State Of Haryana And Anr vs Tilak Raj And Ors

The State of Haryana is in appeal against the judgment

rendered by a Division Bench of the Punjab and Haryana High

Court, whereby the respondents herein were directed to be

paid the minimum pay in the scale of pay applicable to the

regular employees.

Factual position so far as relevant for determination

of the controversy needs to be noted in brief.

The thirty five respondents were appointed at different

points of time as helpers on daily wages in the Haryana

Roadways. They filed writ petition claiming that they were

entitled to regularization in view of service rendered for

long period and/or that they were to be paid the same salary

as paid to regular employees since the nature of work done

by them was similar. In other words for the second relief

claimed principle of "equal pay for equal work" was

pressed into service. They asserted to be educationally

qualified for the post. The appellants disputed the claim of

the respondents that they were educationally qualified for

appointment to the post of helper and also took the stand

that the principle of "equal pay for equal work" was

factually and legally not applicable to their case. The High

Court allowed the writ petition, inter alia, with the

following observations:

"In this view of the matter, the

petitioners would be entitled to the relief,

but again not the regular pay scale which

their regular counter parts are receiving.

The petitioners would be entitled to minimum

of the pay scale with dearness allowance

alone."

The High Court was of the view the since the claims

were not pressed till 2000 and the respondents filed the

writ petition without serving any notice of demand upon the

employer, they would be entitled to get the relief only

w.e.f. 1.4.2000 i.e. two months later to the institution of

the writ petition.

Learned counsel appearing for the appellant-State

submitted that the directions given by the High Court are

contrary to the position of law enunciated by this Court in

several cases. Strong reliance was placed on State of

Haryana and Ors. v. Jasmer Singh and Ors. (1996 (11) SCC

77). Per contra, learned counsel for the respondents-

employees submitted that there being no dispute to the fact

that the concerned employees have worked for a considerable

length of time, the principle of "equal pay for equal

work" is clearly applicable and the High Court's direction

is in order.

The principle of "equal pay for equal work" is not

always easy to apply. There are inherent difficulties in

comparing and evaluating the work done by different persons

in different organisations, or even in the same

organization. In Federation of All India Customs and

Central Excise Stenographers (Recognised) and Ors. v. Union

of India and Ors. (1988 (3) SCC 91), this Court explained

the principle of "equal pay for equal work" by holding

that differentiation in pay scales among government

servants holding the same posts and performing similar work

on the basis of difference in the degree of responsibility,

reliability and confidentiality would be a valid

differentiation. The same amount of physical work may

entail different quality of work, some more sensitive, some

requiring more tact, some less - it varies from nature and

culture of employment. It was further observed that

judgment of administrative authorities concerning the

responsibilities which attach to the posts and the degree

of reliability expected of an incumbent would be a value

judgment of the authorities concerned which, if arrived at

bona fide, reasonably and rationally, was not open to

interference by the Court.

In State of U.P. v. J.P. Chaurasia (1989 (1) SCC 121),

it was pointed out that the principle of "equal pay for

equal work" has no mechanical application in every case of

similar work. In Harbans Lal v. State of Himachal Pradesh

(1989(4) SCC 459) it was held that a mere nomenclature

designating a person as a carpenter or a craftsman was not

enough to come to a conclusion that he was doing the work

as another carpenter in regular service. A comparison

cannot be made with counterparts in other establishments

with different managements or even in the establishments in

different locations though owned by the same management.

The quality of work which is produced may be different,

even the nature of work assigned may be different. It is

not just a comparison of physical activity. The application

of the principle of "equal pay for equal work" requires

consideration of various dimensions of a given job. The

accuracy required and the dexterity that the job requires

may differ from job to job. It must be left to be evaluated

and determined by an expert body. Same was of the view

expressed in Ghaziabad Development Authority v. Vikram

Chaudhary (1995 (5) SCC 210).

At this juncture, it would be proper to take note of

what was stated in Jasmer Singh's case (supra). In

paragraphs 10 and 11, it was noted as under:

"10. The respondents, therefore, in the

present appeals who are employed on daily

wages cannot be treated as on a par with

persons in regular service of the State of

Haryana holding similar posts. Daily-rated

workers are not required to possess the

qualifications prescribed for regular

workers, nor do they have to fulfil the

requirement relating to age at the time of

recruitment. They are not selected in the

manner in which regular employees are

selected. In other words the requirements

for selection are not as rigorous. There

are also other provisions relating to

regular service such as the liability of a

member of the service to be transferred, and

his being subject to the disciplinary

jurisdiction of the authorities as

prescribed, which the daily-rated workmen

are not subjected to. They cannot,

therefore, be equated with regular workmen

for the purposes for their wages. Nor can

they claim the minimum of the regular pay

scale of the regularly employed.

11. The High Court was, therefore, not

right in directing that the respondents

should be paid the same salary and

allowances as are being paid to regular

employees holding similar posts with effect

from the dates when the respondents were

employed. If a minimum wage is prescribed

for such workers, the respondents would be

entitled to it if it is more than what they

are being paid."

In Harbans Lal's case (supra) and Vikram Chaudhary's

case (supra), it was held that daily rated workmen were

entitled to be paid minimum wages admissible to such workmen

as prescribed and not the minimum in the pay scale

applicable to similar employees in regular service unless

the employer had decided to make such minimum in the pay

scale applicable to the daily rated workmen. In a recent case this Court in State of Orissa and Ors.

v. Balaram Sahu and Ors. (2003 (1) SCC 250), speaking

through one of us (Doraiswamy Raju, J) expressed the view

that the principles laid down in the well considered

decision of Jasmer Singh's case (supra) indicated the

correct position of law. It was noted that the entitlement

of the workers concerned was to the extent of minimum wages

prescribed for such workers, if it is more than what was

being paid to them.

A scale of pay is attached to a definite post and in

case of a daily wager, he holds no posts. The respondent

workers cannot be held to hold any posts to claim even any

comparison with the regular and permanent staff for any or

all purposes including a claim for equal pay and allowances.

To claim a relief on the basis of equality, it is for the

claimants to substantiate a clear cut basis of equivalence

and a resultant hostile discrimination before becoming

eligible to claim rights on a par with the other group vis-

à-vis an alleged discrimination. No material was placed

before the High Court as to the nature of the duties of

either categories and it is not possible to hold that the

principle of "equal pay for equal work" is an abstract

one.

"Equal pay for equal work" is a concept which

requires for its applicability complete and wholesale

identity between a group of employees claiming identical pay

scales and the other group of employees who have already

earned such pay scales. The problem about equal pay cannot

always be translated into a mathematical formula.

Judged in the background of aforesaid legal principles,

the impugned judgment of the High Court is clearly

indefensible and the same is set aside. However, the

appellant-State has to ensure that minimum wages are

prescribed for such workers and the same is paid to them.

The appeal is allowed to the extent indicated above. There

will be no order as to costs.