Case: Rajesh Pravinchandra Rajyaguru and Ors Vs. Gujarat Water Supply &amp; Sewerage Board and Ors

3. In another Letters Patent Appeal No.179 of 2020, the Division Bench of the High Court has just followed its decision in Letters Patent Appeal No.82 of 2020 which is the subject matter of another appeal. Therefore, for the sake of convenience the facts in Civil Appeal No. 7578 of 2021 arising out of the impugned judgment and order passed by the High Court in Letters Appeal No.82 of 2020 are narrated and considered and the said appeal be treated as a lead appeal.4. That the Respondent – Board has been formed under the Gujarat Water Supply and Sewerage Board Act, 1978 (hereinafter referred to as the Act) for rapid development and proper regulation of the water supply and sewerage activities in the State of Gujarat. Till the Board frames its own Rules and Regulations, the Board had, for better administration, decided through a Resolution dated 06.08.1980 to follow the Rules, Regulations, Circulars, Policies, Instructions and all Schemes of the State Government from the date of formation of the Board. It appears that there were many daily wagers working under various departments of the State Government for past several years. With a view to resolve the issue relating to service condition of daily wagers engaged in maintenance and repairing work a committee called Shri Daulatbhai Parmar Committee was constituted under the Chairmanship of the then Minister of Roads and Building Department – Shri Daulatbhai Parmar. On the basis of the recommendations made by the Committee, Government of Gujarat passed a Resolution dated 17.10.1988 wherein the Government and decided to give certain benefits to the skilled daily wager workmen depending upon the period of services undergone, i.e. less than 5, 5 or more or 10 years.4.1 As per scheme contained in Resolution dated 17.10.1988 all the daily wage workers were not entitled for regularization or permanency in the services. As per the said Resolution the daily wagers are entitled to the following benefits:(i) They are entitled to daily wages as per the prevailing Daily Wages. If there is presence of more than 240 days in first year, daily wagers are eligible for paid Sunday, medical allowance and national festival holidays.(ii) Daily wagers and semi-skilled workers who has service of more than five years and less than 10 years are entitled for fixed monthly salary along with dearness allowance as per prevailing standard, for his working days. Such daily wagers will get two optional leave in addition to 14 misc. leave, Sunday leave and national festival holidays. Such daily wagers will also be eligible for getting medical allowance and deduction of provident fund.(iii) Daily wagers and semi-skilled workers who has service of more than ten years but less than 15 years are entitled to get minimum pay scale at par with skilled worker along with dearness allowance as per prevailing standard, for his working days. Moreover, such daily wagers will get two optional leave in addition to 14 misc. leave, Sunday leave and national festival holidays. He/she will be eligible for getting medical allowance and deduction of provident fund.(iv) Daily wagers and semi-skilled workers who has service of more than 15 years will be considered as permanent worker and such semi-skilled workers will get current pay scale of skilled worker along with dearness allowance, local city allowance and house rent allowance. They will get benefit as per the prevailing rules of gratuity, retired salary, general provident fund. Moreover, they will get two optional leave in addition to 14 misc. leave, 30 days earned leave, 20 days half pay leave, Sunday leave and national festival holidays. The daily wage workers and semi-skilled who have completed more than 15 years of their service will get one increment, two increments for 20 years service and three increments for 25 years in the current pay scale of skilled workers and their salary will be fixed accordingly.4.2 That the Respondent – Board adopted the Government Resolution dated 17.10.1988 by way of communication dated 08.06.1989. That the respective original petitioners are working as daily rated employees with the Board. That on adoption of GR dated 17.10.1988 (hereinafter referred to as the parent Resolution) by the Respondent - Board all the daily rated employees working with the Board including the original petitioners were granted the benefit of the pay scales of Rs.750 and other benefits upon their completion of 5 years services.4.3 That thereafter vide Resolution dated 01.05.1991, the State Government modified the Resolution dated 17.10.1988. Under the modified GR dated 01.05.1991 it provided that all departments would assign administrative work of clerical cadre Class – III to those SCC pass daily wagers who have completed 7 years and it further provided that such daily wager should be paid pay scale of Rs.950- 1500 from the date of assignment of duty. Another Resolution dated 15.02.1992 was issued wherein it was stated that pay of Rs.950 would be granted in the pay scale of Rs.950-1500 w.e.f. 01.05.1991 to all SSC pass daily wagers who have completed 7 years of service. As observed hereinabove the Respondent – Board granted benefits under the parent Resolution to all the writ petitioners and the daily rated employees working with the Board upon their completion of five years and placed them at the basic pay of Rs.2550. That the Respondent – Board also granted benefits under the parent Resolution to all daily rated employees working with the Board including the original writ petitioners upon their completion of 10 years and placed them in the pay scale of Rs.2550-55-2600-60-3200.4.4 It appears that some of the zonal offices of the Board erroneously and inadvertently extended the benefit of the modified Resolutions dated 01.05.1991 and 15.02.1992 to unskilled daily wagers. That it came to notice of the Head Office of the Respondent – Board that in absence of any policy decision to adopt the Resolutions dated 01.05.1991 and 15.02.1992, inadvertently benefit of pay scale of Rs.950-1500 has been granted to certain daily wagers and therefore vide instructions dated 05.06.2015, it was instructed that such benefits should not be granted. In fact, the Respondent – Board withdrew the benefit of pay scale of Rs.950-1500 granted inadvertently applying the Resolutions dated 01.05.1991 & 15.02.1992 and even started recovery, which is the subject matter before the High Court in some other proceedings.4.5 It appears that the respective original writ petitioners sent various representations to the Board to place them in the pay scale of Rs.950-1500 as per the Resolutions dated 01.05.1991 & 15.02.1992 and further revision of pay to the extent of Rs.3050-4590. That thereafter the original writ petitioners approached the High Court by way of SCA No.16470 of 2018 to grant them the benefit of pay scale under the Government Resolutions dated 01.05.1991 and 15.02.1992 and to put them in the pay scale of Rs.950-1500. The said writ petition was opposed by the Board by filing a detailed reply. It was the specific case on behalf of the Board that the modified Government Resolutions dated 01.05.1991 and 15.02.1992 are never adopted by the Board like the parent Resolution dated 17.10.1988. It was also the case on behalf of the Board that in some zonal offices the benefit of Resolutions dated 01.05.1991 and 15.02.1992 were inadvertently given which have been withdrawn. It was the specific case on behalf of the Board that unless the Board specifically adopts the Government Resolutions dated 01.05.1991 and 15.02.1992, the original writ petitioners and other daily rated employees are not entitled to the benefit under the said Resolutions. It was also submitted that there is no automatic adoption of the subsequent resolutions. It was also the case that as the others were given the benefit of the Government Resolutions dated 01.05.1991 and 15.02.1992 inadvertently and by mistake and in fact the same are sought to be withdrawn/withdrawn, the writ petitioners cannot claim the parity. That by judgment and order dated 15.10.2019, the learned Single Judge allowed the writ petition and directed the Board to grant the benefits of pay scale of Rs.950-1500 to the original writ petitioners – daily rated employees with all consequential benefits upon completion of 10 years of service and revised their pay scales as per 5th, 6th and 7th Pay Commission scales on such basis. The learned Single Judge also directed to pay the arears.5. Feeling aggrieved and dissatisfied with the aforesaid judgment and order passed by the learned Single Judge, the Board preferred the Letters Patent Appeal 16470 of 2018 before the Division Bench of the High Court. By the impugned judgment and order the Division Bench of the High Court has allowed the Letters Patent Appeal and quashed and set aside the judgment and order passed by the learned Single Judge by holding that at the subsequent modified Government Resolutions dated 01.05.1991 and 15.02.1992 are not adopted by the Board, the daily rated employees of the Board are not entitled to any benefit flowing from modified Government Resolutions dated 01.05.1991 and 15.02.1992 which as such are not adopted by the Board.6. Feeling aggrieved and dissatisfied with the impugnment and order passed by the Division Bench of the High Court holding that the original writ petitioners are not entitled to pay scale of Rs.950-1500 and the benefits flowing from the modified Government Resolutions dated 01.05.1991 and 15.02.1992, the original writ petitioners – daily rated employees of the Respondent – Board have preferred the present appeals.

Reasoning:
13. Having heard the learned counsel for the respective parties and considering the list of dates and events reproduced hereinabove it can be seen that the writ petitioners are working as daily rated employees with the Respondent – Board. The State of Gujarat passed a resolution dated 17.10.1988 wherein the Government decided to grant certain benefits to skilled daily wager workmen. The Respondent – Board which is an autonomous body constituted under the Act adopted the Resolution dated 17.10.1988 and granted the benefits flowing from the GR dated 17.10.1988 which is the parent Resolution. It is not in dispute that the respective original writ petitioners – daily rated employees are granted the benefits flowing from the parent Resolution dated 17.10.1988.13.2 However, it is required to be noted that as such the Board never adopted the subsequent Resolutions dated 01.05.1991 and 15.02.1992. It is required to be noted that the parent Resolution dated 17.10.1988 was specifically approved by the Board vide communication dated 08.06.1989. On the contrary the administrative instructions vide communication dated 29.08.1991 were issued to all the Chief Engineers of zonal offices that benefits pursuant to Government Resolution of 1991 are not to be granted to the daily rated employees of the Board. It is to be noted that right from adopting the parent Resolution dated 17.10.1988, the Respondent - Board granted benefits under the parent Resolution to all the original writ petitioners – daily rated employees upon their completion of 5 years and of 10 years. Therefore, as such the Board which is an autonomous and statutory body created under the Act never adopted the Government Resolutions dated 01.05.1991 and 15.02.1992 and unless the said Resolutions are adopted by the Respondent – Board, the daily rated employees working with the Respondent – Board shall not be entitled to the benefits flowing from the subsequent resolutions. There shall not be automatic adoption and/or applicability of the subsequent resolutions. Under the circumstances as rightly held by the Division Bench, the daily rated employees of the Respondent – Board cannot claim the benefits from the Resolutions of 1991 and 1992 as a matter of right. As rightly observed and held they do no have any right to get the benefits flowing from the aforesaid Resolutions of 01.05.1991 and 15.02.1992 till specifically adopted by the Respondent – Board like adoption of the parent Resolution dated 17.10.1988.13.3 Even being the daily rated employees working with the Respondent – Board they cannot claim the parity with the employees of the State Government. The Respondent – Board is an autonomous and statutory body created under the Act. It is ultimately for the Respondent – Board to take a conscious decision which can be termed as a policy decision on the pay scales to be adopted and/or certain benefits which would have financial implications. Everything depends upon its economic viability or the financial capacity. As per the settled proposition of law the economic viability or the financial capacity of the employer is an important factor while fixing the wage structure, otherwise the unit itself may not be able to function and may have to close down inevitably and have disastrous consequences for the employees themselves. As per the settled proposition of law the employees cannot legitimately claim that their pay-scales should necessarily be revised and/or they must be granted certain additional benefits/benefits.13.4 As per the settled proposition of law equation of posts and salary is a complex matter which should be left to the expert body and undertakings and the court cannot interfere lightly. Granting of pay parity by the court may result in a cascading effect having adverse consequences. There are limitations or qualifications to the applicability of the doctrine of equal pay for equal work.13.5 Being daily rated employees of the Respondent – Board, they cannot claim as of right similar treatment as Government employees. The Respondent – Board is an independent entity and it might have its own financial capacity and therefore its employees cannot claim parity with the employees of the State Government.13.6 The State Government and the autonomous Board/bodies cannot be put at par. The Board has to depend upon their own financial resources. In the recent decision in the case of Punjab State Cooperative Milk Producers Federation Limited and Another (Supra) it is observed in paragraph 32 as under:32. The Central or State Government is empowered to levy taxes to meet out the expenses of the State. It is always a conscious decision of the Government as to how much taxes have to be levied so as to not cause excessive burden on the citizens. But the Boards and Corporations have to depend on either their own resources or seek grant from the Central/ State Government, as the case may be, for their expenditures. Therefore, the grant of benefits of higher pay scale to the Central/State Government employees stand on different footing than grant of pay scale by an instrumentality of the State.Therefore, the daily rated employees of the Board cannot as a matter of right claim the parity of pay scales with the Government employees.13.7 In the present case a conscious decision has been taken by the Board not to adopt the Government Resolutions dated 01.05.1991 and 15.02.1992. Even the State Government has refused to extend the benefits under the Government Resolutions of 1991 and 1992. The Board has taken a conscious decision considering the additional financial burden on the Board if the benefits under the Government Resolutions of 1991 and 1992 are allowed.14. At the cost of repetition, it is observed that unless and until the Board has specifically adopted the Government Resolutions of 1991 and 1992 like adopting the parent Resolution dated 17.10.1988, the daily rated employees/employees of the Respondent – Board shall not be entitled to any benefit flowing from the Resolutions of 1991 and 1992. Therefore, the learned Single Judge erred in directing the Board to grant the benefits flowing from the Government Resolutions dated 01.05.1991 and 15.02.1992 which is rightly set aside by the Division Bench of the High Court.15. So far as the submission on behalf of the original writ petitioners which was accepted by the learned Single Judge that as number of other daily rated employees of the Board were granted the benefits flowing from the Resolutions of 1991 and 1992, not paying similar benefits to the remaining daily rated employees would be discriminatory and violative of Article 14 of the Constitution of India is concerned, it is required to be noted that as such right from the very beginning it was the case on behalf of the Respondent – Board that the benefits under the Resolutions of 1991 and 1992 were inadvertently and mistakenly given by some of the zonal offices, which subsequently came to be withdrawn and even the recovery is also sought. As observed and held hereinabove the original writ petitioners – daily rated employees of the Board are not entitled to the benefits flowing from the Government Resolutions of 1991 and 1992. Therefore, they cannot invoke Article 14 of the Constitution to claim benefit on the ground of parity if they otherwise are not entitled to such benefit. As per the settled proposition of law Article 14 of the Constitution embodies concept of positive equality alone and not negative equality. It cannot be relied upon to perpetuate illegality and irregularity.15.2 In the case of Debasish Mukherjee (Supra) while dealing with the concept of equality it is observed in paragraph 26 as under:26. It is now well settled that guarantee of equality before law is a positive concept and cannot be enforced in a negative manner. If an illegality or an irregularity has been committed in favour of any individual or group of individuals, others cannot invoke the jurisdiction of Courts and Tribunals to require the state to commit the same irregularity or illegality in their favour on the reasoning that they have been denied the benefits which have been illegally or arbitrarily extended to others. [See : Gursharan Singh vs. New Delhi Municipal Administration - 1996 (2) SCC 459,  Union of India vs. Kirloskar Pneumatics Ltd. - 1996 (4) SCC 433,  Union of India vs. International Trading Co. - 2003 (5) SCC 437,  and State of Bihar vs. Kameshwar Prasad Singh - 2000 (9) SCC 94 .]16. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and as observed hereinabove the daily rated employees of the Board cannot claim as a matter of right the benefits flowing from the Government Resolutions dated 01.05.1991 and 15.02.1992 and as such they are not entitled to the benefits flowing from the said Resolutions of 1991 and 1992 automatically and considering the fact that even subsequently the mistake committed by other zonal offices have been corrected and the benefits mistakenly and/or inadvertently have been withdrawn and even the recovery sought, the learned Single Judge committed grave error in holding that the action of the Respondent – Board in not granting benefit flowing from the Government Resolution of 1991 and 1992 is discriminately and violative of Article 14 of the Constitution of India. The same is rightly corrected by the Division Bench of the High Court and the Division Bench of the High Court has rightly set aside the order passed by the Single judge.17. Now so far as the reliance placed upon by learned counsel appearing on behalf of the original writ petitioners in the decision of this Court in PWD Employees Union (Supra) is concerned, the same shall not be applicable to the facts of the case on hand and/or the same shall not be of any assistance to the daily rated employees of the Respondent – Board. In the case before this Court the dispute was with respect to two different departments of the State Government.As observed hereinabove, the employees of the Government departments and the employees of the Board as such stand on different footings. As observed hereinabove the employees of the Board cannot claim the parity with that of the Government employees.