CASE STUDY

State of Haryana and Others v/s Charanjit Singh and others

AIR 2006 SUPREME COURT 161

 FACTS OF THE CASE

This was an appeal case where in all these Appeals, the Respondents were
daily wagers who were appointed as ledger clerks, ledger keepers, pump operators,
mali-cum-chowkidar, fitters, petrol men, surveyors etc. All of them claimed the
minimum wages payable under the pay-scale of regular Class IV employees from
the date of their appointments. The question whether or not these persons were
entitled to the minimum of the pay-scale of a regular Class IV employee was referred
to a Full Bench for consideration. The Full Bench gave its decision. Following the
Full Bench decision all these Writ Petitions have been disposed off with short
Orders. In all these cases the Respondents have been directed to be given the
minimum of the wages in the scale payable to a regular Class IV employee from the
date of the filing of the respective Petition.

One other fact which must be mentioned is that, whilst these Appeals were
pending before this Court, all the Respondents have been regularized. From the date
of their regularization they being paid pay-scales as payable to a regular Class IV
employee. The question therefore is only whether the directions of the High Court to
pay the minimum wage in the scale payable to a Class IV employee, from the date of
their filing the respective Petition, is required to be interfered with.

When these Appeals came up for hearing on 23rd August, 2004 this Court
referred the matters to a larger Bench for consideration by passing the following
Order

The respondents in all these appeals were initially appointed as Ledger-

clerks, ledger keepers, pump operators, mali-cum-chowkidars, fitters, petrol man,
surveyor, drivers etc. on daily wages or on contractual basis. They were all
regularized with effect from October, 2003 and they have been getting the minimum
payable under the regular pay scale of Class-IV employees from the date of their
regularization. In the writ petitions filed by these respondents before the High Court
of Punjab and Haryana at Chandigarh, the Division Bench directed that these
respondents shall be paid the minimum salary and dearness allowances payable to
their counter parts working on regular basis.
 The question for consideration before this Court, in the present set of cases,
is that whether these respondents are entitled to get the minimum scale of pay from
the date of their appointment as daily wagers/casual employees or they are entitled
to get the minimum salary in the scale of pay from the date of their regularization.

ISSUES

1.Whether the appeal petition is sustainable ?

2. whether ad hoc employee can claim the benefits of regular employees ?

3.Whether the appointment of daily wages employees legally bindable ?

4.Whether the respondent are liable to be re-intiated?.

5.Whether these employees is entitled for the wages of class 4 employees?

6.whether they are entitled to the class 4 wages from the day starting their
appointment?

PROVISION OF LAW

Article 14 in The Constitution Of India 1949

Equality before law The State shall not deny to any person equality before the law or
the equal protection of the laws within the territory of India Prohibition of
discrimination on grounds of religion, race, caste, sex or place of birth

Article 39 in The Constitution Of India 1949

Certain principles of policy to be followed by the State: The State shall, in particular,
direct its policy towards securing

(a) that the citizens, men and women equally, have the right to an adequate means
to livelihood;

(b) that the ownership and control of the material resources of the community are so
distributed as best to subserve the common good;
(c) that the operation of the economic system does not result in the concentration of
wealth and means of production to the common detriment;

(d) that there is equal pay for equal work for both men and women;

(e) that the health and strength of workers, men and women, and the tender age of
children are not abused and that citizens are not forced by economic necessity to
enter avocations unsuited to their age or strength;

(f) that children are given opportunities and facilities to develop in a healthy manner
and in conditions of freedom and dignity and that childhood and youth are protected
against exploitation and against moral and material abandonment

Article 226 in The Constitution Of India 1949

Power of High Courts to issue certain writs

(1) Notwithstanding anything in Article 32 every High Court shall have powers,
throughout the territories in relation to which it exercise jurisdiction, to issue to any
person or authority, including in appropriate cases, any Government, within those
territories directions, orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibitions, quo warranto and certiorari, or any of them, for the
enforcement of any of the rights conferred by Part III and for any other purpose

(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any
Government, authority or person may also be exercised by any High Court
exercising jurisdiction in relation to the territories within which the cause of action,
wholly or in part, arises for the exercise of such power, notwithstanding that the seat
of such Government or authority or the residence of such person is not within those
territories

(3) Where any party against whom an interim order, whether by way of injunction or
stay or in any other manner, is made on, or in any proceedings relating to, a petition
under clause ( 1 ), without

(a) furnishing to such party copies of such petition and all documents in support of
the plea for such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High
Court for the vacation of such order and furnishes a copy of such application to the
party in whose favour such order has been made or the counsel of such party, the
High Court shall dispose of the application within a period of two weeks from the
date on which it is received or from the date on which the copy of such application is
so furnished, whichever is later, or where the High Court is closed on the last day of
that period, before the expiry of the next day afterwards on which the High Court is
open; and if the application is not so disposed of, the interim order shall, on the
expiry of that period, or, as the case may be, the expiry of the aid next day, stand
vacated

(4) The power conferred on a High Court by this article shall not be in derogation of
the power conferred on the Supreme court by clause ( 2 ) of Article 32

Article 136 in The Constitution Of India 1949

Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its
discretion, grant special leave to appeal from any judgment, decree, determination,
sentence or order in any cause or matter passed or made by any court or tribunal in
the territory of India

(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or

order passed or made by any court or tribunal constituted by or under any law
relating to the Armed Forces

ARGUMENT BY APPELLANT

Learned counsel for the State contended that they are entitled to get minimum
of the scale of pay only from the date of regularization whereas the respondents
contended that applying the principle of "equal pay for equal work" they are entitled
to get the minimum of the pay scale from the date of their employment as casual
employees or daily wagers.

The respondents, in this connection, relied on the decision of this Court

reported in AIR 1986 SC P. 584, Surinder Singh & Anr. vs. Engineer- in-Chief,
C.P.W.D. & Ors. wherein the petitioners were appointed on daily wages in the
Central Public Works Department were given salary and allowances which were
payable to the regular employees from the date on which they were employed but in
series of other decisions rendered by this Court reported in 1996 (11) SCC p.77,
State of Haryana & Ors. Vs. Jasmer Singh & Ors. in paras 9 and 10 it was held that
the daily rated workmen who were to be paid minimum wages admissible to such
workmen as prescribed and not in the pay scale applicable to similar employees
working on regular service. Reliance was also placed on earlier decisions in Harbans
Lal Vs. State of H.P. 1989 (4) SCC p.459.

A similar view was taken by this Court in Orissa University of Agriculture &
Technology & Anr. Vs. Manoj K. Mohanty, 2003 (5) SCC P.188 AND Ghaziabad
Development Authority & Ors. Vs. Vikram Chaudhary & Ors., 1995 (5) SCC p.210
and also in State of Haryana & Anr. Vs. Tilar Raj & Ors., 2003 (6) SCC p.123.

It appears that there is a conflict of decision and earlier decision in Surinder

Singh & Anr. Vs. Engineer-in- Chief, C.P.W.D. & Ors., [AIR 1986 SC 584] was not
referred to in later decisions. Therefore, in our view, these cases have to be
considered by a larger bench so that the conflict may be resolved. The registry is
requested to place these matters before the Hon'ble Chief Justice of India for posting
the same before a larger bench."

ARGUMENT BY RESPONDENT

The stand of the respondents in the written statement is that the

recommendations in respect of the petitioners have been duly made by the Haryana
Public Service Commission vide their letter dated 04.12.2004 and mere
recommendation did not create any right in their favour. It has further been pointed
out that Sarvshri Tara Chand, Jatinder Singh and Gian Chand Sharma have been
working on ad hoc basis on the posts of Lectures in Commercial Practice and unless
their services are terminated the petitioners cannot be accommodated.

It has also been stated that in favour of Gian Chand Sharma an order of
status quo is in operation and he is the junior most after Tara Chand and Jatinder
Singh. It has further been asserted that Civil Misc. Application bearing No. 1501 of
2005 in CWP No. 3958 of 2002 was filed by the respondents for vacation of interim
order dated 30.01.2003 operating in favour of Gian Chand Sharma and no decision
has been taken by this Court so far.

Therefore, the petitioners cannot be considered for appointment on regular

basis as all the three posts are occupied by the afore-mentioned three persons. In
respect of the newly created three posts, it has been asserted that the names of the
petitioners were not recommended against those posts and, therefore, they have no
right to be appointed.

The stand of respondents No. 4 and 5 is that the Constitutional Bench of the
Hon'ble Supreme Court in Secretary, State of Karnataka Vs. Uma Devi (2006) 4
SCC 1 has categorically held that those who have completed more than 10 years
service deserved to be regularised as one time measure provided their appointments
are irregular and not illegal.

DECISION OF COURT[JUDGEMENT]

In view of the above, the instant writ petition is allowed with costs. The
communication dated 02-02-2005 is set aside and a direction is issued to the
respondents to issue appointment letters to all the three petitioners as Lecturers in
Commercial Practice(Office Management and Computer Application) within a period
of two months from the date a certified copy of this order is received by them.

The court further hold that respondents No. 4 and 5 have no right to hold two
posts or to seek regularisation. Accordingly their appointment is set aside as per the
stipulation in their letter of appointment which postulate their relieving on the arrival
of regularly selected candidates from Public Service Commission.

The petitioners shall be given appointment from the date other persons
selected in pursuance to the advertisement have been given appointment by giving
them the benefit of seniority, pay fixation and increments etc. However, the
petitioners shall not be entitled to arrears of salary from the date of appointment till
the date of filing of the writ petition i.e. 1.3.2006.

Accordingly they shall be entitled to payment of salary from 01.03.2006. The

petitioners are also held entitled to their costs which are assessed at Rs. 10,000/-.
 REASON FOR THE DECISION

Analyzing in length the principles laid down by various courts, the SC

observed that the issue at hand necessitated a bird’s eye view on the underlying
ingredients which govern the principle of ‘equal pay for equal work’.

The principle has been extensively deliberated in a catena of decisions. In

order to make the determination, the SC examined

(i) the situations where the principle was extended to employees

engaged on permanent basis and thereafter
(ii) the situations in which the principle was extended/declined to
different categories of temporary employees. Accordingly, various
principles have been discerned and distinguished by the SC.
Analyzing claims by temporary employees under the principle, the
SC observed:

Not paying the same wages, despite the work being the same, is violative of
Article 145 of the Constitution of India (“Constitution”) and amounts to exploitation in
a welfare state committed to a socialist pattern of society.The right of equal wages
claimed by temporary employees emerges, inter alia, from Article 397 of the
Constitution.

The claim for equal wages would be sustainable where an employee is

required to discharge similar duties and responsibilities as permanent employees
and the concerned employee possesses the qualifications prescribed for the
particular post.

In a claim for equal wages, the duration for which an employee remains or
has remained engaged, the manner of selection/appointment etc. would be
inconsequential, insofar as the applicability of the principle is concerned.9.

Based on the principle flowing from Article 38(2)10 of the Constitution, the
Government cannot deny a temporary employee at least the minimum wage being
paid to an employee in the corresponding regular cadre, alongwith dearness
allowance and additional dearness allowance, as well as all other benefits which are
being extended to casual worker.
 The classification of workers (as unskilled, semi-skilled and skilled), doing the
same work, into different categories, for payment of wages at different rates is not
tenable. Such an act of the employer would amount to exploitation and shall be
arbitrary and discriminatory, and therefore, violative of Articles 14 and 16 of the
Constitution.

If daily-wage employees can establish that they are performing equal work of equal
quality, and that all the other relevant factors are fulfilled, a direction by a court to
pay such employees equal wages (from the date of filing the writ petition), would be
justified.
PART 2
 CRITICAL COMMENT

The principles laid down in the aforementioned judgments do not leave any
manner of doubt that the petitioners have been selected in accordance with 1986
Rules after advertisement of posts and holding of interview where claims of all the
applicants who were eligible have been considered by the Public Service
Commission. Their selection is consistent with the provisions of Articles 14 and 16
(1) of the Constitution as has been opined by Hon'ble the Supreme Court in the
aforementioned two judgments.

The stand taken by the respondents in their written statement is intriguing

inasmuch as they have defended the ad hoc appointment of respondents No. 4 and
5 despite the fact that their writ petitions namely C.W.P. No. 19571 of 2002 and
C.W.P.No.407 of 2003 for regularisation of their services were dismissed and the
order passed by the Division Bench of this Court on 23.7.2004 has been placed on
record as Annexure P-3. The aforementioned order of the Division Bench has been
upheld by the Hon'ble Supreme Court as is evident from the perusal of order dated
23.07.2004

This judgment is indeed a welcome step and provides the right direction in
terms of ensuring equality. Non-permanent employees are meant to be used only for
business exigencies and not for wage arbitrage. Unfortunately, there continues to be
instances of discrimination of such non-permanent staff in India, especially contract
labour, which discrimination must be avoided at all costs. In fact, the Contract Labour
(Regulation & Abolition) Act, 1970 (“CLRA”) requires the contractor to ensure that
the rates of wages payable to the workmen of the contractor are not less than the
rates prescribed under the Minimum Wages Act, 1948. The SC judgment should, in
our view, help change the way employers approach such non-permanent staff
leading to significant reduction in wage discrimination.

Having traversed the legal parameters with reference to the application of the
principle of ‘equal pay for equal work’, in relation to temporary employees, the most
important factor that would require determination is whether the concerned
employees are rendering similar duties and responsibilities as are being discharged
by permanent employees, holding the same/corresponding posts. This judgment of
the SC makes it clear that a mere difference in nomenclature is not sufficient to
disentitle a temporary employee from being paid wages at par with permanent
employees.

There is no reason for the respondent State to take a stand supporting

respondents No. 4 and 5 and we are constraint to observe that such a stand defies
ignorance. It is strange that on the basis of status quo order granted by this Court on
30.01. 2003 in C.M.No. 1449 of 2003 in CWP No. 3958 of 2002 in favour of one Gian
Chand Sharma, it has been asserted by respondents that none of the three posts are
available to be filled up by the regularly selected candidates like the petitioners. We
find that two posts of Lecturers in Commercial Practice occupied by respondents No.
4 and 5 have to be offered to the petitioners especially when they had already lost
litigation before a Division Bench of this Court and the orders attained finality after
dismissal of their Special Leave Petitions as stated above. The third post can also be
filled up by offering one of the three newly created posts to the petitioners. The
application filed by the respondents seeking vacation of stay order dated 30.01.2003
should have been pursued but that would not constitute any impediment to give
appointment to the petitioners as the posts are admittedly available. The adjustment
of the post occupied by Shri Gian Chand Sharma may be made if the respondents
succeed in vacation of stay order passed by this Court.

The observations made by us with regard to the ad hoc appointment andrights

of respondents No. 4 and 5 are also supported by the judgment of the Constitutional
Bench of Hon'ble the Supreme Court in the case of Uma Devi (supra).

The submission of the learned counsel appearing for the respondent that
since the respondent was under suspension, therefore there was no occasion for
him to seek permission for leave, is also erroneous. The order of suspension dated
24.11.1984 stipulated that the respondent shall remain present in police lines and
will attend all the roll calls and parades and he was further ordered not to leave
station without prior permission.

In that view of the matter, the view taken by the courts below while decreeing
the suit that since the respondent was under suspension he was not required to take
leave, is erroneous.
 For the aforesaid reasons, we find that the appeal deserves to succeed. It is
allowed. The order and judgment under challenge is set aside. The suit filed by the
respondent in the trial court shall stand dismissed.

Based on the principle flowing from Article 38(2)10 of the Constitution, the
Government cannot deny a temporary employee at least the minimum wage being
paid to an employee in the corresponding regular cadre, alongwith dearness
allowance and additional dearness allowance, as well as all other benefits which are
being extended to casual workers.

The classification of workers (as unskilled, semi-skilled and skilled), doing the
same work, into different categories, for payment of wages at different rates is not
tenable. Such an act of the employer would amount to exploitation and shall be
arbitrary and discriminatory, and therefore, violative of Articles 14 and 1611 of the
Constitution12.

If daily-wage employees can establish that they are performing equal work of
equal quality, and that all the other relevant factors are fulfilled, a direction by a court
to pay such employees equal wages (from the date of filing the writ petition), would
be justified.

The SC observed that an employee engaged for the same work cannot be
paid less than another who performs the same duties and responsibilities and
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/she does so to provide food and shelter to
his/her family, at the cost of his/her self-respect and dignity, at the cost of his/her
self-worth, and at the cost of his/her integrity. Any act of paying less wages as
compared to others similarly situated, 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.

The SC further observed that India being a signatory to the International

Covenant on Economic, Social and Cultural Rights, 1966, there is no escape from
the obligations thereunder in view of the different provisions of the Constitution.
Thus, the principle of ‘equal pay for equal work’ constitutes a clear and unambiguous
right and is vested in every employee, whether engaged on a permanent or
temporary basis.

In the present appeals who are employed on daily wages cannot be treated
as on a par with persons in regular service of the State of Haryana holding similar
posts. Daily-rated workers are not required to possess the qualifications prescribed
for regular workers, nor do they have to fulfil the requirement relating to age at the
time of recruitment.

They are not selected in the manner in which regular employees are selected.
In other words the requirements for selection are not as rigorous. There are also
other provisions relating to regular service such as the liability of a member of the
service to be transferred, and his being subject to the disciplinary jurisdiction of the
authorities as prescribed, which the daily-rated workmen are not subjected to. They
cannot, therefore, be equated with regular workmen for the purposes for their wages.
Nor can they claim the minimum of the regular pay scale of the regularly
employed."In view of the above, the instant writ petition is allowed with costs.