State of Punjab & Ors. v. Mr. Suvir Sehgal, Additional

Judgment

1. To be referred to the Reporters or not?

2. Whether the judgment should be reported in the Digest? M.M. KUMAR & RITU BAHRI, JJ.

1. By this order we propose to dispose of a bunch of 23 appeals* involving common question of law and facts.

2. The first set of appeals consists of LPA Nos. 172 of 2003 and 10 L.P.A. No. 1024 of 2009 & connected appeals 2 of 2004, which have been preferred by the petitioner-appellants against the common judgment dated 20.11.2002 passed by the learned Single Judge, vide which five writ petitions, namely, CWP Nos. 14050, 15641, 17180, 14425 and 14857 of 1999 were disposed of. The said writ petitions were earlier pending before a Division Bench of this Court along with CWP No. 13650 of 1999, wherein the following question of law was framed: “Whether the petitioners who are working on daily wages as chowkidars are entitled to the minimum of the pay scale, which is admissible to a regularly employed chowkidar?”

3. The Division Bench also opined that the aforementioned core question required consideration by a larger Bench as the same was arising again and again. Accordingly, the matter was referred to a larger Bench consisting of 3-Judges, vide order dated 13.12.1999. On 20.12.2001, the Full Bench answered the reference in the following words: “ The petitioners, who are working as Ledger Clerks, Ledger- Keepers, Pump Operators, Mali-cum-Chowkidars, Fitters, Petrol Men and Surveyor etc. and are satisfying the afore-stated essential ingredients, are entitled to the minimum of the pay scale (basic pay and dearness allowance alone) admissible to their counter- parts working on regular basis in the same department. The reference is answered accordingly and matter be listed before the regular Bench for disposal in accordance with law, subject to orders of Hon’ble Chief Justice.” The Full Bench judgment has been reported as Vijay Sharma v. State of Punjab, 2002 (1) SCT 931.

4. Thereafter, the writ petitions which stood admitted prior to L.P.A. No. 1024 of 2009 & connected appeals 3 reference order were ordered to be listed before the Single Bench and the others for motion hearing before Division Bench as per Roster. However, the learned Single Judge dismissed the writ petitions filed by the petitioner- appellants along with remaining three petitions, vide judgment dated

20.11.2002.

5. The second set form part of such appeals which have been preferred by the State of Punjab against the orders dated 22.9.2008, 4.2.2009,

31.10.2008, 9.7.2009 and 24.7.2009, passed by the learned Single Judge (for

details see footnote), allowing the writ petitions in identical terms. In this set of petitions, the learned Single Judge primarily came to the conclusion that the doctrine of ‘equal pay for equal work’ is applicable only where the complete identity between the temporary/daily wagers and regular appointed employees is established. Considering the specific stand taken by the petitioners that they are performing the same duties as that of regularly appointed employees, the learned Single Judge in his common order dated 9.7.2009, passed in C.W.P. No. 116 of 2009 (Rajinder Kumar and others v. State of Punjab and others) and connected petitions, has concluded as under:- “ The sum and substance of the judgments relied upon both the sides is that the doctrine of “equal pay for equal work” is applicable only where the complete identity between the temporary/daily wagers and regular appointed employees is established. The specific averments made by the petitioners are that they are performing the same duties as the regularly appointed employees are performing and a large number of daily wagers are getting the minimum of the pay scale by virtue of various judgments of the Hon'ble Supreme Court and this Court as L.P.A. No. 1024 of 2009 & connected appeals 4 also that some time the posts are interchangeable. These averments have not been denied and disputed in the reply filed by the respondents. The only arguments raised on behalf of the respondents is that daily wagers have not been selected by any process of selection whereas the regularly appointed employees were duly selected. In view of the catena of judgments of this Court affirmed by the Hon'ble Supreme Court referred to here-in- above, I am of the considered view that the petitioners cannot be denied a similar treatment as given to other daily wagers working in various departments of the State in the same categories to which the petitioners belong. Even the specific averments of the petitioners that persons who are engaged later in time than the petitioners are getting minimum pay scales, have not been denied specifically. It is not irrelevant to say that there is complete, total and wholesale identity between the regularly appointed employees, daily wagers already getting minimum of pay scale under the court orders and the petitioners. In view of the above, these petitions succeed. The petitioners shall be entitled to minimum of the pay scale of the categories to which they belong with all allowances as revised from time to time. However, the relief shall be confined to three years, preceding the filing of the writ petitions in each case.”

6. In that regard, the learned Single Judge has noticed judgments of Hon’ble the Supreme Court rendered in the cases of State of Punjab v. Devinder Singh (Civil Appeal) No. 4492 of 1997, decided on 21.7.1997); Nagar Panchayat, Bhikhiwind v. Kulbir Singh (Civil Appeal No. 1879 of L.P.A. No. 1024 of 2009 & connected appeals 5 1999, decided on 30.3.1999);State of Haryana v. Tilak Raj, AIR 2003 SC 2658; State of Orissa v. Balaram Sahu, (2003) 1 SCC 250; State of Punjab v. Surinder Singh, 2007 (4) SCT 628 as well as judgments of this Court rendered in CWP No. 11211 of 2002, decided on 22.11.2007 and CWP No. 10017 of 1995, decided on 20.8.1998. It is also pertinent to mention here that while passing orders dated 22.9.2008, 31.10.2008, 4.2.2009 and 24.7.2009, allowing the writ petitions filed by the petitioners-respondents, the learned Single Judge has taken same view and also issued similar directions as noticed above.

7. Mr. K.L. Arora, learned counsel for the appellant-petitioners in LPA Nos. 172 of 2003 and 10 of 2004 (arising out of CWP Nos. 14050 and 14425 of 1999) has vehemently argued that various writ petitions have been filed by such persons who are working on different posts such as Ledger Clerks, Ledger Keepers, Pump Operators, Mali-cum-Chowkidar, Fitters, Petrol-Men, Surveyor, Fitter-Helpers, Fitter-Coolies, Plumbers, Sewermen, Vehicle Drivers and Beldars etc. on daily wages with the State of Punjab and discharging similar duties which are being discharged by the employees drawing regular pay scales, claiming grant of salary at the minimum of the pay scale of regular employees. This prayer has been made on the basis of doctrine of ‘equal pay for equal work’. Learned counsel cited various judgments of Hon’ble the Supreme Court as well as this Court by which many colleagues of the petitioners were allowed the benefit of minimum of the pay scale. In nut shell his argument is that the petitioners are entitled to get the same relief as has been given to the similarly situated persons, who are working on similar posts, in the same department and also doing the same nature of work on daily L.P.A. No. 1024 of 2009 & connected appeals 6 wage basis. In that regard, learned counsel has invited our attention to the observations made by the Full Bench of this Court rendered in the case of Vijay Sharma (supra), which have been noticed above. Learned counsel has also referred to the observations made in the subsequent judgment dated

9.7.2009, rendered by another learned Single Judge in Rajinder Kumar’s case (supra) allowing a bunch of 14 petitions, which is subject matter of challenge in the appeals filed by the State of Punjab.

8. Mr. Arora then referred to para 12 of a recent judgment of Hon’ble the Supreme Court rendered in the case of U.P. Land Development Corporation v. Mohd. Khursheed Anwar, 2010 (3) SCT 327, and argued that their Lordships’ have extended the benefit of the principle of 'equal pay for equal work' even in cases of contractual appointment.

9. Mr. Suvir Sehgal, learned Additional Advocate General, Punjab, on the other hand, in support of the appeals filed by the State of Punjab, has placed reliance on para 38 of the judgment of Hon’ble the Supreme Court rendered in the case of State of Punjab v. Surjit Singh, (2009) 9 SCC 514, which reads thus:- “ We, therefore, are of the opinion that the interest of justice would be subserved if the State is directed to examine the cases of the respondents herein by appointing an expert committee as to whether the principles of law laid down herein viz. as to whether the respondents satisfy the factors for invocation of the decision in State of Haryana v. Charanjit Singh, (2006) 9 SCC 321, in its entirety including the question of appointment in terms of the recruitment rules have been followed”.

10. Mr. Sehgal has further stated that in compliance of the Apex L.P.A. No. 1024 of 2009 & connected appeals 7 Court's judgment in Surjit Singh's case (supra), the State of Punjab has set up a Committee, which is competent to examine the issue in question.

11. We have heard learned counsel for the parties at length and perused the paper books with their able assistance. We are of the considered view that the matter is no longer res integra. It may be true that the principle of ‘equal pay for equal work’ is not expressly declared by our Constitution to be a fundamental right. But it is certainly a constitutional goal. Article 39(d) of the Constitution proclaims “equal pay for equal work for both men and women” as a directive principle of State Policy. It has been well settled that to the vast majority of the people, the equality clauses of the Constitution would mean nothing if they are unconcerned with the work they do and the pay they get. To them, the equality clauses will have some substance if equal work means equal pay. Their Lordships’ of Hon’ble the Supreme Court in the case of Mohd. Khursheed Anwar (supra) has come to the conclusion that 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 by a Court, the Court must first see that there are necessary averments and there is a proof. In that case, the appellants were working on the consolidated salary of Rs. 2000/- per month as Assistant Engineers. Despite the fact that there were two sanctioned posts for Assistant Engineers and one post of Junior Engineer was vacant, the decision of the U.P. Land Development Corporation to hire them on contract basis of Rs. 2000/- per month in order to effect the economy, has been held to be arbitrary and unjustified. No material was placed before the Court to show that there was any difference in nature of duty being performed by the Assistant Engineers engaged on contract basis and those L.P.A. No. 1024 of 2009 & connected appeals 8 appointed on regular basis. Thus, a direction was given to the U.P. Land Development Corporation to pay minimum of the pay scale prescribed for the post of Assistant Engineer to the respondents in that case from the date of their appointment on the said post. Likewise, in the case of State of Haryana v. Tilak Raj, (2003) 6 SCC 123, Hon’ble the Supreme Court held that a scale of pay is attached to a definite post and in case of daily wagers they hold no post, therefore, they cannot establish a clear cut basis of equivalence and argue a hostile discrimination before becoming eligible to claim rights on a par with the other group who have been paid a regular pay scale. While making those observations, Hon’ble the Supreme Court still held that the State of Haryana was required to show that minimum of the pay scale, which is prescribed for such workers, is paid to them.

12. When the aforementioned principles are applied to the facts of the present cases, we find no legal infirmity in the orders dated 22.9.2008,

4.2.2009, 31.10.2008, 9.7.2009 and 24.7.2009, passed by the learned Single Judge. We are further of the view that the appeals are squarely covered by the Full Bench judgment of this Court rendered in the case of Vijay Sharma (supra) and the ratio of the judgment of Hon’ble the Supreme Court rendered in the case of Mohd. Khursheed Anwar (supra). Accordingly, the claim of the petitioners-daily wagers for grant of minimum of the regular pay scale deserves to be allowed.

13. Learned counsel for the petitioners did not press for their prayer for issuance of direction for framing a scheme for regularisation for those daily wage employees who have completed 3 or 5 years service, in view of the judgment of Hon’ble the Supreme Court rendered in the case of Secretary, L.P.A. No. 1024 of 2009 & connected appeals 9 State of Karnataka v. Uma Devi, (2006) 4 SCC 1.

14. As a sequel to the above discussion, order dated 20.11.2002 passed by the learned Single Judge, which is subject matter of challenge in LPA Nos. 172 of 2003 and 10 of 2004, is hereby set aside. The view expressed by another learned Single Judge in orders dated 22.9.2008,

4.2.2009, 31.10.2008, 9.7.2009 and 24.7.2009 is affirmed. Accordingly, all the appeals filed by the State of Punjab are hereby dismissed. The petitioners shall be entitled to minimum of the pay scale of the categories to which they belong with all allowances as revised from time to time. However, the relief shall be confined to three years preceding the filing of the respective writ petitions.

15. A photo copy of this judgment be placed on the files of connected appeals. August 30, 2010 Anoop/Pkapoor (M.M. KUMAR) JUDGE (RITU BAHRI) JUDGE * Sr. No.

5. 172 of 2003 10 of 2004 466 of 2009 505 of 2009 555 of 2009 LPA No. Arising out of C.W.P. No. Parties Name Date of order passed by the learned Single Judge

20.11.2002

20.11.2002

22.09.2008

04.02.2009 14050 of 1999 14425 of 1999 12436 of 1999 12432 of 2002 Vijay Sharma and others v. State of Punjab and others Sarup Singh and others v. State of Punjab and others State of Punjab and others v. Jeevan Singh and others State of Punjab and others v. Mohinder Singh and others 8671 of 1987 State of Punjab and others v.

31.10.2008 Pardeep Kumar and others L.P.A. No. 1024 of 2009 & connected appeals 10

23. 910 of 2009 939 of 2009 940 of 2009 946 of 2009 948 of 2009 993 of 2009 996 of 2009 1024 of 2009 1212 of 2009 1213 of 2009 1215 of 2009 1216 of 2009 1217 of 2009 1218 of 2009 1219 of 2009 61 of 2010 79 of 2010 553 of 2010 19195 of 2008 13772 of 2008 19726 of 2008 State of Punjab and others v. Manjit Singh and others State of Punjab and others v. Tej Pal Singh and others State of Punjab and others v. Makhan Singh 7853 of 1999 State of Punjab and others v. Jaswinder Singh 117 of 2009 15204 of 2008 15217 of 2008 116 of 2009 State of Punjab and others v. Jagjit Singh State of Punjab and others v. Raj Kumar and others State of Punjab and others v. Subhash Chand and others State of Punjab and others v. Rajinder Kumar and others

09.07.2009

09.07.2009

09.07.2009

09.07.2009

09.07.2009

09.07.2009

09.07.2009

09.07.2009 5461 of 2009 State of Punjab and others v.

09.07.2009 Narinder Singh and others 5472 of 2009 State of Punjab and others v.

09.07.2009 15627 of 2008 15586 of 2008 16772 of 2008 107 of 2003 82 of 2003 12553 of 2009 18301 of 2008 15596 of 2008 Hira Lal and others State of Punjab and others v. Manmohan Singh and others State of Punjab and others v. Kishore Kumar and others State of Punjab and others v. Shinder Pal and others State of Punjab and others v. Hans Raj and others State of Punjab and others v. Bhola Singh and others State of Punjab and others v. Daan Singh and others State of Punjab and others v. Gurwinder Singh and others State of Punjab and others v. Jagraj Singh and others

24.07.2009

24.07.2009

09.07.2009

09.07.2009

09.07.2009

09.07.2009

24.07.2009

24.07.2009 August 30, 2010 JUDGE (M.M. KUMAR) (RITU BAHRI) JUDGE