AJMER VIDYUT VITRAN NIGAM & ORSversusNAVIN KUMAR SAINI ETC.

                   [2010] 12 S.C.R. 1173


         AJMER VIDYUT VITRAN NIGAM & ORS                     A
                             v.
                NAVIN KUMAR SAINI ETC.
            (CIVIL A.PPEAL N0.9487 OF 2010)

                   OCTOBER 29, 2010
                                                             B
   [HARJIT SINGH BEOI AND CHANDRAMAULI KR.
                  PRASAD, JJ.)

    Labour Laws:

      Work-charge helpers - Claiming regularization and pay
scale of Junior Clerks - HELD: There being qualitative
difference as regards liability and responsibility, mere volume
of work would not be relevant - Further, the plea of equal pay
for equal work is founded on Article 14 of the Constitution, 0
therefore, it was incumbent upon the workmen to establish that
they were performing the work of Junior Clerk under orders of
a competent authority - This has not been done - However,
the workmen were entitled to be considered for regularization
and the pay scale of Junior Clerk from the date their juniors E .
were granted the benefits under the regularization scheme·
formulated by the employer - Constitution of India, 1950 -
Articles 14 and 16 - Equal pay for equal work.

     The respondent-workmen were appointed by the
predecessor-in-interest of the appellant-Nigam as Helpers F
on a consolidated salary, w.e.f. 28.11.1979, for a period
of three months, but they were allowed to continue till
they qualified in a limited competitive examination and
were appointed in the regular pay scale of Junior Clerk
by an order dated 26.6.1984. Later, a Selection Committee G
was constituted for regularization of such work charge
employees who had completed two years service as such
up to 31.3.1983, but the claim of the respondents was not
considered. The respondents raised a grievance claiming
                            1173                          H
    1174   SUPREME COURT REPORTS            (2010] 12 S.C.R.


A regularization as Junior Clerk w.e.f. 1.12.1979 and regular
  pay scale of the post of clerk from 1.4.1982 to 26.6.1984.
  The Labour Court did not find fault with the decision of
  the employers not to regularize the respondents w.e.f.
  1.12.1979, but directed that they would be entitled to
B wages of Junior Clerk from the said date. In the writ
  petition filed by the employers, the single Judge of the
  High Court held that the respondents would be entitled
  to only the notional benefit of the pay scale of Junior
  Clerk w.e.f .. 1.12.1979, but not to actual arrears. The
c Division Bench of the High Court affirmed the order.
  Aggrieved, the employers filed the appeals.

        Partly allowing the appeals, the Court

       HELD: 1. The plea of equal pay for equal work is
D founded on Article 14 of the Constitution, hence it was
  incumbent upon the workmen to establish that they were
  performing the work of the Junior Clerk under orders of
  a competent authority. Nothing has been brought on
  record by the workmen to show that they were asked to
E perform the function of a Junior Clerk by any competent
  authority. Further, the 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,
F there being qualitative difference as regards the liability
  and responsibility. The workmen were not entitled to the
  scale of pay of the Junior Clerk even on notional basis
  from the date of their engagement as helpers. [para 11)
  [1180-B-D]
G        1.2 As regards the claim of the respondent-workmen
    for scale of Junior Clerk from 1.4.1982, they cannot be
    allowed to suffer only because they qualified in the
    written examination and were appointed as Junior Clerks
    by order dated 26.6.1984. The employer considered the
H
     AJMER VIDYUT VITRAN NIGAM v. NAVIN KUMAR 1175
                     SAINI ETC.
   cases of such work charge employees who had                    A
   completed two years of service as work charge
   employees. A large number of workmen like the
   respondents, and even persons junior to them, were
   regularised as Junior Clerks with effect fro,m 1.4.19!32 and
   given the regular scale of pay. The respondents                B
   appeared before the Selection Committee constituted for
   this purpose on 27.8.1987 but their cases were not
   considered on the ground that they had already been
   appointed as Lower Division Clerks. The respondents
   ought to have been considered for regularisation as            c
   Lower Division Clerk when the case of other persons
   similarly situated was considered by the Selection
   Committee. [para 12 and 15] [1180-E-G; 1182-F-G]

      Jodhpur Vidyut Vitran Nigam Ltd. and another vs. Nanu
   Ram and others, 2006 (9) Suppl. SCR 544 = 2006 (12)            D
   sec 494 - referred to.
         1.3 The appellants are directed to consider the cases
    of respondents for regularization as Junior Clerks with
    effect from 1.4.1982 and, in case they are found fit for      E
    regularization, grant them the pay-scale thereof from the
    said date. As the respondents were found fit for
    appointment as Junior Clerks rm the basis of the limited
--- written examination, there uoes not seem any valid
    reason to suggest that they shall not be fit to be            F
    regularised as Junior Clerks when perssJns junior to them
    were regularised and given the regular scale of pay with
    effect from 1.4.1982. [para 16] [1182-H; 1183-A-B]

                       Case Law Reference:
                                                                  G
       2006 (9) Suppl. SCR 544        referred to.   Para13
       CIVIL APPELLATE JURISDICTION : Civil Appeal No.
   9487 of 2010.

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    1176      SUPREME COURT REPORTS              [2010] 12 S.C.R.


A       From the Judgment & Order dated 09.07.2007 of the High
    Court of Judicature for Rajasthan at Jodhpur in D.S. Civil
    Special Appeal (writ) No. 623 of 2007.

                                    WITH

B   C.A. No. 9488 of 2010.

        Sushil Kumar Jain, Puneet Jain, Atra Bhawan for the
    Appellants.

C       M.R. Calla, Rishi Matoliya, Pratiksha Sharma, Charu
    Mathur for the Respondent.

           The Judgment of the Court was delivered by

          CHANDRAMAULI KR. PRASAD, J. 1. Petitioners,
D   aggrieved by the orders dated 9th July, 2007 passed by the
    Rajasthan High Court in D.B.Civil Special Appeal (Writ) No.
    623 of 2007 and D.S. Civil Special Appeal (Writ) No.421 of
    2007 affirming the order dated 18th September, 2006 passed
    by a learned Single Judge of that Court in S.8. Civil Writ
E   Petition No.2331 of 2002, have preferred these petitions for
    grant of leave.

           2. Leave granted.

           3. These appeals arise in the following circumstances:
F
         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
G   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,

H
   AJMER VIDYUT VITRAN NIGAM v. NAVIN KUMAR 1177
    SAINI ETC. [CHANDRAMAULI KR. PRASAD, J]

  in which the respondents and other candidates participated and A
  on merit altogether 81 persons including the respondents were
  appointed by Order dated 26ih 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 regularisation of such work
  charge employees who had completed two years of service B
  upto 31st March 1983 and for that purpose directed such .
  employees to appear before the Selection Committee on 27th
. 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 c
  necessity to regularise them. Between the period from 17th
  September, 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. D
  Accordingly, respondents raised a grievance that they be given
  thel pay scale of the post of Junior Clerk with effect from 1st
  December, 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 E
. 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, 1984
  was sought on the ground that persons junior to them were
  given the said scale of pay with effect from 1st April, 1982. The F
  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 G
  respondents had alternative efficacious remedy before the
   Industrial Tribunal.

     4. Ultimately, the State Government by its letter dated 17th
 October, 1997 referred for adjudication to the Industrial Tribunal   H
    1178    SUPREME COURT REPORTS                 [2010] 12 S.C.R.


A as to whether the action of the appellants in not giving the
  respondents the scale of Junior Clerk with effect from 1st
  October, 1979 and for the period from 1st April, 1982 to 26th
  June, 1984, is valid and proper.

8      5. The Industrial Tribunal by its award dated 29th January,
  2002 did not find any fault with the Board in not regularising
  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
C 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
        Systematisation) Act 1999 not regularising Applicant
D        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,
E       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
F       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
G       payable to the Applicant."

        6. Identical award was given in respect of respondent
    Shyam Lal.

       7. Aggrieved by the aforesaid awards, the Board
H preferred S.B. Civil Writ Petition No.2331 of 2002 before the
   AJMER VIDYUT VITRAN NIGAM v. NAVIN KUMAR 1179
    SAINI ETC. [CHANDRAMAULI KR. PRASAD, J.]

Rajasthan High Court and the learned Single Judge by order           A
dated 18th September, 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,
1979 with a rider that the respondents shall not be entitled to
receive actual arrears of the said period. Relevant portion of       B
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          C
     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."            D

     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          E
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         F
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      G
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 th~ degree of
                                                     ' ~
responsibility and liability are also to be looked into.
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    1180     SUPREME COURT REPORTS                  [2010] 12 S.C.R.


A        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
8
  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
C 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
D 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.
E
        12. Next question which falls for consideration is as to
  whether workman shall be entitled for scale of Junior Clerk from
  1st April, 1982? It is relevant here to State that workmen were
  appointed as Junior Clerks on the basis of limited competitive
F 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 Oil
G 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 regularised 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
H the regular scale of pay from the date, their juniors were given.
  AJMER VIDYUT VITRAN NIGAM v. NAVIN KUMAR 1181
   SAINI ETC. [CHANDRAMAULI KR. PRASAD, J.]

     13. Mr. Jain, hmvever, submits that the workmen cannot           A
claim regularisation 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   B
of this Court in the case of Jodhpur Vidyut Vitran Nigam Ltd.
and another vs Nanu Ram and others, 2006 (12)           sec   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,
                                                                      c
     the Screening Committee was required to examine the
     question as to how many workmen could be regularised,
     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        D
     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          E
     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         F
     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     G
     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         H
    1182     SUPREME COURT REPORTS                [2010] 12 S.C.R.


A        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
B        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
c        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."
D
         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
E   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
F   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
G   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
H
  AJMER VIDYUT VITRAN NIGAM v. NAVIN KUMAR 1183
   SAINI ETC. [CHANDRAMAULI KR. PRASAD, J.]

respondents for regularization as Junior Clerks with effect from     A
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 shall not be fit to       B
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.

     17. In the result, the appeals are partly allowed with the      C
direction aforesaid. No costs.

R.P.                                    Appeals partly allowed.