- (1.) ARUN Tandon, J. Heard Sri Rajendra Rai, Advocate on behalf of the petitioner and learned Standing Counsel on behalf of respondents.
(2.) FROM the records of the present writ petition, it is apparently dear that the services of petitioner, who was employed as daily wage employee, were terminated under an order dated 30th June, 1992. The order dated 30th June, 1992 was challenged before this Court by means of Civil Misc. Writ Petition No. 29855 of 1992 (Mohan Prasad and Ors. v. State of U. P. and Ors. ). In the writ petition an interim order was granted by this Court dated 19th August, 1992, where under the order terminating, the petitioner's services, was stayed, and it was provided that the petitioner shall be paid salary and other benefits. It was further clarified that the order will be effective only if no substantive appointment has been made on the post held by the petitioner and the said post has not been abolished. For ready reference interim order of this Court is being quoted herein below: "issue notice. Until ordered otherwise, the operation of the impugned order dated 30-6-92 shall remain stayed. The petitioner shall be entitled to the payment of the salary and other benefits. However, it is made clear that this order will be effective only if no substantive appointment has been made on the post held by the petitioner and the said post has not been abolished. " In compliance of the interim order of this Court dated 19th August, 1992 the petitioner was restored back as daily wage employee under an order passed by the Divisional Ayurvedic Evam Unani Officer (Kshetriya Ayurvedic Evam Unani Adhikari) Azamgarh dated 13th October, 1992. It is alleged that the petitioner continued to function as daily wage employee. Writ petition No. 29855 of 1995 was ultimately disposed of finally by this Court vide judgment and order dated 9th May, 2002, which reads as follows: "no counter-affidavit has been filed. The allegations made in the writ petition remains uncontroverted. It is the case of the petitioner that he has been rendering continuous service since long period without any interruption and the interim order granted earlier is existing in this case. The said fact has not been denied by filing the counter-affidavit. The respondents shall consider the case of the petitioner for regularisation of his services in accordance with law and to pay salary, if any, due to the petitioners forthwith. With the aforesaid observations, the writ petition stands disposed of. " Thereafter a fresh order was issued by the Director, Rajkiya Evam Unani Sewa, U. P. Lucknow (respondent No. 2) dated 27th February, 2003 offering appointment to the petitioner as driver from the date of appointment on daily wage basis.
(3.) ON the strength of the aforesaid working, the petitioner seeks minimum of the pay-scale admissible to the post of driver appointed on regular basis. The issue qua the payment of minimum of the pay scale applicable to the regular employees was subject matter of consideration before the Hon'ble Supreme Court of India in the case of State of Haryana and Ors. v. Tilak Raj and Ors. reported in JT 2003 (5) SC 544, after referring to the various judgments on the subject. The Hon'ble Supreme Court of India in paragraph Nos. 7, 8, 9 and 10 has held as follows: "7. At this juncture, it would be proper to take note of what was stated in Jasmer Singh's case (supra ). In Paragraphs 10 and 11, it was noted as under:. " (10) The respondents, therefore, in the present appeals who are employed on daily wages cannot be treated as on a par with persons in regular service of the State of Haryana holding similar posts. Daily- rated workers are not required to posses the qualifications prescribed for regular workers, nor do they have to fulfil the requirement relating to age at the time of recruitment. They are not selected in the manner in which regular employees are selected. In other words the requirements for selection are not as rigorous. There are also other provisions relating to regular service such as the liability of a member of the service to be transferred, and his being subject to the disciplinary jurisdiction of the authorities as prescribed, which the daily-rated workmen are not subjected to. They cannot, therefore, be equated with regular workmen for the purposes for their wages. Nor can they claim the minimum of the regular pay scale of the regularly employed. (11) The High Court was, therefore, not right in directing that the respondents should be paid the same salary and allowances as are being paid to regular employees holding similar posts with effect from the dates when the respondents were employed. If a minimum wage is prescribed for such workers the respondents would be entitled to it if it is more than what they are being paid. " 8. In Harbans Lal's case (supra) and Vikram Chaudhary's case (supra), it was held that daily rated workmen were entitled to be paid minimum wages admissible to such workmen as prescribed and not the minimum in the pay scale applicable to similar employees in regular service unless the employer had decided to make such minimum in the pay scale applicable to the daily rated workmen. 9. In a recent case this Court in State of Orissa and Ors. v. Balaram Sahu and Ors. , speaking through one of us (Doraiswamy Raju, J) expressed the view that the principles laid down in the well considered decision of Jasmer Singh's case (supra) indicated the correct position of law. It was noted that the entitlement of the workers concerned was to the extent of minimum wages prescribed for such workers, if it is more than what was being paid to them. 10. A scale of pay is attached to a definite post and in case of a daily wager, he holds no post. The respondent workers cannot be held to hold any posts to claim even any comparison with the regular and permanent staff for any or all purposes including a claim for equal pay and allowances. To claim a relief on the basis of equality, it is for the claimants to substantiate a clear cut basis of equivalence and a resultant hostile discrimination before becoming eligible to claim rights on a par with the other group vis-a-vis an alleged discrimination. No material was placed before the High Court as to the nature of the duties of either categories and it is not possible to hold that the principle of "equal pay for equal work" is an abstract one. "equal pay for equal work" is a concept which requires for its applicability complete and wholesale identity between a group of employees claiming Identical pay scales and the other group of employees who have already earned such pay scales. The problem about equal pay cannot always be translated into a mathematical formula. ";