LPA NO. 337 of 2003 in CWP No.1536 of 1988 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. LPA NO. 337 of 2003 in CWP No.1536 of 1988 Date of Decision: 7 .1.2009. The State of Punjab and others ..........Appellants Versus Rajinder Singh etc. ..........Respondents. CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL HON'BLE MR.JUSTICE JASWANT SINGH. Present: Mr.Manohar Lall, Additional Advocate General, Punjab for the appellant-State. Mr.K.L.Arora,Advocate with Ms.Deepa Jain,Advocate for the respondents. Jaswant Singh,J. The present Letters Patent Appeal has been filed by the State of Punjab against the judgement dated 5.2.2003 passed by learned single Judge in CWP No.1536 of 1988, whereby it has been ordered that the respondents-petitioners, daily wagers, be paid the minimum of pay scales, as revised from time to time with permissible allowances for a period of three years prior to the date of filing of writ petition; and with a further direction for regularisation of their services. Facts in brief are that the 11 respondents-petitioners were engaged on muster roll on daily wage basis in Sub Division Nos.2 and 10 of Division No.III, Mohali, Public Health Department, Government LPA NO. 337 of 2003 in CWP No.1536 of 1988 2 of Punjab. They were engaged as daily wage Pump Operators, Fitters, Helpers, Drivers, Plumbers, Chowkidars etc. After having worked for 2-6 years on muster roll, they filed CWP No.1536/1988, praying for regularisation of their services from their dates of engagement/appointment, and also for grant of same pay and facilities as admissible to their counter parts working on regular basis. The appellants/respondents/Government of Punjab filed written statement disclosing that during the pendency of the writ petition, instructions dated 20.1.1995 (Annexure P/1) have been issued laying down that daily wage employees who have completed ten years or more as on 30.11.1994 shall be considered by the Screening Review Committee constituted by the Head of Department for regularisation on the availability of posts and accordingly their cases for regularisation will be considered, their services will be regularised and they will be paid regular pay scales. The learned single Judge vide impugned judgement dated 5.2.2003 allowed the writ petition with a direction to appellants/State of Punjab to pay the respondents-petitioners the minimum of pay scales as revised from time to time with permissible allowances,which were being given to similarly placed regular employees, for the last three years prior to the date of filing of the writ petition, by relying upon the following judgements:- (i)State of Punjab and Others vs. Devinder Singh and others, Civil Appeal No.4492 of 1997 (arising out of SLP ( C) No.1502 of 1997; LPA NO. 337 of 2003 in CWP No.1536 of 1988 3 (ii)Kulbir Singh and Others vs. The State of Punjab and another (Civil Writ Petition No.10017 of 1995) decided on August 20,1998; (iii)Balwinder Singh and Others vs. State of Punjab and Others (Civil Writ Petition No.7807 of 1999) decided on February 14,2000; and (iv) State of Haryana vs. Piara Singh, decided on August 12,1992. Aggrieved against the aforesaid direction, the appellant/State of Punjab has filed the present Letters Patent Appeal. This Court vide interim order dated 3.2.2004 allowed CM No.1356/2003 and thereby condoned the delay in filing the appeal and further vide interim order dated 1.10.2004 by relying on the ratio of the judgement of Hon'ble Supreme Court in State of Haryana v. Tilak Raj, AIR 2003 SC 2658 (paragraphs 12 and 13) stayed the operation of impugned judgement under appeal. We find that during the hearing of the present appeal, at the motion stage, the appellants filed an affidavit dated 26.2.2007 of Sh.S.C.Gupta, Executive Engineer, 3rd Water Supply and Sanitation (GW) Division, Mohali, on directions of the Court, wherein it was specifically stated that all Pump Operators who were appointed alongwith the respondents, without any discrimination were regularised in pursuance of the instructions dated 20.1.1995 (Annexure R/1). The affidavit further discloses position with regard to all the 11 respondents-petitioners, which reads as under:- LPA NO. 337 of 2003 in CWP No.1536 of 1988 4 Sr.N o. Name of the petitioner Designatio n Date of joining Date of regularisation Present pay scale 1 Rajinder Singh Pump Operator 07/07/82 01/09/92 3120- 5160 2 Harbans Singh Pump Operator 01/06/82 01/09/92 3120- 5160 3 Didar Singh Pump Operator 01/09/84 01/12/94 3120- 5160 4 Omesh Kumar Pump Operator 01/08/82 Left the job in 7/89 - 5 Rupinderjit Singh Pump Operator 01/10/84 01/10/94 3120- 5160 6 Surinder Singh Pump Operator 1//7/84 18/05/01 3120- 5160 7 Sarabjit Singh Fitter Helper 24/6/86 Left the job in 7/91 - 8 Balbir Singh Driver 25/11/85 23/01/01 3120- 5160 9 Jaswant Singh Plumber 01/12/86 23/01/01 3120- 5160 10 Raj Singh Pump Operator 01/04/86 18/05/01 3120- 5160 11 Ramjit Yadav Chowkidar 01/12/84 18/05/01 2620- 4140 It is, therefore, clear from the contents of the affidavit that the above stated nine respondents-petitioners were regularised and they are getting pay and allowances at par with their counterparts, in terms of the instructions dated 20.1.1995, whereas two of the respondents-petitioners namely Omesh Kumar and Sarabjit Singh at Sr.No. 4 and 7 have left the job of their own in July 1989 and July 1991 respectively. Thus, so far as the directions for considering the LPA NO. 337 of 2003 in CWP No.1536 of 1988 5 case of the respondents-petitioners for regularisation as per decision rendered in the case of State of Haryana v. Piara Singh, stands satisfied. Learned counsel for the appellants has contended that the directions issued by the learned single Judge for grant of minimum of pay scale with permissible allowances; similar to regular employees for the period of three years prior to the date of filing of writ petition is illegal and not sustainable. In support of the same he has relied upon the judgements of Hon'ble Supreme Court reported as State of Haryana and another v. Tilak Raj and others, AIR 2003 SC 2658; State of Haryana and others v. Charanjit Singh and others (2006) 9 SCC 321. On the other hand learned counsel for the respondents- petitioners has argued that the directions passed by the learned single Judge are in accordance with law and therefore valid. In support of the same he relied upon the judgements in Randhir Singh v. Union of India and others AIR 1982 SC 879; Surinder Singh and another v. The Engineer in Chief,C.P.W.D., and others, AIR 1986 SC 584; and Bhagwati Prasad v. Delhi State Mineral Development Corporation 1992(8) SLR 784 and Full Bench decision of this Court in Vijay Sharma v. State of Punjab 2002(1) SCT 931; and a Division Bench of this Court in Tilak Raj and others v. State of Haryana and others, 2002(2)SCT 349. LPA NO. 337 of 2003 in CWP No.1536 of 1988 6 It would be appropriate to consider the judgements relied upon by the learned counsel for the parties before deciding the entitlement of the respondents-petitioners for grant of minimum of the pay scale. In Randhir Singh's case (supra) their Lordships of the Supreme Court dealt with the claim of the Drivers working in the Delhi Police force, who were claiming equal pay for equal work at par with Drivers in service of Delhi Administration and other organisations. It was in fact, admitted by the department that the duties of the Drivers of Delhi Police force were more onerous than the duties performed by the Drivers in other departments. However, equal pay for equal work was denied to them only on the ground that both sets of employees were working in different departments. It was in this context that their Lordships held that the classification done by the respondents is irrational and as such a direction was issued to the respondents to fix the scale of pay of the petitioners and the Drivers Constables of the Delhi Police force at least at par with Drivers of the Railway Protection Force etc. In the case of Surinder Singh's (supra) daily wagers had claimed equal pay for equal work at par with regular employees. Their Lordships placed reliance on directive principles of the State policy and specifically Article 39 of the Constitution of India and further relying on the case of Randhir Singh's (supra), it was held that the daily LPA NO. 337 of 2003 in CWP No.1536 of 1988 7 wagers cannot be denied equal pay for equal work at par with regular employees. In Bhagwati Prasad's case (supra), the claim of daily rated workers for grant of equal pay for equal work at par with regular employees was examined. It was held that the petitioners are entitled to equal pay at par with persons appointed on regular basis to the similar posts and discharging similar duties. It was further held that they were entitled to the scale of pay and other allowances revised from time to time for the said posts. A Full Bench of our own High Court dealt with the issue in the case of Vijay Sharma's cases (supra). It was held that the petitioners who are working as Ledger Clerks, Ledger Keepers, Pump Operators, Mali-cum-Chowkidars, Fitters, Petrol Man and Surveyors etc., and who were employed by the State as casual or daily rated workers; have worked for a fairly reasonable time indicating continuity in service and functions and duties being discharged by them is similar as that being done by regular employees and working performance of the employees being satisfactory, are entitled to minimum of the pay scale (basic pay plus dearness allowance alone) admissible to their counterparts working on regular basis in the same department. In Tilak Raj v. State of Haryana (supra) a Division Bench of this Court relying upon the Full Bench decision of this Court in Vijay Sharma's case (supra) held that the daily wagers working as LPA NO. 337 of 2003 in CWP No.1536 of 1988 8 helpers for a considerable period of time in the Haryana Roadways Department and performing similar functions like their counterparts in the regular cadre were held entitled to minimum of pay scales with dearness allowance. There cannot be any dispute about the proposition of law apparent from the judgements cited and relied upon on behalf of the respondents-petitioners unless one goes through the law declared by the Hon'ble Apex Court in later points of time. Learned counsel for the appellant-State of Punjab placed reliance on decisions of the Hon'ble Supreme Court in the case of State of Haryana v. Tilak Raj's case (supra) in which their Lordships have taken a contrary view in as much as in that case the daily wagers had claimed equal pay for equal work at par with regular and permanent staff. Their Lordships held that since daily wagers hold no post and scale of pay and scale of pay is attached only to a definite post, therefore, they cannot be granted equal pay for equal work. However, the need to pay such daily wagers the minimum wages was recognised. By this judgement the Hon'ble Supreme Court in the background of the stated legal principles held that the judgement of the High Court reported in Tilak Raj v. State of Haryana, 2002(2) SCT 349 was clearly indefensible and the same was set aside. Thus, by implication set aside the ratio of the judgement rendered by a Full Bench of this Court in Vijay Kumar's case (supra). LPA NO. 337 of 2003 in CWP No.1536 of 1988 9 The Hon'ble Supreme Court in another decision rendered in Indian Drugs and Pharmaceuticals Limited v. Workmen Indian Drugs and Pharmaceuticals (2007) 1 SCC 408 held that no direction can be given that a daily wage employee should be paid salary of a regular employee. If an employee is not appointed against a sanctioned post as per rules, he is not entitled to any scale of pay. In Charanjit Singh's case (supra), the Hon'ble Supreme Court examined the Full Bench decision of this court in Vijay Sharma's case (supra) in the case of daily wagers. It was held that the High Court had blindly proceeded on the basis that the doctrine of equal pay for equal work applies without examining any relevant factors for arriving at the conclusion that the daily wagers were entitled to the minimum of the pay scale granted to their counterparts and as such matters were remitted back to the High Court to examine each case on the basis of material placed before it. In para 19 of the said judgement, it was held that the principle of equal pay for equal work is not mechanical application in every case. Equal pay must be for equal work of equal value. The principle requires consideration of various dimensions of a given job. In so far contractual employees are concerned, it was held that this category cannot claim equal pay on the doctrine of equal pay for equal work. In the present case, keeping in view the aforestated legal LPA NO. 337 of 2003 in CWP No.1536 of 1988 10 principles, it is incumbent upon the respondents-petitioners to discharge the burden of establishing wholesale equivalence between them and their regular counterparts in terms of (i) qualification, (ii) mode of recruitment, (iii) discharge of duties; and (iv) degree of responsibility. On examining the pleadings we find that the respondents-petitioners have failed to discharge that onerous burden which would entitle them to invoke the doctrine of equal pay for equal work. Admittedly they have been getting the minimum wages. During the pendency of the Letters Patent Appeal their services have been even regularised in view of the policy framed in view of Piara Singh's case (supra). Therefore, having regard to the aforestated decision rendered by the Hon'ble Supreme Court especially in State of Haryana v. Tilak Raj's case (supra), we have no doubt in our mind that the respondents- petitioners who were working on daily wage basis prior to their regularisation are not entitled to payment of equal pay for equal work at par with regular employees or in that matter even the minimum of the pay scales as revised from time to time with permissible allowances. The decisions rendered by the Hon'ble Supreme Court in support of said view are definitely in later points of time as compared to decisions cited by respondents-petitioners and as such those are of no help to them. In the light of the above discussions, we have no hesitation in holding that this Letters Patent Appeal merits acceptance. It is LPA NO. 337 of 2003 in CWP No.1536 of 1988 11 accordingly allowed. The impugned judgement and order dated 5.2.2003 passed by the learned Single Judge in CWP No.1536 of 1988 is set aside to the extent it directs the appellants to pay the petitioners minimum of the pay scale as revised from time to time with permissible allowances which are being given to the similarly placed regular employees for the last three years prior to the date of filing of the writ petition. (Jaswant Singh) Judge 7.1.2009. (Satish Kumar Mittal) joshi Judge