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Judgment
R.M.Chhaya, J
Feeling aggrieved and dissatisfied by the judgment and order dated 29.11.2019 passed by the learned Single Judge in Special Civil Application No.
5915 of 2000, the local authroity, i.e., Upleta Nagarpalika has filed this appeal under Claus 15 of the Letters Patent.
The following facts emerge from the record of the appeal -
2.1 The original petitioners were appointed on temporary basis since the year 1974. The record indicates that as the benefit of regular pay-scale for
4th Pay Commission and 5th Pay Commissioner as well as regularisation was not adhered to by the appellant, the respondents-original petitioners
preferred this writ petition and inter alia prayed as under -
(A) This Hon'ble Court may kindly be pleased to quash and set aside the inaction on the part of the respondents in not making the monthly
salaries which due and payable from time to time they may be directed to immediately make the payment of salaries since September, 1999
with 17% interest and continue to pay the salary regularly.
(B) This Hon'ble Court may be pleased to direct....to absorb the petitioners in the regular set up as and as they are working for more the
and than 25 years they should be regularised in the set up for the purpose of grant in as the authorities have already addressed a letter to
the concerned authorities.
(C) This Hon'ble Court may be pleased to direct the respondents that the petitioners are entitled to the benefit of revision of pay scales as
they have been rightly given since last three years and which cannot be withdrawn by authorities
Pending admission hearing and final disposal of this petition, the respondents may be directed to release the outstanding salaries from the
month of September, 1999 till this date by way of an interim direction on the respondents to continue to make the payment of salaries under
the revision of pay rules which they were drawing since last three years
2.2 As the record indicates, the said writ petition was allowed vide judgment and order dated 06.04.2016. The said order was challenged before the
Division Bench by filing Letters Patent Appeal No. 1121 of 2016 and the Hon'ble Division Bench of this Court was pleased to quash the order dated
06.04.2016 and remand back the proceedings. It was the case of the respondents-original petitioners that they are entitled to be regularised in service
since they have completed 25 years of service and they have retired from service without getting any benefit of regular pay. It was the case of the
respondents-original petitioners that they were appointed on temporary basis in the year 1974 in the school run by the appellant municipality initially in
the pay-scale of 260-350/-. It is further the case of the respondents-original petitioners that thereafter, as per the directions of the State Government
contained in communication dated 12.03.1998, the respondents-original petitioners were conferred the regular pay-scale of Rs.5000-5600/- vide order
passed by the School Board of the Municipality dated 23.03.1998. However, the said benefit was cancelled vide communication dated 11.04.2000.
2.3 Relying upon the judgment of the Apex Court in the case of State of Punjab and Ors. vs. Jagjit Singh & Ors. reported in (2017) 1 SCC 148, it was
contended by the respondents-original petitioners that at least, minimum pay-scale equivalent to the regularly appointed teachers should be given to
them. The respondents-original petitioners also relied upon the judgment dated 04.07.2017 passed in Special Civil Application No. 12799 of 2004. The
learned Single Judge by the impugned judgment and order, was pleased to allow the petition and direct the appellant to pay benefits of minimum of the
pay-scale at lowest grade in the regular pay-scale in regular pay-scale to the respondents-original petitioners, which was granted to the regular
employees holding the same post. It was also further directed to fix their pension and retiral benefits as per the directions of this court on the basis of
lowest grade in regular pay-scale. Being aggrieved by the same, the present appeal is filed.
Heard Mr. Bhavesh Trivedi, learned advocate for the appellant, Mr. U.T. Mishra, learned advocate for respondent no.1 and Mr. A.J. Yagnik,
learned advocate for respondent no.2.
Mr. Trivedi, learned counsel appearing for the appellant Municipality contended that the learned Single Judge has committed an error in not
considering the fact that the respondents-original claimants were appointed only on temporary basis and relied upon the appointment letter (pages 43
and 44 of the paper book). Mr. Trivedi further contended that the appellant Municipality had decided not to implement the benefit of Pay Commission
and therefore, they are not entitled to even the regular pay-scale. Mr. Trivedi reiterated that the learned Single Judge has wrongly relied upon the
judgment of the Apex Court in the case of Jagjit Singh (supra) and judgment in the case of Secretary, State of Karnataka vs. Uma Devi and Ors.
reported in (2006) 4 SCC 1 and contended that the respondents-original claimants are not entitled to any such benefit, as the appointment of the
Respondents-original petitioners was not only irregular, but illegal and the same cannot be regularised. It was contended by Mr. Trivedi that the
appointment was only on temporary and casual basis and the length of service cannot be considered to be entitlement for regular pay-scale. It was
also contended by Mr. Trivedi that the learned Single Judge ought to have appreciated that the respondents teachers were not in regular set up of the
appellant municipality and in the set up of municipality, there is no post of teacher at all. It was contended by Mr. Trivedi that in absence of any legal
right, sympathy and sentiments cannot be the ground for passing any order of regularisation. On the aforesaid grounds, it was contended by Mr.
Trivedi that the appeal requires to be admitted and the same requires consideration.
Per contra, learned advocates Mr. A.J. Yagnik as well as Mr. U.T. Mishra have opposed the appeal and have submitted that having worked for 25
years, the respondents-original petitioners cannot be deprived of the benefit of at least lowest grade in the regular pay-scale. Learned counsel
appearing for the respondents-original petitioners submitted that the learned Single Judge has rightly relied upon the judgment of the Apex Court in the
case of Jagjitsingh (supra) and Uma Devi (supra) and no interference is called for.
No other or further submissions or contentions have been raised by the learned counsel appearing for the respective parties.
At the outset, it deserves to be noted that under terminology of ""temporary"", the fact remains that the respondents-original petitioners have worked
as Teacher for 25 years and more. The said fact is not denied by the appellant. It is a matter of record that the benefit, which has been granted by the
learned Single Judge is not that of regularisation, however, has rightly considered the aspect that having worked for 25 years and more, the benefit of
lowest grade of regular pay-scale cannot be denied. The learned Single Judge has observed thus -
In wake of the aforesaid observations, I shall now endeavor to consider the case of the petitioners on the issue as to whether they can
be absolutely ignored for getting any benefit of regular pay scale though they have rendered more than 25 years of service. I may with
profit incorporate relevant observations made by the Apex Court rendered in the case of Jagjit Singh & Ors.(supra). The Supreme Court
has observed thus:
“54.1.A perusal of the above conclusion drawn in the impugned judgment (passed by the Full Bench), reveals that the Full Bench carved
out an exception for employees who were not appointed against regular sanctioned posts, if their services had remained continuous (with
notional breaks, as well), for a period of 10 years. This category of temporary employees was extended the benefit of wages at the minimum
of the regular pay scale. In Umadevi (3) case [State of Karnataka v.Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] , similarly,
employees who had rendered 10 years' service were granted an exception (refer to para 53 of the judgment extracted in the preceding
paragraph). The above position adopted by the High Court reveals, that the High Court intermingled the legal position determined by this
Court on the subject of regularisation of employees, while adjudicating upon the proposition of pay parity, emerging under the principle of
“equal pay for equal workâ€. In our view, it is this mix-up, which has resulted in the High Court recording its afore-extracted
conclusions.
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.
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.
59.xxxxxxxx
Having traversed the legal parameters with reference to the application of the principle of “equal pay for equal workâ€, 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 workâ€
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.
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 pay scale (at the lowest grade, in the
regular pay scale), extended to regular employees holding the same post.â€
The Supreme Court after considering the decision of the Constitution Bench rendered in the case of Secretary, State of Karnataka V/s.
Uma Devi & Ors., reported in (2006) 4 SCC 1, (wherein the Apex Court has carved out an exception that all the irregular employees who
have worked on an unsanctioned post shall be regularized in service after completion of ten years of service) has held that the daily
wagers, contractual employees, ad-hoc appointees, employees appointed on casual basis, and the like are entitled to minimum of the pay
scale(at the lowest grade, in the regular pay scale), which is extended to the regular teacher. The cases of the petitioners stand on better
traction to that of daily wagers, casual or contractual employees. The respondents are beneficiaries of their services of 25 years and more.
They have been utilizing their service as regular teachers, though they were appointed on temporary basis, hence they cannot be denied the
minimum of the pay scale which is extended to the regular teachers.
On the bedrock of the afore-noted observation, the respondents are hereby directed to pay the benefits of the minimum of the pay-scale
(at lowest grade) in the regular pay-scale to the petitioners which are granted to the regular employee holding the same post. It is further
directed that the amount which is already paid in compliance of the interim order shall be adjusted towards the final payment. The aforesaid
exercise shall be carried out by the respondent authorities preferably within a period of three months from the date of receipt of the writ of
the order of this Court. Accordingly, the retiral benefits of the petitioner shall also be paid if they are not paid and the same shall be revised
accordingly. It will be open for the respondent authorities to pay the aforesaid amount in installments. It is further specified that their
pension/ retiral benefits shall be fixed and paid as per the directions issued by this Court on the basis of lowest grade, in the regular pay-
scale.
It also deserves to be noted that the appointment letters which are relied upon by Mr. Trivedi, learned counsel appearing for the appellant is signed
by the competent authority of Nagar Prathmik Sikshan Samiti, Upleta and coupled with the fact that not only their services by using terminology of
temporary"" has continued for 25 years and more and even the benefit of higher scale has been accorded to the respondents-original petitioners. We
are in total agreement with the reasoning given by the learned Single Judge and no interference is called for. The learned Single Judge has rightly
observed that the respondents therein are beneficiaries of the services of the original petitioners for 25 years and more and hence, they cannot be
denied the minimum of pay-scale which is extended to the regular teachers.
We find no reason to interfere and exercise our appellate jurisdiction under clause 15 of the Letters Patent. The appeal fails and is hereby
dismissed.
As the main appeal is dismissed, the connected Civil Application, if any, stands dismissed.