IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP (T) No. 3895/2008 (OA 1814/96) Reserved on : 1st April, 2009 Date of Decision: 10th April, 2009 Ramesh Chand Petitioner Versus State of H.P. and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the petitioner: Dr.Lalit Sharma, Advocate. For the respondents: Mr.R.K.Sharma, Sr. Addl. Advocate General with Mr.Vivek Thakur, Addl. Advocate General and Mr.Anil Jaswal, Dy. Advocate General. Sanjay Karol, J. The petitioner was appointed as Beldar on daily wages with the Central Material Testing Laboratory, HP PWD, Shimla. Thereafter, he was promoted as Laboratory Attendant (re-designated as Assistant Laboratory Attendant) but continuously and regularly performing and discharging the duties of a Clerk. In support of his contention he has placed on record recommendation made by his superior being Annexure A-4. In support of his claim for release of wages of a Clerk, on the analogy of equal pay for equal work, it is so stated in the petition that in the office of Central Material Testing Laboratory there is no regular Clerk since Whether the reporters of Local Papers are allowed to see the Judgment? 2 1975 onwards and he alone has been carrying on the work of typing and maintaining the records. Thus, he has prayed for the release of minimum wages as admissible to the daily wage Clerk cum Typist and also arrears w.e.f. 18.1987 upto the date of filing of the petition i.e. 10.11.1996. That the petitioner’s appointment is only of Beldar is not in dispute. It also cannot be disputed that the post of Clerk cum Typist is a selection post to be filled in accordance with the Recruitment and Promotion Rules by the Public Service Commission. The fact that the post of Beldar was re-designated as Assistant Laboratory Attendant and petitioner was paid wages as such is also not in dispute. The same is also admitted by the respondents in the reply. The respondents have stated that the petitioner was allowed to do the typing work as he had volunteered to do so just to improve his speed and efficiency. Dr.Lalit has referred to a decision of the Apex Court in State of Kerla vs. B.Benjith Kumar and others, (2008) 12 SCC 219. In the said decision the Court was dealing with a case where the Presiding Officers of the Industrial Tribunals were seeking parity of pay scale with the District Judges in the State of Kerala as the duties which were to be discharged by the Presiding Officers were same, similar and in fact at times the District Judges used to preside over the industrial Tribunals. The only issue before the Court was as to whether the difference in the source of recruitment would by itself be a distinctive feature, disentitling the Presiding Officers to the parity and same pay scales. The Court, after taking into account the material on record came to the conclusion that the Presiding Officers had been working over three decades and discharging the same functions and duties as that of the District Judges. Hence, in this background the Court 3 held that the only difference in the source of recruitment would not make any difference. The ratio was in the facts and circumstances of that case and hence not applicable to the present case. He has also referred to 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 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 4 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. 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 5 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. 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 Clerk, dehors the Rules. He was not even eligible to have been appointed as such. He would not be entitled to the pay-scale of a Clerk. A post of Clerk being technical in nature, is filled-up in accordance with Recruitment & Promotion Rules, to which the applicant cannot claim any backdoor entry. 6 Simply because the Class-IV employee of one Wing of the office has been assisting in the office work in a particular section that by itself would not confer any right of benefits of pay and wages to the post of higher Grade/post in the department. For the aforesaid reasons, the present petition is dismissed. April 10, 2009 (Sanjay Karol) (C) Judge.