Dr. Lok Raj and ors. Vs. Chandigarh Administration and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/624167
SubjectService
CourtPunjab and Haryana High Court
Decided OnMar-12-2008
Judge Hemant Gupta and; Mohinder Pal, JJ.
Reported in(2008)2PLR544
AppellantDr. Lok Raj and ors.
RespondentChandigarh Administration and ors.
Cases Referred(State of Punjab and Ors. v. Devinder Singh Civil Appeal No.
Excerpt:
service - regularization - petitionerappointed on contract basis - peitioner's representation for regularisation fater 10 years of service rejected - trial court dismissed the suit files by petitioner - hence, present writ petition - held, petitioner was continuing on contract basis for last 10 years - rreasonable that contractual employee replaced only by making appointment on regular basis - writ petitions accordingly disposed of - - 31. having discussed the general principles controlling the various aspects of these cases, it will be appropriate for us to refer to the view taken by the hon'ble apex court in various judgments, spreading over a period of more than 20 years, sufficiently indicates the essentials which need to be satisfied for entertaining a claim founded on the principle of equal pay for equal works or equality.hemant gupta, j.1. this order shall dispose of the civil writ petition nos. 11836-cat of 2002 and 143%-cat of 2002 as common questions of law and facts are involved in both the writ petitions.c.w.p. no. 1 1936-cat of 2002 arises out the order passed by the central administrative tribunal, chandigarh bench, chandigarh (for short 'the tribunal') on 26.2.2002, whereby an original application filed by the petitioners under section 19 of, the administrative tribunals act, 1985 (for short 'the act') was dismissed.2. the order under challenge in c.w.p. no. 14396-cat of 2002 was passed by the tribunal on 15.4.2002 relying upon the earlier order passed in the case of 'dr. lok singh and ors. v. chandigarh administration which is under challenge in c.w.p. no. 11836-cat of 2002.3. chandigarh administration published advertisement inviting applications for filling up various posts of professors, readers, senior lecturers and lecturers in government medical college and hospital, sector 32, chandigarh. such posts were required to be filled up on temporary/adhoc and contract basis on consolidated salary. such advertisement was published on 26.7.1998. the petitioners submitted their applications for appointment to the post advertised and in pursuance of the recommendations of the selection committee, the petitioners are appointed on contract basis on consolidated salary. it is admitted by the petitioners that except petitioner no.21, namely, dr. neeiam kaistha, all the petitioners have either resigned or have been regularly appointed by the administration. it is also the admitted stand of the parties that all the petitioners were paid the minimum of the pay scale of the post on which they were appointed on contract basis along with dearness allowance, house rent allowance etc. however, the petitioners were not granted increments as are granted to the incumbents appointed against the regular posts.4. the claim of the petitioners was that they have been appointed by complying with the procedure contemplated for making the appointments on regular basis and, therefore, the respondents are bound to pay the regular pay scale to maintain parity with the regular employees. still further, the petitioners have a right to continue in service till regular appointments are made. as such, the respondents cannot be permitted to substitute the petitioners with another set of contractual employees.5. it is the stand of the respondents that the respondent-college was at the project stage as declared by the government of india and planning commission of india upto the year 2002. sub project stage has been extended to the year 2005. it is pointed out by the learned counsel for the respondents that the appointments were made on contractual basis in the initial days of the college so that the college becomes functional. it is also pointed out that the regular appointments such as members of the teaching faculty, have to be made by the union public service commission.6. the learned tribunal after considering the few judgments, returned a finding that the petitioners have accepted the terms and conditions in the contract of offer of appointment without raising any objection and they worked for number of years find, therefore, they can not be permitted to challenge such terms of contract. still further, the appointments were made when the respondent-college was at project stage. thus, the appointments have been made under a policy decision even before the rules for recruitment. still further, the petitioners have been given minimum of pay scale and other allowances from the date of their appointment. the court found that the petitioners are not entitled to yearly increments, which are available to regular employees and consequently, the application was dismissed.7. the learned counsel for the petitioner has relied upon the supreme court judgment reported as secretary, state of karnataka v. uma devi : (2006)iillj722sc , to contend that the petitioners are entitled to regular pays scale. in the alternative, it was argued that services of petitioner no. 21, cannot be dispensed with without making regular appointment on such post.8. learned counsel for the respondents, on the other hand, relied upon the hon'ble supreme court judgment reported as state bank of india v. m.r. ganesh babu : (2002)iillj829sc , and a full bench judgment of this court reported as vijay kumar and ors. v. state of punjab and ors. 2002(1) s.l.r. 694, to contend that the petitioners are not entitled to regular pay scale.9. having heard learned counsel for the parties, we do not find any merit in the present petition. in uma devi's case (supra), the court found that the concept of equal pay for equal work is different from the concept of conferring permanency on those who have been appointed on adhoc basis, temporary basis, or based on no process of selection as envisaged by the rules. the court also considered that the person who accepts an engagement either temporary or casual in nature, is aware of the nature of his employment. he accepts the employment with open eyes. it may be true that he is not in a position to bargain-not at arm's length-since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. but on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take that the person who has temporarily or casually got employed should be directed to be continued permanently. by doing so, it will be creating another mode of public appointment which is not permissible. it was thus, found that the right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. that would be treating unequals as equals.10. in fact, reliance was placed upon para 55 of the aforesaid judgment, wherein the j direction of the division bench of the high court was modified and the daily wagers were ordered to be paid wages equal to the salary at the lowest grade of employee of their cadre from the date of judgment of the division bench of the high court. however, the court has found that there would be no question of other allowances being paid to them.11. the full bench in vijay kumar's case (supra), has considered all the judgments on the questions of grant of regular pay scale including the order dated october 17, 2000 passed in s.l.p. (civil) 6285/87 in chandigarh administration v. vedpal, wherein the court directed the payment of the wages and dearness allowance at the minimum of the revised scale of pay at par with the regular employees. the full bench held to the following effect:31. having discussed the general principles controlling the various aspects of these cases, it will be appropriate for us to refer to the view taken by the hon'ble apex court in various judgments, spreading over a period of more than 20 years, sufficiently indicates the essentials which need to be satisfied for entertaining a claim founded on the principle of equal pay for equal works or equality. thus, we may concisely state these essentials:(a) the petitioners ought to be employed by the state as causal or daily rated workers;(b) the employee ought to have worked as such for a fairly reasonable time satisfying the ingredients of continuity in service;(c) the functions being discharged and work being performed by such employee should be similar (of course, not by mathematical formula), as that being done by a regular employee of the same department;(d) work performance of the employees should be satisfactory.at the cost of repetition, we may refer that there is no dispute to the similarity of work and functions and the fact that the petitioners do not lack essential qualifications. even if to some extent it was disputed, it would make no difference in the light of law down by the apex court. the stress on payment of minimum of the pay scale i.e. the basic pay and dearness allowance alone was insisted upon by the supreme court repeatedly. in the case of devinder singh (supra), the petitioners, who were working as ledger clerks, ledger keepers alike some of the petitioners before us in the same department, had filed a writ claiming parity of pay. a division bench of the high court vide judgment dated 20.3.1996 granted the relief to the petitioners. however, upon appeal filed by the state, the hon'ble supreme court modified the judgment of the high court, but granted the minimum of the pay scale. copy of the order has been placed on record as annexure p/10 (state of punjab and ors. v. devinder singh civil appeal no. 492 of 1997). the order dated 21.7.1997 reads as under:the direction issued by the high court in favour of the respondent entitling them to get the salary and allowances as regularly appointed employees is set aside and instead it is directed that the respondents will be entitled to get the minimum of the pay scale available to the ledger keepers/ledger clerks with appropriate allowances thereon shall be available to the respondents so long as they work as daily wage ledger keepers/ledger clerks. in view of the present order if in case any amount is found to have been paid to the respondents in excess, it will be adjusted in a phased and reasonable manner so that the respondents may not be out of pocket to a larger extent. no costs.12. similar relief was also granted by the supreme court in the case of kulbir singh (supra). the petitioners were granted minimum of the pay scale with effect from the date they were appointed.in m.r. ganesh babu's case (supra), the supreme court found that the equal pay must depend upon the nature of work done and that it cannot be judged by the mere volume of work, there may be qualitative difference as regards reliability and responsibility. functions may be same but the responsibilities make a difference. one cannot deny that often the difference is a matter of decree and there is an element of value judgment by those who are charged with the administration in fixing the scales and other conditions of service. it was further held that the judgment of administrative authorities concerning the responsibilities which attach to the post, and the degree of reliability expected of an incumbent, would be a value judgment of the authorities concerned, which, if arrived at bonafide, reasonably and rationally, was not open to interference by the court.13. keeping in view the aforesaid principles of law, we are of the opinion that non grant of increments to the petitioners, who have been appointed on consolidated salary i.e. minimum of the regular pay scale, dearness allowance and other allowances, cannot be said to be legally arbitrary or violative of the principle of equal pay for equal work. consequently, we do not find any merit in the argument raised for grant of regular pay scale along with the increments to the petitioners. the question in uma devi's case (supra) was of conferring permanent status on an employee after spending considerable time on adhoc or daily wages. the directions relied upon by the petitioners do not suggest that as a matter of principle, a casual employee would be entitled to regular pay scale. in fact, the court has found that unequals cannot be treated as equals. therefore, such judgment does not help the petitioners in any manner.14. as regards the claim of petitioner no. 21 (in c.w.p. no. 11836-cat of 2002) that she should not be replaced by another contractual appointee, the same is meritorious. petitioner no. 21 is continuing on contract basis for the last 10 years and it is fair and reasonable that such contractual employee should be replaced only be making the appointment on regular basis.15. consequently, the present writ petitions are disposed of with the directions to the respondents to replace petitioner no. 21 (in c.w.p. no. 11836-cat of 2002) only by a regular appointee, in accordance with law.sd/- mohinder pal, j.
Judgment:

Hemant Gupta, J.

1. This order shall dispose of the Civil Writ Petition Nos. 11836-CAT of 2002 and 143%-CAT of 2002 as common questions of law and facts are involved in both the writ petitions.

C.W.P. No. 1 1936-CAT of 2002 arises out the order passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for short 'the Tribunal') on 26.2.2002, whereby an original application filed by the petitioners under Section 19 of, the Administrative Tribunals Act, 1985 (for short 'the Act') was dismissed.

2. The order under challenge in C.W.P. No. 14396-CAT of 2002 was passed by the Tribunal on 15.4.2002 relying upon the earlier order passed in the case of 'Dr. Lok Singh and Ors. v. Chandigarh Administration which is under challenge in C.W.P. No. 11836-CAT of 2002.

3. Chandigarh Administration published advertisement inviting applications for filling up various posts of Professors, Readers, Senior Lecturers and Lecturers in Government Medical College and Hospital, Sector 32, Chandigarh. Such posts were required to be filled up on temporary/adhoc and contract basis on consolidated salary. Such advertisement was published on 26.7.1998. The petitioners submitted their applications for appointment to the post advertised and in pursuance of the recommendations of the Selection Committee, the petitioners are appointed on contract basis on consolidated salary. It is admitted by the petitioners that except petitioner No.21, namely, Dr. Neeiam Kaistha, all the petitioners have either resigned or have been regularly appointed by the Administration. It is also the admitted stand of the parties that all the petitioners were paid the minimum of the pay scale of the post on which they were appointed on contract basis along with dearness allowance, house rent allowance etc. However, the petitioners were not granted increments as are granted to the incumbents appointed against the regular posts.

4. The claim of the petitioners was that they have been appointed by complying with the procedure contemplated for making the appointments on regular basis and, therefore, the respondents are bound to pay the regular pay scale to maintain parity with the regular employees. Still further, the petitioners have a right to continue in service till regular appointments are made. As such, the respondents cannot be permitted to substitute the petitioners with another set of contractual employees.

5. It is the stand of the respondents that the respondent-college was at the project stage as declared by the Government of India and Planning Commission of India upto the year 2002. Sub project stage has been extended to the year 2005. It is pointed out by the learned Counsel for the respondents that the appointments were made on contractual basis in the initial days of the College so that the college becomes functional. It is also pointed out that the regular appointments such as members of the teaching faculty, have to be made by the Union Public Service Commission.

6. The learned Tribunal after considering the few judgments, returned a finding that the petitioners have accepted the terms and conditions in the contract of offer of appointment without raising any objection and they worked for number of years find, therefore, they can not be permitted to challenge such terms of contract. Still further, the appointments were made when the respondent-College was at project stage. Thus, the appointments have been made under a policy decision even before the Rules for recruitment. Still further, the petitioners have been given minimum of pay scale and other allowances from the date of their appointment. The Court found that the petitioners are not entitled to yearly increments, which are available to regular employees and consequently, the application was dismissed.

7. The learned Counsel for the petitioner has relied upon the Supreme Court Judgment reported as Secretary, State of Karnataka v. Uma Devi : (2006)IILLJ722SC , to contend that the petitioners are entitled to regular pays scale. In the alternative, it was argued that services of petitioner No. 21, cannot be dispensed with without making regular appointment on such post.

8. Learned Counsel for the respondents, on the other hand, relied upon the Hon'ble Supreme Court judgment reported as State Bank of India v. M.R. Ganesh Babu : (2002)IILLJ829SC , and a Full Bench judgment of this Court reported as Vijay Kumar and Ors. v. State of Punjab and Ors. 2002(1) S.L.R. 694, to contend that the petitioners are not entitled to regular pay scale.

9. Having heard learned Counsel for the parties, we do not find any merit in the present petition. In Uma Devi's case (supra), the Court found that the concept of equal pay for equal work is different from the concept of conferring permanency on those who have been appointed on adhoc basis, temporary basis, or based on no process of selection as envisaged by the rules. The Court also considered that the person who accepts an engagement either temporary or casual in nature, is aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain-not at arm's length-since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take that the person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. It was thus, found that the right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals.

10. In fact, reliance was placed upon para 55 of the aforesaid judgment, wherein the J direction of the Division Bench of the High Court was modified and the daily wagers were ordered to be paid wages equal to the salary at the lowest grade of employee of their cadre from the date of judgment of the Division Bench of the High Court. However, the Court has found that there would be no question of other allowances being paid to them.

11. The full Bench in Vijay Kumar's case (supra), has considered all the judgments on the questions of grant of regular pay scale including the order dated October 17, 2000 passed in S.L.P. (Civil) 6285/87 in Chandigarh Administration v. Vedpal, wherein the Court directed the payment of the wages and dearness allowance at the minimum of the revised scale of pay at par with the regular employees. The Full Bench held to the following effect:

31. Having discussed the general principles controlling the various aspects of these cases, it will be appropriate for us to refer to the view taken by the Hon'ble Apex Court in various judgments, spreading over a period of more than 20 years, sufficiently indicates the essentials which need to be satisfied for entertaining a claim founded on the principle of equal pay for equal works or equality. Thus, we may concisely state these essentials:

(a) The petitioners ought to be employed by the State as causal or daily rated workers;

(b) The employee ought to have worked as such for a fairly reasonable time satisfying the ingredients of continuity in service;

(c) The functions being discharged and work being performed by such employee should be similar (of course, not by mathematical formula), as that being done by a regular employee of the same department;

(d) Work performance of the employees should be satisfactory.

At the cost of repetition, we may refer that there is no dispute to the similarity of work and functions and the fact that the petitioners do not lack essential qualifications. Even if to some extent it was disputed, it would make no difference in the light of law down by the Apex Court. The stress on payment of minimum of the pay scale i.e. the basic pay and dearness allowance alone was insisted upon by the Supreme Court repeatedly. In the case of Devinder Singh (supra), the petitioners, who were working as Ledger Clerks, Ledger Keepers alike some of the petitioners before us in the same department, had filed a writ claiming parity of pay. A Division Bench of the High Court vide judgment dated 20.3.1996 granted the relief to the petitioners. However, upon appeal filed by the State, the Hon'ble Supreme Court modified the judgment of the High Court, but granted the minimum of the pay scale. Copy of the order has been placed on record as Annexure P/10 (State of Punjab and Ors. v. Devinder Singh Civil Appeal No. 492 of 1997). The order dated 21.7.1997 reads as under:The direction issued by the High Court in favour of the respondent entitling them to get the salary and allowances as regularly appointed employees is set aside and instead it is directed that the respondents will be entitled to get the minimum of the pay scale available to the Ledger Keepers/Ledger Clerks with appropriate allowances thereon shall be available to the respondents so long as they work as daily wage Ledger Keepers/Ledger Clerks. In view of the present order if in case any amount is found to have been paid to the respondents in excess, it will be adjusted in a phased and reasonable manner so that the respondents may not be out of pocket to a larger extent. No costs.

12. Similar relief was also granted by the Supreme Court in the case of Kulbir Singh (supra). The petitioners were granted minimum of the pay scale with effect from the date they were appointed.

In M.R. Ganesh Babu's case (supra), the Supreme Court found that the equal pay must depend upon the nature of work done and that it cannot be judged by the mere volume of work, there may be qualitative difference as regards reliability and responsibility. Functions may be same but the responsibilities make a difference. One cannot deny that often the difference is a matter of decree and there is an element of value judgment by those who are charged with the administration in fixing the scales and other conditions of service. It was further held that the judgment of administrative authorities concerning the responsibilities which attach to the post, and the degree of reliability expected of an incumbent, would be a value judgment of the authorities concerned, which, if arrived at bonafide, reasonably and rationally, was not open to interference by the court.

13. Keeping in view the aforesaid principles of law, we are of the opinion that non grant of increments to the petitioners, who have been appointed on consolidated salary i.e. minimum of the regular pay scale, dearness allowance and other allowances, cannot be said to be legally arbitrary or violative of the principle of equal pay for equal work. Consequently, we do not find any merit in the argument raised for grant of regular pay scale along with the increments to the petitioners. The question in Uma Devi's case (supra) was of conferring permanent status on an employee after spending considerable time on adhoc or daily wages. The directions relied upon by the petitioners do not suggest that as a matter of principle, a casual employee would be entitled to regular pay scale. In fact, the Court has found that unequals cannot be treated as equals. Therefore, such judgment does not help the petitioners in any manner.

14. As regards the claim of petitioner No. 21 (in C.W.P. No. 11836-CAT of 2002) that she should not be replaced by another contractual appointee, the same is meritorious. Petitioner No. 21 is continuing on contract basis for the last 10 years and it is fair and reasonable that such contractual employee should be replaced only be making the appointment on regular basis.

15. Consequently, the present writ petitions are disposed of with the directions to the respondents to replace petitioner No. 21 (in C.W.P. No. 11836-CAT of 2002) only by a regular appointee, in accordance with law.

Sd/- Mohinder Pal, J.