HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 3139/2008 (OA No.706/1996) Date of Decision: April 10, 2009 Bakshi Ram ……. Petitioner Versus State of H.P.& Ors. ….. Respondents. Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting? Yes For the petitioner : Mr. Ashwani K. Sharma, Advocate. For the respondents : Mr. R.K. Sharma, Sr.Addl. A.G. with Mr. Vivek Thakur, Addl. A.G. & Mr. Anil Jaswal, Dy. A.G. Sanjay Karol, J. (Oral) Petitioner was engaged as daily waged Chowkidar in Indira Gandhi Medical College/Hospital, Shimla and was regularized as such w.e.f. 15.7.1989, but was allowed to work as Ward Orderly and perform the work of SOPD in the Surgical Wards and the Operation Theatre. In October, 1989, petitioner was transferred/posted at the Referral Hospital, Rampur Bushahr, Distt. Shimla, where he worked as Nursing Orderly upto February, 1995. It is so evidenced from the Certificate issued by the Senior Medical Officer of the said hospital (Annexure A-2) that “he was posted in the Minor Operation Theatre, Surgical Ward and had been completely dressing the wounds independently and has full command to know the technicalities in handling serious cases.” Earlier also petitioner filed OA No. 385/95, claiming pay-scale payable to the Nursing Orderly, instead of Class-IV employees as was 2 being paid to him. Vide order dated 23.3.1995, the erstwhile Himachal Pradesh Administrative Tribunal, Shimla, disposed of the petition with a direction that the respondents decide the petitioner’ case. The authorities, vide order dated 29.6.1995 (Annexure A-1), rejected the petitioner’s representation for the reason that as per the Department and Promotional Rules, petitioner was ineligible to be appointed as Ward Boys/Orderly, as he did not have requisite educational qualification. Petitioner however alleges that he does fulfill the requisite qualification of a Nursing Orderly and, as such, the respondents be directed to pay him salary as is permissible to the Nursing Orderly from October, 1989 to 24.2.1995 and also post him as such. In response thereto, the State filed its return admitting that the petitioner performed the duties of a Nursing Orderly, but however, it was at his own risk and cost with an endeavour to only gain some experience. This was done only to gain preference over other similarly situated candidates, if the petitioner ever qualified for the appointment of the post of Nursing Orderly. The Certificates issued have no legal sanctity as the Head of the Institution had never allowed the applicant to perform such duty nor was there any sanction accorded thereto. The State of Himachal Pradesh has formulated the Recruitment and Promotion Rules for the post of Nursing Orderly (Non- Gazetted) Class-III in the department of Health and Family Welfare, Himachal Pradesh. The criteria for filling-up of the post is as under:- “11. In case of recruitment by promotion, deputation/ transfer grade from which promotion/ : By promotion amongst the orderlies/ attendant/ Class-IV who are middle pass and also possess 5 years regular service and regular combined with continuous adhoc (rendered upto 3 deputation /transfer is to be made. 31-3-91) service. For the purpose of promotion; a combined seniority list of eligible officials on the basis of length of service without disturbing their cadre- wise inter se seniority shall be prescribed.” Petitioner was never selected for the post of Ward Orderly. Even between the year 1989 to 1995, he was neither selected nor promoted. If eligible, petitioner would be entitled to promotion on his own turn in compliance of all procedural formalities. It is not a case where the persons junior to the petitioner were promoted or given the pay scale of Nursing Orderly. Hence, the Court cannot direct that the petitioner be posted as Nursing Orderly. From the record, it appears that the petitioner did fulfill the eligibility criterion. The reason for rejection of the petitioner’s representation is incorrect but that by itself would not give any right for being appointed as a Nursing Orderly. Canvassing the principle of equal pay for equal work, Mr. Ashwani K. Sharma, learned counsel for the petitioner has referred to and relied upon the following decisions:- “Bhagwan Dass & Ors. vs. State of Haryana & Ors. (1987) 4 SCC 634, Dhirendra Chamoli & Anr. v. State of U.P. (1986) 1 SCC 637, Ravi Kant Gupta v. State of Punjab (1995) 5 SLR 367, Karan Singh vs. State of J&K (AIR1986) 4 SC 584. In Bhagwan Dass (supra), the Apex Court was dealing with the case wherein the department of Education full time cadre of Supervisors was in existence. Under the aegis of the department of Education, the State of Haryana came out with an Adult Education Scheme and appointed the Supervisors to man the Adult Education Centre and 4 Informal Education Centre. The Court found that such of those persons who were appointed under the Scheme were essentially and effectively discharging the same and similar functions, hence, it was found that difference in the process of selection of the candidates for the post of Supervisors, either in the regular cadre or under the Scheme would not matter and, as such, the petitioners therein were entitled to salary on the pay scale provided for to the Supervisors in the regular cadre on the doctrine of equal pay for equal work. The judgment is clearly distinguishable on facts. In any event, later on the Apex Court in State of Haryana & Ors. v. Charanjit Singh & Ors. (2006) 9 SCC 321, Dhirendra Chamoli (supra) reconsidered Bhagwan Dass (supra) and after taking into account the development of law over the years, held that even a person employed on contract basis cannot be considered for regular appointment or entitled to the same pay-scale of a regular employee by claiming that they were discharging the same duties. The Apex Court, while overruling Bhagwan Dass (supra) held that a contract labourer is covered by the terms and conditions of his contract and the principles of “equal pay for equal work”, would have no application to persons employed on contract basis. The party who claims equal pay for equal work has to make necessary averments and prove that all things are equal. Thus, before any direction can be issued it has to be ensured that necessary averments and proof exists. Only if on the basis of material placed on record, it is found that there was equal work of equal quality and all other relevant factors are fulfilled, a direction can be made for payment of equal pay and that too from the date of filing of the petition. 5 In Karan Singh (supra), the Apex Court held that the persons employed on daily-wage basis, in the Central Public Works Department would be entitled to the same wages as was being paid to the other permanently employed persons of the department as both were doing identical work. In the instant case, the petitioner’s employment is not for the same post. In any case, there has been a see change in the development of law over a period of time. In Union of India v. Tarit Ranjan Das (2003) 11 SCC 658, the Apex Court has held that the Stenographer Grade-II in the office of Geological Survey of India, is not a comparable grade with the Stenographer Grade ‘C’ in the Central Secretariat. It held that the equality is not based on designation or the nature of work alone. There are several other factors like responsibilities, reliabilities, experience, confidentiality involved, functional need and requirements commensurate with the position in the hierarchy and the required qualifications which are equally relevant. In Haryana State Minor Irrigation Tubewells Corpn. & Ors. v. G. S. Uppal & Ors. (2008) 7 SCC 375, the Apex Court held that simply because the nature of work is same, irrespective of educational qualification, mode of payment, experience and other relevant factors, the principle of equal pay for equal work cannot be applied. In Kendriya Vidyalaya Sangathan & Ors. v. L.V. Subramanyeswara & Anr. (2007) 5 SCC 326, it is held that services of the employees who had worked without due compliance of selection process, could not be regularized. 6 In Official Liquidator v. Dayanand & Ors. (2008) 10 SCC 1}, relying upon the decision in State of Karnataka v. Umadevi (2006) 4 SCC 1, the Apex Court held that temporary, contractual, casual, daily-wage or adhoc employees appointed dehors the constitutional scheme of public employment, would have no right for appointment to public post on regular basis. In fact it reiterated the principles laid down in Uma Devi (supra) that long continuance on the post does not confer a right to an employee to be absorbed or regularized into regular government service and the High Court cannot issue mandamus. The petitioner has been discharging the duties of a Nursing Orderly, dehors the Rules. He was not even considered to be eligible to have been appointed as such. He would not be entitled to the pay-scale of a Nursing Orderly. A post of Nursing Orderly being technical in nature, is filled-up in accordance with Recruitment & Promotion Rules, to which the applicant cannot claim any backdoor entry. Simply because the Class-IV employees of one Wing of the hospital has been assisting the superior staff in a particular section of the hospital that by itself would not confer any right of benefits of pay and wages to the post of higher Grade/post in the department. It is surprising that the authorities allowed the petitioner to discharge the duties of a Nursing Orderly, by doing so the authorities risked the life of the patients as job of Nursing Orderly is certainly technical in nature and cannot be performed by a simple Chowkidar. For the aforesaid reasons, the present petition is dismissed. ( Sanjay Karol ), Judge. April 10, 2009. (rana)