- (1.) WE have heard Sri Ram Gopal Tripathi, learned Counsel for the appellant and the learned Standing Counsel for the State-respondents and also perused the judgment of the Hon'ble Single Judge dated 24- 8-2006 whereby Civil Misc. Writ Petition No. 45238 of 2006 of the appellant has been dismissed.
(2.) LEARNED Counsel for the appellant vehemently contended that pursuant to the order dated 29-3-1989 passed by the Secretary, Non Conventional Energy Development Agency, U. P. , Lucknow, the petitioner- appellant was engaged on a sanctioned post of Peon on daily wage basis vide order dated 31-3-1989/1- 4-1989 by the Pariyojna Adhikari, NEDA, Kanpur and since then he is continuously working in Class-IV on daily wage basis. It is further contended that since the post is duly sanctioned and for the last more than 15 years he is working, therefore, he is also entitled to get salary at the minimum of the regular pay scale applicable to Class-IV Employee. The respondents are acting arbitrarily by denying regular pay scale to the appellant and their action is in violation of fundamental right of equal pay for equal work. He further contended that the Hon'ble Single Judge has erred in law by dismissing the writ petition relying on the judgment of the Hon'ble Apex Court in the case of State of U. P. v. Neeraj Awasthi and Ors. , 2006 (1) LBESR 726 (SC) : JT 2006 (1) SC 19, since the aforesaid judgment has no application in his case. In our view, none of the aforesaid submissions has any force. Admittedly, the appointment of the petitioner-appellant was on daily wage basis without making any advertisement of the vacancy and without giving opportunity of right to consideration to all other eligible persons consistent with Article 16 of the Constitution of India.
(3.) IT is not in dispute that the petitioner-appellant is being paid minimum wages as prescribed under the Minimum Wages Act. The contention of the learned Counsel for the petitioner-appellant that the petitioner-appellant is entitled for the minimum of the basic pay scale of the regular employee, is unsustainable since a regular pay scale is available to the persons, who are appointed regularly in accordance with the rules and after undergoing regular process of selection consistent with Article 16 of the Constitution of India. The question as to whether the principles of equal pay for equal work and the minimum at the basic pay of the regular pay scale when applicable, has been considered by the Hon'ble Apex Court in the case of State of Haryana and Ors. v. Charanjit Singh, 2006 (1) LBESR 198 (SC) : JT 2005 (12) SC 475 and in para-17 of the judgment it has been observed as under : "having considered the authorities and the submissions we are of the view that the authorities in the cases of Jasmer Singh, Tilak Raj, Orissa University of Agriculture and Technology and Tarun K. Roy 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 "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 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. The very fact that the person has not gone through the process of recruitment itself, in certain cases, make a difference. If the educational qualifications are 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 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 reproduced 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 made a difference. Thus, normally the applicability of this principle must be left to be evaluated and determined by an expert body. These are not matter 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. " (Emphasis added);