Bhagwan Dass V/S State Of Haryana

 BHAGWAN DASS AND OTHERS Vs STATE OF HARYANA & ORS DATE OF JUDGMENT31 07 1987 THAKKAR M.P.714 1987 SCC 634 JT 1987206 1987 SCALE The Respondent State has failed to establish its plea that the nature of the duties are different. In the regular cadre the essential qualification for appointment is B.A B.ED. Petitioners also possess the same qualification viz. B.A. B.ED. In fact many of them even possess higher degrees such as M.A. M.ED. In what manner and in what respect are the duties and functions discharged by those who are in the regular cadre different The petitioners having discharged the initial burden of showing similarity in this regard the burden is shifted on the Respondent State to establish that these are dissimilar in essence and in substance. We are unable to uphold the bare assertion made in this behalf by the State of Haryana in its Counter affidavit.So long as the petitioners are doing work which is similar to the work performed by respondents 2 to 6 from the stand point of ’Equal work for equal pay’ doctrine the petitioners cannot be discriminated against in regard to pay scales. Whether equal work is put in by a candidate select ed by a process whereat candidates from all parts of the country could have competed or whether they are elected by a process where candidates from only a cluster of a few vil lages could have competed is altogether irrelevant and immaterial for the purpose of the applicability of ’Equal work for equal pay’ doctrine. A typist doing similar work as another typist cannot be denied equal pay on the ground that the process of selection was different inasmuch as ultimately the work done is similar and there is no rational ground to refuse equal pay for equal work. It is quite possible that if he had to compete with candidates from all over the country he might or might not have been selected. It would be easier for him to be selected when the selection is limited to a cluster of a few villages. That however is altogether a different matter. It is possible that he might not have been selected at all if he had to candidates from all over the country. But once he is select ed whether he is selected by one process or the other he cannot be denied equal pay for equal work without violating the said doctrine.Whether appointments are for temporary periods and the Schemes are temporary in nature is irrelevant once it is shown that the nature of the duties and functions discharged and the work done is similar and the doctrine of ’Equal pay for equal work’ is attracted.The petitioners have been appointed in the context of a Scheme which is by the very nature of things transient and temporary. No doubt it has been extended from year to year But by the very nature and scope of the scheme once the objective of Adult Education is accomplished in the sense that the illiterate adults of the cluster of villages become literate pursuant to the education imported at the centres the need for adult education would diminish progressively and ultimately cease. Having regard to these facts and circumstances we do not think that the Respondent State can be accused of making appointments on a temporary six months’ basis with any ulterior or oblique motive. In our opinion therefore the prayer of the petitioners to absorb them as regular employees on a permanent basis from the date of their initial appointment has no justification. That however does not mean that the petitioners should be deprived of the legitimate benefits of being fixed in a pay scale corre sponding to the one applicable to respondents 2 to 6 by treating them as employees who have continued from the date of initial appointment by disregarding the breaks which have been given on account of the peculiar nature of the Scheme While therefore the petitioners cannot claim as a matter of right to be absorbed as permanent and regular employees from the inception they would be justified in claiming pay on the basis of the length of service computed from the date of their appointment depending on the length of service by disregarding the breaks which have been given for a limited purpose. Having regard to the facts and circumstances of the present case ends of justice would be met if the petition ers are paid the difference in salaries with effect from the date of the institution of the Writ Petition viz. September 18 1985. But it will be convenient to direct the implemen tation with effect from September 1 1985.725B G 726A B ORIGINAL JURISDICTION: Writ Petition No. 123185 Under Article 32 of the Constitution of India Gobind Mukhoty and S.K. Bhattacharya for the Petitioners M.S. Gujral Madhu Sudan Rao I.S. Goel C.V. Subba Rao and Ms. Kitty Kumarmanglam for the Respondents The Judgment of the Court was delivered by THAKKAR J. The alleged violation of "Equal work equal pay" doctrine is the principal grievance of the petitioners The petitioners 102(1) in number holding the degrees of B.A. B.Ed. and M.A. B.Ed. were appointed as Supervisors by a competent selection committee constituted by the Education Department of Haryana from time to time since October 2 They have instituted the present petition under Art. 32 of the Constitution of India seeking appropriate reliefs in the context of two grievances one that the petitioners are given a deliberate break of one day after the lapse of every six months and have thus been treated as temporary Govern ment servants notwithstanding the fact that they have been continuously working eversince the dates of their respective appointment subject to the aforesaid break of one day at intervals of six months instead of absorbing them as regular employees in regular pay scales. And secondly though the petitioners performed their duties as Supervisors in the Education Department and do the same work as is being done by their counterparts respondents 2 to 6 who are discharg ing similar duties as Supervisors in the Education Depart ment who are absorbed as regular government servants they are paid less. The relief claimed by the petitioners is in the following terms: To declare by appropriate writ that the petitioners continue to be in the service of the respondents from the date of appointment irrespective of their being a deliberate break in service after every six months by the respondents in violation of Articles 14 and 16 of the Constitution of India 1. Originally there were 91 petitioners Subsequently 11 more were added as per the order of the Court dated September 18 1986 in Civil Misc. Petition Nos. 23014 and 25722 of 1986 718 To declare by appropriate writ or direction that the petitioners are in continu ous service since their respective date of appointments since the National Adult Educa tion Programme was introduced and further issue a writ in the nature of mandamus to the respondent that the petitioners are entitled to the benefit of notification dated 15 9 1982 issued by respondent State of Haryana and accordingly the petitioners be put on similar pay scales and service conditions as that of Masters in the State of Haryana and To issue a writ in the nature of mandamus or any appropriate writ order or direction to the respondent nos. 2 and 4 to put the peti tioners on regular pay scales along with other consequential benefits of a permanent employee from the date of initial appointment Before dealing with the grievances made by the petition ers it would be appropriate to portray the factual back ground. The Education Department of State of Haryana has constituted an Adult Education Scheme under the overall control of Joint Director Adult and non formal Education Department respondent no. 3 herein in the context of the National Adult Education Scheme sponsored by the Government of India the birth anniversary of Mahatma Gandhi in 1978 October 2 1978). The aim of adult education under this scheme is to provide functional literacy to the illiterates in the age group of 15 35. The State Government has also framed another Scheme for the non formal education under the overall control of the same official. The objective of this scheme is to impart learning by special contact courses to the students in the age group of 6 15 who are dropouts from schools. The petitioners are appointed as Supervisors There are hundreds of such Adult Education Centres and Non formal Education Centres. One supervisor is provided for a group of 30 centres. Thus each of the petitioners is in charge of 30 centres under one scheme or the other. He is paid remuneration at the rate of Rs.500 p.m. as fixed sal ary. Each one of them was prior to March 1984 also paid a sum of Rs.60 as fixed travelling allowance which allowance has been increased to Rs. 150 per month from March 7 1984 The Adult Education Centres are run under the Rural Functional Literacy Programme Projectof the Central Government. The project is however administered by the respondent the State of Haryana. According to the respond ent the expenditure in respect of remuneration payable to the petitioners under RFLP is borne by the Central Government. With regard to the centres functioning under the State Adult Education Programme Projectto those of the petitioners who are employed under the Scheme are paid remuneration on the same pattern by the State Government as and by way of honorarium The functions and duties discharged by the petitioners in their capacity as Supervisors under the Adult Education Scheme as per the communication dated April 8 1985 addressed by respondent no. 3 to the District Officers and Project Officers are as under: "The supervisors of the adult education has been given the status equivalent to masters of formal schools and their functions are also like the Block Education Officers of the formal schools. Thus the functions of the supervisors working under Adult Education Scheme are inspection and to impart knowledge The general duties of the supervisors will be: to make educational survey of his own village and nearby villages under the Rural Functional Literacy Programme for starting adult educa tion and non formal education centres to locate and recommend for appointment suitable instructors for these centres from these very villages to give active co operation in their training to give guidance in their reading and writing material to give proper direction to instructors in his cluster the latest techniques of adult education to give guid ance continuously in latest technique of teaching methods inspection of centres and making arrangements for their reading writing material to give model lessons to hold discussions in the Mohallas houses of the community cultivating friendship and personal relationship with the community create awareness and awakening in them in the matter of literacy functionality and awareness The controversy as to whether the Supervisors were full time Supervisors like Respondents 2 to 6 or whether they were part time Supervisors as has been contended by the State of Haryana in its affidavit in reply has to be re solved in favour of the petitioners inasmuch as the documen tary evidence placed on record establishes that the peti tioners were full timeSupervisors. At nexure ’C’ has been produced a document entitled ’Revised financial pattern of the Project with 100 Educational cen tres ....... ". The cadre of Supervisors has been de scribed as full time cadre in this document as evidenced by the following extract: Full time Supervisors one supervisor for a clus ter of 30 centresTA cost on supervisionThe headquarter of each supervisor shall be established in the middle of the village Each supervisor will be present at his Headquarter on a fix day once in a week between 9.30 A.M. to 4.00 P.M. The information of the fix day will be given to all the in structors and adult education officers The monthly tour programme of each Supervisor will be got sanctioned by the Assistant Project Education Officers and made his tour according to this plan as far as possible The Supervisor will stay whole day in the village and will inspect informal educa tion centres in the day and adult education centre in the night He will call the meeting of respected persons of the 721 village on the date of meeting and discuss about the progress of the centre. This meeting can be called before or after the time of the centre If any supervisor leaves the head quarter without permission or does not perform his duties properly the necessary action may be taken against him It is therefore futile to contend that the petitioners in their capacity as Supervisors were required only to perform part time work. As per clauseof the aforesaid extract the supervisors were required to stay for the whole day in the village and were required to visit the Informal Education Centre and the Adult Education Centre in the night. They were also required to go on tour and to remain at the headquarter once a week from 9.30 A.M. to 4.00 P.M The conclusion is therefore inevitable that the petitioners were not part time functionaries but were whole time func The matter may now be examined in this background. The respondent State has resisted the claim of the petitioner for granting them pay in accordance with the pay scales applicable to Respondents 2 to 6 who are Supervisors in the regular cadre discharging similar functions on four grounds viz: that the petitioners are not full time employees the mode of recruitment of the petitioners is different from the mode of recruitment of respondents 2 to 6 the nature of the functions dis charged by the petitioners are not similar to the functions discharged by respondents 2 to 6 and appointments are made on six month ly basis and there is a break in service having regard to the fact that the posts are sanctioned on year to year basis in view of the temporary nature of the Scheme With regard to the first ground for not granting salary on the same basis as of respondents 2 to 6 viz. that they are part time employees whereas respondents 2 to 6 are full time employees having examined the aforesaid records placed before the Court we are of the opinion that there is no substance in this contention With regard to the next contention viz. that the mode of recruitment of the petitioners is different from the mode of recruitment of respondents 2 to 6 we are afraid it is altogether without substance. The contention has been raised in the following termsof the Counter affi davit dated 6 1 1986 filed on behalf of Respondents 1 to 13): It is absolutely incorrect that the Petition ers are similarly placed as the employees under the Social Education Scheme as alleged The latter are whole time employees selected by the subordinate services Selection Board after competing with candidates from any pan of the country. In the case of Petitioners normally the selection at best is limited to the candidates from the Cluster of a few villages only. The contention made by the Petitioners has no justifiable basis addressed by the respondent State of Haryana to the District Officers which has been quoted in the earlier part of the judgment supports the contentions of the petitioners and belies the plea raised by the Respondent State Lastly we have to deal with the contention that the Scheme is a temporary Scheme and the posts are sanctioned on an year to year basis having regard to the temporary nature of the Scheme. We are unable to comprehend how this factor can be invoked for violating. ’Equal pay for equal work’ doctrine. Whether appointments are for temporary periods and the Schemes are temporary in nature is irrelevant once it is shown that the nature of the duties and functions discharged and the work done is similar and the doctrine of ’Equal pay for equal work’ is attracted. As regards the effect of the breaks given at the end of every six months we will deal with this aspect shortly hereafter. That however is no ground for refusing aspect the ’Equal pay for equal work’ doctrine. Be it realized that we are concerned with the ’Equal work Equal pay’ doctrine only within the parameters of the four grounds and the fact situation discussed herei nabove. We are not called upon and we have no need or occasion to consider the applicability or otherwise of the said doctrine outside these parameters. For instance we are not required to express any opinion in the context of em ployment of similar nature under different employers or in different cadres under the same or different employers Nor are we concerned with questions required to be dealt with by authorities like the Pay Commissions such as equa tion of cadres or determination of parity differential between different cadres or making assessment of work loads or qualitative differential based on relevant considerations and such other matters. We are concerned in the present matter with employees of the same employer doing same work of same nature discharged in the same department but ap pointed on a temporary basis instead of in a regular cadre on a regular basis. We have therefore decided the questions raised before us in the backdrop of facts of the present case. On the other dimensions of the doctrine we remain silent as there is no need or occasion to speak In the result we are of the opinion that the petitioners are entitled to be paid on the same basis of same pay scale as per which respondents 2 to 6 who are discharging similar duties as Supervisors just like the petitioners are being We are now faced with the problem arising in the context of the fact that appointments of the petitioners were ini tially made for six months and after giving a break of a day or two they were reappointed to the same posts by fresh order. The counter affidavit filed on 23rd November 1985 by the State of Haryana and the documents placed on record go to show that the petitioners’ contention that this is done deliberately with a view to deny to them the benefits enjoyed by the employees similarly situated and discharging similar duties and functions as Supervisors in the regular cadres.We find it difficult to accept the contention of the petitioners that this is being done deliberately and with mala fides attributed to the Respondent State. The petitioners have been appointed in the context of a Scheme which is by the very nature of things transient and temporary. Annexure R 1 to the aforesaid counter affidavit shows that the Scheme was expected to function for ten months. No doubt it has been extended from year to year. But by the very nature and scope of the Scheme once the objective of Adult Education is accom plished in the sense that the illiterate adults of the cluster of villages become literate pursuant to the educa tion imparted at the centres the need for adult education would diminish progressively and ultimately cease. As dis closed in paragraphs 16 and 17 of the aforesaid counter affidavit the targets were expected to be achieved latest by 1990. It was in this background that the posts were sanc tioned on year to year basisof the aforesaid rejoinder affida vit while a Peon in the regular service would be drawing Rs.650 the petitioners would be getting only Rs.500 as fixed salary notwithstanding the nature and importance of the functions discharged by them and the role played by them in the important field of advancement of literacy in the State. And finally we must deal with the question of date with effect from which the petitioners should be paid the difference in salary. In our opinion having regard to the facts and circumstances of the present case ends of justice would be met if the petitioners are paid the differ ence in salaries with effect from the date of the institu tion of the Writ Petition viz. September 18 1985. But it will be convenient to direct the implementation with effect from September 1 1985. We accordingly allow the Writ Peti tion partly and direct as under: The Petitioners shall be fixed in the same pay scale as that of Respondents 2 to 6 The pay of each of the petitioners shall be fixed having regard to the length of service with effect from the date of his initial appointment by ignoring the break in service arising in the context of the fact that the initial appoint ment orders were for 6 months and fresh appointment orders were issued after giving a break of a day or two The fixation shall be made as per the general principles adopted whenever pay revisions are made. In case upward revision has been effected in respect of the ’supervisors in the regular cadre such revision should be taken into ac count in refixing the pay of the petitioners The amount representing the difference in pay of the petitioners computed as per the present order shall be paid to each petitioner preferably latest by Mahatma Gandhiji’s birthday which falls on 2nd October 1987 or latest by November 1 1987. The petitioners will be entitled to incre ments in the pay scale in accordance with law notwithstand ing the break in service that might have been given We hope and trust that the State of Haryana will not show displeasure at the petitioners who have approached this Court in order to vindicate their right to claim equal pay and that service of no petitioner would be terminated except on reaching the age of superannuation or by way of appropriate disciplinary action or on abandonment of the Scheme. For the sake of abundent caution we direct accordingly Fresh appointment orders will have to be issued reap pointing the petitioners who have continued in service on the expiry of the six months period from time to time in order to give effect to the direction contained in clause V In case the amounts of difference in pay cannot be computed within the time limit granted by this order provi sional and approximate calculations should be made and payment should be made on such basis subject to final ad justment within the time granted The petitioners shall be paid the cost of the Writ Petition quantified at Rs.5 000. Ordered accordingly H.L.C. Petition

Summary: “Factors which weigh in the mind of the competent authority while granting officiating promotion are not the same which have to be kept in view while deciding the issue relating to premature retirement” The alleged are that the petitioner had joined the police department on 15.5.1983. He earned his due promotions. He was entitled to by brought on list ””D”” for further promotion of Sub-Inspector w.e.f. 11.12.1989. In this regard, his representations were rejected. The petitioner filed a Civil Writ Petition No. 12331 of 1998 seeking promotion as Sub-Inspector. When notice of motion was issued by this Court, the respondents promoted the petitioner as Sub-Inspector on 10.12.1998 with effect from 1991. The grievance of the petitioner is that within a short span of 10 months he had been served with three months notice for retiring him compulsorily at the age of 55 years and three months.It is contended that the order retiring him compulsorily is illegal because before issuing such an order, now show cause notice or opportunity of being heard had been given to the petitioner. He further asserted that once He has been promoted, the earlier confidential reports which are adverse would be washed away and cannot be taken into consideration.Lastly, according to the petitioner, he could only be retired by the Director General of Police with the previous approval of the State Government and that has not been done and, therefore, the order is illegal. Hence, the present petition. PROCEDURAL HISTORY:In the written statement filed, the petition as such has been contested. It is not in dispute that the petitioner earlier filed a writ petition, referred to above. While reply to the said writ petition was being prepared and examined, he was promoted as officiating Sub-Inspector i.e. 9.8.1991. Subsequently, he was not found fit for retention in government service. He had earned adverse reports from 22.4.1994 to 7.11.1994. The integrity of the petitioner was reported to be doubtful. Therefore, he was retired compulsorily. The reason is that at the time of his earlier promotion, record only up to the year 1990 was considered and, therefore, he was promoted.It is denied that only the Director General of Police with the approval of the State Government could retire the petitioner. According to the respondents, the petitioner had 25 years qualifying service and, therefore, he could be retired. ISSUE BEFORE THE COURT:Whether the writ petition is maintainable? RATIO OF THE COURT:The court held that this adverse report could legitimately be taken into consideration for forming an opinion that the petitioner was not fit to be retained in service or that his retention was not in public interest/interests of service. His officiating promotion on 11.2.1980 as Sub-Inspector cannot have the effect of washing out the adverse reports because the assessment of the record of an employee at the 5 stage of promotion is substantially different from the assessment made for his retention in service after attaining a particular age or specified length of service. In the former case record of a limited period is considered but in the latter case overall record of service is required to be taken into account with greater emphasis on the record of previous 10 years. The court also held that Moreover, factors which weigh in the mind of the competent authority while granting officiating promotion are not the same which have to be kept in view while deciding the issue relating to premature retirement.The court held that in this case sufficient material was available with the competent authority to form an opinion that the retention of the respondent No. 1 in service was not in public interest and in view of the principles of law laid down in Sh. Baikuntha Nath Das and another v. Chief District Medical Officers, Bari-pada and another 1992(2) SLR 2 we do not find any legal justification to hold that the premature retirement of the petitioner is arbitrary or otherwise unjustified.The court held that it is abundantly clear from the aforesaid that mere promotion by itself will not wash away the adverse entries. As one looks at the present controversy, the petitioner cannot take advantage of the said argument. This is for the reason that he was promoted as Sub-Inspector w.e.f. 1991.Hence, the court held that therefore, his confidential dossier for the earlier period was seen. His integrity was found to be doubtful in the subsequent years. Therefore, it is the subsequent entry which would prevail when the order in question is to be seen and the fact that he was promoted loses its sting and significance. Herein, copies of adverse entries against the petitioner have been appended as Annexure P-4 and Annexure P-5.  DECISION HELD BY COURT:In this case the judgement was given by JUSTICE NAVATI that the allegation was that at the instigation of the parents and with the help of his brother Rajinder, the appellant had caused the death of his wife.The court stated that the opinion that the High Court committed a grave error in coming to the conclusion on the basis of such insufficient evidence that it was the appellant and appellant alone who caused the death of Shanno Devi.  The court allowed this appeal, set aside his conviction under Section 302 I.P.C. and acquit him.  Then appellant is on bail and, therefore, his bail bonds re-discharged.