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Judgment
Nidhi Gupta, J.
CWP-18148-2022 (O&M)
Present Civil Writ Petition under Articles 226/227 of the Constitution of India has been filed by the petitioner for issuance of a Writ in the nature of mandamus directing the respondents to pay the petitioner minimum of the pay scale for the post of Pump Attendant being held by the petitioner i.e. equal pay for equal work as is being paid to the regular employees by the respondents holding the same posts as held by the petitioner in view of the judgment rendered by the Hon'ble Supreme Court of India in State of Punjab Versus Jagjit Singh and others 2016 (4) SCT 64.
CWP-21751-2022 (O&M)
Present Civil Writ Petition under Articles 226/227 of the Constitution of India has been filed by the petitioner for issuance of a writ in the nature of mandamus directing the respondents to pay the petitioner minimum of the pay scale for the post of Pump Attendant being held by the petitioner i.e. equal pay for equal work as is being paid to the regular employees by the respondents holding the same posts as held by the petitioner in view of the judgment rendered by the Hon'ble Supreme Court of India in State of Punjab Versus Jagjit Singh and others 2016 (4) SCT 64.
With the consent of the learned counsel for the parties, both the above said Writ Petitions are being disposed of by this common order as the issue involved in both the cases is identical. For the sake of convenience, facts are being drawn from, and parties are being referred to as per their status in CWP-18148-2022 titled as Jal Ram vs. State of Haryana and others.
Brief sequence of events in chronological order is as follows:–
01.08.1995: Petitioner was initially appointed as Mali-cum-Chowkidar on daily wages as Class-IV employee.
27.08.1997: Vide order dated 27.08.1997 (Annexure P-1), services of the petitioner were terminated upon payment of retrenchment compensation.
However, as per para 4 of the said order dated 27.08.1997 (Annexure P-1), it was mentioned as follows: -
“4.In case of any future vacancy and department consider to fill up the same in your cadre, your case for re-employment shall be considered as per Clause-25 H of Industrial Dispute Act the time of proposal of any employment in your cadre by this office.”
05.09.2006: Vide letter dated 05.09.2006 (Annexure P-2), respondents had decided to recruit 1738 Group-D posts on term appointment basis. However, respondents had appointed merely 100 persons in the last quarter of 2006 as evident from Annexures P-3 to P-6.
29.09.2006: After acquiring knowledge of the above recruitment process, petitioner had sent letter dated 29.09.2006 to the respondents seeking appointment in terms of para 4 of the order dated 27.8.1997. However, as no action was taken thereupon, petitioner had raised Demand Notice dated 13.02.2007 (Annexure P-7) under Section 25H of Industrial Disputes Act.
14.02.2013: Vide order dated 14.02.2013 (Annexure P-8), respondents had directed that contractual employees shall be paid either 50% of the initial pay of Fresh Entrant Regular Employee after 01.01.2006; or the wages fixed by the Deputy Commissioner under the Minimum Wages Act whichever is higher.
03.06.2014: The said letter was further modified vide order dated 03.06.2014 (Annexure P-9) to the extent that contractual employees engaged by the Department are to be paid 50% of the initial pay of Fresh Entrant Regular Employee after 01.01.2006 subject to minimum of Rs.8100/- per month or as fixed by the State Government in General Administration Department from time to time.
02.07.2015: Vide Award dated 02.07.2015, the Labour Court held the petitioner entitled for the benefits of Mali-cum-Chowkidar on term appointment w.e.f. 12.09.2006 alongwith all consequential benefits.
2016: The said Award was challenged by the respondent-State before this Court by way of CWP-7022-2016 titled as Engineer-in-Chief, Haryana PWD Public Health Branch, Chandigarh and others vs. Jal Ram and another.
17.08.2016: During the pendency of the said CWP-7022-2016, respondents had issued fresh Engagement Letter dated 17.08.2016 (Annexure P-10) to the petitioner, appointing him as Pump Attendant, however, subject to the decision in CWP-7022-2016.
18.05.2022: Vide order dated 18.05.2022 (Annexure P-14), the aforesaid CWP-7022-2016 was disposed of by modifying the Award to the effect that petitioner will not be entitled to any back wages till the period he has been re-employed by the respondents; and that the petitioner shall continue re-employment pursuant to his current employment till any person junior to him is retained by the respondents.
Learned counsel for the petitioner submits that, petitioner has been working as Pump Attendant since his appointment. It is contended that in identical case i.e. CWP-7086-2015 titled as Kuldeep Singh and others vs Dakshin Haryana Bijli Vitran Nigam and others (Annexure P-11), while relying upon decision of this Court in CWP-22428-2014 (Rajesh Kumar and others Vs. State of Haryana and others) dated 13.5.2016 respondents were directed to extend benefits of minimum pay scale to the petitioners therein. He further relies on decision of the Supreme Court passed in Civil Appeal No.213 of 2013 (State of Punjab and others Vs. Jagjit Singh and others) dated 26.10.2016. Learned counsel contends that accordingly, petitioner is entitled to benefit of minimum Pay Scale as he has been occupying post of Pump Attendant.
Per contra, learned counsel for the State has vehemently opposed submissions of the petitioner and has contended that petitioner is not entitled to Minimum Pay Scale as petitioner is not eligible for appointment to the post of Pump Attendant. Moreover, reliance on case of Jagjit Singh (supra) is misplaced as employees in the said case were eligible for the posts they were occupying. It is contended that therefore, petitioner is not entitled to seek regular pay scale. He accordingly prays for dismissal of the present Writ Petition.
No other argument is raised on behalf of the parties. I have heard learned counsel and perused the case file in detail. I find no merit in the submissions of the petitioner.
As per Serial No. 1 of First Schedule of the The Haryana Group D Employees (Recruitment and Conditions of Service) Act, 2018 (Haryana Act No. 5 of 2018) (herein after referred to as "the Act") (Annexure R-1), which defines the minimum education qualification required for all Group 'D' posts. As per the said schedule, the minimum education qualification for group 'D' workers for appointment other than direct recruitment is as follows:
i Matriculation from recognized Board.
Hindi/ Sanskrit upto Matriculation as one of the Subject.
two years experience in relevant post.
Admittedly, petitioner is illiterate. Petitioner has failed to disclose this fact in the writ petition. Thus, petitioner fails to satisfy any of the aforesaid 3 conditions as stipulated in the First Schedule of the Act. In this situation, petitioner cannot be held entitled to the Minimum Pay Scale being drawn by permanent workers.
Despite the aforesaid position, petitioner was directed to be appointed as Pump Attendant vide order dated 18.05.2022 (Annexure P-14) passed by this Court in CWP-7022-2016 for the following reasons: -
“Referring to the documents placed on record, learned counsel for the petitioners has submitted that the respondent-workman has been employed alongwith the other similarly situated persons. Though, the order of appointment of the respondent-workman, issued by the petitioners, stipulates the appointment to be subject to the decision of the present petition, however, the respondent-workman will continue so long as the other similarly situated persons, but junior to the respondent-workman; continue.
Learned counsel for the respondent-workman, after getting instructions from the respondent-workman, has submitted that the respondent-workman is ready to forego even the back wages, if the petitioners retained him in service, at least, till his juniors are retained.
In view of the above, the present petition is disposed of by modifying the impugned award that the respondent-workman shall not be entitled to any back wages till the period he has been re-employed by the petitioners. However, the respondent-workman shall be entitled to continue in re-employment pursuant to his current appointment, at least, till any person junior to him is retained by the petitioners. The re-employment of the respondent-workman shall not be taken as subject to the outcome of the writ petition for any duration duration or for any other purpose whatsoever.
It is further clarified that this order shall not be taken as an order adverse to the respondent-workman in any respect qua any other claim which may accrue to the respondent-workman on the strength of service now being rendered by the respondent-workman.”
As such, appointment of the petitioner as Pump Attendant was directed to be continued till person’s junior to the petitioner hold the said post. However, in view of the undisputed fact that petitioner is illiterate, as also in view of the fact that in the entire present Writ Petition, petitioner has failed to mention the aforesaid fact that he is illiterate and not qualified to occupy Group-D Post, in these circumstances, the principles laid down by the Hon'ble Supreme Court of India in case of State of Punjab v. Jagjit Singh and Ors. 2016 (4) SCT 64, cannot be applied mutatis mutandis to the present case in hand as there is huge distinction between the two cases. In the said case the temporary workmen were equally qualified as the permanent workmen; and thus, the demand for "Equal Pay for Equal Work" was justified. However, in the present case without the minimum qualification, the Petitioner cannot be put at par with the permanent workmen, who posses the minimum qualification.
In the above said circumstances, it will be apposite to refer to a judgment passed by Hon'ble Supreme Court of India in State of Madhya Pradesh v. R.D. Sharma & Ors, (Civil Appeal Nos. 474-475/2022), wherein it has been held as under:
"The High Court in the impugned orders passed In Writ Petition as well as in the Review Petition had thoroughly misdirected itself by applying the principle of "equal pay for equal work" placing reliance on the decision of this Court in case of State of Punjab and Ors. v. Jagjit Singh and Ors. MANU/SC/1357/2016 2017 SCC 148, which had no application to the facts of the present case. It may be noted that this Court has consistently held that the equation of post and determination of pay scales is the primary function of the executive and not the judiciary and therefore ordinarily courts will not enter upon the task of job evaluation which is generally left to the expert bodies like the Pay Commissions. This is because such job evaluation exercise may include various factors including the relevant data and scales for evaluating performances of different groups of employees, and such evaluation would be both difficult and time consuming, apart from carrying financial implications. Therefore, it has always been held to be more prudent to leave such task of equation of post and determination of pay scales to be best left to an expert body. Unless there is cogent material on record to come to a firm conclusion that a grave error had crept in while fixing the pay scale for a given post, and that the court's interference was absolutely necessary to undo the injustice, the courts would not interfere with such complex issues. A beneficial reference of the observations made in this regard in case of Secretary, Finance Department v. West Bengal Registration Service Associations and Ors. MANU/SC/0226/1992: 1993 Supl. 1 SCC 153 be made. As held in State of Haryana and Anr. vs. Haryana Civil Secretariat Personal Staff Association MANU/SC/0576/2002: 2002 (06) SCC 72 "equal pay for equal work" is not a fundamental right vested in any employee, though it is a constitutional goal to be achieved by the Government." (Emphasis added)
Before parting it may also be mentioned that in compliance of the order dated 10.12.2024 passed by Predecessor Bench of this Court, the respondent-State has filed an additional Affidavit dated 24.01.2025 in which it is clearly mentioned that “the petitioner is working with the office of deponent and is being paid as per the existing rate of remuneration. Even the said remuneration has also been revised as per the government instructions time to time.”
Thus, keeping in view the entire aforesaid factual position, I find no merit to the present Writ Petitions, and the same are accordingly dismissed.
Pending application(s) if any also stand(s) disposed of.