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

daily wages or temporarily or on contractual basis, to claim. A that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be B treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant c recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled." We have given our thoughtful consideration to the observations recorded by this Court, as were relied upon by the full bench (-as also, by the learned counsel representing the State of Punjab). It is not possible for us to concur with the inference drawn by the full bench, for the reasons recorded hereunder:- (i) We are of the considered view, that in paragraph 44 extracted above, the Constitution Bench clearly distinguished the issues of pay parity, and regularization in service. It was held, that on the issue of pay parity, the concept of'equality' would be applicable (as had indeed been appli-;d by the Court, in various decisions), but the principle of'equality' could not be invoked for absorbing temporary employees in Government servi.;e, or for making temporary employees regular/permanent. All the observations made in the above extracted paragraphs, relate to the subject ofiegularization/permanence, and not, to the principle of'equal pay for equal work'. As we have already noticed above, the Constitution Bench unambiguously 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 ofthei~ cadre. This deficiency was made good, by making such a direction. G (ii) Insofar as paragraph 48 extracted above is concerned, all that needs to be stated is, that they were merely submissions of learned ·counsel, and not conclusions drawn by this Court. Therefore, nothing further needs to be stated, with reference to paragraph 48. H

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

A (iii) We are therefore of the view, that the High Court seriously erred in interpreting the judgment rendered by this Court in the Secretary, State ofKarnataka case: 8, by placing reliance on paragraphs 44 and 48 extracted above, for drawing its inferences with reference to the subject of pay parity. On the above subject/issue, this Court's conclusions were . recorded in paragraph 55 (extracted in paragraph 36, hereinabove ), which 8 have already been dealt with by us in an earlier part of this judgment. 4<?. It would also be relevant to mention, that to substantiate its inference drawn from the judgment rendered by this Court in the Secretary, State ofKarnataka case:8 , the full bench of the High Court, placed reliance on State of Punjab v. Smjit Singh'\ and while doing so, c reference was made to the following observations recorded in paragraphs 27 to 30 (of the said judgment). Learned counsel for the State of Punjab has reiterated the abO\ e position. Paragraphs 27 to 30 aforementioned are bein~ extracted hereunder:- "27. While laying down the law that regularization under D the constitutional scf1eme is wholly impermissible, the Court in State ofKarnataka v. Umadevi (3), (2006) 4 SCC I, had issued certain directions relating to the employees in the services of the Commercial Taxes Department, as noticed herein before. The employees of the Commercial Taxes E Department were in service for more than ten years. They were appointed in 1985-1986. They were sought to be regularized in terms of a scheme. Recommendations were made by the Director, Commercial Taxes for their absorption. It was only when such recommendations were not acceded to, the Administrative Tribunal was approached. F It rejected their claim. The High Court, however, allowed their prayer which was in question before this Court.

28. This Court stated: (Secretary, State of Karnataka v. Umadevi, (2006) 4 SCC I, pp. 19-20, para 8)

G "8. . .. It is seen that the High Court without really coming to grips with the qu.estion falling for decision in the light of the findings of the Administrative Tribunal and the decisions ofthis Court, proceeded to order that they are entitled to wages equal to the salary and allowances that are being paid to the regular employees H

STATE OF PUNJAB & ORS. v. JAGJIT SINGH & ORS. 435 [JAGDISH SINGH KHEHAR, J.]

of their cadre in government service with effect from the dates from which they were respectively appointed. It may be noted that this gave retrospective effect to the judgment of the High Court by more than 12 years. The High Court also issued a command to the State to consider their cases for regularisation within a period of four months from the date of receipt of that order. The High Court seems to have proceeded on the basis that, whether they were appointed before 1-7-1984, a situation covered by the decision of th is Court in Dharwad District PWD Literate Daily Wage Employees Assn. v. State of Karnataka, (1990) 2 SCC c 396, and the scheme framed pursuant to the direction thereunder, or subsequently, since they have worked for a period of I 0 years, they were entitled to equal pay for equal work from the very inception of their engagement on daily wages and were also entitled to be considered D for regularisation in their posts."

29. It is in the aforementioned factual backdrop, this Cou11 in exercise of its jurisdiction under Article 142 of the Constitution of India, directed: (Secretary, State of Karnataka v. Umadevi, (2006) 4 SCC I, p. 43, para 55) E "55. . .. 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 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 the courts are not expected to issue directions for making such persons permanent in service, we set aside that part of the direction of the High Court directing the Government to consider their cases for regularisation. We also notice that the High Court has not adverted to the aspect as to whether it was regularisation or it was giving permanency that was being directed by the High Court. H

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A 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. But when regular recruitment is unde11aken, B the respondents in CAs Nos. 3595-612 and those in the Commercial Taxes Depa11ment similarly situated, will be allowed to compete, waiving the age restriction imposed for the recruitment and giving some weightage fortheir having been engaged for work in the Department c for a significant period of time. That would be the extent of the exercise of power by this Court under Article 142 of the Constitution to do justice to them."

30. We, therefore, do not see that any law has been laid down in para 55 of the judgment in Umadevi case. D Directions were issued in view of the limited controversy. As indicated, the State's grievances were limited." Yet again, we are of the view, that the full bench erred in referring to the a!Jove observations, to draw its conclusions. Our reasons are summarized hereinbelow:- E (i) It is apparent, that this Court in State of Punjab v. Surjit Singh 3', did hold, that the determination rendered in paragraph 55 of the judgment in the Secretary, State ofKarnataka case' 8 , was in exercise of the power vested in this Court, under Article 142 of the Constitution oflndia. But the above observation does not lead, to the conclusion or the inference, that the principle of 'equal pay for equal work' is not applicable to temporary employees. In fact, there is a positive take-away for the temporary employees. The Constitution Bench would, in the above situation, be deemed to have concluded, that to do complete justice to the cause of temporary employees, they should be paid the minimum wage of a regular employee, discharging the same duties. It needs to be noticed, that on the subject of pay parity, the findings recorded by this Court in the Secretary, State of Karnataka case'8 , were limited to the conclusions recorded in paragraph 55 thereof(which we have dealt with above, while dealing with the case law, on the principle of'equal pay for equal work'). H (ii) Even in the case under reference - State of Punjab v. Surjit

STATE OF PUNJAB & ORS. v. JAGJJT SINGH & ORS. 437 [JAGDISH SINGH KHEHAR, J.]

Singh32, this Court accepted the principle of'equal pay for equal work', A as ap11licable to temporary employees, by requiring the State to examine the claim of the respondents for pay parity, by appointing an expert committee. The expert committee was required to determine, whether the respondents satisfied the conditions stipulated in differentjudgments of this Court including State of Punjab v. Charanjit Singh30, wherein this B Court had acceded to the proposition, that daily-wagers who were rendering the same duties and responsibilities as regular employees, would be er.titled to the minimum wage payable to regular employees. And had therefore, remanded the matter back to the High Court for a fresh adjudication. Paragraph 38 of the judgment in State of Punjab v. Surjit Singh32, wherein the remand was directed, is being extracted below:- c "38. We, therefore, are of the opinion that the interest of justice would be subserved ifthe State is directed to examine the cases of the respondents herein by appointing an expert committee as to whether the principles of law laid down herein viz. as to whether the respondents satisfy the factors for invocation of the decision in State ofHaryana v. Charajnit Singh, (2006) 9 SCC 321 in its entirety including the question of appointment in terms of the recruitment rules have been followed." (iii) For all the above reasons, we are of the view, that the claim of the temporary employees, for minimum wages, at par with regularly engaged Government employees, cannot be declined, on the basis of the judgment in State of Punjab v. Surjit Singh':.

50Copy pinpoint50. The impugned judgment rendered by the full bench, also relied upon the judgment in Satya Prakash v. State of Bihar3;, which also attempted to interpretthejudgment in the Secretary, State ofKarnataka F case:8 • Learned counsel for the State of Punjab also referred to the same, to canvass the case of the State government. Relevant observations reiied upon, are reproduced below:- "7. We are of the view that the appellants are not entitled to get the benefit ofregularization of their services since G they were never appoinred in any sanctioned posts. The appellants were only engaged on daily wages in · the Bihar Intermediate Education Council. "(2010)4 sec 119 H

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

A 8. In State of Karnataka v. Umadevi (3), (2006) 4 SCC I, this Court held that the Courts are not expected to issue any direction for absorption/regularization or permanent continuance of temporary, contractual, casual, daily-wage or ad hoc employees. This Court held that such directions issued could not be said to be inconsistent with the B constitutional scheme of public employment. This Court held that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent. merely on the strength c of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. In view of the law laid down by this Court, the directions sought for by the appellants cannot be granted.

D 9. Paragraph 53 of Umadevi (3) judgment, deals with ir:egular appointments (not illegal appointments). The Constitution Bench specifically referred to the judgments in State of Mysore vs. S.V. Narayanappa, AIR 1967 SC 1071, and R.N. Nanjundappa vs. T. Thimmiah, (1972) I SCC 409, in para 15 ofUmadevi (3)judgment as well. Let E us refer to paras I 5 and 16 ofUmadevi (3)judgment in this context. xxx xxx xxx I'.;. In our view, the appellants herein would fall under the F category of persons mentioned in paras 8 and 55 of the judgment and not in para 53 ofjudgment ofUmadevi (3)." Yet again, all that needs to be stated is, that the observations relied upon by the full bench of the High Court, dealt with the. issue of regularization, and not with the concept of 'equal pay for equal work'. G Paragraph 7 extracted above, leaves no room for any doubt, that the issue being considered in the Satya Prakash case 35 , pertained to regularization of the appellants in service. Our view, that the issue being dealt with pertained to regularization gains further ground from the fact (recorded in paragraph I of the above judgment), that the appellants in the Satya Prakash case;; had approached this Court, to claim the benefit H

STATE OF PUNJAB & ORS. v. JAGJIT SINGH & ORS. 439 [JAGDISH SINGH KHEHAR, J.]

of paragraph 53 of the judgment in the Secretary, State of Karnataka A case~ 8 • Paragraph 53 aforementioned, is reproduced below:-

51Copy pinpoint51. The full bench of the High Court, while adjudicating upon the above controversy had concluded, that temporary employees were not H

440 SUPREME COURT REPORTS [2016} 7 S.C.R.

A entitled to the minimum of the regular pay-scale, merely for the reason, that the activities carried on by daily-wagers and regular employees were similar. The full bench however, made two exceptions. Temporary ''>-'

employees, wrlo fell in either ofthe two exceptions, were held entitled to wages a~ the minimum of the pay-scale drawn by regular employees. The exceptions recorded by the full bench of the High Court in the B impugned judgment are extracted hereunder:- "( I) A daily wager, ad hoc or contractual appointee against the regular sanctioned posts, if appointed after undergoing a selection process based upon fairness and equality of opportunity to all other eligible candidates, shall be entitled c to minimum of the regular pay scale from the date of engagement. (2) But if daily wagers, ad hoc or contractual appointees are not appointed against regular sanctioned posts and their services are availed continuously, with notional breaks, by the State Government or its instrumentalities for a sufficient long period i.e. for I 0 years, such daily wagers, ad hoc or contractual appointees shall be entitled to minimum of the regular pay scale without any allowances on the assumption that work of perennial nature is available and having worked for such Jong period of time, an equitable right is created in such category of persons. Their claim for regularization, if any, may have to be considered separately in terms of legally permissible scheme. (3) In the event, a claim is made for minimum pay scale after more than three years and two months of completion of I 0 years of continuous working, a daily wager, ad hoc or contractual employee shall be entitled to arrears for a period of three years and two months." A perusal of the above conclusion drawn in the impugned judgment G (passed by the full bench), reveals that the full bench carved an exception for employees who were not appointed against regular sanctioned posts, iftheir services had remained continuous (with notional breaks, as well), for a period of I 0 years. This category of temporary employees, was extended the benefit of wages at the minimum of the regular pay-scale. In the Secretary, State of Karnataka case~8 , similarly, employees who H

STATE OF PUNJAB & ORS. v. JAGJIT SINGH & ORS. 441 [JAGDISH SINGH KHEHAR, J.]

had ~endered 10 years service, were granted an exception (refer to paragraph 53 of the judgment, extracted in the preceding paragraph). The above position adopted by the High Court re\leals, that the High Court intermingled the legal position determined by this Court on the subject of regularization of employees, while adjudicating upon the proposition of pay parity, emerging under the principle of 'equal pay for equal work'. In our view, it is this mix-up, which has resulted in the High Court recording its afore-extracted conclusions. (ii) The High Court extended different wages to temporary employees, by categorizing them on the basis of their length of service. This is clearly in the teeth ofjudgment in the Daily Rated Casual Labour Employed under P&T Department through Bhartiya Oak Tar Mazdoor c Manch case:!.:!. In the above judgment, this Court held, that classification of employees based on their length of service (- those who had not completed 720 days of service, in a period of 3 years; those who had completed more than 720 days of service - with effect from 1.4.1977; and those who had completed 1200 days of service), for payment of different levels of wages (even though they were admittedly discharging the same duties), was not tenable. The classification was held to be violative ofArticles 14 and 16 of the Constitution. (iii) Based on the consideration recorded hereinabove, the determination in the impugned judgment rendered by the full bench of the High Court, whereby it classified temporary employees for differential treatment on the subject of wages, is clearly unsustainable, and is liable to be set aside. ·· .

52Copy pinpoint52. In view of all our above conclusions, the decision rendered by the full bench of the High Court in Avtar Singh v. State of Punjab & Ors. F (CW? no. 14796 of2003), dated 11.11.2011, is liable to be set aside, and the same is hereby set aside. The decision rendered by the division bench of the High Court in State of Punjab & Ors. v. Rajinder Singh & Ors. (LPA no. 337 of2003, decided on 7.1.2009) is also liable to be set aside, and the same is also hereby set aside. We affinn the decision rendered in State of Punjab & Ors. v. Rajinder Kumar (LPA no. I024 of G 2009, decided on 30.8.2010), with the modification, that the concerned emplvyees would be entitled to the minimum of the pay-scale, of the category to which they belong, but would not be entitled to allowances attached to the posts held by them. H

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

53Copy pinpoint53. We shall now deal with the claim of temporary employees before this Court.

54Copy pinpoint54. There is no room for any doubt, that the principle of 'equal pay for equal work' has emerged from an interpretation of different provisions of the Constitution. The principle has been expounded through B a large number ofjudgments rendered by this Court, and constitutes law declared by this Court. The same is binding on all the courts in India, under Article 141 of the Constitution of India. The parameters of the principle, have been summarized by us in paragraph 42 hereinabove. The principle of 'equal pay for equal work' has also been extended to temporary employees (differently described as work-charge, daily-wage, c casual, ad-hoc, contractual, and the like). The legal position, relating to temporary employees, has been summarized by us, in paragraph 44 hereinabove. The above legal position which has been repeatedly declared, is being reiterated by us, yet again.

55Copy pinpoint55. In our considered view, it is fallacious to determine artificial parameters to deny fruits oflabour. An employee engaged for the same work, cannot be paid less than another, who performs the same duties and responsibilities. Certainly not, in a welfare state. Such an action besides being demeaning, strikes atthe very foundation of human dignity. Any one, who is compelled to work at a lesser wage, does not do so voluntarily. He does so, to provide food and shelter to his family, at the cost of his self respect and dignity, at the cost of his self worth, and at the cost of his irtegrity. For he knows, that his dependents would suffer immensely, if he does not accept the lesser wage. Any act, of paying less wages, as compared to others similarly situate, constitutes an act of exploitative enslavement, emerging out of a domineering position. F Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation.

56Copy pinpoint56. We would also like to extract herein Article 7, of the International Covenant on Economic, Social and Cultural Rights, 1966. The same is reproduced below:- G "Article 7 The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular: H

STATE OF PUNJAB & ORS. v. JAGJIT SINGH & ORS. 443 [JAGDISH SINGH KHEHAR, J.]

(a) Remuneration which provides all workers. as a minimum, A with: (i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work; 8 (ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant; (b) Safe and healthy working conditions; (c) Equal opportunity for everyone to be promoted in his c employment to an appropriate higher level, subject to no considerations other than those of seniority and competence; (d) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays." D India is a signatory to the above covenant, having ratified the same on I 0.4.1979. There is no escape from the above obligation, in view of different provisions of the Constitution referred to above, and in view of the law declared by this Court under Article 141 of the Constitution of India, the principle of'equal pay for equal work' constitutes a clear and unambiguous right and is vested in every employee - whether engaged on regular or temporary basis.

57Copy pinpoint57. Having traversed the legal parameters with reference to the application of the principle of 'equal pay for equal work', in relation to temporary employees (daily-wage employees, ad-hoc appointees, employees appointed on casual basis, contractual employees and the like), the sole factor that requires our determination is, whether the concerned employees (before this Court), were rendering similar duties and responsibilities, as were being discharged by regular employees, holding the same/corresponding posts. This exercise would require the application of the parameters of the principle of 'equal pay for equal work' summarized by us in paragraph 42 above. However, insofar as the instant aspect of the matter is concerned, it is not difficult for us to record the factual position. We say so, because it was fairly acknowledged by the learned counsel representing the State of Punjab, that all the temporary employees in the present bunch of appeals, were H

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

A appointed against posts which were also available in the regular cadre/ establishment. It was also accepted, that during the course of their employ111ent, the concerned temporal)' employees were being randomly deputed to discharge duties and responsibilities, which at some point in time, were assigned to regular employees. Likewise, regular employees holding substantive posts, were also posted to discharge the same work, B which was assigned to temporal)' employees, from time to time. There is, therefore, no room for any doubt, that the duties and responsib;lities discharged by the temporal)' employees in the present set of appeals, were tht. same as were being discharged by regular employees. It is not the case of the appellants, that the respondent-employees did not possess c the qualifications prescribed for appointment on regular basis. Furthermore, it is not the case of the State, that any of the temporal)' employees would not be entitled to pay parity, on any of the principles summarized by us in paragraph 42 hereinabove. There can be no doubt, that the principle of'equal pay for equal work' would be applicable to all the concerned temporal)' employees, so as to vest in them the right to claim wages, at par with the minimum of the pay-scale of regularly engaged Government employees, holding the same post.

58Copy pinpoint58. In view of the position expressed by us in the foregoing paragraph, we have no hesitation in holding, that all the concerned temporal)' employees, in the present bunch of cases, would be entitled to draw wages at the minimum of the pay-scale (-at the lowest grade, in the regular pay-scale), extended to regular employees, holding the same post.

59Copy pinpoint59. Disposed of in the above terms.

60Copy pinpoint60. It would be unfair for us, if we do not express our gratitude for the assislance rendered to us by Mr. Rakesh Khanna, Additional Ad\'ocate General, Punjab. He researched for us, on our asking, all the judgments on the issue of pay parity. He presented them to us, irrespective of whether the conclusions recorded therein, would or would not favour the cause supported by him. He also assisted us, on different parameters G and outlines, suggested by us, during the course of hearing. Note: The emphases supplied in all the quotations in the instant judgment, are ours.

Nidhi Jain Appeals disposed of. H