Lalit Kumar v. 1. The State of Jharkhand 2. The Secretary, Health, Medical Education and Family Welfare
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 3025 of 2021 -- Lalit Kumar --- Petitioner Versus 1. The State of Jharkhand 2. The Secretary, Health, Medical Education and Family Welfare Department, Government of Jharkhand, Ranchi 3. The Civil Surgeon, Koderma ..Respondents -- CORAM: HON’BLE MR. JUSTICE DEEPAK ROSHAN -- For the Petitioner For the Respondents
Legal Reasoning
: Mr. Saurabh Shekhar, Advocate : Mr. Gaurav Raj, A.C to A.A.G-II -- RESEREVED ON 06/12/2023 PRONOUNCED ON 15/03/2024 Heard learned counsel for the parties. 2. The instant application has been preferred by the petitioner praying for a direction upon the respondents to grant the petitioner the benefit of minimum of pay scale equivalent to the cadre of regular Class- IV employees of the department on monthly basis, along with the benefit of dearness allowance in view of the judgment passed by Hon’ble Apex Court in the case of State of Punjab & Ors. Vs. Jagjit Singh & Ors. reported in (2017) 1 SCC 148, along with all consequential benefits. 3. The brief fact of the case is that the petitioner was appointed on daily wage basis in view of increased quantum of work under National Rural Health Mission on 24.06.2010, vide Memo No. 255 issued under the signature of Civil Surgeon, District Rural Health Mission. He was appointed against Class- IV post. The petitioner has continuously worked without any break till date as a daily wager and such fact is apparent from perusal of Letter No. 497 dated 20.06.2017 issued by the Civil Surgeon, Koderma, stating that he has worked continuously since 24.06.2010. 4. Learned counsel for the petitioner submits that the petitioner was appointed on daily wage basis in view of increased quantum of work under National Rural Health Mission on 24.06.2010, vide memo no. 255 issued under the signature of Civil Surgeon, District Rural Health Mission Surgeon. Petitioner was appointed against Class-IV post. He has worked continuously since 24. 06. 2010 i.e. since last 11 years (approx.) 2 but his services have not been regularised and is not being paid the benefits of minimum of pay scale equivalent to the class IV cadre. Learned counsel for the petitioner further contended that the action of the respondents itself is arbitrary as even though petitioner is rendering similar nature of work continuously without any break as is done by other regular class IV employees, he is getting lesser amount as wages. Further, on many occasions and in different departments respondent State has taken decision to make payment of minimum pay scale to daily wager employees. As such, the respondents may be directed to grant the petitioner the benefit of minimum of pay scale equivalent to the cadre of regular Class-IV employees of the department on monthly basis, along with the benefit of dearness allowance in view of the judgment passed by the Hon’ble Apex Court in the case of State of Punjab & Ors. Vs. Jagjit Singh & Ors. reported in (2017) 1 SCC 148, along with all consequential benefits. 5. Learned counsel for the respondents submits that the Superintendent, Koderma has provided notification issued by the Labour, Employment and Training Department, Government of Jharkhand contained in Memo no. 1878 dated 24.10.2019, whereby the Government has fixed the minimum wages of different category of labours vide Letter no. 433 dated 03.09.2021 and in view of the abovementioned notification, the Civil Surgeon-cum-Chief Medical Officer, Koderma has paid the remuneration dearness allowance to the petitioner. 6. Having heard learned counsel for the parties and after going through the documents annexed with the respective affidavits and the averments made therein it transpires that the petitioner has worked continuously which is evident from perusal of various Memos of various dates and for the sake of brevity reference may be given to Memo No. 131 dated 01.03.2012, Memo No. 645 dated 02.12.2011, Memo no. 03, dated 03.01.2012 and Memo No. 70, dated 02.02.2012, all issued by District Programme Director, Koderma. Thus, it is clear that the petitioner is working for the respondents since the year 2010, and his services have not been regularized. Further, 3 he is not being paid the benefits of minimum pay scale equivalent to the class-IV cadre. This also indicates that the respondents have regular need of the petitioner’s service and therefore since last 11 years his services are being taken, but only at very low rate of salary. This amounts to a case of harassment, when enough work is being taken, but equivalent payment is not being done. For this reason, the petitioner has preferred series of representations. In view of the aforesaid admitted facts following issues are involved to decide the instant application:- (i) Whether the petitioner is entitled to get salary of Rs. 18,000/- which is the basic pay of the regular Class-IV employees since he is rendering the same nature of work, but is being paid only Rs. 9,000/- per month for such employment? ii) Whether the petitioner is entitled to get the benefit of dearness allowance, along with the minimum of pay scale; inasmuch as the dearness allowance is considered as part of salary and restores the value of money being received as paid? The aforesaid issues involved in this writ application has been duly considered by the Hon’ble Apex Court in the case of State of Punjab (supra), wherein the Hon’ble Apex Court has laid down the law as under: 5. The issue which arises for our consideration is: whether temporarily engaged employees (daily-wage employees, ad hoc appointees, employees appointed on casual basis, contractual employees and the like), are entitled to minimum of the regular pay scale, along with dearness allowance (as revised from time to time) on account of their performing the same duties which are discharged by those engaged on regular basis, against sanctioned posts? The Full Bench of the High Court, while adjudicating upon the above controversy had concluded, that such like temporary employees were not entitled to the minimum of the regular pay scale, merely for reason, that the activities carried on by daily wagers and the regular employees were similar. However, it carved out two exceptions, and extended the minimum of the regular pay to such employees. The exceptions recorded by the Full Bench of the High Court in the impugned judgment are extracted hereunder: “(i) A daily wager, ad hoc or contractual appointee against the regular sanctioned posts, if appointed after undergoing a selection process based upon fairness and equality of opportunity to all other eligible candidates shall be entitled to minimum of the regular pay scale from the date of engagement. (2) But if daily wager, ad hoc or contractual appointees are not appointed against regular sanctioned posts and their services are availed continuously, with notional breaks, by the State Government or its instrumentalities for a sufficient long period i.e. for 10 years, such daily wagers, ad hoc or contractual appointees shall be entitled to minimum of the regular pay scale without any allowances on the assumption that work of perennial nature is available and having worked for such long period of time, an equitable right is created in such category of persons. Their claim for regularisation, if any, may have to be considered separately in terms of legally permissible scheme. 4 (3) In the event, a claim is made for minimum pay scale after more than four years and two months of completion of 10 years of continuous working, a daily wager, ad hoc or contractual employee shall be entitled to arrears for a period of three years and two months.” 57. There is no room for any doubt that the principle of "equal pay for equal work" has emerged from an interpretation of different provisions of the Constitution. The principle has been expounded through a large number of judgments rendered by this Court, and constitutes law declared by this Court. The same is binding on all the courts in India under Article 141 of the Constitution of India. The parameters of the principle have been summarised by us in para 42 hereinabove. The principle of "equal pay for equal work" has also been extended to temporary employees (differently described as work- charge, daily wage, casual, ad hoc, contractual, and the like). The legal position, relating to temporary employees has been summarised by us, in para 44 hereinabove. The above legal position which has been repeatedly declared, is being reiterated by us yet again. 58. In our considered view, it is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work cannot be paid less than another who performs the same duties and responsibilities. Certainly not, in a welfare State. Such an action besides being demeaning, strikes at the very foundation of human dignity. Anyone, who is compelled to work at a lesser wage does not do so voluntarily. He does so to provide food and shelter to his family, at the cost of his self-respect and dignity, at the cost of his self- worth, and at the cost of his integrity. For he knows that his dependants would suffer immensely, if he does not accept the lesser wage. Any act of paying less wages as compared to others similarly situate constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation. 60. Having traversed the legal parameters with reference to the application of the principle of "equal pay for equal work", in relation to temporary employees (daily-wage employees, ad hoc appointees, employees appointed on casual basis, contractual employees and the like), the sole factor that requires our determination is, whether the employees concerned (before this Court), were rendering similar duties and responsibilities as were being discharged by regular employees holding the same/corresponding posts. This exercise would require the application of the parameters of the principle of "equal pay for equal work" summarised by us in para 42 above. However, insofar as the instant aspect of the matter is concerned, it is not difficult for us to record the factual position. We say so, because it was fairly acknowledged by the learned counsel representing the State of Punjab, that all the temporary employees in the present bunch of appeals were appointed against posts which were also available in the regular cadre/establishment. It was also accepted that during the course of their employment, the temporary employees concerned were being randomly deputed to discharge duties and responsibilities which at some point in time were assigned to regular employees. Likewise, regular employees holding substantive posts were also posted to discharge the same work which was assigned to temporary employees from time to time. There is, therefore, no room for any doubt, that the duties and responsibilities discharged by the temporary employees in the present set of appeals were the same as were being discharged by regular employees. It is not the case of the appellants, that the respondent employees did not possess the qualifications prescribed for appointment on regular basis. Furthermore, it is not the case of the State that any of the temporary employees would not be entitled to pay parity on any of the principles summarised by us in para 42 hereinabove. There can be no doubt, that the principle of "equal pay for equal work" would be applicable to all the temporary employees concerned, so as to vest in them the right to claim wages on a par with the minimum of the pay scale of regularly engaged government employees holding the same post. 61. In view of the position expressed by us in the foregoing paragraph, we have no hesitation in holding that all the temporary employees concerned, in the present bunch of cases would be entitled to draw wages at the minimum of the 5 pay scale (at the lowest grade, in the regular pay scale), extended to regular employees holding the same post.” 7. After perusing the aforesaid judgment of Hon’ble Apex Court, it is clear that Hon’ble Apex Court has deliberated the issues in detail and came to the conclusion that the persons who have been appointed and are continuously discharging duties commensurate with regularly appointed persons, such persons are also entitled to be paid the same wages in accordance with the provisions of equal pay for equal work and also considering that fact that the petitioner has been working for a substantially long length of time without any break and has performed the same duties and responsibilities as that of Class-IV employees are getting only Rs. 9,000/- per month which is admittedly against the Rule laid down by Hon’ble Apex Court. 8. Thus, this Court holds that the petitioner is entitled to receive the benefit of minimum of pay scale as he is rendering similar nature of work without any break for the respondents, as is being done by other regular Class-IV employees. This Court also holds that since the dearness allowance is considered as part of salary and restores the value of money being received as pay in accordance with the falling value of money due to the recession and cost inflation of the market value, the petitioner is also entitled to dearness allowance. 9. As a result, the instant writ application is allowed and the respondents are directed to calculate the arrear of salary including dearness allowance i.e., amount which is being paid to regular employee minus amount which has been paid to the petitioner and after calculation, the same be paid to the petitioner. It goes without saying that the entire payment shall be made within a period of four months from the date of receipt/production of copy of this order. 10. As a result, the instant writ application is disposed of in the manner indicated above. (Deepak Roshan, J.) Jharkhand High Court, Ranchi Dated 15 /03/2024 Jk