Case BriefsSupreme Court

Supreme Court: The Division Bench of Dr Dhananjaya Y Chandrachud and M. R. Shah*, JJ., held that equation of posts and salary is a complex matter which should be left to the expert body and undertakings. Opining that granting of pay parity by the Court may result in a cascading effect having adverse consequences on employer, the Bench reminded,

 “There are limitations or qualifications to the applicability of the doctrine of ‘equal pay for equal work’.”

The instant appeal was filed against the order of Gujarat High Court in Letters Patent Appeal by which the High Court had quashed and set aside the judgment and order passed by the Single Judge whereby the Single Judge had held that the appellants were entitled to the pay scale of Rs.950-1500 with all consequential benefits upon completion of 10 years of service and revised pay scale as per 5th, 6th and 7th Pay Commission scales.

Background

With a view to resolve the issue relating to service condition of daily wagers engaged in maintenance and repairing work a committee called ‘Shri Daulatbhai Parmar Committee’ was constituted under the Chairmanship of the then Minister of Roads and Building Department–Shri Daulatbhai Parmar. On the recommendation of Parmar Committee, the Government of Gujarat passed a Resolution dated 17-10-1988 to give certain benefits to the skilled daily wager workmen depending upon the period of services undergone, i.e. less than 5, 5 or more or 10 years.

That the Respondent–Gujarat Water Supply and Sewerage Board adopted the said Government Resolution by way of communication dated 08-06-1989 and accordingly, all the daily rated employees working with the Board including the original petitioners were granted the benefit of the pay scales of Rs.750 and other benefits upon their completion of 5 years services.

The Bone of Contention

Noticeably, the Government issued subsequent Resolutions dated 01-05-1991 and 15-02-1992 by which certain modifications were carried out in the parent Resolution dated 17-10-1988 and it was provided that such daily wagers who were SSC passed and had completed 7 years, the Department would assign administrative work of clerical cadre Class III and they should be paid pay scale of Rs.950-1500 from the date of assignment of duty.

The appellants–daily rated employees were claiming the benefit flowing from the aforesaid subsequent Government Resolutions mainly on the ground that other similar daily rated employees had been granted the benefit and therefore not extending such benefits to other daily rated employees was discriminatory and violative of Article 14 of the Constitution.

Factual Analysis

Evidently, the Board never adopted the subsequent Resolutions while the parent Resolution was specifically approved by the Board vides communication dated 08-06-1989. On the contrary the administrative instructions vide communication dated 29-08-1991 were issued to all the Chief Engineers of zonal offices that benefits pursuant to Government Resolution of 1991 were not to be granted to the daily rated employees of the Board.

Therefore, the Bench was of the view that as such the Board which is an autonomous and statutory body created under the Gujarat Water Supply and Sewerage Board Act, 1978 never adopted the subsequent Government Resolutions and unless the said Resolutions were adopted by the Board, the daily rated employees working with the Board shall not be entitled to the benefits flowing from the subsequent resolutions.

Upholding the decision of the Division Bench, the Court held that daily rated employees of the Board cannot claim the benefits from the Resolutions of 1991 and 1992 as a matter of right as they do have any right to get the benefits flowing from the aforesaid Resolutions till specifically adopted by the Board like adoption of the parent Resolution dated. The Bench stated,

“There shall not be automatic adoption and/or applicability of the subsequent resolutions.”

The Bench added, the Board is an independent entity and it might have its own financial capacity and therefore its employees cannot claim parity with the employees of the State Government. The State Government and the autonomous Board/bodies cannot be put at par as the Board has to depend upon their own financial resources and it is ultimately for the Board to take a conscious decision which can be termed as a policy decision on the pay scales to be adopted and/or certain benefits which would have financial implications. Everything depends upon its economic viability or the financial capacity, otherwise the unit itself may not be able to function and may have to close down inevitably and have disastrous consequences for the employers themselves.

Conclusion

In the above backdrop, the Bench opined that the daily rated employees of the Board cannot invoke Article 14 of the Constitution to claim benefit on the ground of parity if they otherwise are not entitled to such benefit as Article 14 cannot be invoked to perpetuate illegality and irregularity. Accordingly, it was held that the Single Judge erred in directing the Board to grant the benefits flowing from the subsequent Government Resolutions which was rightly set aside by the Division Bench of the High Court.

[Rajesh Pravinchandra Rajyaguru v. Gujarat Water Supply & Sewerage Board, CIVIL APPEAL NO. 7578 OF 2021, decided on 17-12-2021]


Kamini Sharma, Editorial Assistant has pit this report together


Appearance by:

For the Original Petitioners: Sanjay Parikh, Senior Counsel

For the Board: Aastha Mehta, Advocate


*Judgment by: Justice M.R. Shah

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: The Division Bench of Raghvendra Singh Chauhan, CJ. and Alok Kumar Verma, J., dismissed an appeal which was filed with the issue as to whether the petitioners were entitled to receive the minimum of the pay-scale, and the Dearness Allowance admissible to the regularly appointed employees, or not?

Counsel for both the parties submitted that issue involved in the present Appeal is already covered by the case of Uttaranchal Van Shramik Sangh Ranibagh Etc. v. State of Uttarakhand, SLP (C) Nos. 11651-11652 of 2019, decided by the Supreme Court by its judgment dated 12-02-2020 where the issue was whether the contractual workers were entitled to receive the Dearness Allowance or not? The Court had observed that “suffice for us to say that if dearness allowance is being given to other daily wagers, naturally the State will not discriminate the daily-wagers on this aspect.”

Single Judge earlier had directed the respondent-State “to pay and release the Dearness Allowance to the petitioners at par with the members of Kumaun Ban Shramik Sangh, Center at Ranikhet with effect from 21.03.2002 within a period of ten weeks from the date of the order with arrears”. He further directed that “the petitioners shall be entitled to interest @ Rs. 12% per annum and if the amount is not released to the petitioners, the petitioners shall be entitled to 18% interest per annum till the payment is made to them”.

The Court dismissing the appeal held that once a concession was made by the State before the Hon’ble Supreme Court, the State is equally bound by the said concession.

[State of Uttarakhand v. Bahadur Singh Rawat, 2021 SCC OnLine Utt 1174, decided on 21-10-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Himachal Pradesh High Court: Vivek Thakur J., while allowing the present petition, made an elaborated discussion over conditions for granting benefit of service and regularization, in the light of Gauri Dutt v. State of Himachal Pradesh, HLJ 2008 (HP) 366.

Background

The petitioner in the instant case was appointed as daily waged surveyor on 1-11-1983 and in the same year, he served at the said position for 61 days. He continued to work as a daily waged Surveyor till 30-06-1987 and with effect from 01-07-1987 to 28-02-1988, he was engaged as daily waged beldar. Thereafter, from 01-03-1988 to 31-10-1989, he was engaged as daily waged Fitter, a Class-III post equivalent to the post of Surveyor. Since 01-11-1989 till his regularization, he was engaged as daily waged Surveyor continuously. Since 1984 till his regularization vide order dated 17-12-2002, with effect from 31-03-2000, he served for 240 days each in every calendar year as a daily waged employee, though in a different capacity, that is, Surveyor, Beldar and Fitter, as mentioned above.

It is also undisputed that pursuant to the decision of Government dated 28-02-2008, taken after passing of judgment by the present High Court in Gauri Dutt v. State of Himachal Pradesh, HLJ 2008 (HP) 366, petitioner was regularized, immediately on completion of 10 years as Surveyor with 240 days each in every calendar year, vide order dated 18-03-2008 from retrospective date with effect from 01-01-2000. Thereafter petitioner had represented to the respondent authority to take into consideration his service with effect from 1984 onwards as he had completed 240 days in each calendar year continuously after 01-01-1984 till his regularization. Feeling aggrieved by omission on the part of respondents authority to take any decision, he had approached this High Court by filing CWP No. 8325 of 2011, which was disposed of vide order dated 11-10-2011 with direction to the respondents-authority to take appropriate action in representation made by petitioner, which was pending consideration before the authority. In pursuance to the order passed by the present High Court, representation of the petitioner was considered by Engineer-in-Chief and was decided vide order dated 28-11-2011, whereby it was concluded by the authority that from 01-03-1988 to 31-10-1989, petitioner was engaged as daily waged fitter and thereafter he continued as daily waged surveyor till his regularization and as post of fitter was equivalent to the post of surveyor, service of the petitioner as fitter with effect from 01-03-1988 to 31-10-1989 was also taken into consideration for counting requisite years for his regularization as surveyor and as such work-charge status was conferred upon the petitioner with effect from 01-01-1998, instead of 01-01-2000.

By way of present petition, petitioner has assailed order dated 28-11-2011, claiming that his entire service with effect from 01-01-1984, since when he has been working as daily waged Surveyor, Beldar and Fitter, with 240 days in each calendar year, is required to be taken into consideration for the purpose of conferring work-charge status upon him and/or regularization of his service.

Observation

The Court referred to the case of  Gauri Dutt, where the essential question was precisely relevant for consideration in the instant case, that is,

Where if an employee has rendered service on daily waged basis on 2 separate posts in lower and higher scales, can the employee be given benefit of the service rendered by him in the lower scale and be regularized in the higher scale by combining the two services after 10 years?

The Division Bench in the aforementioned case held, “when an employee completes 10 years of continuous service combined in two scales, an option should be given to the employee to either accept work charge status in the lower scale or he may continue to work on daily rated basis in the higher scale and claim work charge status in the higher scale of completion of 10 years of continuous service in the said scale…However, if the employee on being given a chance to exercise his option does not convey his opinion within 30 days, he shall be granted work charge status in the lower scale by combining the service rendered in both the scales.” In essence the Bench observed that,

An employee, for regularization against higher scale, cannot have benefit of his service against lower scale for the purpose of counting 10 years service, however, for regularization against lower scale an employee can have benefit of his service against post of higher scale for counting 10 years.

The Court further admitted the fact that the facts of the present case are not exactly similar to the facts of the Gauri Dutt and in the same light observed, “… a case, like present one, wherein the employee initially and finally has been appointed to a post of higher scale and in between to a post of lower scale, has not been discussed and considered therein. However, the essence of the judgment is very clear that for regularization to the post of higher scale, services of employee against the post of higher scale are only to be taken into consideration, but not the services rendered against post having lower scale. Petitioner herein, has continuously served for 240 days in each calendar year w.e.f. 01-01-1984, though against different posts having different scales.”

Decision

While allowing the present petition the Court said, “Considering the entire facts and circumstances and also ratio laid down in Gauri Dutt’s case, I am of the considered opinion that services of petitioner with effect from 01-01-1984 to 30-06-1987 when he has served against the post of Surveyor, is required to be taken into consideration for counting his requisite years of service for the purpose of conferring work-charge status/regularization, because there is no break in his daily wage service since 01-01-1984 as though he was engaged against posts having different scales, but his services were never discontinued till his regularization and he had completed 240 days in every calendar year during this period. His services as daily waged Beldar with effect from, 01-07-1987 to 28-02-1988 are not to be taken into consideration for calculating the requisite years, rather has to be excluded for the purpose of calculation of requisite years. But at the same time this period is not to be considered as a period when petitioner has not served at all for the purpose of continuance of service and completion of 240 days in each calendar year. Though, this period is to be taken into consideration for purpose of continuation, but is not to be added to the period of service as Surveyor.”[Ashok Kumar v. State of Himachal Pradesh, CWPOA No. 842 of 2019, decided on 27-11-2020]


Sakshi Shukla, Editorial Assistant has put this story together.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: A Division Bench of V. Chitambaresh and Ashok Menon, JJ. set aside the order of Kerala Administrative Tribunal (KAT) and allowed a petition for regularization of services of certain workers who had been in the employment of respondent for decades uninterruptedly without any break.

The petitioners who were working as pump operators at Kerala Raj Bhavan demanded regularization of service. The Tribunal dismissed their claim on the technical ground that “they are daily wage employees working in the unsanctioned posts”.

The Court relied on the decision of Nihal Singh v. State of Punjab, (2013) 14 SCC 65 wherein the defense of the State that there were no sanctioned posts to absorb the appellants, was rejected because they were utilizing the services of a large number of people like the appellants for decades.

The Court recognized that there is a need for the sanctioned posts of Pump Operator to ensure uninterrupted water supply to the Kerala Raj Bhavan. Since the petitioners had worked for decades uninterruptedly without any break, hence they were entitled to regularization of their services in light of the special facts and circumstances.[Sudarsanan K. v. State of Kerala, 2019 SCC OnLine Ker 1736, decided on 04-06-2019]