Bhagwan
Dass & Ors Vs. State of Haryana & Ors [1987] INSC 191 (31 July 1987)
THAKKAR,
M.P. (J) THAKKAR, M.P. (J) SINGH, K.N. (J)
CITATION:
1987 AIR 2049 1987 SCR (3) 714 1987 SCC (4) 634 JT 1987 (3) 206 1987 SCALE
(2)160 CITATOR INFO :
R
1988 SC1504 (10) RF 1989 SC 19 (27) F 1989 SC1256 (4) C 1989 SC1308 (8,10) F
1990 SC 883 (7) RF 1991 SC1173 (6) RF 1992 SC2130 (7)
ACT:
Constitution
of India, Arts. 14 and 16--Doctrine of "Equal work equal pay"--When
it is established that the work performed is similar, there can be no
discrimination with regard to scale of pay on the ground that the mode of recruitment
was different or the nature of appointment was temporary.
HEADNOTE:
The
Education Department of the State of Haryana which was administering Adult Education
Centers for providing functional literacy to illiterates in the age-group of
15-35 years and Non-Formal Education Centers to impart learning by Special
Contact Courses to student drop-outs from schools in the age-group of 6-15
years, appointed the petitioners as supervisors from time to time since the
years 1978 on a fixed salary and continued to treat them as temporary government
servants by giving them a deliberate break in service of one day after the
lapse of every six-months. Contending that this was violative of Arts. 14 and
16 since they were discharging similar duties as other Supervisors such as
respondents 2-6 in the Education Department who had been absorbed as regular
government servants, the petitioners prayed for issue of a Writ directing the
State Government to give them the same scale of pay and benefits of continuous
service, etc. by declaring them to be permanent government servants.
The
State Government contended that the petitioners were not full time employees,
that their mode of recruitment was different from the mode of recruitment of
regular Supervisors, that the nature of functions discharged by them was
different from those of the latter and that they had been appointed on
six-monthly basis as the posts were sanctioned from year to year in view of the
temporary nature of the schemes.
The
documentary evidence placed on record established that the petitioners were
functioning as full-time Supervisors and had been 715 given the status
equivalent to masters of formal schools and their functions were also like the
Block Education Officers of formal schools.
Allowing
the petition partly,
HELD:
The petitioners are entitled to be paid on the same basis of same pay scale as
per which Respondents 2 to 6 who are discharging similar duties as Supervisors
just like the petitioners, are being paid.
(i)
The Respondent-State has failed to establish its plea that the nature of the duties
is different. In the regular cadre, the essential qualification for appointment
is B.A.
B.ED.
Petitioners also possess the same qualification viz., B.A., B.ED. In fact many
of them even possess higher degrees such as M.A., M.ED. In what manner and in
what respect are the duties and functions discharged by those who are in the
regular cadre different? The petitioners having discharged the initial burden
of showing similarity in this regard, the burden is shifted on the
Respondent-State to establish that these are dissimilar in essence and in
substance. We are unable to uphold the bare assertion made in this behalf by
the State of Haryana in its Counter-affidavit. [723F-G] (ii) So long as the
petitioners are doing work which is similar to the work performed by
respondents 2 to 6, from the stand point of 'Equal work for equal pay'
doctrine, the petitioners cannot be discriminated against in regard to pay
scales. Whether equal work is put in by a candidate, selected by a process
whereat candidates from all parts of the country could have competed or whether
they are elected by a process where candidates from only a cluster of a few
villages could have competed is altogether irrelevant and immaterial, for the
purpose of the applicability of 'Equal work for equal pay' doctrine. A typist
doing similar work as another typist cannot be denied equal pay on the ground that
the process of selection was different inasmuch as ultimately the work done is
similar and there is no rational ground to refuse equal pay for equal work. It
is quite possible that if he had to compete with candidates from all over the
country, he might or might not have been selected. It would be easier for him
to be selected when the selection is limited to a cluster of a few villages.
That however is altogether a different matter. It is possible that he might not
have been selected at all if he had to compete against 716 candidates from all
over the country. But once he is selected, whether he is selected by one
process or the other, he cannot be denied equal pay for equal work without
violating the said doctrine. [723B-E] (iii) whether appointments are for
temporary periods and the Schemes are temporary in nature is irrelevant once it
is shown that the nature of the duties and functions discharged and the work
done is similar and the doctrine of 'Equal pay for equal work' is attracted.
[724B-C] (iv) The petitioners have been appointed in the context of a Scheme
which is by the very nature of things transient and temporary. No doubt it has
been extended from year to year.
But
by the very nature and scope of the scheme, once the objective of Adult Education
is accomplished in the sense that the illiterate adults of the cluster of
villages become literate pursuant to the education imported at the Centers, the
need for adult education would diminish progressively and ultimately cease.
Having regard to these facts and circumstances we do not think that the
Respondent-State can be accused of making appointments on a temporary
six-months' basis with any ulterior or oblique motive. In our opinion,
therefore, the prayer of the petitioners to absorb them as regular employees on
a permanent basis from the date of their initial appointment has no
justification. That however does not mean that the petitioners should be
deprived of the legitimate benefits of being fixed in a pay-scale corresponding
to the one applicable to respondents 2 to 6 by treating them as employees who
have continued from the date of initial appointment by disregarding the breaks
which have been given on account of the peculiar nature of the Scheme.
While,
therefore, the petitioners cannot claim as a matter of right to be absorbed as
permanent and regular employees from the inception, they would be justified in
claiming pay on the basis of the length of service computed from the date of
their appointment depending on the length of service by disregarding the breaks
which have been given for a limited purpose. Having regard to the facts and
circumstances of the present case, ends of justice would be met if the petitioners
are paid the difference in salaries with effect from the date of the institution
of the Writ Petition viz. September 18, 1985. But it will be convenient to
direct the implementation with effect from September 1, 1985.725B-G; 726A-B]
717
Original
Jurisdiction:
Writ Petition No. 12311 of 1985.
(Under
Article 32 of the Constitution of India). Gobind Mukhoty and S.K. Bhattacharya
for the Petitioners. M.S. Gujral, Madhu Sudan Rao, I.S. Goel, C.V. Subba Rao,
and Ms. Kitty Kumarmanglam for the Respondents.
The
Judgment of the Court was delivered by THAKKAR, J. The alleged violation of
"Equal work equal pay" doctrine is the principal grievance of the
petitioners.
The
petitioners 102(1) in number holding the degrees of B.A., B.Ed. and M.A., B.Ed.
were appointed as Supervisors by a competent selection committee constituted by
the Education Department of Haryana from time to time since October 2, 1978.
They
have instituted the present petition under Art. 32 of the Constitution of India
seeking appropriate reliefs in the context of two grievances, one that the
petitioners are given a deliberate break of one day after the lapse of every
six months and have thus been treated as temporary Government servants
notwithstanding the fact that they have been continuously working ever since
the dates of their respective appointment subject to the aforesaid break of one
day at intervals of six months instead of absorbing them as regular employees
in regular pay scales. And secondly, though the petitioners performed their
duties as Supervisors in the Education Department and do the same work as is being
done by their counterparts, respondents 2 to 6 who are discharging similar
duties as Supervisors in the Education Department who are absorbed as regular
government servants they are paid less. The relief claimed by the petitioners
is in the following terms:-- (1) To declare by appropriate writ that the
petitioners continue to be in the service of the respondents from the date of
appointment irrespective of their being a deliberate break in service after
every six months by the respondents in violation of Articles 14 and 16 of the
Constitution of India;
1.
Originally there were 91 petitioners.
Subsequently
11 more were added as per the order of the Court dated September 18, 1986 in
Civil Misc. Petition Nos. 23014 and 25722 of 1986.
718
(2) To declare by appropriate writ or direction that the petitioners are in
continuous service since their respective date of appointments since the
National Adult Education Programme was introduced and further issue a writ in
the nature of mandamus to the respondent that the petitioners are entitled to
the benefit of notification dated 15-9-1982 issued by respondent State of
Haryana and accordingly the petitioners be put on similar pay scales and
service conditions as that of Masters (B. A., B. Ed. ) in the State of Haryana,
and, (3) To issue a writ in the nature of mandamus or any appropriate writ,
order or direction to the respondent nos. 2 and 4 to put the petitioners on
regular pay scales along with other consequential benefits of a permanent
employee from the date of initial appointment.
Before
dealing with the grievances made by the petitioners, it would be appropriate to
portray the factual back- ground. The Education Department of State of Haryana
has constituted an Adult Education Scheme under the overall control of Joint
Director, Adult and non-formal Education Department, respondent no. 3 herein in
the context of the National Adult Education Scheme sponsored by the Government
of India the birth anniversary of Mahatma Gandhi in 1978 (October 2, 1978). The
aim of adult education under this scheme is to provide functional literacy to
the illiterates in the age group of 15--35. The State Government has also
framed another Scheme for the non-formal education under the overall control of
the same official. The objective of this scheme is to impart learning by
special contact courses to the students in the age group of 6--15, who are
dropouts from schools. The petitioners are appointed as Supervisors.
There
are hundreds of such Adult Education Centers and Non- formal Education Centers.
One supervisor is provided for a group of 30 centers. Thus each of the
petitioners is in charge of 30 centers under one scheme or the other. He is
paid remuneration at the rate of Rs.500 p.m. as fixed salary. Each one of them
was, prior to March, 1984 also paid a sum of Rs.60 as fixed travelling
allowance which allowance has been increased to Rs. 150 per month from March 7,
1984 onwards.
The
Adult Education Centers are run under the Rural Functional Literacy Programme /
Project (RFLP) of the Central Government. The project is however administered
by the respondent, the State of Haryana. According to the respondent the
expenditure in respect of remuneration payable to the petitioners under RFLP is
719 borne by the Central Government. With regard to the centers functioning
under the State Adult Education Programme/Project (SAEP) to those of the
petitioners who are employed under the Scheme are paid remuneration on the same
pattern by the State Government as and by way of honorarium.
The
functions and duties discharged by the petitioners in their capacity as
Supervisors under the Adult Education Scheme as per the communication dated
April 8, 1985 (Annexure R-2) addressed by respondent no. 3 to the District
Officers and Project Officers, are as under:- "The supervisors of the
adult education has been given the status equivalent to masters of formal
schools and their functions are also like the Block Education Officers of the
formal schools. Thus the functions of the supervisors working under Adult
Education Scheme are inspection and to impart knowledge.
The
general duties of the supervisors will be:- to make educational survey of his
own village and nearby villages under the Rural Functional Literacy Programme
for starting adult education and non-formal education centers, to locate and
recommend for appointment suitable instructors for these centers from these
very villages, to give active co-operation in their training, to give guidance
in their reading and writing material, to give proper direction to instructors
in his cluster the latest techniques of adult education, to give guidance
continuously in latest technique of teaching methods, inspection of centers and
making arrangements for their reading, writing material, to give model lessons,
to hold discussions in the Mohallas houses of the community cultivating
friendship and personal relationship with the community, create awareness and
awakening in them in the matter of literacy, functionality and awareness."
The controversy as to whether the Supervisors were full-time Supervisors like
Respondents 2 to 6 or whether they were part-time Supervisors as has been
contended by the State of Haryana in its affidavit in reply has to be re-
solved in favour of the petitioners inasmuch as the documentary evidence placed
on record establishes that the petitioners were full-time (and not part-time)
Supervisors. At Annexure 'C' has been produced a document entitled 'Revised
financial pattern of the Project with 100 Educational centers ....... ".
The cadre of Supervisors has been de- scribed as full-time cadre in this
document, as evidenced by the following extract:-- "C. Supervision (a)
Full time Supervisors-one supervisor for a cluster of 30 centers (3 supervisors
for 100 centers each in the rank of Assistant Inspector of Schools with an
average salary of Rs. 500 per month) Rs.18,000.00 (b) TA cost on supervision
(Rs. 150 per month per supervisor) Rs. 5,400.00 Total Rs.23,400.00"
(Emphasis added).
What
is more, the matter has been placed beyond the pale of controversy by a
Circular issued by the State Government to all Adult Education Officers as per
Annexure 'D' dated April 9, 1985. The relevant extract from the Circular
deserves to be quoted:
"1.
Headquarter of the supervisor:
(a)
The head quarter of each supervisor shall be established in the middle of the
village.
(b)
Each supervisor will be present at his Headquarter on a fix day once in a week
between 9.30 A.M. to 4.00 P.M. The information of the fix day will be given to
all the instructors and adult education officers.
(c)
The monthly tour programme of each Supervisor will be got sanctioned by the
Assistant Project Education Officers and made his tour according to this plan
as far as possible.
(d)
The Supervisor will stay whole day in the village and will inspect informal
education centers in the day and adult education centre in the night.
(e)
He will call the meeting of respected persons of the 721 village on the date of
meeting and discuss about the progress of the centre. This meeting can be called
before or after the time of the centre.
(f)
If any supervisor leaves the head- quarter without permission or does not
perform his duties properly the necessary action may be taken against
him." It is therefore futile to contend that the petitioners in their
capacity as Supervisors were required only to perform part-time work. As per
clause (d) of the aforesaid extract, the supervisors were required to stay for
the whole day in the village and were required to visit the Informal Education
Centre and the Adult Education Centre in the night. They were also required to
go on tour and to remain at the head quarter once a week from 9.30 A.M. to 4.00
P.M.
The
conclusion is therefore inevitable that the petitioners were not part-time
functionaries but were whole-time functionaries.
The
matter may now be examined in this background. The respondent-State has
resisted the claim of the petitioner for granting them pay in accordance with
the pay-scales applicable to Respondents 2 to 6, who are Supervisors in the regular
cadre discharging similar functions, on four grounds viz (i) that the
petitioners are not full- time employees;
(ii)
the mode of recruitment of the petitioners is different from the mode of
recruitment of respondents 2 to 6.
(iii)
the nature of the functions discharged by the petitioners are not similar to
the functions discharged by respondents 2 to 6; and (iv) appointments are made
on six-monthly basis and there is a break in service having regard to the fact
that the posts are sanctioned on year to year basis in view of the temporary
nature of the Scheme.
With
regard to the first ground for not granting salary on the same basis as of
respondents 2 to 6, viz. that they are part-time employees whereas respondents
2 to 6 are full-time employees, having examined the aforesaid records placed
before the Court, we are of the opinion that there is no substance in this
contention.
722
With regard to the next contention viz. that the mode of recruitment of the
petitioners is different from the mode of recruitment of respondents 2 to 6, we
are afraid it is altogether without substance. The contention has been raised
in the following terms (paragraph 4(d) of the Counter affidavit dated 6-1-1986
filed on behalf of Respondents 1 to 13):-- It is absolutely incorrect that the
Petitioners are similarly placed as the employees under the Social Education
Scheme, as alleged.
The
latter are whole-time employees selected by the subordinate services Selection
Board after competing with candidates from any pan of the country. In the case
of Petitioners, normally the selection at best is limited to the candidates
from the Cluster of a few villages only. The contention made by the Petitioners
has no justifiable basis." (Emphasis added).
We
need not enter into the merits of the respective modes of selection. Assuming
that the selection of the petitioners has been limited to the cluster of a few
villages, whereas Respondents 2 to 6 were selected by another mode wherein they
had faced competition from candidates from all over the country., we need not
examine the merits of these modes for the very good reason that once the nature
and functions and the work are not shown to be dissimilar the fact that the
recruitment was made in one way or the other would hardly be relevant from the
point of view of "Equal pay for equal work" doctrine. It was open to
the State to resort to a selection process whereat candidates from all over the
country might have competed if they so desired. If however they deliberately
chose to limit the selection of the candidates from a cluster of a few villages
it will not absolve the State from treating such candidates in a discriminatory
manner to the disadvantage of the selectees once they are appointed, provided
the work done by the candidates so selected is similar in nature. It was
perhaps considered advantageous to make recruitment from the cluster of a few
villages for the purposes of the Adult Education Scheme because the Supervisors
appointed from that area would know the people of that area more intimately and
would be in a better position to persuade them to take advantage of the Adult
Education Scheme in order to make it a success. So also it was perhaps
considered desirable to make recourse to this mode of recruitment of candidates
because candidates from other parts of the country would have found it
inconvenient and onerous to seek employment in such a Scheme where they would
have to 723 work amongst total strangers and it would have made it difficult
for them to discharge their functions of persuading the villagers to avail of
the Adult Education Scheme on account of that factor. So also they might not
have been tempted to compete for these posts in view of the fact that the
Scheme itself was for an uncertain duration and could have been discontinued at
any time. Be that as it may, so long as the petitioners are doing work which is
similar to the work performed by respondents 2 to 6 from the stand point of
'Equal work for equal pay' doctrine, the petitioners cannot be discriminated
against in regard to pay scales.
Whether
equal work is put in by a candidate, selected by a process whereat candidates
from all parts of the country could have competed or whether they are selected
by a process where candidates from only a cluster of a few villages could have
competed is altogether irrelevant and immaterial, for the purposes of the
applicability of 'Equal work for equal pay' doctrine.. A typist doing similar
work as another typist cannot be denied equal pay on the ground that the
process of selection was different in as much as ultimately the work done is
similar and there is no rational ground to refuse equal pay for equal work. It
is quite possible that if he had to compete with candidates from all over the
country, he might or might not have been selected. It would be easier for him
to be selected when the selection is limited to a cluster of a few villages.
That however is altogether a different matter. It is possible that he might not
have been selected at all if he had to compete against candidates from all over
the country. But once he is selected, whether he is selected by one process or
the other, he cannot be denied equal pay for equal work without violating the
said doctrine. This plea raised by the Respondent-State must also fail.
Turning
now to the contention that the nature of the duties are different,, the
Respondent-State has failed to establish its plea. In the regular cadre, the
essential qualification for appointment is B.A., B.Ed. Petitioners also possess
the same qualifications viz. B.A., B.Ed. In fact many of them even possess
higher degrees such as M.A.,M.Ed., In what manner and in what respect are the
duties and functions discharged by those who are in the regular cadre
different? The petitioners having discharged the initial burden showing
similarity in this regard, the burden is shifted on the Respondent-State to
establish that these are dissimilar in essence and in substance. We are unable
to uphold the bare assertion made in this behalf by the State of Haryana (in
paragraph 21 of the Counter-affidavit dated November 23, 1985). In fact the
communication dated April 8, 1985 (Annexure R-2) addressed by the respondent
State of Haryana to the District Officers which 724 has been quoted in the
earlier part of the judgment supports the contentions of the petitioners and
belies the plea raised by the Respondent-State.
Lastly
we have to deal with the contention that the Scheme is a temporary Scheme and
the posts are sanctioned on an year to year basis having regard to the
temporary nature of the Scheme. We are unable to comprehend how this factor can
be invoked for violating. 'Equal pay for equal work' doctrine. Whether
appointments are for temporary periods and the Schemes are temporary in nature
is irrelevant once it is shown that the nature of the duties and functions
discharged and the work done is similar and the doctrine of 'Equal pay for
equal work' is attracted. As regards the effect of the breaks given at the end
of every six months, we will deal with this aspect shortly hereafter. That
however is no ground for refusing aspect the 'Equal pay for equal work'
doctrine. Be it realized that we are concerned with the 'Equal work Equal pay'
doctrine only within the parameters of the four grounds and the fact situation
discussed here in above. We are not called upon, and we have no need or
occasion to consider the applicability or otherwise of the said doctrine
outside these parameters. For instance we are not required to express any
opinion in the context of employment of similar nature under different
employers, or in different cadres under the same or different employers.
Nor-are
we concerned with questions required to be dealt with by authorities like the
Pay Commissions such as equation of cadres or determination of
parity-differential between different cadres or making assessment of work loads
or qualitative differential based on relevant considerations and such other
matters. We are concerned in the present matter with employees of the same
employer doing same work of same nature discharged in the same department but
appointed on a temporary basis instead of in a regular cadre on a regular
basis. We have therefore decided the questions raised before us in the backdrop
of facts of the present case. On the other dimensions of the doctrine we remain
silent as there is no need or occasion to speak.
In
the result we are of the opinion that the petitioners are entitled to be paid
on the same basis of same pay scale as per which respondents 2 to 6 who are
discharging similar duties as Supervisors just like the petitioners, are being
paid.
We
are now faced with the problem arising in the context of the fact that
appointments of the petitioners were initially made for six months and after
giving a break of a day or two they were reappointed 725 to the same posts by
fresh order. The counter-affidavit filed on 23rd November, 1985 by the State of
Haryana and the documents placed on record go to show that the petitioners'
contention that this is done deliberately with a view to deny to them the benefits
enjoyed by the employees similarly situated and discharging similar duties and
functions as Supervisors in the regular cadres. We find it difficult to accept
the contention of the petitioners that this is being done deliberately and with
mala fides attributed to the Respondent-State. The petitioners have been
appointed in the context of a Scheme which is by the very nature of things
transient and temporary. Annexure R-1 to the aforesaid counter-affidavit shows
that the Scheme was expected to function for ten months. No doubt it has been
extended from year to year. But by the very nature and scope of the Scheme,
once the objective of Adult Education is accomplished in the sense that the
illiterate adults of the cluster of villages become literate pursuant to the
education imparted at the centers, the need for adult education would diminish
progressively and ultimately cease. As disclosed in paragraphs 16 and 17 of the
aforesaid counter- affidavit the targets were expected to be achieved latest by
1990. It was in this background that the posts were sanctioned on year to year
basis (paragraph 11 of the counter affidavit). Having regard to these facts and
circumstances we do not think that the Respondent-State can be accused of
making appointments on a temporary six months basis with any ulterior or
oblique motive. In our opinion, therefore, the prayer of the petitioners to
absorb them as regular employees on a permanent basis from the date of theft
initial appointment has no justification. That however does not mean that the
petitioners should be deprived of the legitimate benefits of being fixed in a
pay-scale corresponding to the one applicable to respondents 2 to 6 by treating
them as employees who have continued from the date of initial appointment by disregarding
the breaks which have been given on account of the peculiar nature of the
Scheme. While, therefore, the petitioners cannot claim as a matter of right to
be absorbed as permanent and regular employees from the inception, they would
be justified in claiming pay on the basis of the length of service computed
from the date of their appointment depending on the length of service by
disregarding the breaks which have been given for a limited purpose. If this is
not done the anomaly such as the one highlighted by the petitioners in their
rejoinder affidavit dated December 13, 1985 will arise. As stated by the
petitioners in paragraph 4(c) of the aforesaid rejoinder affidavit, while a
Peon in the regular service would be drawing Rs.650 the petitioners would be
getting only Rs.500 as fixed salary notwithstanding the nature and importance
of the functions discharged by them and the role played by 726 them in the
important field of advancement of literacy in the State. And finally we must
deal with the question of date with effect from which the petitioners should be
paid the difference in salary. In our opinion having regard to the facts and
circumstances of the present case ends of justice would be met if the
petitioners are paid the difference in salaries with effect from the date of
the institution of the Writ Petition viz. September 18, 1985. But it will be
convenient to direct the implementation with effect from September 1, 1985. We accordingly
allow the Writ Petition partly and direct as under: I the Petitioners shall be
fixed in the same pay-scale as that of Respondents 2 to 6.
II
The pay of each of the petitioners shall be fixed having regard to the length
of service with effect from the date of his initial appointment by ignoring the
break in service arising in the context of the fact that the initial appointment
orders were for 6 months and fresh appointment orders were issued after giving
a break of a day or two.
III
The fixation shall be made as per the general principles adopted whenever pay
revisions are made. In case upward revision has been effected in respect of the
'supervisors in the regular, cadre such revision should be taken into account
in re-fixing the pay of the petitioners.
IV
The amount representing the difference in pay of the petitioners computed as
per the present order shall be paid to each petitioner preferably latest by
Mahatma Gandhi's birthday which falls on 2nd October, 1987 or latest by
November 1, 1987. The petitioners will be entitled to increments in the
pay-scale in accordance with law not with standing the break in service that
might have been given.
V
We hope and trust that the State of Haryana will not show displeasure at the
petitioners who have approached this Court in order to 727 vindicate their
right to claim equal pay and that service of no petitioner would be terminated
except on reaching the age of superannuation or by way of appropriate
disciplinary action, or on abandonment of the Scheme. For the sake of abundant
caution we direct accordingly.
VI
Fresh appointment orders will have to be issued reap- pointing the petitioners
who have continued in service on the expiry of the six months period from time
to time in order to give effect to the direction contained in clause V here in above.
VII In case the amounts of difference in pay cannot be computed within the
time-limit granted by this order, provisional and approximate calculations
should be made and payment should be made on such basis subject to final
adjustment within the time granted.
The
petitioners shall be paid the cost of the Writ Petition quantified at Rs. 5
,000. Order accordingly.
H.L.C.
Petition allowed.
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