DELHI JAL BOARD vs. ITS WORKMEN

* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Reserved On: 8 September, 2017
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Pronounced on: 9 November, 2017


+ W.P (C) No. 7884/2004 & CM No. 5683/2004
DELHI JAL BOARD .... Petitioner
Through: Ms. Nandita Rao, ASC along
with Mr. Kaushal Kumar, Head
Clerk c/o AC(D), DJB
versus
ITS WORKMEN ..... Respondents
Through: Mr. Rajiv Agarwal, Advocate
with Ms. Megha De and Mr.
Sachin Kumar, Advocates
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
JUDGMENT
%
1. The eleven workmen, arrayed as respondents in the present writ
petition, were all appointed as daily wage Lower Division Clerks
(hereinafter referred to as “LDCs”), on muster roll, with the petitioner,
th th
on various dates between 15 September 1982 and 25 October 1984.
It is not in dispute that the relevant Recruitment Rules (hereinafter
referred as “RRs”) mandatorily required passing of written test and
typing test, for regular recruitment as LDC, and that none of the
respondents were, in fact, subjected to written test or typing test, prior
to their initial recruitment as “daily wage muster roll” LDCs. It was
only 12 to 14 years after the said workmen had been appointed, that
W.P.(C) No.7884/2004 Page 1 of 31



they were given an opportunity to participate in the written test and
th th
typing test on 28 July 1996 and 24 August 1996 respectively.

2. At this stage, the aforementioned workmen raised an industrial
dispute, claiming regularization, as LDCs, with effect from the
respective dates of their initial appointment, without having to
undergo any typing test. The said dispute was referred, by the
Secretary (Labour), to the Industrial Tribunal (hereinafter referred to
as “the learned Tribunal”), which registered the dispute as ID 36 of
th
1988, and adjudicated the same vide Award dated 15 July 1994.
Detailed reference, to the said Award, is not called for, as,
undisputedly, the Award was not challenged, and has attained finality.
Suffice it to state that, relying on certain earlier orders passed by, inter
alia , the Supreme Court and by this Court, the learned Tribunal held
that LDCs working on muster roll were not entitled to be regularized
from the dates of their initial appointment, without being subjected to
typing test.

3. The penultimate para of the said Award notes a submission,
mooted by the Authorized Representatives appearing for the workmen
before the learned Tribunal, that, in view of various judicial decisions,
on which they placed reliance, they be also held entitled to payment of
salary, at par with regularly appointed LDCs, w.e.f. the dates of their
initial appointment. On this suggestion, the learned Tribunal held thus:
“Learned ARs for the workmen have agreed that as held in the
above said decision relied upon by them, the workmen in this case
may also be held to be entitled to get same pay and allowances as
W.P.(C) No.7884/2004 Page 2 of 31



are being paid to the regularly appointed LDCs. This argument of
the learned ARs for the workmen has got no force. I am afraid that
no such relief can be given to the workmen in this reference. This
tribunal cannot give any award beyond the terms of reference. The
term of reference in this case is only to the effect whether the
LDCs working on M/Roll are entitled to be regularized without
being subject to typing test. There is no term of reference, if the
LDCs are entitled to same pay and allowances as are being paid to
the regular LDCs. Under these circumstances, no relief is
submitted by the Learned ARs for the workmen can be granted to
them.”

4. Consequent on the above Award, the typing test was, held, and
all the aforementioned workmen participated therein. It appears that,
nine of the aforementioned eleven workmen, namely, Y.N. Sharma,
Rajender Singh Bhadana, Ashok Kumar, Sudhir Kumar, Raj Singh,
Krishan Kumar Bhiduri, Indar Raj Kumar, Suraj Pal Singh and Dipti
Singh, cleared the written test and typing test, on the basis whereof
th
they were regularized as LDCs w.e.f. 25 September 1996. For ease of
further recital, these nine workmen would be referred to, hereinafter,
as “the first nine workmen”. The remaining two workmen, i.e.
Bhagwan Dass and Kanwar Pal, failed to clear the typing test. Their
services as LDC were, therefore, discontinued, and they were
appointed to the lower post of peon-cum-AMR, vide Memorandum
th
dated the 30 April 1996, on which post they were regularized w.e.f.
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1 April 1989. For ease of further recital, these two workmen would
be referred to, hereinafter, as “the remaining two workmen”.

5. All the aforementioned eleven workmen raised fresh industrial
disputes, claiming, this time, not only regularization as LDCs w.e.f.
W.P.(C) No.7884/2004 Page 3 of 31



their initial dates of appointment, but also for pay parity with regularly
appointed LDCs, by application of the principle “equal pay for equal
work”. Inasmuch as the case of the first nine workmen, and the
remaining two workmen, were slightly different, two distinct Terms of
th
Reference were incorporated in the Order, dated the 11 of September
th
1997, read with Corrigendum, dated the 11 of October 2000 thereto,
whereby the said disputes were referred, by the Government of the
National capital Territory of Delhi, for adjudication to the learned
Tribunal (after attempts at conciliation had failed). These two terms of
reference read as under:
“(i) Whether S/Shri Y.N. Sharma, Rajender Singh Bhadana,
Ashok Kumar, Sudhir Kumar, Raj Singh, Krishan Kumar
Bhiduri, Indar Raj Kumar, Suraj pal Singh and Dipti Singh
are entitled to be regularized on the post of LDC from their
respective initial date of appointment instead of 25.09.96
improper pay scale and whether they are entitled to a
reference from the date of appointment to 24.09.96 at par
with the regular counter parts and if so, what direction is
necessary in this regard?

(ii) Whether S/Shri BhagwanDass and Kanwar Pal muster roll
LDC are entitled to be regularized onset post from their
respective initial date of appointment improper pay scale
and whether they are entitled to wage difference for their
muster roll employment at par with the regular counterparts
and if so what direction is unnecessary in this regard?”


6. Statement of Claim was filed, by the aforementioned workmen,
th
before the learned Tribunal, which was subsequently amended on 19
October 2000.

7. The first nine workmen ventilated two grievances in the
aforementioned Statement of Claim. The first grievance was against
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the disbursal, to them, of only minimum wages, till they were
th
regularized on 25 September 1996, whereas their counterparts, who
had been appointed as regular LDCs, were being paid regular salary of
Rs 260-400/–, which was subsequently revised to Rs 950-1500/-w.e.f.
st
1 January 1986, along with other benefits. This, the said nine
workmen contended, was impermissible in law, as they were
discharging the same duties as those discharged by the regularly
appointed LDCs. They, therefore, pressed into service, in their aid, the
hallowed “equal pay for equal work” principle. The second grievance,
voiced by the said nine workmen, was against their regularization
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w.e.f. 25 September 1996, after they had qualified the written test,
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and typing test which, were held on 28 July 1996 and 24 August
1996 respectively. The workmen contended that they were entitled to
be regularized, in the regular pay scale of LDCs, w.e.f. the dates of
their initial appointment, as the posts against which they had been
appointed were permanent and regular. It was emphasized that they
had been working against vacant posts of LDC since their
appointment. Their non-regularization, it was therefore contended,
would amount to an unfair labour practice, under Section 2 (ra) read
with S. No. 10 of the Vth Schedule to the Industrial Disputes Act,
1947 (hereinafter referred to as “the Act”), and would also infract
Article 39(d) of the Constitution of India. They further contended, in
th
this connection, that the conducting of the written test on 28 July
th
1996 and the typing test on 24 August 1996 was illegal, and was also
contrary to the judgment of the Supreme Court in Bhagwati Prasad v
Delhi State Mineral Development Corporation, 1990 SCC (L & S)
W.P.(C) No.7884/2004 Page 5 of 31



174 , keeping in view the fact that they had worked as LDCs for 13 to
14 years. The Payment of Wages Act, 1936, as also the Model
Standing Orders issued under the Industrial Employment (Standing
Orders) Act, 1946, were also invoked. They also stressed the fact that
they had, to their credit, 90 days of continuous employment, which
entitled them to the status of permanent LDCs w.e.f. the dates of their
initial appointment, under the aforementioned Model Standing Orders,
as well as the fact that they were entitled to regularization as they had
completed 240 days of continuous employment in a calendar year.

8. As regards the second Term of Reference, relating to Bhagwan
Dass and Kanwar Pal, while advancing, mutatis mutandis , the above
contentions, it was further contended that their reversion, to the lower
post of peon-cum-AMR, in December 1996, on account of their
having failed to qualify the typing test, was illegal, as it had been
effected without following the principles of natural justice. It was
further contended, in this regard, that it was not permissible to revert
them to a post to which they had never been appointed in the first
place, and that, in view of their extended service, the requirement of
passing typing test ought to have been relaxed.

9. For the above reasons, it was prayed, by the respondent-
workmen, that they be regularized as LDCs with effect from the dates
of their initial appointment, and be disbursed regular salary as LDCs,
as was being paid to their counterparts who had been regularly
appointed as LDCs, with arrears. Costs were also claimed.
W.P.(C) No.7884/2004 Page 6 of 31



10. The petitioner-Management, in its Written Statement filed in
response to the aforementioned Statement of Claim of the workmen,
contended that the aforementioned workmen had been engaged for
specific work, without undergoing any selection procedure, as a stop
gap measure till the appointment of regular LDCs. They, at the time of
their initial appointment, did not fulfill the prescribed eligibility
conditions as per the RRs. Consequently, for want of fulfillment of the
requisite eligibility criteria, it was contended that the workmen were
not eligible for regularization as LDCs prior to their fulfilling the
written test/typing test and that they had been allowed to continue as
LDCs only owing to administrative reasons, as it had not been
possible to fill up the posts regularly. Later, when they were given a
chance to pass the written test and typing test, it was sought to be
pointed out, those who passed the written test and typing test (i.e. the
th
first nine workmen) were regularized as LDCs w.e.f.25 September
1996 whereas the services of those who failed the typing test (i.e. the
remaining two workmen) were discontinued, whereafter the said two
workmen were given alternative appointment as peon-cum-AMR on
th
daily wages vide memo dated 30 April 1996. It was emphasized that
this was not a reversion but a fresh appointment given after dispensing
with their service as LDCs, for failure to clear the typing test, purely
on humanitarian ground and that, it had been accepted by them. Later
st
the said two workmen were regularized as peon-cum-AMR w.e.f. 1
April 1989, which was also accepted by them.

W.P.(C) No.7884/2004 Page 7 of 31



11. The petitioner further emphasized the fact that the respondent-
workmen had suppressed the fact that LDCs who were similarly
situated had, earlier, filed CWP 4026/1991, before this Court, for
being regularized, without having to pass written test/typing test,
th
which was dismissed vide judgment dated 20 December 1991,
whereagainst they had also further moved the Supreme Court vide
Civil Appeal 3544/1992, without success. It was, therefore, contended
that the respondent-workmen were not entitled to re-agitate the same
issue all over again.

12. After hearing the parties, the learned Tribunal delivered the
th
presently impugned award on 19 October 2000, disposing of the
aforementioned reference, made to it by the Government of NCT of
th
Delhi vide order dated 11 September 1997 ( supra ).

13. Though issues were struck by the learned Tribunal, it is not
necessary to make any specific allusion thereto, as the only issues
with which this Court is concerned, in the present case, are the
entitlement of the workmen to regularization w.e.f the dates of their
initial appointments, and to disbursal of pay to them, from the dates of
th
initial appointment till 24 September 1996,at par with the pay of
regularly appointed LDCs. Certain other issues, which had been raised
by the petitioner in its written statement, such as want of espousal and
laches, were not pressed before the learned Tribunal, and have not
been raised as grounds in the present writ petition either.

W.P.(C) No.7884/2004 Page 8 of 31



14. On the issue of the entitlement, of the respondent-workmen, to
wages as were being paid to regularly appointed LDCs, from the dates
th
of their initial appointment till 25 September 1996, the impugned
award upholds the said claim, in respect of all eleven workmen. In so
holding, the learned Tribunal relies on the admitted position that the
respondent-workmen were, in fact, appointed as LDCs, and worked as
LDCs, discharging the same duties as were being discharged by
regularly appointed LDCs, from the dates of their initial appointment.
Such, it was noted, was the situation existing prior to, as well as after,
th
25 September 1996. The learned Tribunal, therefore, opined that
there was no justification to deny, to the respondent-workmen, the
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regular pay of LDCs, prior to 25 September 1996, where such pay
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had, in fact, been disbursed to them after 25 February 1996. The fact
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that the first nine workmen passed the typing test only on 25
September 1996, it was held could not be a justification therefor, as
there was no justification for the petitioner not to hold the written test
and typing test for twelve years after the workmen had initially been
appointed as LDCs. Proceeding on the above reasoning, the learned
Tribunal held that, the respondent-workmen, doing the same work as
was being done by the regularly appointed LDCs, could not be paid
merely minimum wages, while regularly appointed LDCs were being
disbursed, the prescribed salary of Rs.950-1500/-. The fact that the
work, conduct and efficiency of the respondent-workmen had never
been called into question, by the petitioner, was also noticed in this
regard.

W.P.(C) No.7884/2004 Page 9 of 31



th
15. As regards the earlier award dated 15 July 1994, the learned
Tribunal observed that, in the said case, there was no controversy
regarding the entitlement, of the workmen, to regular pay of LDCs
w.e.f. the dates of their initial appointment, as the dispute in that case
was only with respect to their right of retrospective regularization.

16. Reliance was placed, for the above findings on the following
decisions:
(i) Brahm Prakash Bhardwaj v M.C.D., 1987 (6) ELJ SC 26,
(ii) Jeet Singh v M.C.D., 1987 SCC (Lab) 32,
(iii) D.D.A. v Virender Kumar Tyagi, 1997 (7) SLR 392 ,
(iv) Bhagwati Prasad (supra) ,
(v) Surinder Singh v Engineer-in-Chief, C.P.W.D., (1986) 1 SCC
639 , and
(vi) D.G. Works, C.P.W.D. v Regional Labour Commissioner,
2002 LLR 124 .

17. Regarding the claim, of the workmen, to payment at par with
regularly appointed LDCs from the dates of their initial appointment,
the learned Tribunal held all eleven workmen to be entitled to be paid
salary at par with that paid to regularly appointed LDCs, from the date
of their initial appointment, albeit on the minimum of the scale, as
revised from time to time. Needless to say, in respect of the first nine
th
workmen, the said direction was applicable only till 24 September
th
1996 as, w.e.f. 25 September 1996, the said workmen had, in fact,
W.P.(C) No.7884/2004 Page 10 of 31



been paid the regular salary of LDCs, having been regularized as
such.

18. The petitioner was, therefore, directed to disburse the
differential wages which accrued to the respondent-workmen on this
basis.

19. Insofar as the claims for regularization as LDCs w.e.f. the dates
of their initial appointment was concerned, however, the learned
th
Tribunal held that it was bound by the earlier award, dated 15 July
1994 ( supra ), which clearly held that the first nine workmen could
th
claim regularization as LDCs only w.e.f. 25 September 1996, and
that the remaining two workmen, having failed to clear the typing test,
st
were entitled only to be regularized as peon-cum-AMR w.e.f. 01
April 1989. On this issue, therefore, the learned Tribunal held against
the workmen.

20. The directions, in the impugned Award of the Tribunal, qua the
first nine workmen, are coherent ( de hors the legality thereof, which
would be examined later), in that they have been directed, in sum, to
be paid at par with regularly appointed LDCs during their entire
service as LDCs, on the reasoning that parity in work, irrespective of
whether it was rendered on muster roll or on regular basis, merited
parity in pay. In other words, the decision of the Tribunal, in the
ultimate eventuate, qua these nine workmen, is that, while they would
th
be regularized as LDCs only w.e.f. 25 September 1996, they would,
W.P.(C) No.7884/2004 Page 11 of 31



even for the period prior thereto, be entitled to be paid wages at par
with regular LDCs, though they would be muster roll workers.

21. No incongruity is, per se , discernible therein.

22. Qua the remaining two workmen, however, the decision of the
learned Tribunal operates somewhat differently, in that, while
directing that the said workmen would also be entitled to be paid
wages disbursed to regularly appointed LDCs, from the dates of their
initial appointment, the Tribunal has, in the same breath, upheld their
st
appointment as peon-cum-AMR w.e.f. 1 April 1989. The situation
st
that would result would be that these workmen would, w.e.f. 1 April
1989, be working on the post of peon-cum-AMR, but would draw the
salary of LDCs.

23. Is this legally permissible?

24. The legal position, qua the first nine workmen, and the
remaining two workmen, therefore, merit separate consideration.

25. Ms. Nandita Rao, appearing for the petitioner-Management,
submits that there was no justification for awarding, to the workmen,
the same pay as was being disbursed to regularly appointed LDCs, till
the said workmen passed the mandatory typing test. She points out
th
that they had, in fact, been tested twice, on 28 July 1996 and 28
August 1996. Accordingly, she asserts that the impugned Award,
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insofar as it directs payment, to the workmen, regular pay as LDCs,
was unsustainable in law. Reliance is placed, by Ms. Nandita Rao, on
State of Haryana v Charanjit Singh, 2005 (8) Scale 482 .

26. Per contra, Mr. Rajeev Aggarwal, learned counsel appearing
for the respondent-workmen, would contend that there was nothing
amiss in the direction, of the Tribunal, to pay, to his clients, the wages
which were being disbursed to regularly appointed LDCs, as there
was no distinction in the work being done by his clients, vis-a-vis such
regularly appointed LDCs. On the issue of regularization, he submits
that the workmen, having been appointed as LDCs and having worked
as LDCs for years together, could not be denied regularization on the
ground of failure to pass the typing test, and that doing so would
amount to an unfair labour practice within the meaning of S. No. 10 to
the Vth Schedule of the Act. In answer to Charanjit Singh (supra) ,
Mr Aggarwal would rely on State of Punjab v Jagjit Singh, (2017) 1
SCC 148 , particularly on paras 54 to 56 of the said report.

Analysis
27. As has already been noted herein above, the learned Tribunal
granted relief, to the eleven workmen before it, i.e. to the first nine
workmen and the remaining two workmen, only to the extent of
holding them entitled to pay, at par with regular LDCs, from the dates
of their initial appointment on daily wage/muster roll basis. Qua the
first nine workmen, the said benefit would accrue only till
th th
24 September, 1996 as, w.e.f. 25 September, 1996, they were, in
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fact, regularized as LDCs and paid as such. However, qua the
remaining two workmen, i.e. Bhagwan Dass and Kanwar Pal the said
benefit would continue to accrue even thereafter, as they were never
regularized as LDCs.

28. The learned Tribunal rejected the claim, of all eleven workmen,
for regularization as LDCs w.e.f. their initial dates of appointment,
th
placing reliance for this purpose, on the earlier, award, dated 15 July,
1994. This decision is not in challenge before us, as no appeal or
other proceeding has been preferred, by any of the workmen, against
the impugned award of the learned Tribunal. None of the respondent-
workmen can, therefore, claim today, regularization as LDCs w.e.f.
their initial dates of appointment.

29. Further, insofar as the remaining two workmen i.e. Bhagwan
Dass and Kanwar Pal are concerned, the learned Tribunal upholds the
decision of the Management to appoint, and subsequently regularize,
st
them as peon-cum-AMR w.e.f. 1 April, 1989. It is undisputed that
the said two workmen accepted the said appointment, when it was
offered to them in 1996. It is also a matter of record that neither of the
said two workmen has challenged the impugned award of the learned
Tribunal; resultantly, the decision, of the learned Tribunal, in the
impugned award, to uphold the regularization, of the said two
workmen (Bhagwan Dass and Kanwar Pal) as peon-cum-AMR w.e.f.
st
1 April, 1989, has attained finality.
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30. Insofar as the status of their appointments, are concerned,
therefore the resultant situation that emerges is that (i) the first nine
th
workmen functioned as LDC on daily wage/muster roll basis till 24
th
September, 1996, and as regular LDCs w.e.f. 25 September, 1996,
whereas (ii) the remaining two workmen i.e. Bhagwan Dass and
st
Kanwar Pal, functioned as daily wage/muster roll LDCs till 1 April,
st
1989, whereas, w.e.f. 1 April, 1989, they were to be treated as having
been regularly appointed as peon-cum-AMR. The said two workmen,
i.e. Bhagwan Dass and Kanwar Pal, are also not petitioners or
appellants before us; resultantly, their status as regularly appointed
st
peons-cum-AMRs w.e.f. 1 April 1989 has necessarily to be regarded
as undisputed and unalterable.

31. What has to be seen, is that whether, in such circumstances, the
learned Tribunal was justified in granting to all the said eleven
workmen, wages as paid to regularly appointed LDCs from the dates
of their initial appointment.

32. The issue of regularization, or the date from which they are
entitled to be regularized as LDC, if at all, does not arise in respect of
any of the said eleven workmen, for three reasons. Firstly, this Court,
th
vide its judgment, dated 20 December 1991, rendered in CWP
4026/1991, has already held that passing of the typing test was a pre-
requisite for regularization as LDC, and the said decision stands
affirmed, in appeal, by the Supreme Court, vide order dated
st
1 September 1992 in Civil Appeal 3544/1992. Though neither of the
W.P.(C) No.7884/2004 Page 15 of 31



said orders is forthcoming before me, this legal position has neither
been disputed before the authorities below nor is traversed before me,
either by way of written pleadings or oral arguments. Secondly, none
th
of the said workmen challenged the award dated 15 July 1994,
th
which, relying on the aforementioned judgment dated 20 December
st
1991 of this Court and subsequent order dated 1 September 1992 of
the Supreme Court, upheld the decision of the Management to
regularize the workmen as LDCs only after they cleared the written
and typing test. The claim, of the workmen, for retrospective
regularization as LDCs after having cleared the typing test was
specifically negative by the learned Tribunal in the said award, which
was never challenged. Thirdly, none of the workmen has approached
this Court, challenging the decision of the learned Tribunal, in the
th
presently impugned award dated 19 October 2000, upholding the
th
regularization, of the first nine workmen, as LDCs only w.e.f. 25
September 1996, and the regularization of the remaining two
st
workmen, as peon-cum-AMR, w.e.f. 1 April, 1989. This Court,
therefore, is not required to examine the issue of alleged entitlement,
of the respondents, to regularization, and does not, therefore, propose
to do so either.

33. In view of the aforementioned admitted position, this Court is
required to decide whether the eleven respondent-workmen could be
granted pay, as paid to regular LDCs, w.e.f. the dates of their initial
appointment. Be it noted, the finding of the learned Tribunal, that the
said workmen, were actually discharging the same duties, as were
W.P.(C) No.7884/2004 Page 16 of 31



being discharged by the regularly appointed workmen, has not been
questioned before this Court.

34. Insofar as the first nine workmen are concerned, the issue is not
res integra , but stands concluded by the judgment of the Hon’ble
Supreme Court in State of Punjab Vs Jagjit Singh (2017) 1 SCC 148.
The said decision clearly applies, on facts as well as in law, to this
aspect of the controversy in the present case. As such it would be
necessary to dilate, to some extent, on the issues arising in Jagjit
Singh (supra) and the law laid down by the Supreme Court therein.

35. Jagjit Singh (supra) was an appeal against a judgment of the
Full Bench of the High Court of Punjab and Haryana, which, in turn,
was constituted in view of the irreconcilably divergent views
expressed by two Division Bench of the High Court in State of
Punjab v Rajender Singh (2009) SC Online P&H 125 and State of
Punjab v Rajender Kumar (2010) SCC Online P&H SCC 1009 . Both
the decisions addressed the issue of whether temporary/daily wage
employees, who claimed to be doing the same work as regular
employees holding the same post were entitled to parity of pay with
such regular employees. Rajender Singh (supra) held in the negative,
whereas Rajender Kumar (supra) held in the affirmative. The Full
Bench went on to hold that such temporary employees were not
entitled to minimum of the regular pay scale merely on the ground
that the duties discharged by them were similar to those discharged by
regular employees. To this general principle, however, the Full Bench
W.P.(C) No.7884/2004 Page 17 of 31

W.P.(C) No.7884/2004 Page 18 of 31



Agriculture & Technology case [Orissa University of Agriculture
& Technology v. Manoj K. Mohanty, (2003) 5 SCC 188 : 2003
SCC (L&S) 645] , UT Chandigarh, Admn. v. Manju
Mathur [U.T. Chandigarh, Admn. v. Manju Mathur, (2011) 2
SCC 452 : (2011) 1 SCC (L&S) 348] , SAIL
case[SAIL v. Dibyendu Bhattacharya, (2011) 11 SCC 122 :
(2011) 2 SCC (L&S) 192] andNational Aluminium Co. Ltd.
case [National Aluminium Co. Ltd. v. Ananta Kishore Rout,
(2014) 6 SCC 756 : (2014) 2 SCC (L&S) 353] ).

42.2 The mere fact that the subject post occupied by the
claimant is in a “different department” vis-à-vis the reference post
does not have any bearing on the determination of a claim under
the principle of “equal 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 the
Government (see Randhir Singh case [Randhir Singh v. U.O.I.,
(1982) 1 SCC 618 : 1982 SCC (L&S) 119] and D.S. Nakara
case [D.S. Nakara v. U.O.I., (1983) 1 SCC 305 : 1983 SCC (L&S)
145] ).

42.3 The principle of “equal pay for equal work”, applies to
cases of unequal scales of pay, based on no classification or
irrational classification (see Randhir Singh case [Randhir
Singh v. U.O.I., (1982) 1 SCC 618 : 1982 SCC (L&S) 119] ). For
equal pay, the employees concerned with whom equation is sought,
should be performing work, which besides being functionally
equal, should be of the same quality and sensitivity
(see Federation of All India Customs and Central Excise
Stenographers case [ Federation of All India Customs and
Central Excise Stenographers v. U.O.I. , (1988) 3 SCC 91 : 1988
SCC (L&S) 673] , Mewa Ram Kanojia case [ Mewa Ram
Kanojia v. All India Institute of Medical Sciences , (1989) 2 SCC
235 : 1989 SCC (L&S) 329] , Grih Kalyan Kendra Workers'
Union case [ Grih Kalyan Kendra Workers' Union v. U.O.I. ,
(1991) 1 SCC 619 : 1991 SCC (L&S) 621] and S.C. Chandra
case [ S.C. Chandra v. State of Jharkhand , (2007) 8 SCC 279 :
(2007) 2 SCC (L&S) 897 : 2 SCEC 943] ).

42.4 Persons holding the same rank/designation (in different
departments), but having dissimilar powers, duties and
responsibilities, can be placed in different scales of pay and cannot
claim the benefit of the principle of “equal pay for equal
W.P.(C) No.7884/2004 Page 19 of 31



work” (see Randhir Singh case [Randhir Singh v. U.O.I., (1982)
1 SCC 618 : 1982 SCC (L&S) 119] , State of Haryana v. Haryana
Civil Secretariat Personal Staff Assn.[State of
Haryana v. Haryana Civil Secretariat Personal Staff Assn.,
(2002) 6 SCC 72 : 2002 SCC (L&S) 822] and Hukum Chand
Gupta case [Hukum Chand Gupta v.ICAR, (2012) 12 SCC 666 :
(2013) 3 SCC (L&S) 493] ). Therefore, the principle would not be
automatically invoked merely because the subject and reference
posts have the same nomenclature.

42.5 In determining equality of functions 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 of responsibility,
reliability and confidentiality, would fall within the realm of valid
classification, and therefore, pay differentiation would be
legitimate and permissible (see Federation of All India Customs
and Central Excise Stenographers case [ Federation of All India
Customs and Central Excise Stenographers v. U.O.I. , (1988) 3
SCC 91 : 1988 SCC (L&S) 673] and SBI case [ SBI v. M.R.
Ganesh Babu , (2002) 4 SCC 556 : 2002 SCC (L&S) 568] ). 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.
Chaurasia [ State of U.P. v. J.P. Chaurasia , (1989) 1 SCC 121 :
1989 SCC (L&S) 71] and Grih Kalyan Kendra Workers' Union
case [ Grih Kalyan Kendra Workers' Union v. U.O.I. , (1991) 1
SCC 619 : 1991 SCC (L&S) 621] ).

42.6 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 Orissa University of Agriculture &
Technology case [ Orissa University of Agriculture &
Technology v. Manoj K. Mohanty , (2003) 5 SCC 188 : 2003 SCC
(L&S) 645] ).

42.7 Persons performing the same or similar functions, duties
and responsibilities, can also be placed in different pay scales.
W.P.(C) No.7884/2004 Page 20 of 31



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.
Chaurasia [ State of U.P. v. J.P. Chaurasia , (1989) 1 SCC 121 :
1989 SCC (L&S) 71] ).

42.8 If the qualifications for recruitment to the subject post vis-
à-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 Mewa Ram Kanojia case [ Mewa Ram
Kanojia v. All India Institute of Medical Sciences , (1989) 2 SCC
235 : 1989 SCC (L&S) 329] and State of W.B. v. Tarun K.
Roy [ State of W.B. v. Tarun K. Roy , (2004) 1 SCC 347 : 2004
SCC (L&S) 225] ). In such a case the principle of “equal pay for
equal work” cannot be invoked.

42.9 The reference post with which parity is claimed under the
principle of “equal pay for equal work” has to be at the same
hierarchy in the service as the subject post. Pay scales of posts
may be different, if the 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 U.O.I. v. Pradip Kumar Dey [ U.O.I. v. Pradip Kumar Dey ,
(2000) 8 SCC 580 : 2001 SCC (L&S) 56] and Hukum Chand
Gupta case [ Hukum Chand Gupta v. ICAR , (2012) 12 SCC 666 :
(2013) 3 SCC (L&S) 493] ).

42.10 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 Harbans Lal case [ Harbans
Lal v. State of H.P. , (1989) 4 SCC 459 : 1990 SCC (L&S) 71]
). Personsengaged differently, and being paid out of different funds,
would not be entitled to pay parity (see Official
Liquidator v. Dayanand [ Official Liquidator v. Dayanand , (2008)
10 SCC 1 : (2009) 1 SCC (L&S) 943] ).

42.11 Different pay scales, in certain eventualities, would be
permissible even for posts clubbed together at the same hierarchy
in the cadre . As for instance, if the duties and responsibilities of
W.P.(C) No.7884/2004 Page 21 of 31



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 SBI case [ SBI v. M.R. Ganesh Babu ,
(2002) 4 SCC 556 : 2002 SCC (L&S) 568] ).

42.12 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 Assn. [ State of Haryana v. Haryana Civil
Secretariat Personal Staff Assn. , (2002) 6 SCC 72 : 2002 SCC
(L&S) 822] ).

42.13 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 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, discharge similar duties
and responsibilities (see State of W.B. v. Minimum Wages
Inspectors Assn. [ State of W.B. v. W.B. Minimum Wages
Inspectors Assn. , (2010) 5 SCC 225 : (2010) 2 SCC (L&S) 1] ).

42.14 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, 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 U.T. Chandigarh, Admn. v. Manju
Mathur [ U.T. Chandigarh, Admn. v. Manju Mathur , (2011) 2
SCC 452 : (2011) 1 SCC (L&S) 348] ).

42.15 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
W.P.(C) No.7884/2004 Page 22 of 31



level (see Hukum Chand Gupta case [ Hukum Chand
Gupta v. ICAR , (2012) 12 SCC 666 : (2013) 3 SCC (L&S) 493]
), when the duties are qualitatively dissimilar.

42.16 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 of lack of promotional avenues (see Hukum Chand Gupta
case [ Hukum Chand Gupta v. ICAR , (2012) 12 SCC 666 : (2013)
3 SCC (L&S) 493] ).

42.17 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, if the
management and control of two organizations is with different
entities which are independent of one another, the principle of
“equal pay for equal work” would not apply (see S.C. Chandra
case [ S.C. Chandra v. State of Jharkhand , (2007) 8 SCC 279 :
(2007) 2 SCC (L&S) 897 : 2 SCEC 943] and National
Aluminium Co. Ltd. case [ National Aluminium Co.
Ltd. v. Ananta Kishore Rout , (2014) 6 SCC 756 : (2014) 2 SCC
(L&S) 353] ).”
(Emphasis Supplied)

(The guiding principles, as carved out by the Supreme Court in the
above extracted passages, have been italicized, for ready reference)

38. Thereafter the Supreme Court went on, specifically to examine
the issue of parity of pay, as claimed by temporary employees/daily
wages, with regular employees holding corresponding posts and
discharging similar duties. After referring, once again, to the various
authorities on the point, the Supreme Court concluded in para 45.5 of
the report thus:
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W.P.(C) No.7884/2004 Page 24 of 31



“49.1 We are of the considered view, that in para 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 applied by the Court, in various decisions),
but the principle of “equality” could not be invoked for absorbing
temporary employees in government service, or for making
temporary employees regular/permanent. All the observations
made in the above-extracted paragraphs, relate to the subject of
regularization/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 of
their cadre. This deficiency was made good by making such a
direction.

51.1 It is apparent that this Court in State of Punjab v. Surjit
Singh [ State of Punjab v. Surjit Singh , (2009) 9 SCC 514 : (2009)
2 SCC (L&S) 696] did hold that the determination rendered in
para 55 of the judgment in Umadevi (3) case [ State of
Karnataka v. Umadevi (3) , (2006) 4 SCC 1 : 2006 SCC (L&S)
753] , was in exercise of the power vested in this Court under
Article 142 of the Constitution of India. 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 Umadevi (3) case [ State of
Karnataka v. Umadevi (3) , (2006) 4 SCC 1 : 2006 SCC (L&S)
753] , were limited to the conclusions recorded in para 55 thereof
(which we have dealt with above, while dealing with the case law
on the principle of “equal pay for equal work”).”
(Emphasis supplied)

41. The above extracted passage, from Jagjit Singh (supra) , clearly
highlights the distinction between the claim to regularization, and the
W.P.(C) No.7884/2004 Page 25 of 31

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W.P.(C) No.7884/2004 Page 27 of 31



“additional charge”). Even if it were, therefore, to be assumed the said
two workmen were, infact, discharging duties identical to those
discharged by regularly appointed LDCs, that fact by itself would not
clothe them with the right to claim wages of regular LDCs. Per
sequitur , it was not open to the learned Tribunal either, to so direct.
The direction, in the impugned Award, to grant to the said two
workmen (Bhagwan Dass and Kanwar Pal) the wages drawn by
regularly appointed LDCs is clearly irreconcilable with its decision to
st
uphold their regularization as peon-cum-AMR w.e.f. 1 April 1989.
Regular peon-cum-AMRs could not, conceivably, be allowed the pay
of regular LDCs.

46. The decision to uphold the appointment, of the said two
st
workmen, as peon-cum-AMR w.e.f. 1 April 1989, not having been
challenged before this Court, the inevitable corollary has to be that
they would be entitled, from that date, only to the pay of peon-cum-
AMR and not to the pay of regular LDCs. The decision, of the learned
Tribunal to award, to the said two workmen i.e. Bhagwan Dass and
st
Kanwar Pal regular pay of LDCs, after 1 April 1989, deserves,
therefore, to be set aside.

47. Having said that, the said two workmen would, nonetheless, be
entitled to regular pay of LDCs at par with their nine more fortunate
st
colleagues for the period prior to 1 April 1989, starting from their
dates of initial appointment. Bhagwan Dass would, therefore, be
th st
entitled to pay regular pay of LDCs from 05 July 1983 to 31
W.P.(C) No.7884/2004 Page 28 of 31



March1989 whereas Kanwar Pal would be entitled to be similarly paid
th st st
for the period 13 July 1983 to 31 March 1989. W.e.f. 1 April 1989,
however, both the said workmen would be entitled only to be paid the
salary of peon-cum-AMR. Inasmuch as it appears that they have, in
st
fact been disbursed the pay of peon-cum-AMR after 1 April 1989, no
further benefit would accrue to either of the said workmen. Their
entitlement, would, therefore have to be restricted to the pay of
regular LDCs for the period from their dates of initial appointment till
st
31 March 1989, as already held hereinabove.The impugned award,
insofar as it grants, to the said two workmen, any amount in excess
thereof, cannot, therefore, be sustained on facts or in law.

48. Be it noted, the entitlement of these two workmen, to pay parity
with regularly appointed LDCs w.e.f dates of their initial appointment
st
till 31 March 1989, would remain, despite the fact that they never
cleared the typing test. This is for the reason that the said entitlement
is not a consequence of clearing of the typing test, but arises from the
fact that, they, like their other nine counter parts, during the said
period, discharged the same duties as were discharged by the regularly
appointed LDCs, thereby entitling them to the same pay, applying the
law laid down by the Supreme Court in Jagjit Singh(supra) .

49. Before parting with the present case, it may be noted that,
though Mr. Rajiv Aggarwal, appearing for the workmen, did seek to
contend that the acts of the petitioner-Management amounted to
“unfair labour practice” within the meaning of clause (ra) of Section 2
W.P.(C) No.7884/2004 Page 29 of 31



of the Act, it is not necessary for me to express any opinion on the
said issue, as no such finding has been returned by the learned
Tribunal, and none of the workmen have challenged the award. That
apart, it may be noted that, even if it were to be assumed, that the
petitioner had resorted to unfair labour practice qua any of the
workmen, that would only expose the petitioner to penal
consequences, as contemplated under Section 25U of the Act, and
cannot affect, or enhance, in any manner, the right of any of the
workmen to differential wages. Whether the acts of the Management
did, or did not, amount to “unfair labour practice” is, therefore, an
issue on which I do not venture to express any opinion.

50. Resultantly, the present writ petition is disposed of, as under:
th
(i) The impugned award, dated 4 October, 2002,is upheld
insofar as it
(a) rejects the respondents’ claim to regularization as
LDCs w.e.f. their initial dates of appointment,
(b) upholds the decision, of the petitioner-
Management to appoint and regularize Bhagwan Dass
st
and Kanwar Pal as peon-cum-AMR w.e.f. 1 April 1989
and
(c) grants Y.N. Sharma, Rajender Singh Bhadana,
Ashok Kumar, Sudhir Kumar, Raj Singh Chauhan,
Krishan KumarBhiduri, Inder Raj Kumar, Suraj Pal
Singh and Dipti Singh, wages as were being paid to
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