P.L.Kumar And ANR v. Union Of India And ORS

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR *** WP.CT/42/2023 P.L.Kumar and another Vs.

The Union of India and others Mr. Rajinder Singh ... for the petitioners Mr. Shatadru Chakraborty Mr. Dibesh Dwivedi ... for the respondents September 27, 2023 [SR] Item No.4 Admittedly the petitioners were appointed as Mazdoor in the year 1993 and 1995 respectively upon undergoing a regular recruitment process but they claimed to have discharged the duties and functions of the driver since the date of their appointment in such post. It is a categorical stand of the petitioners that, till date, they have been discharging the duties as driver but have not been provided the scale of pay admissible to the driver or at least the amount payable to the driver recruited under the respondents-administration.

In other words, it is contended that the scale of pay admissible to the mazdoor is much less than the scale of pay given to the driver and, therefore, the difference of amount

is liable to be disbursed to the petitioners on the score of equal pay for equal work which is a constitutional right. Such representation was not addressed initially, which constrained the petitioners to move the Tribunal and a direction was passed to dispose of such representation. Subsequently, the authorities rejected the said representation holding that the prayer made by the petitioners cannot be acceded to, which was further challenged before the Tribunal in OA/94/2016. By an order dated 15th April, 2016, the original application was disposed of with a further direction to take a decision thereupon and such decision, which was taken by an authority is further challenged in the instant writ petition.

The question involved in the instant writ petition is whether the petitioners, who claimed to have been discharging the duties and functions of the driver, though appointed as mazdoor, from the very inspection of the appointment, is entitled to get the scale of pay attached to the post of a driver. The facts, as narrated hereinabove, are undisputed.

The stand of the respondents in this regard is that the petitioners are holding a substantive post of mazdoor and, in

fact, were promoted to the post of Truck Cleaner in the year 2004 and therefore, their claim of parity of scale with the drivers appointed in the administration is unfounded and untenable.

It is further submitted that the petitioners have not disclosed the fact that they were promoted to the post of Truck Cleaner and the entire writ petition proceeded on the basis that the petitioners are appointed as mazdoor by the Administration.

It is further submitted that equal pay for equal work principles cannot be applied in an adjunct manner in absence of the nature of a job, the qualification attached to such post and different recruitment process. It is arduously submitted by the respondent that the occasional discharge of duties as a driver is within the expanded duties assigned to the mazdoor, which would be reflected from the Recruitment Rules published on 30th April, 2010. According to the respondents, the nature of work to be discharged by the mazdoor is wide enough to engulf every nature of duties in the Administration depending upon the need and the requirement.

The counsel for the respondent relied upon a judgment of the Single Bench decision of the Allahabad High Court rendered in Ashagar Ali vs. Administrator,Nagar Maha Palika, Kanpur Nagar and others ( Civil Misc. Writ Petition No.1749 of 1995 decided on 10.11.2005) reported in 2005 AHC 4892 for the proposition that in an identical facts and the circumstances the claim of a parity in scale of pay of the driver was claimed by a Beldar was rejected by the Court holding that equal pay for equal work is not applicable.

The counsel for the petitioner is very much vocal in his submission that not only the Tribunal proceeded to dismiss the tribunal application without considering the relevant decision cited before it but the authorities have also not applied its mind in a proper and pragmatic manner and, therefore, both the orders required to be quashed and set aside.

It is submitted that the principle of equal pay for equal work though is a directive principle yet a constitutional right and in somewhat similar circumstances, the Apex Court in Arindam Chattopadhyay and others vs. State of West Bengal and others reported in AIR 2013 SC 1535 held that the claimant is entitled to the similar pay scale and

allowances as admissible to the post for which the duties and responsibilities are discharged by the applicant therein. The reliance is further placed upon a Single Bench judgment of the Delhi High Court in the case of Municipal Corporation of Delhi vs. Shri Rajvir Singh (W.P(C) 9324/2009 decided on 07.04.2016) for the proposition that a person, if discharges the duties of a post for a considerable period of time without being promoted or being appointed to such post, is entitled to the said scale of pay.

As indicated above, the solitary point involved in the instant writ petition as to whether the petitioner is entitled to a scale of pay and the allowances admissible to the post of driver being appointed to the post of mazdoor or at best promoted to the post of Truck Cleaner since they have been discharging the duties and functions of driver. The facts are undisputed that the petitioners were appointed as mazdoor and it also appears from the documents annexed to the writ petition that they were promoted to the post of Truck Cleaner. The record would further reveals that the petitioners, since the date of their appointment as mazdoor, were discharging the duties of a driver and till date they are discharging such duties.

The question often arises when the equal pay for equal work is claimed, as to whether such right can be claimed a legally enforceable right when the same has been not brought within the Part III of the Constitution i.e. the fundamental rights of a citizen guaranteed thereunder. The Apex Court in the case of Arindam Chattopadhyay (supra) was poised with the view when Article 39(d) of the Constitution propagates the theory of equal pay for equal work for both man and woman being the directive principles of the State or the sovereign can be applied in case of a service jurisprudence when there is discrimination on the gender basis but the discrimination appears to have been made in discharge of the duties admissible to the particular post.

The Apex Court taking aid of the Hungarian Labour Code, Czechoslovak Code as well as the German Democratic Republic Code held that those principles have been imbibed with the preamble of the Constitution as it has a ramification on rendering the justice creating hardship and the harmony in the service law.

The Apex Court further held that on a conjoint reading of the provisions contained under Articles 14, 16 and 39(d)

of the Constitution, the principle of equal work for equal pay can be deduced from the aforesaid Articles and may be applied in case of an inequality in the pay scale based on the classification or the irrational classification though the employee discharges duties similarly to the other employees. The facts involved in the Arindam Chattopadhyay (supra) can be noticed in this regard where a candidate, who was appointed as a Assistant Child Development Project Officer (ACDPO) in 1986-87 was temporarily transferred under the ICDS project to the post of a Child Development Project Officer (CDPO) since July, 1999. The said petitioner therein continued to discharge the duties of CDPO under the ICDS Project and subsequently claimed a higher scale of pay admissible to the post of CDPO. An argument was advanced on behalf of the State that there is no fixed scale of pay for CDPO nor there is any rules applicable in this regard and, therefore, such claim is impermissible.

Repelling the contention of the respondents, the Apex Court held that -

13. Reverting to the facts of this case, we find that although the appellants were recruited as ACDPOs, the State Government transferred and posted them to work as CDPOs in ICDS projects. If this would have been a stop gap arrangement for few months or the appellants had been given additional charge of the posts of CDPO for a fixed period, they could not have legitimately claimed salary in the scale of the higher post, i.e.,

CDPO. However, the fact of the matter is that as on the date of filing of the Original Application before the Tribunal, the appellants had continuously worked as CDPOs for almost 4 years and as on the date of filing of the writ petition, they had worked on the higher post for about 6 years. By now, they have worked as CDPOs for almost 14 years and discharged the duties of the higher post. It is neither the pleaded case of the respondents nor any material has been produced before this Court to show that the appellants have not been discharging the duties of the post of CDPO or the degree of their responsibility is different from other CDPOs. Rather, they have tacitly admitted that the appellants are working as full-fledged CD11 Page 12 POs. since July, 1999.

Therefore, there is no legal or other justification for denying them salary and allowances of the post of CDPO on the pretext that they have not been promoted in accordance with the Rules. The convening of the Promotion Committee or taking other steps for filling up the post of CDPO by promotion is not in the control of the appellants. Therefore, they cannot be penalised for the Government's failure to undertake the exercise of making regular promotions."

From the above quoted observations, it appears that the allowance which was admissible to the post of CDPO was directed to be given to the petitioner therein. The aforesaid principle has been reiterated in a judgment rendered by the Delhi High Court in Rajvir Singh(supra) where the petitioner, who was appointed as Malli (Gardner) was discharging the duties of Garden Choudhary and claimed the higher scale of pay. An argument was advanced that such Gardener cannot be promoted as Garden Choudhary unless he has undergone and qualify the trade test. It was further argued that there is a different mode of selection to

the post of Gardner and therefore, even if the petitioner discharges the functions and duties of the Garden Choudhary is not entitled to the same scale of pay. The Delhi High Court, after taking into consideration of several judgments of the Apex Court and the High Court held that the moment it is proved that the said Malli (Garnder) was discharging the duties of a Chaudhary for a pretty long time is entitled to difference of wages attached to the aforesaid post in the following:- "14. A similar question was considered by Division Bench of this Court in W.P.(C) No.7947/2010 titled „Municipal Corporation of Delhi vs. Sh. Sultan Singh & Ors.‟, decided on 20th April, 2011. The Division Bench after considering the relevant case law observed as under: - "28.

Considering the entire facts and circumstances it is apparent that the claim of the respondents have always been that they should be paid the difference in pay of Mali/ Chowkidar and the Garden Chaudhary as they were made to work on the post of Garden Chaudhary whereas the petitioner had first denied that they worked as Garden Chaudharies, then took the plea that the Assistant Director (Horticulture) was not competent to ask the respondents to work as Garden Chaudharies and that the respondents cannot be appointed to the post of Garden Chaudharies in accordance with the recruitment rules. There is no doubt that respondents are not claiming appointment to the post of doubt that respondents are not claiming appointment to the post of Garden Chaudharies on account of having worked on ad-hoc basis on the post of Garden Chaudhary contrary to rules or that some of them not having the requisite qualifications are entitled for relaxation.

29. In the entirety of facts and circumstances therefore, the learned counsel for the petitioner has failed to make out any such grounds which will impel this Court to exercise its jurisdiction under Article 226 of the Constitution to set aside the orders of the Tribunal dated 29th January, 2010 and 7th October, 2010 as no illegality or unsustainability or perversity in the orders of the Tribunal has been made out."

15. In the instant case, it is not disputed that the respondent was working as Chaudhary which fact is also evident from the list of working Chaudharys in Rohini Zone (Ex. WW-1/1). The directions for payment of difference of wages have been given by the Industrial Tribunal relying upon an earlier judgment of this Hon‟ble Court in W.P.(C) No.11678/2006 titled as,Satbir Singh vs. MCD‟.

We would be failing in our duty in not considering the judgment relied upon by the respondent rendered by the Allahabad High Court in Ashagar Ali (supra). In the said case, a Beldar was discharging the duties of a driver and claimed the higher scale of pay admissible to the post of a driver.

It appears from the said judgment that several issues were raised including the regularisation, promotion and lastly the equal pay for equal work. The Single Bench held that a scale of pay is attached to a definite post and if a Beldar cannot hold the post of a driver, he cannot claim any comparison with a regular and permanent staff. The Court further held that in order to apply the test of equal pay for

equal work, it must arrive at the conclusion that there is a wholesome identity in discharge of the duties admissible to the said post. It was further held that if a person is allowed to discharge the duties of the post of a driver occasionally, he cannot be said to have any kind of entitlement a scale of pay to such post in the following:- "32. In the case of State of Haryana and another Vs. Tilak Raj and others, JT 2003 (5) SC 544, Hon'ble Apex Court has occasion to consider the doctrine of equal pay for equal work again in context of daily wages helpers of Haryana Roadways. While taking note of earlier decision rendered in case of Federation of All India Customs and Central Excise Stenographers (Recognised) and others Vs. Union of India and others, AIR 1988 SC 1291; State of U.P. Vs. J.P. Chaurasia, AIR 1989 SC 19; Harbans Lal Vs.

State of Himachal Pradesh, JT 1989 (3) SC 296; Ghaziabad Development Authority Vs. Vikram Chaudhary, AIR 1995 SC 2325; State of Haryana and others Vs. Jasmer Singh and others, AIR 1997 SC 1788, the Apex Court has set aside the judgment and order of High court under challenge and in para 11 of the decision held that appellant State has to ensure that minimum wage prescribed for such worker may be paid to the respondents.

The observation made in para 10 of the judgment is apt to be reproduced as under:

"10. A scale of pay is attached to a definite post and in case of a daily wager, he holds not 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 a claim for equal pay and allowances. To claim a relief on the basis of equality, it is for the claimants to substantiate a clear-cut basis of equivalence and a resultant hostile discrimination before becoming eligible to claim rights on a par with the other group vis-à-vis an alleged discrimination. No material was placed before the High Court as to the nature of duties of either

categories and it is not possible to hold that the principle of "equal pay for equal work" is an abstract one.

"Equal pay for equal work" is a concept which requires for its applicability complete and wholesale identity between a group of employees claiming identical pay scales and the other group of employees who have already earned such pay scales. The problem about equal pay cannot always be translated into a mathematical formula."

33. Now applying the law laid down by the Hon'ble Apex Court on the facts of the case, it is necessary to point out again, that it is no where case of the petitioner that he has ever been appointed on the post of driver, rather it is alleged that while working on the post of Beldar he was asked to drive the vehicle since 1984, since then he is continuously discharging the duties of driver but salary in the pay scale of driver is not being paid to him. Contrary to it the respondents have taken stand in their counter and supplementary counter affidavits that although the post of Beldar and driver both are class-IV category posts, but the post of driver carries slightly higher pay scale. The petitioner has never been selected and appointed on the post of driver. Since he knew the driving and holding driving lincence, therefore, he was occasionally asked to drive the vehicle for which period extra-allowances of Rs. 200/- per month was paid to him and he accepted the same, therefore, he cannot claim same pay scale admissible to the post of driver."

What would appears from the law enunciated in the above mentioned case that the principle of equal pay for equal work though enshrined in a directive principle but by virtue of the ethos behind the promulgation of the constitution the same is inhered and inbuilt in Articles 14 and 16 of the Constitution of India.

The said principle though sees its birth on the eve of the adaptation of the constitution by the people of this country, yet, it is being applied and recognized as principles of common law and the same has been adopted in the Indian judicial parlance. The equal pay for equal work cannot be applied in a abstract and/or adjunct manner unless there is a continuity in discharge of such duties for a considerable period of time as opposed to an occasional discharge of such duties. The judgment of the Allahabad High Court can be distinguished on solitary fact that the Beldar who was discharging the duties of the driver was also paid an additional allowance per month, knowing fully well that he is remunerated for such duties cast upon him.

However the judgment of the Arindam Chattopadhyay (supra) had categorically and vividly held that if a person is discharging the duties in public employment of a post to which he has not been appointed, he cannot claim a regularization on the aforesaid post as the mode of selection and/or appointment is different. But that does not absolve the duties of the nodal employer to pay the allowance and/or the scale of pay admissible to such post if a person has discharged the duties and functions attached to such posts for a considerable period of time, and not on occasional basis.

In the instant case, the petitioners, since the date of appointment as mazdoor even after being promoted as a Truck Cleaner is discharging the duties of a driver and more than three decades have passed, yet he has rendered the services which is excepted to be discharged in the post of a driver and therefore, the stand of the Tribunal and the authorities cannot be sustained. The impugned order of the authorities as well as the Tribunal is hereby quashed and set aside.

The competent authorities are directed to pay the difference of scale of pay and the allowances within six months from the date of communication of this order. The writ petition is disposed of. No order as to costs. Let the certified copy of this order be given to the parties, if applied for, within two days.

( Harish Tandon, J. ) ( Rai Chattopadhyay, J. )