State
of U.P. & Ors Vs. Ramashyraya Yadav
& Anr [1996] INSC 277 (15 February 1996)
G.B.
Pattanaik (J) G.B. Pattanaik (J) Ramaswamy, K. G.B. Pattanaik, J.
CITATION:
1996 AIR 1188 1996 SCC (3) 332 JT 1996 (2) 418 1996 SCALE (2)304
ACT:
HEAD NOTE:
Leave
granted.
This
appeal by special leave is directed against the judgment of the Division Bench
of the Allahabad High Court dated 2.2.1995 dismissing the petitioners' appeal
and affirming the decision of the learned Single Judge in Civil Misc. Writ
Petition No. 32001 of 1992.
This
is a glaring instance of abuse of judicial process which is partly due to
inaction on the part of the State authorities.
The
respondents had been appointed as Investigators-cum-Computer on a fixed
remuneration of Rs.400/- per month by order dated 17.9.1986, such posts having
been created under the temporary scheme only up to 28th of February, 1987 in 15
districts of Uttar Pradesh. While selecting persons for filling up those purely
temporary posts apart from considering the cases of names which were sponsored
by the employment exchange, the appropriate authority of the Animal Husbandry
Directorate received about 208 applications directly and finally selected 44
persons among them.
The
Government having come to know of the irregularity as stated above cancelled
the appointments by order dated 6.3.1987 and called upon the authorities to
select persons in accordance with the procedure prescribed. The appointees -
respondents moved the Allahabad High Court against the order of cancellation alleging
that they having joined, the order is bad in law. The High Court passed an
interim order on 14.8.1987 allowed continuance of the respondents.
Though
the State appeared in said proceedings and filed application for vacation of
stay, stay order has not been vacated and the respondents are continuing as
such. In the meanwhile the respondents filed another writ petition claiming
that they are entitled to the same salary as the Investigators-cum-Computer are
getting in the Animal Husbandry Department particularly when they are
discharging the similar duties as those of the regular employees, obviously
invoking the principle of 'equal pay for equal post'.
Though
the State Government was noticed in that proceeding but no counter affidavit
was filed.
Therefore
the learned Single Judge allowed the writ petition by order dated 3.3.1994
granting the regular pay scale of Rs. 1200-2040 to the respondents. The State
filed a special appeal before the Division Bench, and by the impugned judgment
the special appeal having been dismissed, the present appeal by special leave
has been filed in this Court.
Learned
counsel for the appellants contended that the respondents having been allowed
to continue by virtue of an interim order of the High Court notwithstanding
their appointment having been cancelled and even though the scheme under which
they had been appointed not being in force, the High Court committed an error
in directing the State to pay the respondents same salary as those in the
regular cadre. It was further contended that the post of
Investigator-cum-Computer to which the respondents had been appointed being of
a purely temporary nature with a fixed salary of Rs. 500 per month, the
essential qualification for the same being much less than qualification for a
regular Investigator-cum-Computer, the mode of selection being different than
mode of selection for the regular posts and duties being different, the High
Court was in error in directing the State to pay the respondents the same scale
of pay as is available to the regular Investigator-cum-Computer.
A
counter affidavit has been filed on behalf of respondents. It has been stated
in the said counter- affidavit that since the State did not file any return
before the learned Single Judge the High Court had no other option than to
accept the averments made in that application. Therefore this court would not
be justified in interferring with the same under Article 136 of the
Constitution. It has further been averred that the nature of work of the
respondents is similar to the work done by regular Investigator-cum-Computer
and therefore the High Court was fully justified to follow the principle of
'equal pay for equal work'.
It is
no doubt true that the State did not file any counter-affidavit in the High
Court in the present proceedings though an application for vacating the interim
order in the earlier proceedings had been filed. The earlier proceedings was in
relation to the order of relation of appointment to the post of
Investigator-cum-Computer by the State Government and it is because of the
interim order in that proceedings the respondents are continuing. The
respondents did not disclose this fact in the subsequent proceedings when they
claimed equal pay as the regular Investigator-cum- Computer, Such non-disclosure
in the subsequent proceedings disentitled them to get any equitable relief from
the Court. Since the original proceeding is still pending we are not expressing
any opinion on the legality of the order of cancellation though there is some
force in the contention raised by the learned counsel for the appellant -
State. But on the materials on record the conclusion is irresistable that the
respondents are not entitled to claim the same scale of pay as those of regular
Investigator-cum- Computer. The principle of equal pay for equal work is
attracted only when two sets of employees are similarly situated and are
discharging similar functions but yet are getting different scales of pay. In
the case in hand as has been stated earlier the posts of Investigators-cum-Computer
had been created purely on a temporary basis. The essential qualification for
the said post was Intermediate whereas the essential qualification for regular
Investigator-cum-Computer is Bachelor's decree with Statistics or Mathematical
statistics or Mathematics. The knowledge of Hindi written in Devnagrik Script
was essential qualification for regular Investigator-cum-Computer, was not
prescribed for the post held by respondents. The mode of recruitment to the
posts held by the respondents was through Departmental Selection Committee
whereas the mode of recruitment for regular Investigator-cum- Computer is
through Public Service Commission Uttar Pradesh. Allahabad/U.P. or U.P.
Subordinate Services Selection Board, Luck now. The nature of duties for the
respondents was to collect the data for livestock number and livestock products
from 14 Districts of the State only whereas the duties of the regular
Investigator-cum-Computer was
(1) To
collect data from Districts. Livestock farms and other Livestock Institutions
(2) to
complete, tabulate, to assist in the scrutiny and analysis of the tabulated
data and
(3) to
supervise the statistical work of the other departmental field staff. In the
aforesaid premises it is difficult for us to hold that the principle of 'equal
pay for equal work' can be attracted. In our considered opinion the High Court
was wholly in error in directing the State to pay the respondents the same
scale of pay as is paid to the regular Investigator- cum-Computer. In the
aforesaid premises the impugned judgment of the Division Bench of the High
Court in Special Appeal No. 534 of 1994 as well as the Judgment of the learned
Single Judge in Writ Petition No. 32001 of 1992 are set aside. It is further
held that the respondents are not entitled to scale of pay which is available
to the regular Investigator-cum-Computer. The appeal is allowed but in the
circumstances without any order as to costs.
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