Supreme Court of India
STATE OF PUNJAB & ANR.versusSURJIT SINGH & ORS.
- Citation
- 2009 INSC 1010
- Decided
- 4 August 2009
- Disposal
- Disposed off
- Bench
- S B SINHA
Holding
The doctrine of equal pay for equal work does not apply to daily‑wage employees unless they satisfy the criteria of equal work, equal value, identical source and manner of appointment, and wholesale identity with the regular employees; the High Court's retroactive pay order was set aside.
Summary
The Supreme Court examined whether daily‑wage employees appointed without following recruitment rules were entitled to "equal pay for equal work" with regular staff. It held that the doctrine, rooted in Article 39(d) and Article 14 of the Constitution, can be invoked only when the claimants perform equal work of equal value, are appointed through the same source and manner, and belong to a wholly identical group. The Court found that the daily wagers were not similarly situated, as their appointments were irregular and lacked the requisite identity with regular employees. Consequently, the High Court's order granting retroactive pay on par with regular staff was set aside; the daily‑wage workers were to receive wages equal to the lowest grade of their cadre only from the date of the High Court judgment. The Court also declined to order their regularisation, directing the State to consider regularisation through a scheme and to fill vacant posts by proper recruitment.
Issues considered
- The applicability of the doctrine of equal pay for equal work to daily‑wage employees appointed without following recruitment rules
- Whether the High Court erred in granting retroactive pay equal to regular employees
- Whether the burden of proof for equal work and equal value lies on the claimants or the State
- Whether the Court can direct regularisation of irregularly appointed employees
- Whether the mode and manner of appointment constitute a relevant factor for invoking the doctrine
Legislation cited
- Constitution of Indias. Article 14, s. Article 142, s. Article 16, s. Article 226, s. Article 32, s. Article 39(d)
- Industrial Disputes Act, 1947
Subjects
equal pay for equal workdaily wage employeesArticle 14Article 39(d)recruitment rulesregularisationwage paritylabour lawconstitutional lawclassification
Judgment
[2009] 12 S.C.R. 394
_,
A STATE OF PUNJAB & ANR. ~'"
v.
SURJIT SINGH & ORS.
(Civil Appeal No. 1976 of 2003)
AUGUST 4, 2009
B
[S.B. SINHA AND DEEPAK VERMA, JJ.]
Labour laws - Doctrine of equal pay for equal work -
Applicability of - Relevant factors for determination - Held:
c It depends upon equal work of equal value, source and
manner of appointment, equal identity of group and wholesale
or complete identity - There should be strict pleadings and
pmof of various factors - On facts, daily wagers not entitled
to equal pay for equal work on par with the regular employees
D holding similar posts, even though they have worked for long
- While appointing daily wagers recruitment rules not followed .,.
nor advertisement issued - Equality clause should be
invoked only where parties are similarly situated and orders
passed in their favour is legal and not illegal - Constitution
E of India, 1950 - Articles 14 and 39(d).
Respondents were appointed as daily wagers in
different capacities in the department of the State
"
Government. Some of them were appointed after their
names were requisitioned from the Employment
F Exchange. Respondents were paid wages in terms of the
offer of appointment and their names were maintained in
the Muster Roll. They have worked for number of years.
They claimed their benefit of 'equal pay for equal work'
on par with their counterparts in different departments
G who were similarly situated and had been granted relief ..
H
of regular pay scale. High Court allowed the writ
applications and granted minimum of pay scale with .
dearness allowance to the respondent. Hence the present
appeals.
394
-
STATE OF PUNJAB & ANR. v. SURJIT SINGH & 395
ORS .
...... A
Dismissing C.A. No.7466 of 2003 and allowing the
other appeals, the Court
HELD: 1.1. In the constitutional scheme, the doctrine
of 'equal pay for equal work' has a definite place in view
of Article 39(d) of the Constitution of India read with B
Article 14 thereof. [Para 19) [409-C-D]
1.2. The grant of the benefit of the doctrine of 'equal
pay for equal work' depends upon a large number of
factors including equal work, equal value, source and
manner of appointment, equal identity of group and
c
wholesale or complete identity. The court insists on strict
pleadings and proof of various factors. How the said
principle is to be applied in different fact situation is the
only question. [Paras 27, 29 and 41] [416-E-F; 418-A; 426-
H; 427-A] D
j,..
_, 1.3. The counsel may or may not be entirely correct
in projecting three purported different views of this Court
having regard to the accepted principle of law that ratio
of a decision must be culled out from reading it in its E
entirety and not from a part thereof. The decisions of large
benches are binding. [Paras 27 and 41) [416-E-F; 426-H]
1.4. In *Charanjit Singh's case, the judge, speaking for
the Three Judge Bench, used the word 'may' in regard
F
to the source of recruitment but the same has to be
considered as a relevant factor as the operative part of
the judgment shows. Charanjit Singh, therefore, does not
militate against the other decisions of this Court where
the mode and manner of appointment has been
.,,. considered to be a relevant factor for the purpose of G
invocation of the said doctrine. [Para 30] [418-H; 419-A-
B]
1.5. While making appointments, the recruitment
rules had not been followed. There had been no H
396 SUPREME COURT REPORTS [2009] 12 S.C.R.
A advertisement. How and in what manner the names were
called from the employment exchange has not been
disclosed. Ordinarily a large number of people would not
be interested in applying for appointment against a Class
Ill or Class IV post so long the appointment is contractual.
B Interviews were also taken by a Committee which was
not competent therefor as appointment in the post of
Clerk and above were required to be made by the Public
Service Commission. [Para 36] [424-D-E]
1.6. The High Court noticed that this Court in several
C decisions had arrived at an opinion that the principle of
'equal pay for equal work' cannot be applied blindly but
chose to rely upon the decision of this Court in
**Dhirendra Chamo/i & Anr. v. State of U.P's case. (Para 40]
[426-G]
D
1.7. The submission that only because some juniors
have got the benefit, the same by itself cannot be a
ground for extending the same benefit to the
respondents. The equality clause contained in Article. 14
E should be invoked only where the parties are similarly
situated and where orders passed in their favour is legal
and not illegal. It has a positive concept. [Para 45] (426-
F-G]
1.8. The interest of justice would be subserved if the
F State is directed to examine the cases of the respondents
by appointing an Expert Committee as to whether the
principles of law laid down, viz., as to whether the
respondents satisfy the factors for invocation of the
decision in Charanjit Singh's case in its entirety including
G the question of appointment in terms of the recruitment
rules have been followed. [Para 44] (427-F-G]
*State of Haryana v. Charanjit Singh (2006) 9 SCC 321;
Official Liquidator v. Oayanand & Ors. (2008) 10 SCC 1 -
H relied on.
STATE OF PUNJAB & ANR. v. SURJIT SINGH & 397
ORS.
~
Secretary, State of Kamataka & Ors. v. Uma Devi (3) & A
Ors. (2006) 4 SCC 1, distinguished.
Ranbir Singh vs. State of Haryana 1998 (2) Service
Cases Today 189; Gurcharan Singh Kah/on & Ors. vs. State
of Punjab & Anr. C.W.P. No. 6162 of 1995 decided on B
18.4.2009 by High Court of Punjab & Haryana; S.C. Chandra
& Ors. v. State of Jharkhand & Ors. (2007) 8 SCC 279;
~
Government of WB. v. Tarun K. Roy & Ors. (2004) 1 SCC
347; State of Punjab & Ors. v. Devinder Singh & Ors. (1998)
9 SCC 595; State of Haryana v. Jasmer Singh (1996) 11 SCC c
• 77; Vijay Sharma v. State of Punjab 2002 (1) SCT 931; Union
of India & Anr. v. Mahajabeen Akhtar (2008) 1 SCC 368;
Union of India v. Dineshan K.K. (2008) 1 SCC 586; Haryana
State Minor Irrigation Tubewells Corpn. v. G.S. Uppal (2008)
7 SCC 375; State of Haryana v. Tilak Raj & Ors. (2003) 6 D
~
SCC 123; Gurmukh Singh vs. State of Punjab C.W.P, No.
9623 of 1993 decided on 12.4.1994 by High Court;
**Dhirendra Chamoli & Anr. v. State of U.P. (1986) 1 SCC
637, referred to.
Case Law Reference: E
1998 (2) Service Cases
Today 189 Referred to. Paras 6, 26
c2001) 8 sec 219 Referred to. Para 11, 21
F
(2004) 1 sec 347 Referred to. Para 23
(1998) 9 sec 595 Referred to . Para 24
.
(1996) 11 sec 11 Referred to. Para 25
.....
2002 (1) SGT 931 Referred to. Para 26 G
(2008) 1 sec 368 Referred to. Para 28
(2008) 1 sec 586 Referred to. Para 29
(2006) 9 sec 321 Relied on. Paras 30, 44 H
398 SUPREME COURT REPORTS (2009] 12 S.C.R.
A (2006) 4 sec 1 Distinguished. Paras 31-34
(2008) 1 sec 375 Referred to. Para 35
(2003) 6 sec 123 Referred to. Para 37
(1986) 1 sec 637 Referred to. Para 40
B
(2008) 1o sec 1 Relied on. Para 43
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
1976 of 2003.
c From the Judgment & Order dated 20.12.2001 of the High
Court of Punjab & Haryana at Chandigarh in C.W.P. No. 6780
of 1999.
WITH
D
Civil Appeal Nos. 1979-1983, 1986, 2031, 2032, 2037-
2040, 2090, 4350, 4464, 7466 of 2003 & 3025 of 2006, 3248,
6123 of 2005 & 920 of 2004.
Shyam Diwan, Nidhesh Gupta, Ajay Pal, Nikhil Jain,
E Sanjai Singh, Sandeep Chaturvedi, Ugra Shankar Prasad,
Ranbir Singh Yadav, Rekha Palli, Dr. Kailash Chand, T.V.
George, Tarun Gupta, S. Janani, R.K. Kapoor, Ramesh Goyal x
, Shweta Kapoor, Harish Chandra Pant. Mansi Dhiman, Gunjan
Sinha, Anis Ahmed Khan, A.P. Mohanty, S.K. Sinha, Sushma
F Manchanda, P.V. Yogeswaran, Ajay Kumar, Jatinder Kumar
Bhatia, for the appearing parties.
The Judgment of the Court was delivered by
S.B. SINHA, J. 1. Applicability of the doctrine of 'equal pay
G for equal work' is in question in these appeals.
2. They arise out of the final judgment and order dated 20th
December, 2001 passed by a Division Bench of the Punjab &
Haryana High court at Chandigarh in C.W.P. No.6780of1999
H whereby and whereunder the writ petition filed on behalf of the
STAT!= QF PUNJAB & ANR. v. SURJIT SINGH & 399
ORS. [S.B. SINHA, J.]
-J,.. respondents has been allowed. A
3. Respondents herein were appointed in dif.erent
capacities by the Pubiic Health Department of the Siate of
Punjab. They were admittedly appointed as daily wager. Only
some of them were appointed after their names were B
requisitioned from the Employment Exchange. No recruitment
process was followed. Constitutional norm of equality contained
in Articl©§ 14 and 16 of the Constitution of India had not been
adhered to. They were paid wages in terms of the offer of
* appointment made to them. Their names were being
c
maintained in the Muster Roll.
4. Inter alia, on the premise that the respondents have put
in a nl!rnber of years of service and they were entitled to the
benefit of equal pay for equal work, they filed several writ
applications. D
-¥
5. By reason of the impugned judgment, the said writ
applications were allowed.
6. Relying on or on the basis of a Full Bench decision of
E
the s.0id Court in Ranbir Singh vs. State of Haryana [1998 (2)
Service Cases Today 189], the High Court opined:
x "In view of the fact that petitioners who are similarly
situatecl like the present petitioners have been granted the
relief, we see no reason to deny the relief to the petitioners F
even in these petitions. The petitioners have admittedly
worked for a considerable period in the department of the
State Government continuously uninterrupted and to the
satisfaction of all concerned. The State itself is paying
different salary on monthly basis to these persons, to some G
the minimum wages and to some on the basis of the
Common Scheduled Rates. We see no reason why the
petitioners should not be placed at parity to the limited
extent that they should be entitled to the minimum of the
pay scale with dearness allowance alone as granted by H
400 SUPREME COURT REPORTS [2009] 12 S.C.R.
A the Hon'ble Apex Court in the recent cases.
Another factor which we have to notice is that some
of the petitioners had not even completed a period of (sic)
pronounced by the State dated January 23, 2001. In fact,
few of them were employed in the year 1996 and 1997,
B as such we find it difficult to grant them the relief as
aforenoticed even on the date of institution of the writ
petitions. It would be just, fair and equitable that the
petitioners are granted minimum of the pay scale with
dearness allowance alone from the date of the judgment,
c while the other petitioners would be entitled to the same
relief from the date of filing the present petition. The
interest claimed by the petitioner is not founded on any
reasonable grounds and for the reasons stated in the case
of Vijay Kumar (su~ra), we decline the prayer of the
D petitioners for grant of interest.
7. Mr. Shyam Divan, learned Senior Counsel appearing
on behalf of the appellants would contend that the High Court
committed a serious error in passing the impugned judgment
E insofar as it failed to take into consideration that the principle
of 'equal pay for equal work' should not be applied
automatically. Drawing our attention to various decisions of this
Court, it was urged for the purpose of applicability of the said
doctrine, the court is not only required to look to the pleadings
F of the parties but also must arrive at a decision that all the
ingredients therefor are established. It was urged that the
principle of 'equal pay for equal work' is not only dependent
upon the nature, quality and quantity of the work but equal value
therefor. A large number of factors are relevant for the purpose
of grant of relief in terms of the said doctrine. For the said
G purpose, the court must not only arrive at the equal identity of
group but also the complete and wholesale identity.
8. Mr. Manoj Swarup and Mr. Nidhesh Gupta, learned
Counsel appearing on behalf of the respondents, on the other
H hand, urged that the respondents having worked for a long time
STATE OF PUNJAB & ANR. v. SURJIT SINGH & 401
ORS. [S.8. SINHA, J.]
A
and as their counter-parts in different departments who were
absolutely similarly situated had filed the writ applications and
they have been granted reliefs, _there is absolutely no reason
as to why they should be differently treated ..
9. In this connection, our attention has been drawn to the 8
order dated 18.4.2009 passed by a Division Bench of the High
Court of Punjab & Haryana passed in Civil Writ Petition No.
6162 of 1995 [Gurcharan Singh Kah/on & Ors. vs. State of
Punjab & Anr.], wherein it was held as under:
"For the aforementioned reasons, we allow the writ petition
c
and direct the respondents to pay to the petitioners salary
in the regular pay scale by fixing their pay at the minimum
of that pay scale with effect from the date of the filing of
this writ petition i.e. 26.4.1995. The petitioners shall get
the benefit of dearness allowance on the minimum of 0
regular pay scale. Arrears shall be paid to the petitioners
within four months of the submission of a certified copy of
this order. It is however, made clear that this order shall
not entitle the petitioners to claim regularization of service.
We also make it clear that it would be open to the E
respondents to dispense with the service of those ·
employees who do not fulfil the qualifications, but while
doing so the respondents shall comply with the
requirements of the statutory provisions like the Industrial
Disputes Act, 1947." F
10. The learned counsel would contend that Special Leave
Petitions preferred thereagainst have been disposed of by this
Court by an order dated 26.4.2007 passed in Civil Appeal No.
1269 of 2001 etc. etc., which reads as under: G
"1. These appeals are being disposed of by this
common order for the sake of convenience facts
are being taken from Civil Appeal No. 1269 of
2001.
H
402 SUPREME COURT REPORTS [2009] 12 S.C.R.
A 2. This appeal is directed against the order passed
by the High Court of Punjab & Haryana dated
18.4.1996. The Division Bench allowed the Writ
-
Petition and directed respondents to pay to the
petitioners salary in the regular pay scale by fixing
B their pay at the minimum of the pay .scale with effect
from the date of the filing of the writ petition i.e.
26.4.1995. It was further directed that the petitioners
shall get the benefit of dearness allowance on the
minimum of pay scale and arrears shall be paid to :\.
c the petitioners within four months of the submission
of a certified copy of this order. It was also
mentioned that this order shall not entitle the
petitioners to claim regularization of services and
it will be open to the respondents to dispense with
D
the services of those employees who do not fulfill
qualifications but while doing so the respondents
shall comply with the requirements of the statutory
.... -
provisions like the Industrial Disputes Act, 1947.
3. Aggrieved against this order, this appeal by way of
E Special Leave Petition was filed but the operation
of the order of the High Court was not stayed by this
Court. The net result was that the State of Punjqb
started paying the minimum of pay scale to all those
petitioners from the date of the judgment of the High
F Court. All the writ petitioners are getting the
minimum pay-scale from 1996 onwards.
4. Mr. H.S. Munjral, learned counsel appearing for the
appellants has invited our attention to a recent order
passed by the State of Punjab on 15.12.2006
G
whereby after referring to the decision in the case
of Secretary, State of Karnataka and others v.
"
Uma Devi (3) and others, (2006) 4 SCC 1, scheme
has been prepared and by virtue of that scheme
now the services of those persons who have put in
H
STATE OF PUNJAB & ANR. v. SURJIT SINGH & 403
ORS. [S.B. SINHA, J.]
10 years of service as on 10.4.2006 shall be A
regularized; the employee fulfils the minimum basic
qualifications for the post against which he was
~ppointed, it shall be certified by the competent
<lllthqrity th<1t no ?upernumerary posts were created
to retain the employees in service; and it shall be B
the duty of the Administrative Department that while
considering the case of each emp~oyee, the orders
passed by this court to be implemented that no
further appointment shall be made except in
accordance with law. Since the scheme has now c
been framed and the State of Punjab has started
considering the regularization of all those persons
who have put in 10 years of service as on
10.4.2006, therefore, no useful purpose will be
served by interfering with the impugned order. More
0
so, these persons ~re already getting minimum pay
scale from 1996. It will noi be proper to put the clock
back. However, learned counsel has invited our
attention to the decision of this Court in the case
of State of Haryana vs. Jasmer Singh (1996) 11
sec 77. As against this, learned counsel for the E
respondents has invited our attention to the
decision of this court in the case of State of Punjab
v. Devinder Singh, (1998) 9 SCC 595. No useful
purpose will be served by going into these cases
any ryiore as now the decision in the case of Uma F
pevi (supra), rendered by the Constitution Bench
holds the field and it has cut the root that no further
t~rppprary/ ad hoc appointment shall be made.
H9lfll§Vef, nolJI! the (3overnment of Punjab has
already frarped a scheme dated 15.12.1996 for G
reQularization, w@ pq not propose to interfere with
the qrder passed py the High Court as respondents
13re alrecitjy getting the minimum pay scale from
1~9!3 i,e. for the list more than 1P y~ars. Let the
services pf Jhe§e pf?rsons rney n~vy B~ reg!:!larized H
404 SUPREME COURT REPORTS [2009] 12 S.C.R.
A in terms of the scheme framed by the State of
Punjab dated 15.12.2006. Hence, we do not find
any merit in these appeals and the same are
dismissed. No order as to costs. However, this
order shall not be treated as precedent for future."
B
·11. Before us, the learned counsel urged that on analysis
of the decisions rendered by this Court, the following legal
positions emerge. We would deal with them in seriatim and as
put forward by the learned counsel.
C (1) Mode and manner of selection can be a ground of
classification.
In S.C. Chandra v. State of Jharkhand [(2007) 8 SCC
279] it has been held:
D "27. Thus, in State of Harya.na v. Tilak Raj it was held that
the principle can only apply if there is complete and
wholesale identity between the two groups. Even if the
-
employees in the two groups are doing identical work they
cannot be granted equal pay if there is no complete and
E wholesale identity e.g. a daily-rated employee may be
doing the same work as a regular employee, yet he cannot
be granted the same pay scale. Similarly, two groups of
employees may be doing the same work, yet they may be
given different pay scales if the educational qualifications
F are different. Also, pay scale can be different if the nature
of jobs, responsibilities, experience, method of recruitment,
etc. are different.
xxx xxx xxx
G 30. In State of UP. v. Ministerial Karamchari Sangh the
Supreme Court observed that even if persons holding the
same post are performing similar work but if the mode of
recruitment, qualification, promotion, etc. are different it
would be sufficient for fixing different pay scale. Where the
H mode of recruitment, qualification and promotion are totally
STATE OF PUNJAB & ANR. v. SURJIT SINGH & 405
ORS. [S.B. SINHA, J.]
J.. different in the two categories of posts, there cannot be A
any application of the principle of equal pay for equal
. work."
-
In a given case, mode of selection may be considered as
one of the factors which may make a difference. {See State of
B
Haryana v. Charanjit Singh [(2006) 9 SCC 321 Para 15]}.
(2) Daily wager working for a long time should be granted
pay on the basis of the minimum of a pay scale. Reliance in
this behalf has been placed on Secretary, State of Kamataka
& Ors. v. Uma Devi (3) & Ors. [(2006) 4 SCC 1]. It was c
furthermore urged that this Court should follow the principle laid
down by the Constitution Bench in Uma Devi as such a relief
had been granted by it in respect of daily wagers of the
Commercial Taxes Department.
D
)... 12. The learned counsel submitted that this Court lately,
although made a distinction between a direction to regularize
the employees who had been working for some time, but
keeping in view the constitutional mandate contained in Article
39A of the Constitution of India directed grant of a salary on a
E
scale of pay, particularly in cases where the conduct of the State
had been found to be unreasonable, unjust and prejudiced.
13. Mr. Gupta has also drawn our attention to a Three
Judge Bench decision in Official Liquidator v. Dayanand & Ors.
[(2008) 10 SCC 1], Singhvi J, speaking for a Three Judge F
Bench, while reiterating the principles laid down in Uma Devi,
in view of the decision of the subsequent two Judge Benches
decision, held as under :
"78. There have been several instances of different G
~
Benches of the High Courts not following the judgments/
...,. orders of coordiflate and even larger Benches. In some
cases, the High Courts have gone to the extent of ignoring
the law laid down by this Court without any tangible reason.
Likewise, there have been instances in which smaller
H
406 SUPREME COURT REPORTS (2009] 12 S.C.R.
A Benches of this Court have either ignored or bypassed the
ratio of the judgments of the larger Benches including the
Constitution Benches. These cases are illustrative of non-
adherence to the rule of judicial discipline which is sine qua
non for sustaining the system. In Mahadeolal Kanodia v.
3 Administrator General of WB. this Court observed:
"19 .... If one thing is more necessary in law than
any other thing, it is the quality of certainty. That
quality would totally disappear if Judges of
coordinate jurisdiction in a High Court start
c overruling one another's decisions. If one Division
Bench of a High Court is unable to distinguish a
previous decision of another Division Benc;h, ar:i.d
holding the view tflat the earlier decision is wrong,
itself gives effect to that view the result would be
D utter confusion. The position would be equa,ly baft
where a Judge sitting singly in the High Cowt is
of opinion that the previous decision of another
Single Judge on a question of law is wrong and
gives effect to tnat view instead of referring the
E matter to a larger Bench. In such a case lawyers
would not know how to advise their clients and all
courts subordinate to the High Court would find
themselves in an embarrassing position of having
to choose between dissentient judgments of their
F own High Court."
(emphasis added)
14. In regard to the application of doctrine of 'equal pay
for equal work', it was opined:
G
"93. The respondents' claim for fixation of pay in the )f
regular scale cind grant of other monetary benefits on a pcir
with those appointed against the sanctioned posts has
been accepted by the High Courts on the premise that
H their duties and functions are similar to those Performed
-, STATE OF PUNJAB & ANR. v. SURJIT SINGH & 407
ORS. [S.S. SINHA, J.]
-=>
~
by regular employees. In the opinion of the High Courts, A
similarity in the nature of work of the company-paid staff
.\
on the one hand and regular employees on the other hand,
is by itself sufficient for invoking the principle of equal pay
for equal work. In our view, the approach adopted by the
High Courts is clearly erroneous and directions given for B
bringing about parity between the company-paid staff and
regular employees in the matter of pay, allowances, etc.
are liable to be upset."
Upon noticing the history, it was opined:
c
"100. As mentioned earlier, the respondents were
employed/engaged by the Official Liquidators pursuant to
the sanction accorded by the Court under Rule 308 of the
1959 Rules and they are paid salaries and allowances
from the company fund. They were neither appointed D
i.
against sanctioned posts nor were they paid out from the
Consolidated Fund of India. Therefore, the mere fact that
they were doing work similar to the regular employees of
' the Offices of the Official Liquidators cannot be treated as
sufficient for applying the principle of equal pay for equal E
work. Any such direction will compel the Government to
sanction additional posts in the Offices of the Official
Liquidators so as to facilitate payment of salaries and
allowances to the company-paid staff in the regular pay
scale from the Consolidated Fund of India and in view of F
our finding that the policy decision taken by the
Government of India to reduce the number of posts meant
for direct recruitment does not suffer from any .legal or
constitutional infirmity, it is not possible to entertain the
,, plea of the respondents for payment of salaries and
G
allowances in the regular pay scales and other monetary
·,~ benefits on a par with regular employees by applying the
principle of equal pay for equal work."
However, upon taking a practical view of the matter, it was
directed: H
408 SUPREME COURT REPORTS [2009] 12 S.C.R.
A "121. We also feel that the salaries and allowances
payable to the company-paid staff should be suitably
--
increased in the wake of huge escalation of living cost. In
Jawaharlal Nehru Technological University v. T.
Sumalatha a two-Judge Bench, after taking note of the fact
B that emoluments payable to the investigators appointed in
the Nodal Centre at Hyderabad had not been revised for
six years, directed the Union of India to take expeditious
steps in that direction. Keeping that judgment in mind, we
direct the Official Liquidators attached to various High
c Courts to move the Courts concerned for increasing the
emoluments of the company-paid staff. Such a request
should be sympathetically considered by the Courts
concerned and the emoluments of the company-paid staff
be suitably enhanced and paid subject to availability of
funds."
D
.....
15. In our opinion, this Court thereby did not lay down any
law. In fact, by reason thereof, the Bench refused to apply the
doctrine of 'equal pay for equal work'.
E 16. Appearing on behalf of the appellants in CA No.2090/
2003, Mr. Gupta has drawn our attention to the fact that although
appellants had been appointed on a contract basis for 89 days
wherefor agreement had been entered into by and between the
employer and the employee, but the allegations in the writ
F petition that they were forced to sign such contracts had not been
denied or disputed. It was argued that the appellants having
been appointed by a Committee duly constituted for the said
purpose upon calling for their names from the employment
exchange and they having the requisite qualifications to hold
the said posts of Clerk etc. as is required by the regular
G k
employees, this Court may issue similar directions as was done
by the Constitution Bench in Uma Devi.
17. In any event, Mr. Gupta contended that a circular letter
having been issued by the State itself that any direction issued
H
STATE OF PUNJAB & ANR. v. SURJIT SINGH & 409
ORS. [S.B. SINHA, J.]
A- by the High Court to grant pay on a regular pay scale should A
be implemented across the board, there was no reason as to
why the State would refrain from applying the said principle in
the case of the respondents,
18. Mr. Kapoor, appearing for the appellants in CA B
No.7466 had also drawn our attention to the fact that although
the writ petition has been dismissed, still a special leave petition
has been filed.
19. In our constitutional scheme, the doctrine of 'equal pay
for equal work' has a definite place in view of Article 39(d) of c
the Constitution of India read with Article 14 thereof. Although
as an abstract principle the existence of the applicability of the
said doctrine cannot be ignored, the question which arises for
our consideration is as to whether the said doctrine could have
been mechanically applied as has been done by the High Court D
)..,
in the instant case.
20. We must also place on record the fact that in different
phases of development of law by this Court, relying on or on
the basis of the said principle, a clear cleavage of opinion has E
emerged. Whereas in the 1970s and 1980s, this Court liberally
applied the said principle without insisting on clear pleadings
-.; or proof that the person similarly situated with others are equal
in all respects; of late, also this Court has been speaking in
different voices as would be evident from the following.
F
21. This has been noticed specifically by a Division Bench
of this Court in S. C. Chandra & Ors. v. State of Jharkhand &
Ors. [(2007) 8 SCC 279], wherein it was held:
"21. Learned counsel for the appellants have relied on G
i
Article 39(d) of the Constitution. Article 39(d) does not
mean that all the teachers working in the school should be
equated with the clerks in BCCL or the Government of
Jharkhand for application of the principle of equal pay for
equal work. There should be total identity between both H
410 SUPREME COURT REPORTS [2009] 12 S.C.R.
A groups i.e. the teachers of the school on the one hand and
the clerks in BCCL, and as such the teachers cannot be
equated with the clerks of the State Government or of
BCCL. The question of application of Article 39(d) of the
Constitution has recently been interpreted by this Court in
B State of Haryana v. Charanjit Singh wherein Their
Lordships have put the entire controversy to rest and held
that the principle, "equal pay for equal work" must satisfy
the test that the incumbents are performing equal and
identical work as discharged by employees against whom
c the equal pay is claimed. Their Lordships have reviewed
all the cases bearing on the subject and after a detailed
discussion have finally put the controversy to rest that the
persons who claimed the parity should satisfy the court that
the conditions are identical and equal and same duties are
being discharged by them. Though a number of cases
D
were cited for our consideration but no useful purpose will
be served as in Charanjit Singh all these cases have
been reviewed by this Court. More so, when we have
already held that the appellants are not the employees of
BCCL, there is no question seeking any parity of the pay
E with that of the clerks of BCCL."
Katju, J. in his separate but concurrent judgment opined
as under:
F "26. Fixation of pay scale is a delicate mechanism which
requires various considerations including financial
capacity, responsibility, educational qualification, mode of
appointment, etc. and it has a cascading effect. Hence, in
subsequent decisions of this Court the principle of equal
pay for equal work has been considerably watered down,
G
and it has hardly ever been applied by this Court in recent
years.
xxx xxx xxx
H 35. In our opinion fixing pay scales by courts by applying
STATE OF PUNJAB & ANR. v. SURJIT SINGH & 411
ORS. [S.S. SINHA, J.]
_).,
the principle of equal pay for equal work upsets the high A
constitutional principle of separation of powers between
the three organs of the State. Realising this, this Court has
in recent years avoided applying the principle of equal pay
for equal work, unless there is complete and wholesale
identity between the two groups (and there too the matter 8
should be sent for examination by an Expert Committee
appointed by the Government instead of the court itself
granting higher pay)."
.,...
22. The Bench in arriving at the said finding specifically
relied upon a three Judge Bench decision of this Court in
c
Charanjit Singh (supra), wherein it was held:
"9. In State of Haryana v. Tilak Raj it has been held that
the principle of equal pay for equal work is not always easy
to apply. It has been held that there are inherent difficulties D
in comparing and evaluating the work of different persons
in different organisations or even in the same organisation.
It has been held that this is a concept which requires, for
its applicability, complete and wholesale identity between
a group of employees claiming identical pay scales and E
the other group of employees who have already earned
such pay scales. It has been held that the problem about
,. equal pay cannot be translated into a mathematical
formula. It was further held as follows:
F
"11. A scale of pay is attached to a definite post
and in case of a daily-wager, he holds no post. 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
G
• 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-a-vis an alleged discrimination. No material was H
412 SUPREME COURT REPORTS (2009] 12 S.C.R.
A 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."
B
xxx xxx xxx
17. In Bhagwan Dass v. State of Haryana this Court held
that if the duties and functions of the temporary appointees
and regular employees are similar, there cannot be
discrimination in pay merely on the ground of difference
c in modes of selection. It was held that the burden of proving
similarity in the nature of work was on the aggrieved
worker. We are unable to agree with the view that there
cannot be discrimination in pay on the ground of
· differences in modes of selection. As has been correctly
D laid down in Jasmer Singh case persons selected by a
Selection Committee on the basis of merit with due regard
to seniority can be granted a higher pay scale as they have
been evaluated by the competent authority and in _such
cases payment of a higher pay scale cannot be
E challenged. Jasmer Singh case has been noted with
approval in Tarun K. Roy case.
xxx xxx xxx
•
19. Having considered the authorities and the submissions
F we are of the view that the authorities in the cases of
Jasmer Singh, Tilak Raj, Orissa University of Agriculture
& Technology and Tarun K. Roy lay down the correct law.
Undoubtedly, the doctrine of "equal pay for equal work" is
not an abstract doctrine and is capable of being enforced
G in a court of law. But equal pay must be for equal work of
equal value. The principle of "equal pay for equal work" has
no mechanical application in every case. Article 14 permits
reasonable classification based on qualities or
characteristics of persons recruited and grouped together,
H as against those who were left out. Of course, the qualities
STATE OF PUNJAB & ANR. v. SURJIT SINGH & 413
ORS. [S.B. SINHA, J.]
or characteristics must have a reasonable relation to the A
object sought to be achieved. In service matters, merit or
experience can be a proper basis for classification for the
purposes of pay in order to promote efficiency in
administration. A higher pay scale to avoid stagnation or
resultant frustration for lack of promotional avenues is also B
an acceptable reason for pay differentiation. The very fact
that the person has not gone through the process of
recruitment may itself, in certain cases, make a difference.
If the educational qualifications are different, then also the
doctrine may have no application. Even though persons c
may do the same work, their quality of work may differ.
Where persons are selected by a Selection Committee on
the basis of merit with due regard to seniority a higher pay
scale granted to such persons who are evaluated by the
competent authority cannot be challenged. A classification D
based on difference in educational qualifications justifies
a difference in pay scales. A mere nomenclature
designating a person as say a carpenter or a craftsman
is not enough to come to the conclusion that he is doing
the same work as another carpenter or craftsman in regular
E
service. The quality of work which is produced may be
different and 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 F
may entail may differ from job to job. It cannot be judged
by the m.ere volume of work. There may be qualitative
difference as regards reliability and responsibility.
Functions may be the same but the responsibilities make
a difference. Thus normally the applicability of this principle G
must be left to be evaluated and determined by an expert
body. These are not matters where a writ court can lightly
interfere. Normally a party claiming equal pay for equal
work should be required to raise a dispute in this regard.
In any event, the party who claims equal pay for equal work H
414 SUPREME COURT REPORTS [2009] 12 S.C.R.
A has to make necessary averments and prove that all things ,'-
are equal. Thus, before any direction can be issued by a
court, the court must first see that there are necessary
averments and there is a proof. If the High Court is, on
basis of material placed before it, convinced that there was
B equal work of equal quality and all other relevant factors
are fulfilled it may direct payment of equal pay from the date
of the filing of the respective writ petition. In all these cases,
we find that the High Court has blindly proceeded on the
basis that the doctrine of equal pay for equal work applies
c without examining any relevant factors.
xxx xxx xxx
22. One other fact which must be noted is that Civil
Appeals Nos. 6648, 6647, 6572 and 6570 of 2002 do not
D deal with casual or daily-rated workers. These are cases
of persons employed on contract. To such persons the
principle of equal pay for equal work has no application.
The Full Bench judgment dealt only with daily-rated and
casual workers. Where a person is employed under a
E contract, it is the contract which will govern the terms and
conditions of service. In State of Haryana v. Surinder
Kumar persons employed on contract basis claimed equal
pay as regular workers on the footing that their posts were •
interchangeable. It was held that these persons had no right
F to the regular posts until they are duly selected and
appointed. It was held that they were not entitled to the
same pay as regular employees by claiming that they are
discharging the same duties. It was held that the very object
of selection is to test the eligibility and then to make
appointment in accordance with the rules. It was held that
G
the respondents had not been recruited in accordance with
the rules prescribed for recruitment."
23. This Court, in particular, noticed a decision of another
three Judge Bench in Government of W.B. v. Tarun K. Roy &
H Ors. [(2004) 1 SCC 347] in which one of us (S.B. Sinha, J.)
STATE OF PUNJAB & ANR. v. SURJIT SINGH & 415
ORS. [S.B. SINHA, J.]
.-1, was a Member, to hold: A
"36. It is well settled by the Supreme Court that only
because the nature of work is same, irrespective of
educational qualification, mode of appointment,
experience and other relevant factors, the principle of B
equal pay for equal work cannot apply vide Govt. of W.B.
v. Ta run K. Roy."
.., 24. This Court in Charanjit Singh (supra) furthermore
expressed its difference of opinion with a decision of this Court
in State of Punjab & Ors. v. Devinder Singh & Ors. ((1998) 9 c
sec 595], holding:
"15. In State of Punjab v. Devinder Singh it was noted that
the ledger clerks concerned were found to have been
given similar work as regular ledger clerks. This Court D
without any further discussion or consideration held that
the ledger clerks concerned would be entitled to the
minimum of the pay scale of ledger clerks. It was directed
that this be p~id for a period of three years prior to the filing
of the writ petition. It seems that attention of this Court was
E
not brought to the earlier authorities, which lay down when
the principle of equal pay for equal work can apply. Also
we are unable to accept the finding that for similar work
"
the principle of equal pay applies. Equal pay can only be
given for equal work of equal value."
F
It overruled Devinder Singh (supra) in part.
25. This Court therein expressly followed State of Haryana
~- Jasmer Singh ((1996) 11 SCC 77], wherein it was held :
.. "8. It is, therefore, clear that the quality of work performed G
by different sets of persons holding different jobs will have
to be evaluated. There may be differences in educational
or technical qualifications which may have a bear;ing on
the skills which the holders bring to their job although the
·designation of the job may be the same. There may also H
•
'·
416 SUPREME COURT REPORTS [2009) 12 S.C.R.
A be other considerations which have relevance to efficiency
in service which may justify differences in pay scales on
the basis of criteria such as experience and seniority, or
a need to prevent stagnation in the cadre, so that good
performance can be elicited from persons who have
B reached the top of the pay scale. There may be various
other similar considerations which may have a bearing on
efficient performance in a job. This Court has repeatedly
observed that evaluation of such jobs for._the purposes of
pay scale must be left to expert bodies and, unless there
c are any mala fides, its evaluation should be accepted."
26. We may also place on record that the Full Bench of
the Punjab and Haryana High Court in Ranbir Singh v. State
of Hawana [(1998) 2 PLR 221), and Vijay Sharma v. State of
Punjab [2002 (1) SCT 931), wrongly relied upon Devinder
D Singh (supra) which, as noticed hereinbefore, has been partly
overruled in Charanjit Singh (supra). The High Court in the
impugned judgment even refused to consider this aspect of the
matter and chose to adopt a short cut.
E 27. Mr. Swarup may or may not be entirely correct in
projecting three purported different views of this Court having
regard to the accepted principle of law that ratio of a decision
must be culled out from reading it in its entirety and not from a •
part thereof. It is no longer in doubt or dispute that grant of the
F benefit of the doctrine of 'equal pay for equal work' depends
upon a large number of factors including equal work, equal
value, source and manner of appointment, equal identity of
group and wholesale or complete identity.
28. This Court, even recently, in Union of India & Anr. v.
G Mahajabeen Akhtar [(2008) 1 SCC 368), categorically held as
1..o ider:
"9. The question came to be considered in a large number
of decisions of this Court wherein it unhesitantly came to
H the conclusion that a large number of factors, namely,
STATE OF PUNJAB & ANR. v. SURJIT SINGH & 417
ORS. (S.B. SINHA, J.]
-'~ educational qualifications, nature of duty, nature of A
responsibility, nature of method of recruitment, etc. will be
relevant for determining eqwivalence in the matter of fixation
of scale of pay. (See Secy., Finance Deptt. v. W.B.
Registration Service Assn.; State of U.P. v. J.P,
Chaurasia; Union of India v. Pradip Kumar Dey and State B
of Haryana v. Haryana Civil Secretariat Personal Staff
Assn.)
24. On the facts obtaining in this case, therefore, we are
of the opinion that the doctrine of equal pay for equal work C .
has no application. The matter may have been different,
had the scales of pay been determined on the basis of
educational qualification, nature of duties and other relevant
factors. We are also not oblivious of the fact that ordinarily
the scales of pay of employees working in different
departments should be tr~ated to be on a par and the D
same scale of pay shall be recommended. The respondent
did not opt for Mer services to be placed on deputation.
She opted to stay in the government service as a surplus.
Sh.e was placed in list as Librarian in National Gallery of
Modern Art. She was designated as Assistant Librarian E
and Information Assistant. Her pay scale was determined
at Rs 6500-10,500 which was the revised scale of pay. Her
case has admittedly not been considered by the Fifth Pay
Revision Commission. If a scale of pay in a higher category
has been refixed keeping in view the educational F
qualifications and other relevant factors by an expert body,
no exception thereto can be taken. Concededly it was for
the Union of India to assign good reasons for placing her
in a different scale of pay. It has been done. We have
noticed hereinbefore that not only the essential educational G
qualifications are different but the nature of duties is also
different. Article 39(d) as also Article 14 of the Constitution
of India must be applied, inter alia, on the premise that
equality clause should be invoked in respect of the people
who are similarly situated in all respects. H
418 SUPREME COURT REPORTS (2009] 12 S.C.R.
A 29. How the said principle is to be applied in different fact ~~
situation is the only questior( Whereas this Court refused to
apply the said principle as the petitioners therein did not have
the requisite qu::ilifkation; in Union of India v. Dineshan K.K.
[(2008) 1 sr.c 586], the application of the rule was advocated
B to be left tc, an expert body, stating :
"16. Yet again in a recent decision in State of Haryana v.
Charanjit Singh a Bench of three learned Judges, while
affirming the view taken by this Court in State of Haryana
v. Jasmer Singh, Tilak Raj, Orissa University of
c Agriculture & Technology v. Mano) K. Mohanty and Govt.
of W.B. v. Tarun K. Roy has reiterated that the doctrine
of equal pay for equal work is not an abstract doctrine and
is capable of being enforced in a court of law. Inter alia,
D
observing that equal pay must be for equal work of equal
value and that the principle of equal pay for equal work has
...
no mathematical application in every case, it has been
held that Article 14 permits reasonable classification
based on qualities or characteristics of persons recruited
and grouped together, as against those who are left out.
E Of course, the qualities or characteristics must have a
reasonable relation to the object sought to be achieved.
Enumerating a number of factors which may not warrant
application of the principle of equal pay for equal work, it
•
has been held that since the said principle requires
F consideration of various dimensions of a given job,
normally the applicability of this principle must be left to be
evaluated and determined by an expert body and the court
should not interfere till it is satisfied that the necessary
material on the basis whereof the claim is made is
G available on record with necessary proof and that there is
equal work of equal quality and all other relevant factors
are fu lfi lied."
30. It may be that in Charanjit Singh (supra), Variava J,
speaking for the Three Judge Bench, has used the word 'may'
H
STATE OF PUNJAB & ANR. v. SURJIT SINGH & 419
ORS. [S.B. SINHA, J.]
...__ A
in regard to the source of recruitment but the same has to be
considered as a relevant factor as the operative part of the
judgment shows. Charanjit Singh (supra), therefore, does not
militate against the other decisions of this Court where the
mode and manner of appointment has been considered to be
a relevant factor for the purpose of invocation of the said B
doctrine. We are bound by the aforementioned three Judge
Bench decision.
31. This brings us to Uma Devi (supra). It is accepted at
the Bar that Uma Devi (supra) talks about regularization. In
relation to the employees of the Commercial Taxes Department,
c
however, same directions have been issued. Some
observations have also been made in the matter of doctrine of
'equal pay for equal work' which we may notice:
"44. The concept of "equal pay for equal work" is different D
~
from the concept of conferring permanency on those who
have been appointed on ad hoc basis, temporary basis,
- or based on no process of selection as envisaged by the
rules. This Court has in various decisions applied the
principle of equal pay for equal work and has laid down
the parameters for the application of that principle. The
E
decisions are rested on the concept of equality enshrined
" in our constitution in the light of the directive principles in
that behalf. But the acceptance of that principle cannot lead
to a position where the court could direct that appointments F
made without following the due procedure established by
law, be deemed permanent or issue directions to treat
them as permanent. Doing so, would be negation of the
principle of equality of opportunity. The power to make an
order as is necessary for doing complete justice in any
),-
G
cause or matter pending before this Court, would not
normally be used for giving the go-by to the procedure
established by law in the matter of public employment.
Take the situation arising in the cases before us from the
State of Karnataka. Therein, after Dharwad decision the
H
420 SUPREME COURT REPORTS (2009] 12 S.C.R.
A Government had issued repeated directions and .."-
mandatory orders that no temporary or ad hoc employment
or engagement be given. Some of the authorities and
departments had ignored those directions or defied those
directions and had continued to give employment,
B specifically interdicted by the orders issued by the
executive. Some of the appointing officers have even been
punished for their defiance. It would not be just or proper
to pass an order in exercise of jurisdiction under Article
226 or 32 of the Constitution or in exercise of power under
c Article 142 of the Constitution permitting those persons
engaged, to be absorbed or to be made permanent,
based on their appointments or engagements. Complete
justice would be justice according to law and though it
would be open to this Court to mould the relief, this Court
would not grant a relief which would amount to perpetuating
D
an illegality. ..
xxx xxx xxx
E
53. One aspect needs to be clarified. There may be cases
where irregular appointments (not illegal appointments) as
-
explained in S. V. Narayanappa, R.N. Nanjundappa and
B.N. Nagarajan and referred to in para 15 above, of duly
~
qualified persons in duly sanctioned vacant posts might
have been made and the employees have continued to
F work for ten years or more but without the intervention of
orders of the courts or of tribunals. The question of
regularisation of the services of such employees may have
to be considered on merits in the light of the principles
settled by this Court in the cases abovereferred to and in
the light of this judgment. In that context, the Union of India,
G
the State Governments and their instrumentalities should
.
take steps to regularise as a one-time measure, the
services of such irregularly appointed, who have worked
for ten years or more in duly sanctioned posts but not under
cover of orders of the courts or of tribunals and should
H
STATE OF PUNJAB & ANR. v. SURJIT SINGH & 421
ORS. [S.S. SINHA, J.]
further ensure that regular recruitments are undertaken to A
fill those vacant sanctioned posts that require to be filled
up, in cases where temporary employees or daily wagers
are being now employed. The process must be set in
motion within six months from this date. We also clarify that
:egularisation, if any already made, but not sub judice, B
need not be reopened based on this judgment, but there
should be no further bypassing of the constitutional
requirement and regularising or making permanent, those
not duly appointed as per the constitutional scheme.
xxx xxx xxx c
55. In cases relating to service in the Commercial Taxes
Department, the High Court has directed that those
engaged on daily wages, be paid wages equal to the
salary and allowances that are being paid to the regular D
employees of their cadre in government service, with effect
from the dates from which they were respectively
appointed. The objection taken was to the direction for
payment from the dates of engagement. We find that the
High Court had clearly gone wrong in directing that these E
employees be paid salary equal to the salary and
allowances that are being paid to the regular employees
of their cadre in government service, with effect from the
dates from which they were respectively engaged or
appointed. It was not open to the High Court to impose F
such an obligation on the State when the very question
before the High Court in the case was whether these
employees were entitled to have equal pay for equal work
so called and were entitled to any other benefit. They had
also been engaged in the teeth of directions not to do so. G
We are, therefore, of the view that, at best, the Division
Bench of the High Court should have directed that wages
equal to the salary that is being paid to regular employees
be paid to these daily-wage employees with effect from
the date of its judgment. ... "
H
422 SUPREME COURT REPORTS [2009] 12 S.C.R.
A Emphasis supplied.
32. While laying down the law that regularization under the
-
Constitutional scheme is wholly impermissible, the Court had
issued certain directions relating to the employees in the
services of Commercial Taxes Department as noticed
B
hereinbefore. The employees of the Commercial Taxes
Department were in service for more than 10 years. They were
appointed in 1985-1986. They were sought to be regularized
in terms of a scheme. Recommendations were made by the
Director, Commercial Taxes for their absorption. It was only
c when such recommendations were not acceded to, the
Administrative Tribunal was approached. It rejected their claim.
The High Court, however, allowed their prayer which was in
question before this Court. It was stated:
D "It is seen that the High Court without really coming to grips
with the question falling for decision in the light of the
...
findings of the Administrative Tribunal and the decisions
of this Court, proceeded to order that they are entitled to
wages equal to the salary and allowances that are being
E paid to the regular employees of their cadre in government
service with effect from the dates from which they were
respectively appointed. It may be noted that this gave
retrospective effect to the judgment of the High Court by
more than 12 years. The High Court also issued a
F command to the State to consider their cases for
regularisation within a period of four months from the date
of receipt of that order. The High Court seems to have
proceeded on the basis that, whether they were appointed
before 1-7-1984, a situation covered by the decision of this
Court in Dharwad District PWD Literate Daily Wage
G ...
Employees Assn. v. State of Kamataka and the scheme
framed pursuant to the direction thereunder, or
subsequently, since they have worked for a period of 10
years, they were entitled to equal pay for equal work from
the very inception of their engagement on daily wages and
H
STATE OF PUNJAB & ANR. v. SURJIT SINGH & 423
ORS. [S.B. SINHA, J.]
~ were also entitled to be considered for regularisation H1 A
their posts."
33. It is in the aforementioned factual backdrop, this Gnutt
in exercise of its jurisdiction under Article 142 of the
Constitution of India, directed:
E
"Hence, that part of the direction of the Division Bench is
modified and it is directed that thes~ daily-wage earners
be paid wages equal to the salary at the lowest grade of
-.I.
employees of their cadre in the Commercial Taxes
Department in government service, from the date of the c
judgment of the Division Bench of the High Court. Since,
they are only daily-wage earners, there would be no
question of other allowances being paid to them. In view
of our conclusion, that the courts are not expected to issue
directions for making such persons permanent in service, D
y we set aside that part of the direction of the High Court
directing the. Government to consider their cases for
regularisation. We also notice that the High Court has not
· adverted to the aspect as to whether it was regularisation
or it was giving. permanency that was being directed by E
the High Court. In such a situation, the direction in that
regard will stand deleted and the appeals filed by the State
would stand allowed to that extent. If sanctioned posts are
vacant (they are said to be vacant) the State will take
immediate steps for filling those posts by a regular F
process of selection. But when regular recruitment is
undertaken, the respondents in CAs Nos. 3595-612 and
those in the Commercial Taxes Department similarly
situated, will be allowed to compete, waiving the age
restriction imposed for the recruitment and giving some
y G
weightage for their having been engaged for work in the
Department for a significant period of time. That would be
the extent of the exercise of power by this Court under
Article 142 of the Constitution to do justice to them."
34. We, therefore, do not see that any law has been laid H
424 SUPREME COURT REPORTS [2009] 12 S.C.R.
A down in paragraph 55 of the judgment. Directions were issued _..
in view of the limited controversy. As indicated, the State's
grievances were limited.
35. Reliance placed by Mr. Gupta on Haryana State
Minor lnigation Tubewells Corpn. v. G.S. Uppa/ [(2008) 7 SCC
B
375 at 384] is equally meritless. In that case, the question
involved was application of the recommendations of the Pay
Revision Committee. As a discriminatory treatment was meted
out to the appellants therein, this Court interfered opining that
the decision of the Government is unreasonable, unjust and
c prejudicial.
36. Further contention of Mr. Gupta is that his clients had
been appointed upon undertaking the due process of
recruitment. It was not so, as while making appointments, the
D recruitment rules had not been followed. There had been no
advertisement. How and in what manner the names were called ..,,.
from the employment exchange has not been disclosed.
Ordinarily a large number of people would not be interested in
applying for appointment against a Class Ill or Class IV post
E so long the appointment is contractual. Interviews were also
taken by a Committee which was not competent therefor as
appointment in the post of Clerk and above were required to
be made by the Public Service Commission.
37. Yet again, we may also notice that another Bench of
F this Court in State of Haryana v. Tilak Raj & Ors. [(2003) 6
sec 123] has clearly laid down the law in the following terms:
"11. A scale of pay is attached to a definite post and in
case of a daily-wager, he holds no posts. The respondent
G 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
a!lowances. To claim a relief on the basis of equality, it is
for the claimants to substantiate a clear-cut basis of
H equivalence and a resultant hostile discrimination before
STATE OF PUNJAB & ANR. v. SURJIT SINGH & 425
ORS. [S.B. SINHA, J.]
.__ becoming eligible to claim rights on a par with the other A
group vis-a-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.
B
12. "Equal pay for equal work" is a concept which requires
for its applicability complete and wholesale identity
between a grnup 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."
c
38. Reliance placed by the High Court is.Civil Appeal Nos.
1979-83 of 2003 - State of Punjab & Ors. vs. Rakesh Kumar
& Ors. - is also misplaced.
D
):
39. Therein the leave was granted purported to be on the
basis of the benefit of regular pay-scale granted by other
department in terms of the decision of the High court in
Gurmukh Singh vs. State of Punjab [C.W.P. No. 9623 of 1993
decided on 12.4.1994]. The main plank of the case of the
E
workmen therein was that they had been not only working for a
long time it was urged that their regular counter-parts were
holding similar posts and their postings are being inter-changed
"" with them. The High Court noticing the allegation of the writ
petitioners that they had been discharging absolutely similar
F
functions with the same element of responsibility and having
similar qualifications as are being discharged by the regularly
appointed persons which having not been specifically
controverted. opined as under:
"However, no material has been placed before this Court G
y
to show as to what is the real difference between the duties
being performed by the petitioners (daily wagers) and
regular employees. The statement containing the date of
joining of the petitioners shows that all of them have
rendered service between one to eleven years as on the H
426 SUPREME COURT REPORTS [2009] 12 S.C.R.
A date of the filing of the petition. The fact that they are .A
continuously in service has not been controverted by the
respondents. Therefore, merely because 64 petitioners
have remained absent for different durations cannot be a
ground for taking the view that all the 973 petitioners are
B discharging duties without proper responsibility. Absence
from duty may constitute a misconduct but that by itself
cannot lead to an inference that whole body of employees
does not discharge its duties with responsibility. In fact on
a query made by the court, learned Deputy Advocate
c General stated at the bar that the Government is not in a
position to dispense with the services of the petitioners
because the same are necessary for maintaining the
distribution and supply of the drinking water to the people •·
in rural as well as urban areas. From this, it can safely be
inferred that the nature of the work being performed by the
D
petitioners is not of a casual nature or of a fixed duration. '.>(,
They might have been posted to work against particular
projects, but, these projects are perennial in character and
there is no indication that the projects are going to be
wound up by the Government. Continuous engagement of
E
a large number of employees for years together is also
indicative of the requirement of the man-power. Therefore,
merely because the Government has not thought it proper
to sanction regular posts, it cannot be held that there is a
marked distinction between the functions of the petitioners
F and the regular employees."
40. The High Court noticed that this Court in several
decisions had arrived at an opinion that the principle of 'equal
pa 11 for equal work' cannot be applied blindly but chose to rely
G uJ:l'O'n the decision of this Court in Dhirendra Chamoli & Anr. "i
v. State of UP! [(1986) 1 sec 637].
41. With utmost respect, the principle, as indicated
hereinbefore, has undergone a sea change. We are bound by
the decisions of large benches. This Court had been insisting
H
STATE OF PUNJAB & ANR. v. SURJIT SINGH & 427
ORS. [S.S. SINHA, J.]
on strict pleadings and proof bf Various factors as indicated A
hereto before.
42. Furthermore, the burden of proof even in that case had
wrongly been placed on the State which in fact lay on the writ
petitioners claiming similar benefits. The factual matrix
B
obtaining in the said case particularly similar qualification,
interchangeability of the positions within the regular employees
.. and the casual employees and other relevant factors which have
been noticed by us also had some role to play .
43. This Court in Gurcharan Singh Kah/on (supra) although c
noticed the Constitution Bench decision of this Court in
·'•
Secretary, State of Kamataka & Ors. v. Umadevi (3) & Ors.
[(2006) 4 SCC 1] declined to interfere with the order of the High
Court having regard to the fact thatno order of stay having been
passed, the State of Punjab had implemented the order of the D
«'. High Court. Furthermore, a scheme of regularization had
already been drawn up. It is of some significance to notice that
similar orders passed by some Benches of this Court relying
on or on the basis of Paragraph 53 in Uma Devi (supra) vis-
a-vis Para 43 and other paragraphs thereof, has been severally E
criticized by this Court in Official Liquidator (supra). We are
bound by the law laid down therein.
44. We, therefore, are of the opinion that the interest of
justice would be subserved if the State is directed to examine
F
the cases of the respondents herein by appointing an Expert
Committee as to whether the principles of law laid down herein,
viz., as to whether the respondents satisfy the factors for
invocation of the decision in Charanjit Singh (supra) in its
entirety including the question of appointment in terms of the
• recruitment rules have been followed. It has a positive concept. G
45. We would, however, before parting make an
observation that the subl')"lission of the learned counsel that only
because some juniors have got the benefit, the same by itself
cannot be a ground for extending the same benefit to the H
428 SUPREME COURT REPORTS [2009] 12 S.C.R.
A respondents herein. It is now well known that the equality clause ....;,
contained in Article 14 should be invoked only where the parties
are similarly situated and where orders passed in their favour
is legal and not illegal. It has a positive concept.
46. However, as writ petition No.14045 of 2001 was
8
dismissed as it had become infructuous, the special leave
petition filed thereagainst was not maintainable. l.ivil Appeal
No.7466 of 2003 is, therefore, dismissed with costs payable
by the State to the respondent. In other cases, the appeals are ,.
allowed without any direction to pay costs.
c
N.J. Appeals disposed of.
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