- 1 - CWP NO. 8661 OF 1990 -.- IN THE HIGH COURT FOR PUNJAB & HARYANA AT CHANDIGARH. -.- CWP NO. 8661 of 1990 Date of Decision:- 01.12.2010 -.- Trishala Devi. ...Petitioner Versus The State of Haryana and another. ...Respondent -.- CORAM: HON'BLE MR. JUSTICE M. JEYAPAUL -.- 1. Whether reporters of local news papers may be allowed to see judgment? 2. To be referred to reporters or not? 3. Whether the judgment should be reported in the Digest? -.- Present:- Mr.R.K.Malik, Sr. Advocate, with Mr. Vishal Malik, Advocate, for the petitioner. Mr.Sukhwinder Singh Nara, Sr. DAG, Haryana, for the respondents. -.- M. JEYAPAUL, J. (Oral) The petitioner has alleged in the writ petition that she was appointed as clerk on daily wage basis on 18.10.1989 and continued to serve as clerk up to 22.4.1990. Neither appointment nor termination order was issued to the petitioner. Two other contentions were also made by the petitioner that the juniors in rank were permitted to continue in service and even fresh appointments were also made after the termination of services of the petitioner and that the petitioner was not paid equal pay as that of the regular clerk(s). The petitioner having contended that the action of the respondents is violative of Articles 14 and 16 of the Constitution of India - 2 - CWP NO. 8661 OF 1990 -.- prays to quash the action of the respondents in terminating her services. She has also prayed for reinstatement with all service benefits and equal pay package as that of regular clerks in Haryana State. 2. In the reply filed by the State it has been contended that the petitioner was, of course, engaged on daily wage basis only for carrying out the work of checking of prize winning tickets. Her salary was paid from contingent fund as per the rates fixed by the local administration. It is further contended that the similarly placed persons referred to in the writ petition were disengaged and were not in employment with the respondent. It has also been submitted that the petitioner was not discharging the duties and responsibilities of a regular employee of the respondent. The petitioner who was engaged for the sole purpose of checking of prize winning tickets and was not at all engaged to discharge the job of a regular clerk, cannot claim equation of salary with that of a regular clerk. Therefore, it is submitted that the action of the respondents is not violative of Articles 14 and 16 of the Constitution of India. 3. There arises the following two issues for determination: i) Whether the termination of services of the petitioner is legally sustainable? ii)Whether the petitioner is entitled to draw equal pay as that of a regular clerk? 4. The learned senior advocate appearing for the petitioner would submit that the action of the respondents is violative of Article 14 of the Constitution of India inasmuch as the juniors in rank were permitted to continue in service and the respondents had even gone in for fresh appointment after the termination of services of the petitioner. It is further - 3 - CWP NO. 8661 OF 1990 -.- submitted that the petitioner who had discharged the job of a clerk, is entitled to equal pay with that of a regular clerk in the service of the respondents and not fixed pay as is paid to the petitioner. 5. Learned Deputy Advocate General, Haryana, appearing for the State would submit that the nature of duty assigned to the petitioner was totally different from that of the duty discharged by the regular clerk attached to the respondents. It is his further submission that the petitioner who was employed as a contingent daily wage staff, cannot claim permanency. He would also submit that as the duties and responsibilities of the regular clerk is totally different from that of the duty discharged by the petitioner herein, the petitioner cannot legal claim equal pay with that of regular clerk. 6. It is an admitted position that there was no order of appointment issued to the petitioner nor was any order of termination served on the petitioner. The respondents have admitted that the petitioner was appointed on daily wage basis for a short duration. It is to be noted that the petitioner was asked to discharge the duty of checking of prize winning tickets. Such a job cannot be equated to the service of a regular clerk in the department of the respondents. Further, it has been demonstrated by the respondents that the petitioner was paid wages from the contingent fund as per the rates fixed by the local administration. It is also brought to the notice of this Court that the employees who were junior in position and the employees who were appointed later in time after the termination of services of the petitioner, were no longer in employment/service of the respondents. Therefore, the petitioner cannot sustain the claim that she was discriminated. The respondents having employed contingent daily wagers - 4 - CWP NO. 8661 OF 1990 -.- for the sole purpose of checking prize winning tickets terminated their services as and when the job assigned was executed. Therefore, the petitioner cannot claim permanency in the service of the respondents. 7. There is nothing on record to show that the petitioner discharged the very same duties and responsibilities of the regular employees attached to the respondents. It is the duty of the petitioner to come out with sufficient materials to bring home the point that the similar duties and responsibilities were being discharged by him as that of the regular employees to claim equal pay. Further, it has now been brought to the notice of this Court that the pay of the petitioner was drawn from the contingent fund and paid to her. Therefore, the petitioner cannot claim equal pay as that of the regular clerk whose duties and responsibilities are totally different. 8. It has been held in State of Punjab Versus Parvesh Kumar and another, 1994(4) SLR 92 that the activities of the Directorate of Punjab State Lotteries, which is commercial in nature, would fall within the definition of 'industry' for the purpose of Industrial Disputes Act. Such a proposition is not disputed by the respondents. 9. In Raghbir Singh Versus The State of Haryana and another, 1990(2) SLR 297 this Court has held that a daily wage worker can be terminated only if his services are no longer required or he is otherwise unfit to perform the duties of the job assigned to him. The statutory power cannot be exercised for extraneous reasons so as to deprive the government servant of the right to claim equal status as that of a regular employee. That was a case where an order of termination was passed specifically stating that the daily wage worker was being terminated so that he might not complete - 5 - CWP NO. 8661 OF 1990 -.- 240 days. In the instant case it has been demonstrated that the junior daily wage workers and the new appointees were no longer in service. Further, a brief task, which has arisen contingently had been assigned to the petitioner and others. There is no order of termination passed by the respondents terminating the services of the petitioner. Considering the nature of work assigned to the petitioner and the fact that the other daily wage workers were also not in service, it cannot be construed that the termination of services of the petitioner was with a hidden agenda to short-circuit the completion of 240 days service. Therefore, the petitioner cannot bank upon the afore-stated ratio of law laid down by this Court. 10. In Union Territory, Chandigarh and others Versus Central Administrative Tribunal, Chandigarh and others, 2001(2) RSJ 722 the Division Bench of this Court held that even though a lecturer was appointed on contract basis, when he discharged the very same work of a regular lecturer, the lecturer appointed on contract basis was also entitled toget the benefit of equal pay for equal work as that of his counter-part in the regular service. The lecturers appointed on contract basis in the said case had discharged the very same job of the regular lecturers. In fact the lecturers appointed on contract basis were also appointed by inviting applications from the eligible candidates. There was a regular selection of the contractual lecturers. Admittedly, they delivered similar lectures as that of the regular lecturers. As pointed out earlier, in the instant case the petitioner could not produce any material that she in fact discharged the very same duties and responsibilities of the regular clerk. Whereas the respondents have demonstrated that a brief job/assignment of checking of - 6 - CWP NO. 8661 OF 1990 -.- prize winning tickets alone was given to the petitioner and other similarly placed daily wage workers. In view of the above, the aforesaid decision will not apply in the facts and circumstances of the present case. 11. It is also brought to the notice of this Court that the Directorate of Haryana State Lotteries had already been disbanded. Therefore, question of reinstatement in service and issuance of any direction to pay equal wages for equal work do not survive for consideration. 13. In view of the above findings, the writ petition stands dismissed without any order as to costs. (M.Jeyapaul) (Judge) December 01, 2010 Saini