IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP (T) No. 3777/2008 (OA 1401/96) Reserved on : 1st April, 2009 Date of Decision:10th April, 2009 Fateh Singh 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: Mr.Ajay 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 in the Kasuali Sub Division of H.P. Public Works Department in May, 1989. He initially was a Matriculate but later on qualified as Parbhakar (Honours in Hindi) and he did his B.A. He also qualified his English typing course. It is his contention that even though he was appointed as Beldar but since inception, the respondents entrusted him with the work of Clerk cum Typist and he has been working as such on that post. It is his grievance that in 1995 he was orally informed by the Executive Engineer to work in the fields failing which his services would be terminated. Whether the reporters of Local Papers are allowed to see the Judgment? 2 Feeling aggrieved he filed CWP No.1715/1996 in this Court wherein interim injunction was granted in his favour and he was continued to work as Clerk cum Typist with the respondents. The said petition was later on disposed of vide order dated 27.6.1996 with a direction that the petitioner’s representation be considered by the respondents. The petitioner made a representation praying for (i) that he be given wages payable to a Clerk alongwith arrears on the principle of “equal pay for equal work” and (ii) he be regularized in Class-III post of a Clerk. Vide order dated 12.8.1996 (Annexure A-5) the same was rejected on the ground that since the petitioner’s appointment was that of a Beldar his doing the work of typing/auditing would not confer any right in his favour for appointment to the post of a regular Clerk. Feeling aggrieved, the petitioner filed the present petition, inter alia, claiming arrears of wages w.e.f. May, 1989 upto the date of filing of the petitioner i.e. September, 1996 and quashing of Annexures A-5 and A-6, which only conveys the order of the Executive Engineer to the effect that no daily rated worker should work in the Division/Sub Division office. Petitioner was engaged on daily wage basis and kept on the muster-roll is not in dispute. The post of Clerk is to be filled up through the regular selection and on the basis of recommendation of the H.P. Public Commission also cannot be disputed. The petitioner, therefore, cannot have any right for regularization on Class-III post of a Clerk. In the impugned order dated 12.8.1996 no doubt there is no reference with regard to the payment of arrears, being the difference in the wages of a Clerk and the Beldar, but, however, the respondents have taken a stand that petitioner was 3 not entitled to regular appointment, hence there is no question of payment of wages of a Clerk to him. The fact that petitioner has been performing the work of Clerk cum Typist is evident from Annexure A-1 certificate alleged to have been issued by the Assistant Engineer and also Annexure A-2 issued by Executive Engineer. The respondents have disputed the genuineness of the said certificates. The same could not be verified as the concerned officials stood retired. Learned counsel for the petitioner has 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 4 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. 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. 5 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. 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 6 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 cum Typist, 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 cum Typist. A post of Clerk cum Typist 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 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. The post of Clerk cum Typist can only be filled up in accordance with the Recruitment and Promotion Rules. Hence simply because the petitioner has been discharging the duties other than the one for which he stands appointed, that by itself would not entitle him for daily wages For the aforesaid reasons, the present petition being devoid of merits is dismissed. April 10, 2009 (Sanjay Karol) (C) Judge.