Sudesh Singh And Another v. The Lieutenant Governor
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE [ CIRCUIT BENCH AT PORT BLAIR] ** WPA/235/2021 Sudesh Singh and another
...Petitioners
Vs.
The Lieutenant Governor and others ... Respondents Mrs. Anjii Nag, Advocate ... for the petitioners Mr. Sumit Karmakar, Advocate ... for the Administration September 20, 2021 [SR] Item No.9 Upon hearing learned counsel for both the parties, the writ petition is taken up for consideration.
At the outset, my attention is invited by Mrs. Anjili Nag, learned counsel for the petitioners to the Ministry of Personnel and Public Grievances and Pensions (Department of Personnel and Training) O.M.No.49014/2/86 Estt.(C) dated 7th June, 1988 to its clause (iv) wherein it has been pointed that where the nature of work entrusted to the casual workers and regular employees is the same, the casual workers may be paid at the rate of 1/30th of the pay at the minimum of the relevant pay scale plus dearness allowance for work of 8 hours a day.
Thus, it is pointed that the petitioners are entitled under that clause for such benefits. Accordingly, the petitioners are seeking direction upon the respondents, in particular, the respondent no.4, to pay @ 1/30th of pay at the minimum of the relevant pay scale plus dearness allowance at par with the regular employees from the date of their initial appointment.
The contention made in the writ application is that the petitioners are working in the department of A & N Islands Khadi and Village Industries Board as daily rated mazdoor since many years. Petitioner no.1 is a Graduate, completed certificate course in Computer Application, Typewriting and also got training on
practicing of soft skills by sales staff. Qualification of the petitioner no.1 clearly shows that he was fully qualified for the post of Sales Assistant. Petitioner no.1 belongs to Other Backward Classes. Petitioner no.2 is Class XIIth passed which is sufficient for the post of Attendant. Petitioner no.2 is also a local of these islands having completed 10 years of residence in these islands. Petitioner no.1 was appointed on 16.06.2004 as Daily Rated Mazdoor by the respondent Board. The petitioner no.1 participated in the selection process conducted by the respondent authorities and after being successful was appointed as Daily Rated Mazdoor. There was no break in service of the petitioners.
It is further submitted that continuation of their services was not based upon any order of the court. Services of the petitioners were considered by the authorities as perennial in nature and therefore, their services were regularly consumed by the respondents. Similarly, the petitioner no.2 was also appointed after undergoing selection process conducted for the post of attendant by the respondent board on 03.03.2011. The said appointment of the petitioner no.2 continued from time to time. There was no break in service of the petitioners. Continuation of their services was not based upon any order of the court. Services of the petitioners was considered by the authorities as perennial in nature and therefore their services was regularly consumed by the respondents. On 15.03.2009, the petitioner no.
1 was appointed as Sales Assistant on contract basis for a period of one year. Such appointment of the petitioner no. 1 continued from time to time. The latest order of 19th July, 2021 which is operative till 19th July, 2022. Both the petitioners have been working in the department for more than 10 years. Fact that the board is a creation of statute, cannot be disputed. Government of India's decisions and orders are aptly applicable to the case of the petitioners. The Government of India issued an Office Memorandum on 7th June, 1988 whereby it was held that casual workers who are entrusted with such nature of work, which is same as that of regular workers, they may be paid at the rate of 1/30 for the pay at the minimum of the relevant pay scale plus dearness allowance for work of eight hours a day.
Petitioners are discharging duties more than eight hours a day. Their duty hours is from 9 A.M. to 5 P.M. There is only one Sales Assistant and one Attendant in the department. Therefore, the entire work of Sales Assistant and Attendant is done by the petitioners herein. Petitioners are working in the department as a regular employee. Though the petitioners have been engaged to work like a regular employee, they are not paid the salary attached to the said post. Even the benefit of the scheme has not been extended to the petitioners herein.
Accordingly, it is pointed that the respondent authorities have violated and infringed the fundamental rights of the petitioners. This Court finds that there is no demand justice made on behalf of the petitioners inviting attention of the respondent authorities to the fact that they were appointed after undergoing selection process for the post of Attendant by the respondent-Board and are in continuous employment from time to time without any break in the service of the petitioners. The point made is that the petitioner no.1 was appointed on 16.06.2004 as a Dairy Rated Mazdoor by the respondent-Board who participated in the selection process conducted by the respondent authorities and after being successful, was appointed as Daily Rated Mazdoor and was in continuous service without any break and their service have been considered as perennial in nature and, therefore, their services were regularly consumed by the respondents.
Thus, it is submitted that the petitioners are entitled to the benefit from clause (iv) of the said O.M.No.49014/2/86 Estt.(C) dated 7th June, 1988 placed as annexure P-5 to this writ application. Since the petitioners have not made any demand of justice to the respondent authorities, this Court is unable to arrive at a finding that the respondents have violated and infringed the legal and fundamental rights of the petitioners enshrined under Articles14, 15, 16 and 21 of the Constitution of India or acted arbitrarily, illegally, whimsically with malafide in not paying at the rate of 1/30th of the pay at the minimum of relevant pay scale plus dearness allowance at par with the regular employee. Thus, I do not find any failure on the part of the respondent authorities in doing so. However, the petitioners may approach the respondent authorities, particularly the respondent no.4, if advised by presentation of demand of justice. If such demand of justice is made before the authorities, the authorities may consider the same within a time frame.
Consequently, the writ petition, being WPA/235/2021 is hereby disposed of. No costs.
Since the respondents have not filed their affidavit-inopposition, averments made in the writ petition be treated as denied and disputed.
( Shivakant Prasad, J. )