX 8.In view of the legal position, as mentioned CWP NO.116 of 2009 etc. 12 above, we are of the opinion that the view taken by the Hon'ble High Court granting pay scale of regular employees to the daily wage employees does not appear to be well founded. Consequently, we allow these appeals and set aside the order of the High Court as also the Trial Court and dismiss the suits filed by the respondents herein.” The dictum of the aforesaid judgments relied upon by Ms.Charu Tuli is that the doctrine of “equal pay for equal work” cannot be invoked merely because some employees are performing similar kind of duties. A lot of other considerations are required to be seen for which the relevant material must be placed on record. Similar issue was considered by this Court in the case of Pardeep Kumar and others vs. State of Punjab and others (CWP No.8671 of 1987 decided on 31.10.2008). In the aforesaid case while considering the judgment of Hon'ble Supreme Court in the case of Surinder Singh (supra), following observations have been made:- “...However, in Surinder Kumar's case (supra), the Hon'ble Apex Court has ruled that the principle cannot be applied unless there is total and complete identity between the two persons. In the present case, on account of various earlier judgment of this Court confirmed by the Hon'ble Supreme Court, daily wagers in almost all the departments are getting the basic salary in the pay scale of equivalent post occupied by the regular employees and this benefit has been allowed to CWP NO.116 of 2009 etc. 13 them for the period preceding three years and two months before the filing of the writ petition. The petitioners are similarly situated and, thus, there is complete and total identity between the petitioners and the daily wagers who are working in other departments in the State. The petitioners cannot be denied the similar benefits as has been granted to other daily wagers working in the same and other department in the State of Punjab.” The sum and substance of the judgments relied upon both the sides is that the doctrine of “equal pay for equal work” is applicable only where the complete identity between the temporary/daily wagers and regular appointed employees is established. The specific averments made by the petitioners are that they are performing the same duties as the regularly appointed employees are performing and a large number of daily wagers are getting the minimum of the pay scale by virtue of various judgments of the Hon'ble Supreme Court and this Court as also that some time the posts are interchangeable. These averments have not been denied and disputed in the reply filed by the respondents. The only arguments raised on behalf of the respondents is that daily wagers have not been selected by any process of selection whereas the regularly appointed employees were duly selected. In view of the catena of judgments of this Court affirmed by the Hon'ble Supreme Court referred to here-in-above, I am of the considered view that the petitioners cannot be denied a similar treatment as given to other daily wagers working in various departments of the State in the same categories to which the petitioners belong. Even the specific averments of the CWP NO.116 of 2009 etc. 14 petitioners that persons who are engaged later in time than the petitioners are getting minimum pay scales, have not been denied specifically. It is not irrelevant to say that there is complete, total and wholesale identity between the regularly appointed employees, daily wagers already getting minimum of pay scale under the court orders and the petitioners. In view of the above, these petitions succeed. The petitioners shall be entitled to minimum of the pay scale of the categories to which they belong with all allowances as revised from time to time. However, the relief shall be confined to three years, preceding the filing of the writ petitions in each case. A copy of this judgment be placed on record on each concerned file. (PERMOD KOHLI) JUDGE 09 .7.2009 MFK NOTE:Whether to be referred to Reporter or not? YES