B.L. Hansaria, C.J.
The petitioner is a Union of class IV job contract employees belonging to Balasore and Mayurbhanj districts. It has taken up the cause of the job contract workers employed as Chainmen and Process Servers in connection with Survey and Settlement operation. Though some of the members of the petitioner's Union have served for about two decades by now they have not been regularised; and so, the main prayer in this petition is to seek a direction on the opposite parties to regularise the workers so that after retirement they become entitled to terminal benefits like pension and gratuity. This apart, though the employees are being paid the basic salary along with D.A. and A.D.A., they are denied increments, General Provident Fund, house rent, surrender leave, earned leave, medical leave, leave travel concession etc, enjoyed by the regular employees, and so, if the Chainmen and the Process Servers would be regularised, they could avail these benefits also.
2. The system of job contract connected with Settlement/ Consolidation operation is in vogue only in this State. On demand being made for regular appointment of these persons, the State Government constituted a committee as early as 21.2.1974, known as the 'Mathews Committee', to study and find out the genuineness of the demand. The Commitfee constituted of the Member, Board of Revenue as the Chairman, and the Additional Development Commissioner and the Director of Land Records and Surveys as members. The Committee submitted its report long back (1974 ?) and some of its recommendations were accepted by the Government -the decision regarding acceptance of the rest is yet to be taken. As per statement made in paragraph 7 of Misc. Case No. 3326 of 1991 filed on 18.6.1991, the Mathews Committee had recommended for regularisation of 2000 employees only belonging to the categories of Amin, Munsarim, Inspector, Peskar and Draftsman; and accordingly, 2000 posts were created under regular establishment and had been filled up in 1977. It has been further averred in this paragraph that the Mathews Committee had not recommended for regularisation of Chainmen and Process Servers as their continuance under job contract is unavoidable in view of their service not being required during recess work. A further statement has been made in this paragraph that in any case the recommendation of the Committee is only advisory.
3. It would, therefore, be apposite to first inform ourselves as to what was the recommendation of the Mathews Committee on the point at issue. At this stage, it may be pointed out that there are about 922 Chainmen and 405 Process Servers in various districts under the job contract establishment who work during the field season, of these, about 150 employees are from the district of Balasore to which, according to the aforesaid Misc. Case, the present petition relates.
4. Before we note the recommendation of the Committee on the subject at hand, we may state in brief the types of work being discharged by a Chainman and a Process Server as stated in the report of the Committee, extracts of which are at Annexure-3. A Chainman is attached to one Amin in Kistwar and Khanapuri camps and Consolidation camps. He aligns the chain, reads the offsets and helps the Amin in writing out the records. The Committee has observed in its report (which has been quoted at page 9 of the aforesaid Annexure 1 that a Chainman 'has a fairly good knowledge of the records and the technical work'. As a matter of fact, persons trained as Amin are at times employed as Chainmen and 'a person working as a Chainman for a year or two makes a good Amin'. If a Chainman is attached to one Amin and if the post of Amin has been regularised, a case for regularisation of the post of a Chainman is also made out. From what has been stated in aforesaid paragraph 7. It appears that persons employed as Amins,. Munsarims etc. who are regularised following the recommendation of the Mathews Committee are 'required to work throughout the year, though on a reduced scale during recess work after closing of the field season'. No doubt, this is a valid consideration for regularising employees like Amin, Munsarim etc., but from what is being noted later it would, appear that the Mathews Committee had taken note of this fact and had, therefore, suggested qua Chainman (which would also apply to Process Server) that during the recess period they may be granted extraordinary leave (apparently without pay) which should, however, count towards increment. It may be pointed out here that the field work is generally done during the field season, which covers eight months from November of a year to June to the following year, which is followed by recess work which lasts for four months from July to October every year.
5. To the recommendations of the Mathews Committee now. This Committee, after having taken note of the background of the existence of the system of job contract in vogue in the Settlement and Consolidation organisations, observed that the same was a 'historical accident (which) should be totally abolished and all the staff required for field work in the organisations should henceforward be employed in regular establishment with running time scales of pay'. An exception was, however, made for purely manual labourers like Tindols regarding whom it was stated that they could be continued to be employed on daily wages and could better be called Mullas to avoid confusion with other categories of Tindols. The following observations made in the report to bring home the reason of its conclusion regarding employment of the staff in question on regular basis need to be noted :
'The main reason as to why employment of field staff in regular establishment has not been tried out in the Settlement organisation is the temporary and seasonal nature of settlement work. For this very reason, even the system of giving running time scales of pay to the staff, which was introduced in 1947, had to be changed in favour of grade pay. This situation would no longer hold good, as the Settlement operation has not only been continued for a long time on an expanded basis and there is now a clearly felt need for completing the present round of Survey and Settlement Operation in the State urgently and for the continuance and maintenance of land records through a system of cyclic Revisional Settlement in each district in the larger interest of administration and the people. For this purpose, employment can be provided for not less than 3500 persons round the year in the Settlement organisation for many years to come.....'
(See page 10 of Annexure-3)
The Committee, therefore, recommended in paragraph 91 of its report that 'the system of job contract employment now in vogue in the Settlement and Consolidation organisations should be totally abolished and all the staff required for field work in the orgnisations should henceforward be employed in regular establishment with running time scales of pay'. The case of Tindols was expected from this recommendation.
6. The above shows that it would not be correct to say, as averred in the aforesaid paragraph 7, that the Mathews Committee had recommended for regularisation of 2000 employees only belonging to the categories of Amin, Munsarim, Inspector, Peskar and Draftsman; indeed, its recommendation was to employ all the staff (except Tindols) required for field work in the regular establishment. Of course, the recommendations of a Committee set up by the Government to study a particular problem and to give its report on the same are not binding and they have been rightly characterised in the aforesaid Misc. Case as 'advisory' in nature. Shri Nayak, learned Additional Government Advocate appearing for the opposite parties, has urged with some amount of vehemence that regularisation of all the categories of persons employed in field work, more particularly of employees like Chainman and Process Server who have no work to do during the recess period, would aversely affect the State exchequer, and the present stringent pecuniary condition of the State should be borne in mind by the Court before conceding the prayers of the petitioner. It is also urged that Chainmen and Process Servers are presently getting a monthly remuneration of Rs. 578/- each, which is Rs. 8/- more than that of a regular Peon/ Chainman of a Tahasil.
7. As against the aforesaid submission of Shri Nayak, Shri Misra, learned counsel for the petitioner, contends that as all the recommendations of the Mathews Committee had not been implemented by the State Government, a high-power Committee presided over by the Chief Secretary was constituted, and the said Committee agreed on 2.5.1986 to the policy of abolishing the job-contract system by creating regular posts to absorb the job-contract employees against such posts, for which purpose the State Government sanctioned creation of 2000 further regular posts. In this connection, reference has also been made in paragraph 10 of the writ petition, wherein the aforesaid averments find place, that in a meeting held in the Revenue and Excise Department on 2.4.1985, after referring to the cabinet meeting held on 14.12.1974, it was decided that the question of absorption of the employees borne on the Consolidation/ Settlement organisation would be taken up after the Consolidation branch qualifies for permanency under, the normal rules. Theseaverments have been met in paragraph 12 of the joint counter filed by the opposite parties only by stating that the Government have not yet taken any step to abolish the job-contract system in the Settlement organisation.
8. We have duly noted the aforesaid submissions and the recommendations of the Mathews Committee. On the one hand, we must do all that is required for the welfare of the workmen, or the other hand, the State exchequer should also not be burdened with such demands on its tight financial position which would militate against the larger public interest. While making this observation, we are conscious of the position in law that financial hardship cannot be a ground to deny a citizen his fundamental rights. This has been the view taken by the apex Court as well as this Court in a number of decisions relating to 'equal pay for equal work'. It may be stated that the present is really not a case of invoking this Directive Principle which by now has been given the status of fundamental right. It is because of this that we have not addressed ourselves to the question whether the members of the petitioner's Union deserve to be paid pay equal to that of the workers employed in the regular establishment and doing the same type of work, on which aspect of the matter Shri Nayak had addressed us at length bringing to our notice several decisions of the Apex Court on the question as to when two types of work could be regarded as equal in nature meriting equal pay. In this connection we have also noted the statement made in paragraph 16 of the counter that the members of the petitioner's Union 'are not getting less salary with that of their counterparts in the regular establishment'. In fact, in paragraph 14 it has been stated that they are getting Rs. 8/-more per month than the regular Peons/Chainmen of a Tahasil.
9. We are really concerned in this case with the prayer of regularisation, which would confer the benefit, inter alia, of receiving pension. We, therefore, propose to confine our attention to this prayer. As to this prayer, it may be stated that the trend of recent thinking has been to order for regularisation of the employees who have put in service for some length of time, if the nature of the work were to so demand. It is not necessary to burden this judgment with too many decisions of the Apex Court on this point as this proposition of law has by now become well entrenched. It would be sufficient to refer to the recent decision of the Apex Court in Jacob M. Puthuparambil v. Kerala Water Authority, AIR 1990 SC 2228, in which, after keeping in mind the historical as well as the constitutional perspectives in this regard, the need for security of work for various reasons was highlighted; and after referring to the earlier important decisions of the Court, regularization of temporary employees was ordered, inter alia, because sudden taking away of the job of the bread earner would lead to 'economic ruination and wastage of precious period of life devoted in the service of the establishment, all of which would be an affront to the concept of job security and would run counter to the constitutional philosophy, particularly the concept of the right to work embodied in Article 41 of the Constitution.'
10. As the main outcome of granting the relief of regularisation in the present case would be the entitlement of the incumbents to receive pension, we may say a few words about the concept of pension. For this purpose, it would be enough to refer to the famous case of D. S. Nakara v. Union of India, AIR 1983 SC 130, wherein a Constitution Bench, speaking through Desai, J., brought home this aspect of the matter by stating, inter alia, in paragraph 20 that the 'antiquated notion of pension being a bounty, a gratuitous payment depending upon the sweet will or grace of the employer, not claimable as a right and, therefore, no right to pension can be enforced through Court, has been swept under the carpet.......'. In paragraph 26, the goals which a pension schemeseeks to subserve were noted. It was stated that a pension scheme consistent with the available resources must provide that the pensioner would be able to live (1) free from want, with decency, independence and self-respect, and (ii) at a standard equivalent at the present retirement level. The Bench posed a question that the approach being adopted by it may merit the criticism that if a developing country like India cannot provide an employee while rendering service a living wage, how can one be assured of it in retirement. The question was answered by referring to the social philosophy adopted by us in paragraph 31, this aspect of the matter was concluded by saying, inter alia, that pension is not an ex-gratia payment, but it is a payment for the past service rendered and it is a social welfare measure rendering socio-economic justice to those who in the hey day of their life ceaselessly toiled for the employer on an assurance that in their old age, they would not be left in lunch.
11. Keeping in view the various facets of the case as noted above and the further fact that our direction to regularises, if given, would clothe about 1300 employees throughout the State with the right to get pension (we have said about 1300 employees because of the figures of the Chainmen and the Process Servers working in various districts under the job-contract establishment having been given as 922 and 405 respectively in paragraph 8 of Misc. Case No. 3826 of 1991), which would be a very small number compared to the present strength of the Government employees in the State, who are entitled to pension, which figure must run into lakhs, and as such, conferring of this benefit on about 1300 employees, even if the benefit of our order were to be made available to all the employees throughout the State without confining it to the two districts at hand, would not be such a drag on the State exchequer, which it would not be able to meet even in the present stringent pecuniary condition when it is remembered that the amount of pension per head per month would not exceed Rs. 300/- (the pay being Rs. 578/- per month), if the incumbents were to retire as Chainman/Process Server. A sum of about Rs. 300/- per month as pension to one who served well high for two/three decades and that too in field work cannot be said to be such a burden on the exchequer of welfare State which it should not bear when Article 41 of the Constitution requires public assistance in cases of old age also more particularly of that categories of citizens of the country who belong to the lower strata of the society and suffer from undeserved want, specially in these days of rising prices and acute unemployment, because of which it may be that none of the family members of the retired employee would be in service.
12. There is one more aspect to which we would like to advert before we close. The same is related to the prayer of Shri Misra that a direction should be given to the opposite parties to employ the Chainmen as Mukabila Moharirs during the recess period, to which effect an observation has been made by the Mathews Committee, as finding place at page 9 of Annexure-3. We have not felt inclined to accept this prayer, because, not being fully assured whether there would be work of Mukabila Moharirs for all the Chainmen employed in the State and not even knowing as to how many Mukabila Moharirs are presently engaged in the State, we have not deemed it fit and proper to saddle the State with this extra liability. Indeed, the Mathews Committee itself had recommended granting of extraordinary leave during the recess period and we think this proposal is absolutely fair as it takes care of the regularity of the employment of the persons concerned as well as it saves the State from the liability to pay the incumbents without any work being discharged by them during the recess .period. The principle of 'no work, no pay' is well accepted. In this connection, we may refer with profit to the recent decision of the Apex Court in Nandakishore Nayak v. State of Orissa, 1991 Supp. (2) SCC 698, in which the prayer of the teacher to give him emoluments of two years because of his retirement at the age of 58 years as against his right to continue upto 60 years in view of the Full Bench decision of this Court in Rama Chandra Das v. State of Orissa, 65 (1988) CLT 253, was rejected by saying that the concept is to pay for the work actually done.
13. To conclude, we say that the services of the members of the petitioner's Union, who are Chainmen and Process Servers, would be regularised, and for this purpose if creation of posts by the State Government would be necessary, the same would be done. We would, however, confine the benefit of reguiarisation by stating that this action would enable the incumbents to get pension on retirement at the rate applicable to other similarly situated Government estwhile. The reguiarisation would not, however, confer other benefits available to other regularly employed Government servants. But then, these incumbents would be entitled to grade pay as per pay revision. This apart, for the purpose of calculating the pensionary benefit, so much of their earlier service period shall be reckoned, even if there had been breaks in their employment, so as to make them eligible for pension. The necessity of giving this direction has been felt because, if service rendered after reguiarisation alone shall be counted for pensionary benefit most of the present incumbents would be denied the same, because to earn pension, ten years minimum service is necessary, which most of the incumbents at hand would not put in after reguiarisation as they would retire before completing this period having been appointed two decades back. At this stage, it would also be pertinent to point out that most of the incumbents had been employed after their names had been sponsored by the Employment Exchange and were found fit in the interview/test. Though this averment made in paragraph 3 of the writ petition has been denied in paragraph 5 of the counter, in the additional affidavit filed on behalf of the petitioner documents, even as old as 1971, have been enclosed, some of which have emanated from the District Employment. Officers of the concerned District Employment Exchanges requiring attendance in the interview and test to be held for the post of Process Server/Chainman. Some of these communications also speak about sponsoring of the names of some of the members of the petitioner's Union by the concerned District Employment Exchange. We, therefore, accept this part of the case of the petitioner.
14. Before parting, we would say that on improvement of the financial position of the State, it would be open to the petitioner to approach this Court seeking modification of this order praying for grant of other benefits available to regularly employed Government servants, which we have denied them presently, and, on this being done, such orders as deemed just and proper would be passed.
15. In the result, the petition is allowed to the extent indicated above. All necessary steps shall be taken to implement this order within a period of four months from the date of receipt of this order.
B.N. Dash, J.
16. I agree.