STATE OF PUNJAB & ORS. v. JAGJIT SINGH & ORS.

A "9. We have heard the learned Counsel for the parties. We find from the report of the High Level Equivalence Committee extracted above that the Directorate of Research and Medical Education, Punjab. is a teaching institution in which the Dietician has to perfonn multifarious duties such as teaching the probationary nurses in subjects B ofnutrition dietaries. control and management of the kitchen, etc .. whereas, the main duties of the Dietician and Senior Dietician in the Government Multi-Specialty Hospital in the Union Territory Chandigarh are only to check the quality of food being provided to the patients and to manage the c kitchen." Based on the above detennination, the prayer for parity under the principle of'equal pay for equal work' was declined to the respondents, and accordingly the judgment of the High Court, was set aside.

22. Steel Authority oflndia Limited v. Dibyendu Bhattacharya 16, D decided by a three-Judge bench: The respondent in th(! above case, was appointed against the post of Speech Therapist/Audiologist, in the Durgapur Steel Plant, in S-6 grade in Medical and Health Services. After serving for a few years, he addressed a representation to the appellant, claiming parity with one B.V. Prabhakar, employed at the Rourkela Steel E Plant (a different unit of the same company). The said B.V. Prabhakar was holding the post of E-1 grade in the executive cadre, though designated as Speech Therapist/Audiologist. In his representation, the respondent did not claim parity in pay, but only claimed change of the cadre and upgradation of his post, and accordingly relaxation in eligibility, so as to be entitled to be placed in the pay-scale of posts in E-1 grade. F (ii) The appellant did not accept the claim raised by the respondent. He accordingly approached the High Court ofCalcutta. A division bench of the High Court, accepted his claim for pay parity. It is in the aforesaid background, that the appellant approached this Court, to assail the judgment rendered by the High Court. The issue of pay parity was dealt G with by this Court, by recording the following observations:- "30. In view of the above, the law on the issue can be summarised to the effect that parity of pay can be claimed by invoking the provisions of Articles 14 and 39(d) of the 06 12011) 11sec122 H

STATE OF PUNJAB & ORS. v. JAGJIT SINGH & ORS. 393 (JAGDISH SINGH KHEHAR, J.]

Constitution oflndia by establishing that the eligibility, mode of selection/recruitment, nature and quality of work and duties and effort, reliability, confidentiality, dexterity, functional need and responsibilities and status of both the posts are identical. The functions may be the same but the skills and responsibilities may be really and substantially different. The other post may not require any higher qualification, seniority or other like factors. Granting parity in pay scales depends upon the comparative evaluation of job and equation of posts. The person claiming parity. must plead necessary averments and prove that all things are equal between the posts concerned. Such a complex issue c cannot be adjudicated by evaluating the affidavits filed by the parties.

31. The onus to establish the discrimination by the employer lies on the person claiming the parity of pay. The Expert Committee has to decide such issues. as the fixation of pay scales etc. falls within the exclusive domain of the executive. So long as the value judgment of those who are responsible for administration i.e. service conditions. etc., is found to be bonafide. reasonable. and on intelligible criteria which has a rational nexus of objective of differentiation. such differentiation will not amount to discrimination. It is not prohibited in law to have two grades of posts in the same cadre. Thus, the nomenclature of a post may not be the sole determinative factor. The courts in exercise of their limited power of judicial review can only examine whether the decision of the State authorities is rational and just or prejudicial to a particular set of employees. The court has to keep in mind that a mere difference in service conditions does not amount to discrimination. Unless there is complete and wholesale/wholesome identity between the two posts they should not be treated as equivalent and the Court should avoid applying the principle of equal pay for equal work." G Based on the above consideration, this Court recorded its analysis, on the merits of the controversy, as under:- "34. Shri B.V. Prabhakar, had been appointed in E-1 Grade, H

p. 394 Copy page pinpoint

A in the Rourkela unit, considering his past services in the Bokaro Steel Plant, another unit of the Company, for about two decades prior to the recruitment of the respondent. As every unit may make appointments taking into consideration the local needs and requirement, such parity claimed by the respondent cannot be held to be tenable. The reliefs sought B by the respondent for upgradation of the post and waiving the eligibility criteria had rightly been refused by the appellants and by the learned Single Judge. In such a fact- situation. there was no justification forthe Division Bench to allow the writ petition. granting the benefit from the date c of initial appointment of the respondent. The respondent has not produced any tangible material to substantiate his claim. thus. he could not discharge the onus of proof to establish that he had made some justifiable claim. The respondent miserably failed to make out a case for pay parity to the post of E-1 Grade in executive cadre. The D appeal, thus, deserves to be allowed." It is, therefore apparent, that this Court d!d not accept the prayer of pay parity, in the above cited case, based on the principle of 'equal pay for equal work'.

E 23. Hukum Chand Gupta v. Director General. Indian Council of Agricultural Research 17, decided by a two-Judge bench: In the above matter, the appellant was originally appointed as a Laboratory Assistant in Group D, in the National Dairy Research Institute. He was promoted as a Lower Division Clerk, after he qualified a limited departmental competitive examination. He was further promoted as a Senior Clerk, F again after qualifying a limited departmental competitive examination. At this stage, he was placed in the pay-scale ofRs.1200-2040. He was further promoted to the post of Superintendent in the pay-scale ofRs.1640- 2900, yet again, after passing a departmental examination. Eventually, he was promoted as an Assistant Administrative Officer, on the basis of G seniority-cum-fitness. The Indian Council of Agricultural Research revised the pay-scales of Assistants, from Rs.1400-2600 to Rs.1640- 2900, with effect from 1.1.1986. However, the pay-scale of the post of Superintendent was not revised.

17 - (ii) -(2012) -12-The appellant submitted a representation seeking revision of sec 666 H

STATE OF PUNJAB & ORS. v. JAGJIT SINGH & ORS. 395 [JAGDISH SINGH KHEHAR, J.]

his pay-scale on the ground, that in the headquarters ofthe Indian Council A of Agricultural Research, the post of Superintendent is a promotional post, from the post of Assistant (which carried the pay-scale ofRs.1640- 2900). He also claimed parity in pay-scale with one J.l.P. Madan. The claim of the appellant was not accepted by the authorities, whereupon, he first approached the Administrative Tribunal and eventually the High B Court of Punjab and Haryana, which also did not accept his contention. It is, therefore, that he approached this Court. (iii) While adjudicating upon the above controversy, this Court relied and endorsed the reasons recorded by the Administrative Tribunal in rejecting the claim of the appellant in the following manner:- c "9. By a detailed order, the Tribunal rejected both the claims. It was observed that the post at headquarters cannot be compared with the post at institutional level as both are governed by different sets of service rules. The second prayer with regard to the higher pay scale given to Shri J.l.P. Madan was rejected on the ground that he had been given the benefit of second upgradation in pay since he had earned only one promotion throughout his professional career. Aggrieved by the aforesaid, the appellant filed a writ petition C. W.P. No. 9595 CAT of2004 before the High Court. The writ petition has also been dismissed by judgment dated 8-7-2008. This judgment is impugned in the present appeal." This Court, recorded the following additional reasons, for not accepting the claim of the appellant, by observing as under:- "15. In our opinion, the explanation given by Mrs. Sunita F Rao does not leave any room for doubt that the claim made by the appellant is wholly misconceived. There is no comparison between the appellant and Shri J.I.P. Madan. The appellant had duly earned promotion in his cadre from the lowest rank to the higher rank. Havingjoined in Group G D, he retired on the post of AAO. On the other hand, Shri J.l.P. Madan had been working in the same pay scale till his promotion on the post of AAO. Therefore, he was held entitled to the second upgradation after 24 years of service. He had joined as an Assistant by Direct Recruitment and H

p. 396 Copy page pinpoint

A promoted on 24-8-1990 as a Superintendent. After the merger of the post of Assistant with the Superintendent, the earlier promotion of Shri Madan was nullified, as Assistant was no longer a feeder post for the promotion on the post of Superintendent. Thus, a financial upgradation, in view of ACP Scheme, was granted to him since _he had B no opportunity for the second promotion." This Court concluded the issue by holding as under:- "20. We are also not inclined to accept the submission of the appellant that there can be no distinction in the pay c scales between the employees working at headquarters and the employees working at the institutional level. it is a matter of record that the employees working at headquarters are governed by a completely different set of rules. Even the hierarchy of the posts and the channels of promotion are different. Also, merely because any two posts at the D headquarters and the institutional level have the same nomenclature, would not necessarily require that the pay scales on the two posts should also be the same. In our opinion, the prescription of two different pay scales would not violate the principle of equal pay for equal work. Such E action would not be arbitrary or violate Articles 14, 16 and 39D of the Constitution of India. It is for the employer to categorize the posts and to prescribe the duties of each post. There can not be any straitjacket formula for holding that two posts having the same nomenclature would have to be given the same pay scale. Prescription of pay scales F on particular posts is a very complex exercise. It requires assessment of the nature and quality of the duties performed and the responsibilities shouldered by the incumbents on different posts. Even though, the two posts may be referred to by the same name. it would not lead to the necessai:y - G inference that the posts are identical in evei:y manner. These are matters to be assessed by expert bodies like the employer or the Pay Commission. Neither the Central Administrative Tribunal nor a Writ Court would normally venture to substitute its own opinion forthe opinions rendered by the experts. The Tribunal or the Writ Court would lack the H

STATE OF PUNJAB & ORS. v. JAGJIT SINGH & ORS. 397 [JAGDISH SINGH KHEHAR, J.]

necessary expertise undertake the complex exercise of equation of posts or the pay scales.

21. In expressing the aforesaid opinion,- we are fortified by the observations made by this Court in State of Punjab vs. Surjit Singh, (2009) 9 SCC 514. In that case, upon review of a large number of judicial precedents relating to the principle of" equal pay for equal work", this Court observed as follows: (SCC pp. 527-28, para 19) "19 .... '19 .... Undoubtedly, the doctrine of"equal pay for equal work" is not an abstract doctrine and is capable of being enforced in a court of law. But equal pay must c be for equal work of equal value. The principle of"equal pay for equal work" has no mechanical application in every case. Article 14 permit~ reasonable classification based on qualities or characteristics of persons recruited· and grouped together, as against those who were left out. Of course, the qua Iities or characteristics must have D a reasonable relation to the 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 an acceptable reason for pay differentiation ..... 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 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 may entail may differ from job to job. It cannot be judged by the mere 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 H

p. 398 Copy page pinpoint

A applicability of this principle 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 has to make B 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.'*" (emphasis supplied) In our opinion, the aforesaid observations would be a c complete answer to all the submissions made by the appellant." For the above reasons, this Court rejected the claim of the appellant, based on the principle of'equal pay for equal work'.

D 24. National Aluminum Company Limited v.Ananta Kishore Rout 18, decided by a two-Judge bencl.!: The appellant in the above matter, i.e., National Aluminum Company Limited (hereinafter referred to as, NALCO) had established two schools. In the first instance, NALCO itselflooked after the management of the said schools. In 1985, it entered into two separate but identical agreements with the Central Chinmoy E Mission Trust, Bombay, whereby the management of the schools was entrusted to the above trust. In 1990, a similar agreement was entered into for the management of the above two schools, with the Saraswati Vidya Mandir Society (affiliated to Vidya Bharati Akhila Bharatiya Shiksha Sansthan). Accordingly, with effect from 1990, the said Society F commenced to manage the affairs of the employees, of the above two schools. Two writ petitions were filed by the employees of the two schools before the High Court ofOrissa at Cutiack, seeking a mandamus, that they be declared as employees of NALCO, and be treated as such, with the consequential prayer, that the employees of the two schools be accorded suitable pay-scales, as were admissible to the employees of G NALCO. The High Court accepted the above prayers. It is, therefore, that NALCO approached this Court. (ii) In adjudicating upon the above matter, this Court recorded its consideration as under:- "(201-116 sec 756 H

STATE OF PUNJAB & ORS. v. JAGJIT SINGH & ORS. 399 [JAGDISH SINGH KHEHAR, J.]

"33. Insofar as their service conditions are concerned, as already conceded by even the respondents themselves, their salaries and other perks which they arc getting are better tlH111 their counter parts in Government schools or aided/ unaided recognised schools in the State of Orissa. In a situation like this even if, for the sake of argument, it is eresumed that NAl~CO is the employer of these employees, they would not be entitled to the pay scales which are given to other employees of NALCO as there cannot be any comparison between the two. The principle of "equal pay for equal work" is not attracted at all. Those employees directly employed by NALCO are discharging altogether c different kinds of duties. Main activity of NALCO is the manufacture and production of alumina and alumi1~ium for which it has its manufacturing units. The process and method of recrnitment ofthose employees, their eligibility conditions for appointment, nature of job done by those employees D etc. is entirely different from the employees of these schools. This aspect is squarely dealt with in the case of SC Chandra vs. State of Jharkhand, (2007) 8 SCC 279, where the plea for parity in employment was 1ejected thereby refusing to give parity in salary claim by school teachers with class working under Government of Jharkhand and BCCL. The E discussion which ensued, while rejecting such a claim, is recapitulated hereunder in the majority opinion authored by A.K. Mathur, J .: (SCC p. 289, paras 20-21) . i "20. After going through the order of the 9ivision Bench we are of opinion that the view taken by the Division F Bench of the High Court is correct. Firstly, the school is not being managed by BCCL as from the facts it is more than clear that BCCL was only extending financial assistance from time to time. By that it cannot be saddled with the liability to pay these teachers of the school as being paid to the clerks working with BCCL or in the G Government of Jharkhand. It is essentially a school managed by a body independent of the management of BCCL. Therefore, BCCL cannot be saddled with the responsibilities of granting the teachers the salaries H

p. 400 Copy page pinpoint

A equated to that of the clerks working in BCCL.

21. Learned counsel for the appellants have relied on 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 B of Jharkhand for application Of the principle of equal pay for equal work. There should be total identity between both groups i.e. the teachers of the school on the one hand and the clerks in BCCL, and as such the teachers cannot be educated with the clerks of the State .:Government or of BCCL. The question of application c of Article 39(d) of the Constitution has recently been interpreted by this Court in State ofHaryana v. Charanjit Singh, (2006) 9 SCC 321, 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 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 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 ~ny parity of the pay with that of the clerks of BCCL." Based on the above consideration, this Court recorded its conclusion as follows:- G "35. We say at the cost of repetition that there is no parity in the nature of work, mode of appointment, experience, educational qualifications_ between the NALCO employees and the employees of the two schools. In fact, such a comparison can be made with their counter parts in the H

STATE OF PUNJAB & ORS. v. JAGJIT SINGH & ORS. 401 [JAGDISH SINGH KHEHAR, J.]

Government schools and/or aided or unaided schools. On A that parameter; there cannot be any grievance of the staff . which is getting better emoluments and enjoying far superior service conditions." It is, therefore apparent, that the principle of 'equal pay for equal work' was held to be not applicable to the employees of the two schools, B so as to enable them to claim parity, with the employees of NALCO.

25. We shall now attempt an analysis of the decisions rendered by this Court, wherein temporary employees (differently designated as work- charge, daily-wage, casual, ad-hoc, contractual, and the like) raised a claim for being extended wages, equal to those being drawn by regular c employees, and the parameters determined by this Court, in furtherance of such a claim. Insofar as the present controversy is concerned, the same falls under the present category.

26Copy pinpoint26. Dhirendra Chamoli v. State ofU .P. 19, decided by a two-Judge bench: Two Class-IV employees of the Nehru Yuvak Kendra, Dehradun, D engaged as casual workers on daily-wage basis, claimed that they were doing the same work as Class-IV employees appointed on regular basis. The reason for denyingthem the pay~scale extended to regular employees was, that there was no sanctioned post to accommodate the petitioners, and as such, the assertion on behalf of the respondent-employer was, that they could. not be extended the benefits permissible to regular E employees. Furthermore, their claim was sought to be repudiated on the ground, that the petitioners had taken up their employment with the Nehru Yuvak Kendra knowing fully well, that they would be paid emoluments of casual workers engaged on daily-wage basis, and therefore, they could not claim beyond what they had voluntarily accepted. F (ii) This Court held, that it was not open to the Government to exploit citizens, specially when India was a welfare state, committed to a socialist pattern of society. The argument raised by the Government was found to be violative of the mandate of equality, enshrined in Article I 4 of the Constitution. This Court held that the mandate of Article 14 G ensured, that there would be equality before law and equal protection of ,, the l!!w.. It was inferred therefrom, that there must be 'equal pay for equal work'. Having found, that employees engaged by different Nehru Yuvak Kendras in the country were performing similar duties as regular "(1986) 1sec637 H

p. 402 Copy page pinpoint

A Class-IV employees in its employment, it was held, that they must get the same ~alary and conditions of service as regular Class-IV employees, and that, it made no difference whether they were appointed on sanctioned posts or not. So long as they were performing the same duties, they must receive the same salary. '

27Copy pinpoint27. Surinder Singh v. Engineer-in-Chief, CPWD'0 , decided by a . two-Judge bench: The petitioners int.he instant case were employed by the Central Public Works Department on daily-wage basis. They demanded the same wage as was being paid to permanent employees, doing identical \VOrk. Herein, the respondent-employer again contested the claim, by raising the plea that petitioners could not be employed on c regular and permanent basis for want of permanent posts. One of the objections raised to repudiate the claim of the petitioners was, that the doctrine of 'equal pay for equal work' was a mere abstract doctrine and was not capable of being enforced in law. (ii) The objection raised by the Government was rejected. It was held, that all organs ofthe State were committed to the directive principles of the State policy. It was pointed out, that Article 39 enshrined the principle of 'equal pay for equal work', and accordingly this Court concluded, that the principle of 'equal pay for equal work' was not an abstract doctrine. It was held to be a vital and vigorous doctrine accepted throughout the world, particularly by all socialist coulltfies. Referring to the decision rendered by this Court in the D.S. Nakara case:, it was held, that the above proposition had been affirmed by a Constitution Bench of this Court. It was held, that the Central Government, the State Governments and likewise, all public sector undertakings, were expected to function like model and enlightened employers and further, the argument that the above principle was merely an abstract doctrine, which could not be enforced tffrough a Court of law, cou Id not be raised either by the State or by State undertakings. The petitions were accordingly allowed, and the Nehru Yuvak Kendras were directed to pay all daily-rated employees, salaries and allowances as were paid to regular employees, from the date of their engagement. :

28Copy pinpoint28. Bhagwan Dass v. State of Hai:yana: 1, decided by a two-Judge bench: The Education Department of the State ofHaryana, was pursuing an adult education scheme, sponsored by the Government oflndia, under '" < 1986)1 sec 639 11 " ( 1987J 4 sec 634

STATE OF PUNJAB & ORS. v. JAGJIT SINGH & ORS. 403 [JAGDISH SINGH KHEHAR, J.]

the National Adult Education Scheme. The object of the scheme was to A provide functional literacy to illiterates, in the age group of I5 to 35, as also, to impart learning through special contract courses, to students in the age group of 6 to I 5, comprising of dropouts from schools. The petitioners were appointed as Supervisors. They were paid remuneration at the rate ofRs.5,000/- per month, as fixed salary. Prior to 7.3.1984, B they were paid fixed salary and allowance, at the rate of Rs.60/- per month. Thereafter, the fixed salary was enhanced to Rs.150/- per month. The reason for allowing them fixed salary was, that they were required to work, only on part-time basis. The case set up by the State Government was, that the petitioners were not full-time employees; their mode of recruitment was different from Supervisors engaged on regular basis; c the nature of functions discharged by them, was not similar to those discharged by Supervisors engaged in the regular cadre; and their appointments were made for a period of six months, because the posts against which they were appointed, were sanctioned for one year at a time. D (ii) Having examined the controversy, this Court rejected all the above submissions advanced on behalf of the State Government. It was held, that the duties discharged by the petitioners even though for a shorter duration, were not any different from Supervisors, engaged in the regular cadre. Even though recruitment of Supervisors in the regular cadre was made by the Subordinate Selection Board by way of an open selection, whereas the petitioners were selected through a process of consideration which was limited to a cluster of a few villages, it was concluded that, that could not justify the denial to the petitioners, wages which were being paid to Supervisors, working in the regular cadre. It was held, that so long as the petitioners were doing work, which was similar to the work of Supervisors engaged in the regular cadre, they could not be denied parity in their wages. Accordingly it was held, that from the standpoint of the doctrine of 'equal pay for equal work', the petitioners could not be discriminated against, in regard to pay-scales. Having concluded that the petitioners possess the essential qualification for appointmentto the post of Supervisor, and further the duties discharged by them were similar to those appointed on regular basis, it was held, that the petitioners could not be denied wages payable to regular employees. This Court also declined the plea canvassed on behalf of the Government, that they were engaged in a temporary scheme against H

p. 404 Copy page pinpoint

A posts which were sanctioned on year to year basis. On the instant aspect of the matter, it was held, that the same had no bearing to the principle of 'equal pay for equal work'. It was held, that the only relevant consideration was, whether the nature of duties and functions discharged and the work done was similar. While concluding, this Court clarified that in the instant case, it was dealing with temporary employees engaged 8 by the same employer, doing work of the same nature, as was being required of those engaged in the regular cadre, on a regular basis. It was held, that the petitioners, who were engaged on temporary basis as Supervisors, were entitled to be paid on the same basis, and in the same pay-scale, at which those employed in the regular cadre discharging c similar duties as Supervisors, were being paid.

29Copy pinpoint29. Daily Rated Casual Labour Employed under P&T Department through Bhartiya Oak Tar Mazdoor Mancl1 v. Union oflndia~~. decided by a two-Judge bench: The persons on whose behalf the Mazdoor Manch had approached this Court under Article 32 of the Constitution oflndia, D were working as daily-rated casual labourers, in the Posts and Telegraphs Department. They included three broad categories of workers, namely, unskilled, semi-skilled and skilled. The unskilled labour consisted ofSafai Workers, Helpers, Peons, and the like. The unskilled labour was engaged in digging, carrying loads and other similar types of work. The semi- skilled labour consisted of Carpenters, Wiremen, Draftsmen, A.C. E Mechanics etc. They needed to have technical experience, but were not required to possess any degree or diploma qualification. The skilled labour consisted oflabourers doing technical work. The skilled labourers were required to possess technical d<:gree/diploma qualification. (ii) All the three categories of employees, referred to above, were engaged as casual labourers. They were being paid very low wages. Their wages were far less than the salary and allowances paid to regular employees, of the Posts and Telegraphs Department, engaged for the same nature of work. The Director General, Posts and Telegraphs Department, by an order dated 15.5.1980 prescribed the following wages for casual labourers in the Department:- "(i) Casual labour who has not completed 720 days of ·i service in a period of three years at the rate of 240 days per annum wit\1 the Department as on April I, 1980.

H "< 198&) 1 sec 122

STATE OF PUNJAB & ORS. v. JAGJIT SINGH & ORS. 405 [JAGDISH SINGH KHEHAR, J.]

No change. They will continue to be paid at the approved local rates. (ii) Casual labour who having been working with the Department from April l, 1977 or earlier and have completed 72<1 days of service as on April 1, 1980. Daily wages equal to 75 per cent of I/30th of the minimum of Group D Time Scale plus admissible DA. · (iii) Casual labour who has been working in the Department from April I, 1975 or earlier and has completed 1200 days of service as on April I, 1980. c Daily wages equal to I/30th of the minimum of the Group D Time Scale plus I/30th of the admissible DA. (iv) All the casual labourers will, however, continue to be employed on daily wages only. (v) These orders for enhanced rates for category (ii) and D (iii) above will take effect from May I, 1980. (vi) A review will be carried out every year as on the first ofApril for making officials eligible for wages indicated in paras (ii) and (iii) above. (vii) The above arrangement of enhanced rates of daily E. wages will be without prejudice to absorption of casual mazdoors against regular vacancies as and when they occur .... " Four years later, by an order dated 26.7.1984, the rate of wages payable to casual labourers in Posts and Telegraphs Department, was F revised as under:· "(i) Casual semi-skilled/skilled labour who has not completed 720 days of service over a period of three years or more with the department. G No change. They will continue to be paid at the approved local rates. · (ii) Casual semi-skilled/skilled labour who has completed 720 days of service over a period of three years or more. H

p. 406 Copy page pinpoint

A Daily wage equal to 75 per cent of l/30•h of the minimum of the scale of semi-skilled (Rs.210-270) or skilled (Rs.260- 350) as the case may be, plus admissible DA/ADA thereon. (iii) Casual labour who has completed 1200 days of service over a period of 5 years or more. B Daily wage equal to 1/30'h of the minimum of the pay scale of semi-skilled (Rs.210-270) skilled (Rs.260-350) as the case may be, plus DA/ADA admissible thereon. (iv) All the casual semi-skilled/skilled labour will, however continue to be employed on daily wages only. c (v) These orders for enhanced rates for category (ii) and (iii)abovewilltakeetfectfromApril I, 1984. (vi) A review for making further officials eligible for wages vide (ii) and (iii) above will take effect as on first of April D every year. (vii) If the rates calculated vide (ii) and (iii) above happen to be less than the approved local rates, payment shall be made as per approved local rates for above categories of labour. E (viii) The above arrangements of enhanced rates of daily wages will be without prejudice to absorption of casual semi- skilled/skilled labour against regular vacancies as and when they occur ..... " (iii) Aggrieved by the discrimination made against them, through F the aforementioned orders dated I5.5.1980 and 26. 7.1984, the Mazdoor Manch submitted a statement of demands, inter alia, claiming the same salary an<lallowances and other benefits, as were being paid to regular and permanent employees of the Union of India, in the corresponding · cadres. The aforesaid demands were departmentally rejected on 13 .12.1985. h is, therefore, that the petitioners approached this Court G for the redressal of their grievances.

(iv) Before this Court the Union of India contended, that the einployees in question belonged to the category of casual labourers, and had not been regularly employed. As such, it was urged that they were not entitled to the same privileges, which were extended to regular H

STATE OF PUNJAB & ORS. v. JAGJIT SINGH & ORS. 407 [JAGDISH SINGH KHEHAR, J.]

employees. A (v) This Court while adjudicating upon the controversy, took into consideration the fact that, the employees in question were rendering the same kind of service which was being rendered by regular employees. The submission advanced before this Court, on behalf of the casual labourers, was under Article 38(2) of the Constitution, which provides 8 that "The State shall, in particular, strive to minimize the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations." It was also urged on behalf of the employees, that the State could not deny (at least) the minimum pay in the pay-scales of regularly employed c workmen, even though the Government may not be compelled to extend all the benefits enjoyed by regularly recruited employees. (vi) While adjudicating upon the controversy, this Court expressed the view, that the denial of wages claimed by the workers in question, amounted to exploitation of labour. It was held, that the Government D cannot take advantage of its dominant position, and compel any worker to work even as a casual labourer on starvation wages. It was pointed out, that a casual labourer who had agreed to work on such low wages, had done so, because he had no other choice. In the opinion of this Court, it was poverty, that had driven the workers to accept such low wages. In the above view of the matter, in the facts and circumstances of the case, this Court held that classification of employees into regularly recruited employees and casual employees for the purpose of paying less than the minimum wage payable to employees in the corresponding regular cadres, particularly in the lowest rung in the department, where the pay-scales were the least, was not tenable. This Court also held that the classification oflabourers into three categories (depicted in the orders dated 15.5.1980 and 26.7.1984, extracted above) for the purpose of payment of wages at different rates, was not tenable. It was held, that such a classification was violative ofArticles 14 and 16 of the Constitution, besides being opposed to the spirit of Article 7 of the International G Covenant on Economic, Social and Cultural Rights, 1966, which exhorts all State parties to ensure fair wages am;! equal wages for equal work. Accordingly, this Court directed the Union of India, and the other respondents, to pay wages to the workmen, who were engaged as casual labourers, belonging to different categories, at rates equivalent to the H

p. 408 Copy page pinpoint

A minimum pay, in the pay-scales of regularly employed workers, in the corresponding cadres, but without any increments. The workers were also held to be entitled to corresponding dearness allowance and additional dearness allowance, if any, payable thereon, It was also directed, that whatever other benefits were being extended to casual labourers hitherto before, would be continued. B

30Copy pinpoint30. Harbans Lal v. State of Himachal Pradesh 23 , decided by a two-Judge bench: The petitioners in this case were Carpenters (I" and 2"d grade), employed at the Wood Working Centre of the Himachal Pradesh State Handicraft Corporation. They were termed as daily- rated employees. Their claim in their petition was for emoluments in c terms of wages paid to their counterparts in regular Government service, under the principle of 'equal pay for equal work'. On the factual matrix, based on the averments made in the pleadings, this Court felt thatlhe Corporation with which the petitioners were employed, had no regularly employed Carpenter. It is, therefore evident, that the claim of the petitioners was only with reference to Carpenters engaged in different Government services. In the instant factual backdrop, this Court expressed the view, that the claim made by the petitioners could not be accepted, because the discrimination complained of, must be within.the same establishment, owned by the same management. It was emphasized, that a comparison under the principle of 'equal pay for equal work' could not be made with counterparts in other establishments, having a different management, or even with establishments in different geographical locations, though owned by the same master. It was held, that unless it was shown, that there was discrimination amongst the same set of employees under the same master, in the same establishment, the principle of'equal pay for equal work' would not be applicable. It is, therefore, that the claim of the petitioners was rejected.

31Copy pinpoint31. Grih Kalyan Kendra Workers' Union v. Union oflndia~. decided by a two-Judge bench: The workers' union had approached this Court, for the first time, in 1984, by filing writ petition no. 13924ofl 984. In the above petition, the relief claimed was for payment of wages under the principle of 'equal pay for equal work'. The petitioners sought parity with employees of the New Delhi Municipal Committ!)e, and also, with · employees of other departments of the Delhi Administration, and the Union oflndia. They approached this Court again by filing civil writ

H "(1989)4 sec 459

STATE OF PUNJAB & ORS. v. JAGJIT SINGH & ORS. 409 [JAGDISH SINGH KHEHAR, J.]

petition no. 869of1988, which was disposed of by the above cited case. A (ii) The petitioners were employees ofGrih Kalyan Kendras. They desired the Union of India, to pay them wages in the regular pay-scales, at par with other employees performing similar work, under the New Delhi Municipal Committee, or the Delhi Administration, or the Union of India. It would be relevant to mention, that the petitioner- Workers' B Union, was representing employees working on ad-hoc basis. Some of· them were being paid a fixed salary (described as honorarium), while others were working on piece-rate wages at the production centres, without there being any provision for any scale of pay, or other benefits like gratuity, pension,'provident fund etc. c (iii) This Court, in the first instance, endeavoured to deal with the question, whether employers of these workers, were denying them wages as were being paid to other similarly placed employees, doing the same or similar work. The question came to be examined on account of the fact, that unless the petitioners could demonstrate, that the employees of the Grih Kalyan Kendras were being discriminated against, on the subject of pay and other emoluments, with other similarly placed employees, the principle of'equal pay for equal work' would not be applicable. During the course of the first adjudication, in writ petition no. 13924of1984, this Court requested a former Chief Justice of India to make recommendations after taking into consideration, firstly, whether other similarly situated employees (engaged in similar comparable works, putting in comparable hours of work, in a comparable employment) were being paid higher pay, and if so, what should be the entitlement of the agitating employees, in order to comply with the principle of 'equal pay for equal work'; and secondly, ifthere is no other similar comparable employment, whether the remuneration of the agitating employees deserved to be revised, on the ground that their remuneration was unconscionable or unfair, and if so, to what extent. Pursuant to the above request, the former Chief Justice oflndia, concluded, that there was no employment comparable to the employment held by those engaged by the Grih Kalyan Kendras, and therefore, they could not seek parity with employees, working either under the New Delhi Municipal Committee, or the Delhi Administration, or the Union oflndia. (iv) Based on the aforesaid factual conclusion, this Court held, that the concept of equality implies and requires equal treatment, for those who are situated equally. Comparison between unequals is not H

410 SUPREME COURT REPORTS [20 I6] 7 S.C.R.

A possible. Since the workers who had approached this Court had failed to establish, that they were situated similarly as others, they could not be extended benefits which were being given to those, with whom they claimed parity. And therefore, since there were no other employees comparable to the employees working in the Grih Kalyan Kendras, this Court declined to entertain the prayer made by the petitioners. B

32Copy pinpoint32. Ghaziabad Development Authority v. Vikram Chaudhai:y~4• decided by a two-Judge bench: The respondents in this case were engaged by the Ghaziabad Development Authority, on daily-wage basis. The instant judgment has been referred to only because it was cited by the learned counsel for the appellants. In the cited case, the claim raised c by the respondents was not based on the principle of 'equal pay for equal work', yet it would be relevant to mention, that while disposing of the appeal preferred by the Ghaziabad Development Authority, this Court held that the respondents, who were engaged as temporary daily-wage employees, would not be entitled to pay at par with regular employees, D but would be entitled to pay in the minimum wages prescribed under the statute, if any, or the prevailing wages as available in the locality. It would, therefore, be improper for us to treat this judgment as laying down any principle emerging from the concept of 'equal pay for equal work'.

33Copy pinpoint33. State ofHai:yana v. Jasmer Singh~5 • decided by a two-Judge bench: The respondents were employed as Mali-cum-Chowkidars/Pump Operators on daily-wage basis, under the employment of the Government of Haryana. They had approached the High Court claiming the same salary as was being paid to the regularly employed persons, holding similar posts in the State of Haryana. The instant prayer was made by the respondents, under the principle of 'equal pay for equal work'. The above prayer made by the respondents, was granted by the High Court. The High Court issued a direction to the State Government, to pay the respondents, the same salary and allowances as were being paid to regular employees holding similar posts, with effect from the dates on which the respondents were engaged by the State Government. (ii) This Court held, that the respondents who were employed on daily-wage basis, could not be treated at par with persons employed on regular basis, against similar posts. It was concluded, that daily-rated "< 1995) s sec 210 H "<1996)11SCC77

STATE OF PUNJAB & ORS. v. JAGJIT SINGH & ORS. 411 [JAGDISH SINGH KHEHAR, J.]

workers were not required to possess the qualifications required for A regular workers, nor did they have to fulfill the postulated requirement of age, at the time of recruitment. Daily-rated workers, it was felt, were not selected in the same manner as regular employees, inasmuch as, their selection was not as rigorous as that of employees selected on regular basis. This Court expressed the view, that there were also other 8 provisions relating to regular servic.e, such as the liability ofa member of . the service to be transferred, and his being subjected to disciplinary jurisdiction. It was pointed out, that daily-rated employees were not subjected to either of the aforesaid contingencies/consequences. In view of the aforesaid consideration, this Court held that the respondents, who were employed on daily-wage basis, could not be equated with regular c employees for purposes of their wages, nor were they entitled to obtain the minimum of the regular pay-scale extended to regular employees. This Court, however held, that if a minimum wage was prescribed for such workers, the respondents would be entitled to it, if it was higher than the emoluments which were being paid to them. D (iii) It would be relevant to mention that in the above decision this Court took notice of the fact, that the State ofHaryana had taken policy decisions from time to time to regularize the services of the employees, similarly placed as the respondents, wherein daily-wage employees on completion of 3/5 years' service, were entitled to regularization. On their being regularized, they were entitled to wages payable to regular employees.

34Copy pinpoint34. State of Punjab v. Devinder Singh~. decided by a two-Judge bench: The respondents were daily-wage Ledger-Keepers/Ledger Clerks engaged by the State of Punjab. They approached the Punjab & Haryana High Court, claiming salary and allowances, as were being paid to regular employees holding similar posts. The High Court held in their favour, and directed the State Government to pay to the respondents, salary and allowances, as were being paid to regular employees holding similar posts. The aforesaid decision was rendered because the High Court accepted their contention, that they were doing the same work as was taken from regular Ledger-Keepers/Ledger Clerks. Their prayer was accordingly accepted, under the principle of 'equal pay for equal work'. (ii) This Court was of the view that the principle of 'equal pay for --- "" <1998) 9 sec 595 H

412 SUPREME COURT REPORTS [2016] 7 S.C.R.

A equal work' could enure to the benefit of the respondents to the limited extent, that they could have been paid the minimum of the pay-scale of Ledger-Keepers/Ledger Clerks, appointed on regular basis. This conclusion was drawn by applying the principle of'equal pay for equal work'. This Court, therefore, allowed the prayer made by the State Government to the aforesaid limited extent. The right claimed by the B respondents, to be paid in the same time scale, as regularly employed Ledger-Keepers/Ledger Clerks were being paid, was declined.

35Copy pinpoint35. State ofHaryana v. Tilak RaF7• decided by a two-Judge bench: Thirty five respondents were appointed at different points of time, as Helpers on daily-wages by the Haryana Roadways. They filed a writ c petition before the Punjab and Haryana High Court, claiming regularization because they had rendered long years of service. They also claimed salary, as was payable to regular employees, engaged for the same nature of work, as was being performed by them. Even though, the High Court did not accept the prayer made by the respondents, either for D regularization or for payment of wages at par with regular employees, it directed the State of Haryana to pay to the respondents, the minimum pay in the scale of pay applicable to regular employees. The State of Haryana being aggrieved by the order passed by the High Court, approached this Court. E (ii) While disposing of the appeal preferred by the State ofHaryana, this Court accepted the contention advanced on its behalf, that a scale of pay is attached to a definite post. This Court also accepted, that a daily-wager holds no post. In view of the above factual/legal position, this Court arrived at the conclusion, that the prayer made by the respondents before the High Court, that they be granted emoluments in F the pay-scale of the regular employees, could not be acceded to. Since no material was placed before the High Court, comparing the nature of duties of either category, it was held, that it was not possible to hold that the principle of 'equal pay for equal work' could be invoked by the respondents, to claim wages in the regular pay-scale. G (iii) Despite having found that the respondents were not eligible to claim wages in the regular scale of pay, on account of the fact that they were engaged on daily-wage basis, this Court directed the State of Haryana to pay to the respondents, the minimum wages as prescribed for such workers. H 21 (2003) 6 sec 123

STATE OF PUNJAB & ORS. v. JAGJIT SINGH & ORS. 413 [JAGDISH SINGH KHEHAR, J.]

36Copy pinpoint36. Secretary, State of Karnataka v. UmadevF8 , decided by a A five-Judge Constitution Bench: Needless to mention, that the main proposition canvassed in the instant judgment, pertained to regularization of government servants, based on the employees having rendered long years of service, as temporary, contractual, casual, daily-wage or on ad- hoc basis. It is, however relevant to mention, that the Constitution Bench 8 did examine the question of wages, which such employees were entitled to draw. In paragraph 8 of the judgment, a reference was made to civil appeal nos. 3595-612of1999, wherein, the respondent-employees were temporarily engaged on daily-wages in the Commercial Taxes Department. As they had rendered service for more than I 0 years, they claimed permanent employment in the department. They also claimed c benefits as were extended to regular employees of their cadre, including wages (equal to their salary and allowances) with effect from the dates from which they were appointed. Even though the administrative tribunal had rejected their claim, by returning a finding, that they had not made out a case for payment of wages, equal to those engaged on regular basis, the High Court held that they were entitled to wages, equal to the salary of regular employees of their cadre, with effect from the date from which they were appointed. The direction issued by the High Court resulted in payment of higher wages retrospectively, for a period of I 0 and more years. It would also be relevant to mention, that in passing the above direction, the High Court had relied on the decision rendered by a three-Judge bench of this Court in Dharwad District PWD Literate Daily-Wage Employees Association v. State of Karnataka~•. The Constitution Bench, having noticed the contentions of the rival parties, on the subject of wages payable to daily-wagers, recorded its conclusions as under:- F "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 employees of their cadre in government service, witl1 effect from the dates from which they were respectively appointed. The objection G 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 employees be paid salary equal ----- " (2006> 4 sec 1 "< t990J 2 sec 396 H

414 SUPREME COURT REPORTS [2016] 7 S.C.R.

A 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. !D.Y!!ll10t open to the High Court to impose such an obligation on the State when the very question before the High Court in the case was whether these B 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. We are, therefore, of the view that, at best. the Division Bench of the High Court should have directed that wages c equal to the salary that is being paid to regular employees be paid to these daily-wage employees with effect from the date ofits judgment. Hence, that part of the direction of the Division Bench is modified and it is directed that these daily-wage earners be paid wages equal to the salary at the lowest grade of employees of their cadre in the D Commercial Taxes Department in government service, from . the date of the 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 Courts are not expected to E issue directions for making such persons permanent in service, we set aside that part of the direction of the Hjgh Court directing the Government to consider their cases for regularization. We also notice that the High Court has not adve11ed to the aspect as to whether it was regularization or it was giving permanency that was being directed by the F 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 process of selection. G But when regular recruitment is undertaken, the respondents in C.A. Nos. 3595-3612 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 weightage for their having been engaged for work in the Department for a significant period of time. H J.

STATE OF PUNJAB & ORS. v. JAGHT SINGH & ORS. 415 (JAGDISH SINGH KHEHAR, J.]

That would be the extent of the exercise of power by this A Court under Article 142 of the Constitution to do justice to them." We have extracted the aforesaid paragraph, so as not to make any inference on our own, but to project the determination rendered by the Con$titution Bench, as was expressed by the Bench. We have no B hesitation in concluding, that the Constitution Bench consciously distinguished the issue of pay parity, from the issue of absorption/ regularization in service. It was held, that on the issue of pay parity, the High Court ought to have directed, that the daily-wage workers be paid wages equal to the salary at the lowest grade of their cadre. The Constitution Bench expressed the view, that the concept of equality would c not be applicable to the issue of absorption/regularization in service. And conversely, on the subject of pay parity, it was unambiguously held, that daily-wage earners should be paid wages equal to the salary at the lowest grade (without any allowances).

37Copy pinpoint37. State of Haryana v. Charanj it Singh30, decided by a three- D Judge bench: A large number of civil appeals were collectively disposed of by a common order. In all these appeals, the respondents were daily- wagers, who were appointed as Ledger Clerks, Ledger Keepers, Pump Operators, Mali-cum-Chowkidar, Fitters, Petrol Men, Surveyors, etc. All of them claimed the minimum wages payable under the pay-scale extended to regular Class-IV employees. The above relief was claimed with effect from the date of their initial appointment. It would be relevant to mention, that while the appeals disposed of by the common order were pending before this Court, all the respondents were regularized. From the date of their regularization, they were in any case, being paid salary in the scales applicable to regular Class-IV employees~ The limited question which came up for adjudication before this Court in the matters was, whether the directions issued by the High Court to pay the minimum wage in the scale payable to Class-IV employees to the respondents, from the date of their filing the respective petition before the High Court, was required to be interfered with. While adjudicating upon the aforesaid issue, this Court made the following observations:- a " 19. Having considered the authorities and the submissions we are of the view that the authorities in the cases of State of Haryana v. Jasmer Singh, (1996) 11 SCC 77, State of Haryana v. Tilak Raj, (2003) 6 SCC 123, Orissa University "' (2006) 9 sec 321 H

416 SUPREME COURT REPORTS [2016] 7 S.C.R.

A ofAgriculture & Technology v. Manoj K. Mohanty, (2003) 5 SCC 188, Govt. ofW.B. v. Tarun K. Roy, (2004) I SCC 347, 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 in a Court of law. But equal pay must be for equal work of equal value. The principle of B "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, as against those who were left out. Of course, the qualities or characteristics must have a c reasonable relation to the 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 an acceptable reason for pay differentiation. D 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 arc different, then also the doctrine may have no application. Even though persons 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 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 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 may entail may differ from job to job. lt cannot be judged by the mere volume of work. There may be H

STATE OF PUNJAB & ORS. v. JAGJIT SINGH & QRS. 417 [JAGDISI:I SINGH KHEHAR, J.]

qualitative difference as regards reliability and responsibility. A Functions may be the same but the responsibilities make a , difference. Thus normally the applicability of this principle must be left to be evaluated and determined by an expert body. These are not matters where a writ court can l\ghtly interfere. Normally a party claiming equal pay for equal 8 work should be required to raise a dispute in this regards. In any event the party who claims equal pay for equal work 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 c basis of material placed before it. convinced that there was 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 without examining any relevant factors." Having made the above observations, the judgments rendered by the High Court were set aside, and the matters were remanded back to the High Court, to examine each case in order to determine whether the respondents were discharging the same duties and responsibilities, as the employees with whom they claimed parity. In sum and substance therefore, this Court acceded to the proposition that daily-wagers who were rendering the same duties and responsibilities as regular employees, would be entitled to the minimum wage in the pay-scale payable to regular employees. It is only because the said factual determination had not been rendered by the High Court, the matter was remanded back, for a fresh adjudication on the above limited issue.

38Copy pinpoint38. State of U.P. v. Putti LaP 1, decided by a three-Judge bench: The question which arose for adjudication was, Whether the respondents who were daily-rated wage earners in the Forest Department, were G- entitled to regularization, and should be paid the minimum of the pay- scale as was payable to a regular worker, holding a corresponding post in the Government. On the above issue, this Court in the above judgment, recorded the following conclusion:- " 12006) 9 sec 337 H

418 SUPREME COURT REPORTS [2016] 7 S.C.R.

A "5. In several cases this Court applying the principle of equal pay for equal work has held that a daily-wager, if he is discharging the similar duties as those in the regular employment of the Government, should at least be entitled to receive the minimum of the pay scale though he might not be entitled to any increment or any other allowance B that is pennissible to his counterpa11 in the Government. In our opinion that would be the correct position and we, therefore, direct that these daily-wagers would be entitled to draw at the minimum of the pay scale being received by their counterpai1s in the Government and would not be c e1~titled to any other allowances or increment so long as they continue as daily-wagers. The question of their regular absorption will obviously be dealt with in accordance with the statutory rules already referred to." It is therefore apparent, that in the instant judgment, the three- D Judge bench extended the benefit of the principle of'equal pay for equal work' to persons engaged on daily-wage basis ..

39Copy pinpoint39. State of Punjab v. Surjit Singh;', decided by a two-Judge bench: The respondents in the above mentioned matter, were appointed in different posts in the Public Health Department of the State of Punjab. E All of them were admittedly appointed on daily-wage basis. Inter alia, because the respondent-employees had put in a number of years of service, they were held by the High Court to be entitled to the benefit of the principle of 'equal pay for equal work'. In the challenge raised before this Court, it was concluded as under:-

F "36. With utmost respect, the principle, as indicated hereinbefore, has undergone a sea change. We are bound by the decisions of larger Benches. This Court had been insisting on strict pleadings and proof of various factors as indicated hereto before. Furthennore, the burden of proof even in that case had wrongly been placed on the State G which in fact lay on the writ petitioners claiming similar penefits. The factual matrix 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 ---- H " (2009) 9secs14

STATE OF PUNJAB & ORS. v. JAGJIT SINGH & ORS. 419 [JAGDISH SINGH KHEHAR, J.]

noticed by us also had some role to play." A Rather than determining whether or not the respondents were entitled to any benefit under the principle of 'equal pay for equal work', on account of their satisfying the conditions stipulated by this Court in different judgments including the one in State of Haryana v. Charanjit Singh30 , this Court while disposing of the above matter, required the B State to examine the cases of the respondents by appointing an expert committee, which would determine whether or not the parameters laid down in the judgments rendered by this Court, would entitle the respondent-employees to any benefit under the principle of 'equal pay for equal work'. Herein again, the principle in question, was considered as applicable to temporary employees. c

40Copy pinpoint40. Uttar Pradesh Land Development Corporation v. Mohd. Khursheed Anwar'3, decided by a two-Judge bench: In the instant case, the respondents were employed on contract basis, on a consolidated monthly salary of Rs.2000/-. Prior to their appointment, they were interviewed by a selection committee alongwith other eligible candidates, D and were found to be suitable for the job. Their contractual appointment was continued from time to time. Though they were employed on contract basis, the fact that two posts of Assistant Engineer and one post of Junior Engineer were vacant at the time of their engagement, was not disputed. The respondents were not given any specific designation. E The Allahabad High Court, while accepting the claim filed by the respondents, held that they were entitled to wages in the regular pay- scale of Rs.2200-4000, prescribed for the post of Assistant Engineer. (ii) This Court, while adjudicating upon the controversy arrived at the conclusion, that the High Court had granted relief to the respondents on the assumption that two vacant posts of Assistant Engineer were utilized for appointing the respondents. The above impression was found to be ex-facie fallacious, by this Court. This Court was of the view, that the orders of appoint;nent issued to the respondents, did not lead to the inference, that they were appointed against the two vacant posts of Assistant Engineer. Despite the above, this Court held, that the decision of the appellant Corporation to effect economy by depriving the respondents even, the minimum of pay-scale, was totally arbitrary and unjustified. This Court expressed the view, that the very fact that the respondents were engaged on a consolidated salary of Rs.2000 per " (201 O) 1 sec 739 H

420 SUPREME COURT REPORTS (2016) 7 S.C.R.

A month, while the prescribed pay-scale of the post of Assistant Engineer in the other branches was Rs.2200-4000, and that of Junior Engineer was Rs.1600-2660, was sufficient to infer, that both the respondents were engaged to work against the posts of Assistant Engineer. The appellants were directed to pay emoluments to the respondents, at the minimum of the pay-scale, prescribed for the post of Assistant Engineer B (as revised from time to time), from the date of their appointment, till they continued in the employment of the Corporation.

41Copy pinpoint41. Surendra Nath Pandey v. Uttar Pradesh Cooperative Bank Ltd. 3\ decided by a two-Judg_e bensll: The appellants in the above mentioned case, were appointed during 1978 to 1981 on daily-wage basis, c by the U.P. Cooperative Bank Ltd. Upto 30.6.1981, they were paid daily-wages. From 1.7.1981, they were paid consolidated salary ofRs.368 per month, which was increased to Rs.575 per month with effect from 1.4.1982. From I. 7.1983, they were extended the benefit of minimum in the pay-scale applicable to regular employees, with allowances, but without yearly increments. Based on regulations framed for regularization of ad-hoc appointees in 1985, the appellants were regularized from different dates in 1985-86, whereafter, they were paid wages in the regular pay-scale, with all allowances. In 1990, they approached the Allahabad High Court, seeking benefit of regular pay-scale, allowances and other benefits, which were extended to regular employees, with effect from the date of their original appointment. Their claim was rejected by the High Court. While adjudicating upon the appeal preferred by the appellants, this Court held as undcr:- "9. We are of the view that the real issue is whether persons employed on stopgap or ad hoc basis were entitled to the benefit of pay scales with increments during the period of service on daily or stopgap or ad hoc basis. Unless the appellants are able to establish that either under the contract, or applicable rules. or settled princi11les of service jurisprudence, they are entitled to the benefit of pay scale with increments during the period of their stopgap/ad hoc service, it cannot be said that the appellants have the right to claim the benefit of pay scales with increments." The Consideration

42Copy pinpoint42. All the judgments noticed in paragraphs 7 to 24 hereinabove, ---- H "(20IOJ 12 sec 400

STATE OF PUNJAB & ORS. v. JAGJIT SINGH & ORS. 421 [JAGDISH SINGH KHEHAR, J.]

pertain to employees engaged on regular basis, who were claiming higher wages, under the principle of 'equal pay for equal work'. The claim raised by such employees was premised on the ground, that the duties and responsibilities rendered by them, were against the same post for which a higher pay-scale was being allowed, in other Government departments. Or alternatively, their duties and responsibilities were the same, as of other posts with different designations, but they were placed in a lower scale. Having been painstakingly taken through the parameters laid down by this Court, wherein the principle of 'equal pay for equal work' was invoked and considered, it would be just and appropriate, to delineate the parameters laid down by this Court. In recording the said parameters, we have also adverted to some other judgments pertaining c to temporary employees (also dealt with, in the instant judgment), wherein also, this Court had the occasion to express the legal position with reference to the principle of 'equal pay for equal work'. Our consideration, has led us to the following deductions:- (i) The 'onus of proof, of parity in the duties and responsibilities D of the subject post with the reference post, under the principle of'equal pay for equal work', lies on the person who claims it. He who approaches the Court has to establish, that the subject post occupied by him, requires him to discharge equal work of equal value, as the reference post (see- the Orissa University ofAgriculture & Technology case 10, Union Territory Administration, Chandigarh v. Manju Mathur';, the Steel Authority of E India Limited case 16, and the National Aluminum Company Limited case 18 ). (ii) The mere fact that the subject post occupied by the claimant, is in a "different department" vis-a-vis the reference post, does not have any bearing on the determination of a claim, under the principle of'cqual pay for equal work'. Persons discharging identical duties, cannot be treated differently, in the matter of their pay, merely because they belong to different departments of Government (see-the Randhir Singh case', and the D.S. Nakara case~). (iii) The principle of'cqual pay for equal work', applies to cases of unequal scales of pay, based on no classification or irrational classification (sec - the Randhir Singh case'). For equal pay, the concerned employees with whom equation is sought, should be performing work, which besides being functionally equal, should be of the same quality and sensitivity (see - the Federation of All India Customs and H

422 SUPREME COURT REPORTS (2016] 7 S.C.R.

A Central Excise Stenographers (Recognized) case', the Mewa Ram Kanojia case 5, the Grih Kalyan Kendra Workers' Union case 6 and the 1 S.C. Chandra case ~). (i,v) Persons holding the same rank/designation (in different departments), but having dissimilar powers, duties and responsibilities, B can be placed in different scales of pay, and cannot claim the benefit of the principle of 'equal pay for equal work' (see - the Randhir Singh case 1, State of Haryana v. Haryana Civil Secretariat Personal Staff Association9 , and the Hukum Chand Gupta case 17 ). Therefore, the principle would not be automatically invoked, merely because the subject and reference posts have the same nomenclature. c (v) In determining equality offunctions and responsibilities, under the principle of 'equal pay for equal work', it is necessary to keep in mind, that the duties of the two posts should be of equal sensitivity, and also, qualitatively similar. Differentiation of pay-scales for posts with difference in degree ofresponsibility, reliability and confidentiality, would fall within the realm of valid classification, and therefore, pay differentiation would be legitimate and permissible (see-the Federation of All India Customs and Central Excise Stenographers (Recognized) case, and the State Bank of India case 8). The nature of work of the subject post should be the same and not less onerous than the reference post. Even the volume of work should be the same. And so also, the level of responsibility. If these parameters are not met, parity cannot be claimed under the principle of'equal pay for equal work' (see - State of U.P. v. J.P. Chaurasia4, and the Grih Kalyan Kendra Workers' Union case").

F (vi) For placement in a regular pay-scale, the claimant has to be a regular appointee. The claimant should have been selected, on the basis of a regular process of recruitment. An employee appointed on a temporary basis, cannot claim to be placed in the regular pay-scale (see - the Orissa University of Agriculture & Technology case 10). (vii) Persons performing the same or similar functions, duties and G responsibilities, can also be placed in different pay-scales. Such as - 'selection grade', in the same post. But this difference must emerge out of a legitimate foundation, such as - merit, or seniority, or some other relevant criteria (see - State of U.P. v. J.P. Chaurasia4 ). (viii) If the qualifications for recruitment to the subject post vis-a- H

STATE OF PUNJAB & ORS. v. JAGJIT SINGH & ORS. 423 [JAGDISH SINGH KHEHAR, J.)

vis the reference post are different, it may be difficult to conclude, that the duties and responsibilities of the posts are qualitatively similar or comparable (see - the Mewa Ram Kanojia case;, and Government of W.B. v. Tarun K. Roy"). In such a cause, the principle of 'equal pay for equal work', cannot be invoked. (ix) The reference post, with which parity is claimed, under the principle of 'equal pay for equal work', has to be at the ~ame hierarchy in the service, as the subject post. Pay-scales of posts may be different, ifthe hierarchy of the posts in question, and their channels of promotion, are different. Even if the duties and responsibilities are same, parity would not be permissible, as against a superior post, such as a promotional post (see - Union oflndia v. Pradip Kumar Dey\ and the Hukum Chand c Gupta case 17). (x) A comparison between the subject post and the reference post, under the principle of'equal pay for equal work', cannot be made, where the subject post and the reference post are in different establishments, having a different management. Or even, where the establishments are in different geographical locations, though owned by the same master (see - the Harbans Lal case~'). Persons engaged differently, and being paid out of different funds, would not be entitled to pay parity (see - Official Liquidator v. Dayanand 13 ). (xi) Different pay-scales, in certain eventuali_ties, would be permissible even for posts clubbed together at the same hierarchy in the cadre. As for instance, if the duties and responsibilities of one of the posts are more onerous, or are exposed to higher nature of operational work/risk, the principle of 'equal pay for equal work' would not be applicable. And also when, the reference post includes the responsibility to take crucial decisions, and that is not so for the subject post (see-the State Bank of India case8). (xii) The priority given to different types of posts, under the prevailing policies of the Government, can also be a relevant factor for placing different posts under different pay-scales. Herein also, the principle of 'equal pay for equal work' would not be applicable (see - State of Haryana v. Haryana Civil Secretariat Personal Staff Association 9). (xiii) The parity in pay, under the principle of 'equal pay for equal work', cannot be claimed, merely on the ground, that at an earlier point H

424 SUPREME COURT REPORTS [2016] 7 S.C.R.

A of time, the subject post and the reference post, were placed in the same pay-scale. The principle of'equal pay for equal work' is applicable only when it is shown, that the incumbents of the subject post and the reference post, dischargr similar duties and responsibilities (see - State of West Bengal v. West Bengal Minimum Wages Inspectors Association'-1). B (xiv) For parity in pay-scales, under the principle of'equal pay for equal work', equation in the nature of duties, is of paramount importance. If the principal nature of duties of one post is teaching, whereas that of the other is non-teaching, the principle would not be applicable. If the dominant nature of duties of one post is of control and management, c whereas the subject post has no such duties, the principle would not be applicable. Likewise, if the central nature of duties of one post is of quality control, whereas the subject post has minimal duties of quality control, the principle would not be applicable (see - Union Territory Administration, Chandigarh v. Manju Mathur 15). D (xv) There can be a valid classification in the matter of pay-scales, between employees even holding posts with the same nomenclature i.e., between those discharging duties at the headquarters, and others working at the institutional/sub-office level (see - the Hukum Chand Gupta case 17), when the duties are qualitatively dissimilar. E (xvi) The principle of 'equal pay for equal work' would not be applicable, where a differential higher pay-scale is extended to persons discharging the same duties and holding the same designation, with the objective of ameliorating stagnation, or on account oflack of promotional avenues (see - the Hukum Chand Gupta case' 7). F (xvii) Where there is no comparison between one set of employees of one organization, and another set of employees of a different organization, there can be no question of equation of pay-scales, under the principle of 'equal pay for equal work', even if two organizations have a common employer. Likewise, ifthe management and control of G two organizations, is with different entities, which are independent of one another, the principle of'equal pay for equal work' would not apply (see - the S.C. Chandra case'~, and the National Aluminum Company Limited case 18).

43Copy pinpoint43. We shall now venture to summarize the conclusions recorded by this Court, with reference to a claim of pay parity, raised by temporary H

STATE OF PUNJAB & ORS. v. JAGJIT SINGH & ORS. 425 [JAGDISH SINGH KHEHAR, J.]

employees (differently designated as work-charge, daily-wage, casual, A ad-hoc, contractual, and the like), in the following two paragraphs.

44Copy pinpoint44. We shall first outline the conclusions drawn in cases where a claim for pay parity, raised at the hands of the concerned temporary employees, was accepted by this Court, by applying the principle of 'equal pay for equal work', with reference to regular employees:- B (i) In the Dhirendra Chamoli case 19 this Court examined a claim for p:iy parity raised by temporary employees, for wages equal to those being disbursed to regular employees. The prayer was accepted. The actioa of not paying the same wage, despite the work being the same, was considered as violative of Article 14 of the Constitution. It was c held, that the action amounted to exploitation - in a welfare state committed to a socialist pattern of society. (ii) In the Surinder Singh case~0 this Court held, that the right of equai wages claimed by temporary employees emerged, inter alia, from Article 39 of the Constitution. The principle of 'equal pay for equal D work' was again applied, where the subject employee had been appointed on temporary basis, and the reference employee was borne on the permanent establishment. The temporary employee was held entitled to wages drawn by an employee on the regular establishment. In this judgment, this Com1 also took note of the fact, that the above proposition was affirmed by a Constitution Bench of this Court, in the D.S. Nakara E case~.

(iii) In the Bhagwan Dass case~ 1 this Court recorded, that in a claim for equal wages, the duration for which an employee would remain (-or had remained) engaged, would not make any difference. So also, the manner of selection and appointment would make no difference. F And therefore, whether the selection was made on the basis of open competition or was limited to a cluster of villages, was considered incor!sequcntial, insofar as the applicability of the principle is concerned. And likewise, whether the appointment was for a fixed limited duration (six months, orone year), or for an unlimited duration, was also considered G inconsequential, insofar as the applicability of the principle of'equal pay for equal work' is concerned. It was held, that the claim for equal wages would be sustainable, where an employee is required to discharge similar duties and responsibilities as regular employees, and the concerned empbyee possesses the qualifications prescribed for the post. In the H

426 SUPREME COURT REPORTS [2016] 7 S.C.R.

A above case, this Court rejected the contention advanced on behalf of the Government, that the plea of equal wages by the employees in question, was not sustainable because the concerned employees were engaged in a temporary scheme, and against posts which were sanctioned on II year to year basis. B. (iv) In the Daily Rated Casual Labour Employed under P&T Department through Bhartiya Dak Tar Mazdoor Manch case~~ this Court held, that under principle flowing from Article 38(2) of the Constitution, Government could not deny a temporary employee, at least the minimum wage being paid to an employee in the corresponding regular cadre, alongwith dearness allowance and additional dearness allowance, as well c as, all the other benefits which were being extended to casual workers. It was also held, that the classification of workers (as unskilled, semi- skilled and skilled), doing the same work, into different categories, for payment of wages at different rates, was not tenable. It was also held, that such an act of an employer, would amount to exploitation. And D further that, the same would be arbitrary and discriminatory, and therefore, violative ofArticles 14 and 16 of the Constitution. (v) In State of Punjab v. Devinder Singh~6 this Court held, that daily-wagers were entitled to be placed in the minimum of the pay-scale of regular employees, working against the same post. The above direction was issued after accepting, that the concerned employees, were doing the same work as regular incumbents holding the same post, by applying the principle of 'equal pay for equal work'. (vi) In the Secretary, State of Kamataka case~8 , a Constitution Bench of this Court, set aside the judgment of the High Court, and directed that daily-wagers be paid salary equal to the lowest grade of salary and allowances being paid to regular employees. Importantly, in this case, this Court made a very important distinction between pay parity and regularization. It was held that the concept of equality would not be applicable to issues of absorption/regularization. But, the concept was held as applicable, and was indeed applied, to the issue of pay parity- if the work component was the same. The judgment rendered by the High Court, was modified by this Court, and the concerned daily-wage employees were directed to be paid wages, equal to the salary at the lowest grade of the concerned cadre. (vii) In State ofHaryana v. Charanjit Singh 30, a three-Judge bench H

STATE OF PUNJAB & ORS. v. JAGJIT SINGH & ORS. 427 [JAGDISH SINGH KHEHAR, J.]

of this Court held, that the decisions rendered by this Court in State of A Haryana v. Jasmer Singh 25 , State of Haryana v. Tilak Raf7, the Orissa University ofAgriculture & Technology case 10, and Government ofW.B. v. Tarun K. Roy 11 , laid down the correct law. Thereupon, this Court declared, that if the concerned daily-wage employees could establish, that they were performing equal work of equal quality, and all other B relevant factors were fulfilled, a direction by a Court to pay such employees equal wages (from the date of filing the writ petition), would be justified. (viii) In State ofU.P. v. Putti Lal3 1, based on decisions in several cases (wherein the principle of 'equal pay for equal work' had been invoked), it was held, that a daily-wager discharging similar duties, as c those engaged on regular basis, would be entitled to draw his wages at the minimum of the pay-scale (drawn by his counterpart, appointed on regular basis), but would not be entitled to any other allowances or incre:nents. (ix) In the Uttar Pradesh Land Development Corporation case 33 D this Court noticed, that the respondents were employed on contract basis, on a consolidated salary. But, because they were actually appointed to perform the work of the post of Assistant Engineer, this Court directed the employer to pay the respondents wages, in the minimum of the pay- scales ascribed for the post of Assistant Engineer. E

45Copy pinpoint45. We shall now attempt an analysis of the judgments, wherein this Court declined to grant the benefit of 'equal pay for equal work' to temporary employees, in a claim for pay parity with regular employees:- (i) In the Harbans Lal case2', daily-rate employees were denied the c!aimed benefit, under the principle of 'equal pay for equal work', F because they could not establish, that the duties and responsibilities of the post(s) held by them, were similar/equivalent to those of the reference posts, under the State Government. (ii) In the Grih Kalyan Kendra Workers' Union case6 , ad-hoc employees engaged in the Kendras, were denied pay parity with regular G employees working under the New Delhi Municipal Committee, or the Delhi Administration, or the Union of India, because of the finding returned in the report submitted by a former Chief Justice oflndia, that duties and responsibilities discharged by employees holding the reference posts, were not comparable with the posts held by members of the H

428 SUPREME COURT REPORTS [2016] 7 S.C.R.

A petitioner union. (iii) In State ofHaryana v. Tilak Raf 7, this Court took a slightly different course. while detennininga claim for pay parity, raised by daily- wagers (-th..: respondents). It was concluded, that daily-wagers held no post, and as such, could not be equated with regular employees who B held regular posts. But herein also, no material was placed on record, to establish that the nature of duties performed by the daily-wagers, was comparable with those discharged by regular employees. Be that as it may, it was directed, that the State should prescribe minimum wages for such workers, and they should be paid accordingly. c (iv) In State of Punjab v. Surjit Singh'~, this Court held, that forthe applicability of the principle of'equal pay for equal work', the respondents who were daily-wagers, had to establish through strict pleadings and proof, that they were discharging similar duties and responsibilities, as were assigned to regular employees. Since they had not done so, the matter v.as remanded back to the High Court, for a re-determination on D the above position. It is therefore obvious, that this Court had accepted, that where duties, responsibilities and functions were shown to be similar, the principle of'equal pay for equal work' would be applicable, even to temporary employees (otherwise the order of remand, would be meaningless, and an exercise in futility). E (vi) It is, therefore apparent, that in all matters where this Court did not extend the benefit of 'equal pay for equal work' to temporary employees, it was because the employees could not establish, that they were rendering similar duties and responsibilities, as were being discharged by regular employees, holding corresponding posts.

46Copy pinpoint46. We have consciously not referred to the judgment rendered by this Court in State of Haryana v. Jasmer Singh~ 5 (by a two-Judge divisio1~ bench), in the preceding two paragraphs. We are of the considered view, that the above judgment, needs to be examined and explaim:d independently. Learned counsel representing the State G government, had placed emphatic reliance on this judgment. Our analysis is recorded hereinafter:- ( i) In the above case, the respondents who were daily-wagers were claiming the same salary as was being paid to regular employees. A series of reasons were recorded, to deny them pay parity under the principle of 'equal pay for equal work'. This Court expressed the view, H

STATE OF PUNJAB & ORS. v. JAGJIT SINGH & ORS. 429 [JAGDISH SINGH KHEHAR, J.]

that daily-wagers could not be treated at par with persons employed on regular basis, because they were not required to possess qualifications prescribed for appointment on regular basis. Daily-wagers, it was felt, were not selected in the same manner as regular employees, inasmuch as, a.regular appointee had to compete in a process of open selection, and would be appointed, only ifhe fell within the zone of merit. It was also i'elt, that daily-wagers were not required to fulfill the prescribed requirement of age, at the time of their recruitment. And also because, regular employees were subject to disciplinary proceedings, whereas, daily-wagers were not. Daily-wagers, it was held, could also not be equated with regular employees, because regular employees were liable to be transferred anywhere within their cadre. This Court therefore c held, that those employed on daily-wages, could not be equated with regular employees, and as such, were not entitled to pay parity, under the principle of 'equal pay for equal work'. (ii) First and foremost, it is necessary to emphasise, that in the course of its consideration in State of Haryana v. Jasmer Singh' 5, this D Court's attention had not been invited to the judgment in the Bhagwan Dass case' 1, wherein on some of the factors noticed above, a contrary view was expressed. In the said case, this Court had held, that in a claim for equal wages, the manner of selection for appointment wou Id not make any difference. It will be relevant to notice, that for the posts under reference in the Bhagwan Dass case' 1, the selection of those appointed on regular basis, had to be made through the Subordinate Selection Board, by way of open selection. Whereas, the selection of the petitioners as daily-wagers, was iimited to candidates belonging to a cluster of villages, and was not through any specialized selection body/ agency. Despite thereof, it was held, that the benefit under the principle of 'equal pay for equal work', could not be denied to the petitioners. The aforesaid conclusion was drawn on the ground, that as long as the petitioners were perfonning similar duties, as those engaged on regular basis (on corresponding posts) from the standpoint of the doctrine of 'equal pay for equal work', there could be no distinction on the subject of payment of wages. G

(iii) Having noticed the conclusion drawn in State of Haryana v. Jasmer Singh' 5 , it would be relevant to emphasise, that in the cited judgments (noticed in paragraph 26 onwards, upto paragraph 41 ), the employees concerned, could not have been granted the benefit of the H

430 SUPREME COURT REPORTS [2016) 7 S.C.R.

A principle of 'equal pay for equal work' (in such of the cases, where it was so granted), because temporary employees (daily-wage employees, in the said case) are never ever selected through a process of open selection, by a specialized selection body/agency. We would therefore be obliged to follow the large number of cases where pay parity was granted, rather than, the instant singular judgment recording a divergent B view. (iv) Temporary employees (irrespective of their nomenclature) are also never governed by any rules of disciplinary action. As a matter of fact, a daily-wager is engaged only for a day, and his services can be dispensed with at the end of the day for which he is engaged. Rules of c disciplinary action, are therefore to the advantage ofregular employees, and the absence of their applicability, is to the disadvantage of temporary employees, even though the judgment in State of Haryana v. Jasmer Singh~ 5 , seems to project otherwise.

(v) Even the issue of transferabi Iity ofregular employees referred D to in State of Haryana v. Jasmer Singh~ 5 , in our view, has not been examined closely. Inasmuch as, temporary employees can be directed to work anywhere, within or outside their cadre, and they have no choice but to accept. This is again, a further disadvantage suffered by temporary employees, yet the judgment projects as if it is to their advantage. E (vi) It is also necessary to appreciate, that in all temporary appointments (-work-charge, daily-wage, casual, ad-hoc, contractual, and the like), the distinguishing features referred to in State ofHaryana v. Jasmer Singh~5, are inevitable, yet in all the judgments referred to above (rendered before and after, the judgment in the State of Haryana F v. Jasmer Singh~5 ), the proposition recorded in the instant judgment, was never endorsed. (vii) It is not the case of the appellants, that the respondent- employees do not possess the minimum qualifications required to be possessed for regular appointment. And therefore, this proposition would G not be applicable to the facts of the cases in hand. (viii) Another reason for us in passing by, the judgment in State of Haryana v. Jasmer Singh~ is, that the bench deciding the matter had in 5

mind, that daily-wagers in the State of Haryana, were entitled to regularization on completion of3/5 years of service, and therefore, all the concerned employees, would in any case be entitled to wages in the H

STATE OF PUNJAB & ORS. v. JAGJIT SINGH & ORS. 431 [JAGDISH SINGH KHEHAR, J.]

regular pay-scale, after a little while. This factual position was noticed in the judgment itself. (ix) It is not necessary for us to refer the matter for adjudication to a larger bench, because the judgment in State of Haryana v. Jasmer Singh'\ is irreconcilable and inconsistent with a large number of judgments, some of which are by larger benches, where the benefit of the p• inciple in question was extended to temporary employees (including daily-wagers). (x) For all the above reasons, we are of the view that the claim of the appellants cannot be considered, on the basis of the judgment in State of Haryana v. Jasmer Singh 25 • c

47Copy pinpoint47. We shall now endeavour to examine the impugned judgments.

48Copy pinpoint48. First and foremost, it is essential for us to deal with the judgment dated 11.11.2011 rendered by the full bench of the High Court (in Avtar Singh v. State of Punjab & Ors., CWP no. 14796 of2003). A perusal of the above judgment reveals, that the High Court conspicuously focused its attention to the decision of the Constitution Bench in the Secretary, State ofKarnataka case 28 • While dealing with the above judgment, the full bench expressed the view, that though at the first impression, the judgment appeared to expound that payment of minimum wages drawn by regular employees, had also to be extended to persons employed on temporary basis, but a careful reading of the same would show that, that was not so. Learned counsel, representing the State of Punjab, reiterated the above position. In order to understand the tenor of the aforesaid assertion, reference was made to paragraphs 44 and 48, of the judgment of the Constitution Bench, which are extracted hereunder:- F "44. The concept of"equal pay for equal work" is different 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 G forthe application of that principle. The decisions are rested on the concept of equality enshrined iri 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 made without H

432 SUPREME COURT REPORTS [2016] 7 S.C.R.

A 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 cause or matter pending before this Court, would not normally be used for giving the B go-by to the procedure established by law in the matter of public employment. ... . . ..It would not be just or proper to pass an order in exercise ofiurisdiction under Article 226 or 32 of the Constitution or in exercise of power under Article 142 of the Constitution c 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 t~e relief, this Court would not grant a relief which would al!lount to perpetuating an illegality. xxx xxx xxx ,;,.·. 48. It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the department concerned on a wage that was made known to them. There is no case that the wage agreed upon was not br.ing paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employmenton daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made pennanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on

STATE OF PUNJAB & ORS. v. JAGJIT SINGH & ORS. 433 (JAGDISH SINGH. KHEHAR, J.]