Ajmer Vidyut Vitran
Nigam & Others Vs Navin Kumar Saini
WITH CIVIL APPEAL NO.
9488 OF 2010 (arising out of SLP(C) No.3448 of 2008)
Rajasthan State
Electricity Board Now, Ajmer Vidyut Vitran Nigam & Others Vs Shyam Lal
JUDGMENT
CHANDRAMAULI KR.
PRASAD, J.
1.
Petitioners,
aggrieved by the orders dated 9th July, 2007passed by the Rajasthan High Court
in D.B.Civil Special Appeal (Writ) No. 623 of 2007 and D.B. Civil Special
Appeal(Writ) No.421 of 2007 affirming the order dated
18thSeptember, 2006 passed by a learned Single Judge of that Court in S.B.
Civil Writ Petition No.2331 of 2002, have preferred these petitions for grant
of leave.
2.
Leave
granted.
3.
These
appeals arise in the following circumstances: Naveen Kumar Saini and Shyam Lal,
respondents herein along with other persons were appointed as Helpers in
work-charge establishment on 28th November, 1979 at a consolidated
salary of Rs.150/- per month for a period of three months. However, the
respondents were allowed to continue in service after the expiry of the
aforesaid period of three months. Later on a limited competitive examination
was held by the Rajasthan State Electricity Board (hereinafter referred to as
the "Board") for appointment to the post of Junior Clerk, in which
the respondents and other candidates participated and on merit altogether 81
persons including the respondents were appointed by Order dated 26th June, 1984
in the regular pay scale of the Junior Clerks. It is relevant here to state
that the Board took a decision to consider regularization of such work charge
employees who had completed two years of service upto 31st March 1983 and for
that purpose directed such employees to appear before the Selection Committee
on27th August, 1987. Respondents appeared before the Selection Committee, when
they were informed that since they had already been appointed as Lower Division
Clerks, there is no necessity to regularise them. Between the period from 17thSeptember,
1987 to 13th October, 1987, altogether 27 persons, who joined as work charge
employees like the respondents, became regular employees with effect from 1st
April, 1982 and given regular pay scale of the post of Lower Division Clerk.
Accordingly, respondents raised a grievance that they be given the pay scale of
the post of Junior Clerk with effect from 1stDecember, 1979 and regular pay
scale of the post of Clerk from 1st April, 1982 to 26th June, 1984. Respondents
claimed the scale of pay of Junior Clerk from 1st December, 1979 on the plea
that though they were engaged as helpers but they performed the work of Junior
Clerk. The regular pay scale of post of Junior Clerk from 1st April, 1982 to
26th June, 1984was sought on the ground that persons junior to them were given
the said scale of pay with effect from 1st April, 1982. The aforesaid grievance
of the respondents was considered by the Board but finding no merit in the
same, it was rejected. Respondents then filed writ petitions before the Rajasthan
High Court which by its order dated 25th April, 1997 passed in S.B.Civil Writ
Petition No.3321 of 1991 and S.B. Civil Writ Petition No.3683 of 1991 declined
to interfere on its finding that respondents had alternative efficacious remedy
before the Industrial Tribunal.
4.
Ultimately,
the State Government by its letter dated 17thOctober, 1997 referred for
adjudication to the Industrial Tribunal as to whether the action of the
appellants in not giving the respondents the scale of Junior Clerk with effect
from Ist October, 1979 and for the period from Ist April, 1982to 26th June,
1984, is valid and proper.
5.
The
Industrial Tribunal by its award dated 29th January,2002 did not find any fault
with the Board in not regularizing the services of the respondents on the post
of Junior Clerk with effect from 1st December, 1979 but directed that
respondents shall be entitled to the wages of the Junior Clerk from the said
date. Relevant portion of the award of the Industrial Tribunal in respect of
respondent Naveen Kumar Saini reads as follows: "Hence, in the context of
State (Appropriation of Appointments in Public Services and Staff Systematization)
Act 1999 not regularising Applicant Naveen Kumar Saini on the post of
Junior Clerk with effect from 1.12.79 by the Secretary, Rajasthan State
Electricity Board, Vidyut Bhawan, Vidyut Marg, Jaipur, Superintending Engineer (Udaipur
Circle) RSEB Udaipur (3) Assistant Engineer (O&M), RSEB Debari Head Office,
Udaipur is proper and lawful. But the opposite party Board has been
continuously taking work of Junior Clerk from the Applicant from 1.12.79 the
date of his selection on the post of Junior Clerk till the date of assuming
charge, therefore, in accordance with the principle of equal wages for same
work the Applicant is entitled to get from the Opposite Party Board salary and
other perquisites prevailing at the relevant time. The Opposite Party Ajmer
Vidyut Vitaran Nigam Ltd., Ajmer to pass order as per rules in this regard in
one month and make payment of the arrear amount payable to the Applicant."
6.
Identical
award was given in respect of respondent Shyam Lal.
7.
Aggrieved
by the aforesaid awards, the Board preferred S.B. Civil Writ Petition No.2331
of 2002 before the Rajasthan High Court and the learned Single Judge by order
dated 18thSeptember, 2006 partly allowed the writ petition and directed the
Board to notionally grant the benefit of the pay of the post of Lower Division
Clerk with effect from 1st December, 1979with a rider that the respondents
shall not be entitled to receive actual arrears of the said period. Relevant portion
of the order of the learned Single Judge reads as follows: "In view of the
fact that the learned Tribunal has recorded a finding that number of labourers
who were earlier junior to the respondent-workman were regularized on the post
of LDC earlier and were in receipt of higher scale of pay than him, ends of justice
would be met by directing the respondent to only notionally grant the benefit
of pay on the post of LDC to the respondent-workman w.e.f. 1st December, 1979
although the respondent shall not be entitled to receive actual arrears for
such period."
8.
Ajmer
Vidyut Vitran Nigam Limited, the appellant herein being the successor of the
Rajasthan State Electricity Board and its officers aggrieved by the order of
the learned Single Judge preferred separate appeals, which have been dismissed
by the impugned orders.
9.
Appellants
are, therefore, before us with the leave of the Court.
10.
Mr.
Sushil Kumar Jain, learned Counsel appearing on behalf of the appellant
submits that the respondents(hereinafter referred to as the
"workmen") were employed as the work charge helpers and they did not
discharge their duty as Junior Clerks by any order passed by any competent
authority and hence they are not entitled to be given the pay scale of Junior
Clerk on the principle of equal pay for equal work. He emphasises that for
invoking the principle of equal pay for equal work the volume of work is not
decisive but the degree of responsibility and liability are also to be looked
into.10. Mr. M.R. Calla, learned Senior Counsel appearing on behalf of the
respondents, however, contends that workmen having been asked to perform the
function of the Junior Clerk, they are entitled to be given the regular scale
of pay of the Clerk.
11.
We
have bestowed our consideration to the rival submissions and we
find substance in the submission of Mr.Jain. Nothing has been brought on record
by the workmen to show that they were asked to perform the function of a Junior
Clerk by any competent authority. The plea of equal pay for equal work is
founded on Article 14 of the Constitution, hence it was incumbent upon workmen
to establish that they were performing the work of the Junior Clerk under orders
of a competitive authority. Further, workmen were admittedly engaged as helpers
in work charge establishment and in that view of the matter for applying the
principle of equal pay for equal work, mere the volume of work, shall not be relevant,
there being qualitative difference as regards the liability and responsibility.
We are of the opinion that workmen were not entitled for the scale of pay of
the Junior Clerk even on notional basis from the date of their engagement as
helpers.
12.
Next
question which falls for consideration is as to whether workman shall be
entitled for scale of Junior Clerk from Ist April, 1982? It is relevant here to
State that workmen were appointed as Junior Clerks on the basis of limited
competitive examination by order dated 26th June, 1984. It is further relevant
here to state that the employer considered the cases of such work charge
employees who had completed two years of service as work charge employees. Respondents
appeared before the Selection Committee constituted for this purpose on 27th
August, 1987 but their cases were not considered on the ground that they have
already been appointed as Lower Division Clerks. However, a large number of
workmen like the workmen herein were regularized as Junior Clerks with effect
from 1st April, 1982 and given the regular scale of pay. It is the plea of the
workmen that at least they are entitled to be given the regular scale of pay
from the date, their juniors were given.13. Mr. Jain, however, submits that
the workmen cannot claim regularization on completion of two years service and they
utmost may be entitled to be considered for regularization to the post of
Junior Clerk with effect from 1st April, 1982 and the pay scale thereof when,
persons junior to them were given the said scale of pay. In this connection
he referred to a decision of this Court in the case of Jodhpur Vidyut Vitran Nigam
Ltd. and another vs Nanu Ram and others, 2006(12) SCC 494, and our attention
has been drawn to the following passage of the aforesaid judgment:
"9. Applying
the above test to the facts of the present case, the Screening Committee was
required to examine the question as to how many workmen could be regularized,
keeping in mind the budget provisions, availability of the posts, the number of
muster roll workers engaged in the construction work without their being in
existence vacant sanctioned posts, the manner in which these muster roll
workers were initially recruited with or without the approval of the management
and, thereafter, on the basis of eligibility the Screening Committee had to
recommend their absorption in regular service. These aspects were required to
be examined by the Screening Committee. Mere completion of two years was not
the only criterion. Even in the award dated 31-5-1978 read with award dated
15-6-1979 the fixation in the regular pay scale was only for those employees
who were recruited with the approval of the management and in accordance with
law. Even under the awards, as they then stood, the Screening Committee had to examine
the performance of the workmen before granting them the regular pay scale.
Granting of pay scale simplicitor is different from grant of permanency. While
granting permanency, the State has to consider the number of posts falling
vacant, those posts should exist as and by way of regular vacancy, the
financial burden of granting permanency and, therefore, in our view, the High Court
has failed to keep in mind the difference between the concept of grant of pay
scale as distinct from grant of permanency. The State was not under an obligation
to constitute Screening Committee at the end of each year. Constitution of the
Screening Committee was within the discretion of the State Government dependent
upon the above factors. Therefore, there was no question of comparing the case
of the present respondents with the case of the workmen who got regularised
prior to 31-3-1982. Each exercise by the Screening Committee has to be seen in
the light of the above factors. In a given exercise, the State may have
sufficient number of vacant posts to accommodate certain number of workers.
However, that may not be the case in the subsequent years. Therefore, there is
no question of any discrimination in the matter of regularisation or in the
matter of grant of permanency."14. Mr. Calla submits that when persons
junior to the workmen having been given the regular pay scale with effect from
1st April, 1982 and the workmen cases were not considered, the appellants
cannot deprive the workmen of the regular scale of pay with effect from 1st
April, 1982 as given to the employees junior to them.15. We are of the
opinion that the case of the workmen ought to have been considered for
regularisation as Lower Division Clerk when the case of other persons similarly
situated were considered by the Selection Committee. Persons junior to the workmen
have been given the regular pay scale of the post of Junior Clerk with effect
from 1st April, 1982 whereas the workmen herein were appointed as Junior Clerks
by order dated 26th June, 1984. They cannot be allowed to suffer only because
they qualified in written examination and appointed as Junior Clerks by order
dated 26th June, 1984.16. In the facts and circumstances of the case, we deem
it expedient to direct the appellants to consider the cases of respondents for
regularization as Junior Clerks with effect from 1st April, 1982 and in case
they are found fit for regularization, grant them the pay-scale thereof from
the said date. As the respondents were found fit for appointment as Junior
Clerks on the basis of the limited written examination, there does not seem any
valid reason to suggest that they shalln to be fit to be regularised as Junior
Clerks when persons junior to them were regularised and given the regular scale
of pay with effect from 1st April, 1982.
13.
In
the result, the appeals are partly allowed with the direction aforesaid. No
costs.
...............................................J.
( HARJIT SINGH BEDI )
................................................J.
(CHANDRAMAULI KR. PRASAD)
NEW
DELHI,
OCTOBER
29, 2010.
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