Swatanter Kumar, J. - (1.) LAW whether legislatively enacted or which finds its source as a result of consistent judicial pronouncements, commonly known as judge made law, is essentially mutable and progressive. The law must be understood and implemented in its correct perspective keeping the constitutional mandate in mind. While enforcing law, attainment of the ultimate legislative object and ends of justice should be the goal. Law with its limitations reflects the vision of the Society and its enforceability is the foundation of its acceptance. The law, as a vision, without the ability to execute, is probably an hallucination.
(2.) IN the present day to transmute the law into one understandable, executable and in consonance with the ground realities of the society is the implicit obligation of the concerned quarter. A rubric relatable to legislative or judicially enunciated law is required to achieve the Constitutional mandate. All laws must fall in comity to the constitution. The concept and principles of "equal pay for equal work" was held to be deducible from Articles 14 and 16 and 39(d) read in the light of the preamble of the Constitution. It was stated to be a constitutional goal though not expressly declared by the Constitution to be a fundamental right. An employee not regularly appointed by the employer can as a matter of rule claim equal pay for equal work or the liability of the employer would be restricted to making payment of prescribed rate for daily workers. This question hair come up for consideration before different courts on different occasions and has been answered differently, thus introducing some element of uncertainty to the judicial precepts for deciding cases involving such question. Consistent variation in judicial verdicts by different benches of this Court putatively persuaded a Division Bench of this Court to refer the matter to a larger bench. The Bench noticed the Full Bench judgments of this Court in the case of Ranbir Singh and the contrary view taken by the Latter Patent Bench in the case of Talwinder Singh. The referring bench also noticed the divergent view taken by the Hon'ble Apex Court in Devinder Singh on the one hand and in the cases of Jasmer Singh and Ghaziabad Development Authority on the other hand. A Division Bench of this Court, - vide its order dated 18th December, 1999 directed the matter to be placed before Hon'ble the Chief Justice to constitute a larger Bench at an early date for answering the point of reference. This Full Bench was, thus, constituted to answer the question formulated by the referring bench in the opening lines of the referring order, which read as under: The core question which arises for consideration and determination is as under: Whether the Petitioners who are working on daily wages as Chowkidars are entitled to the minimum of pay scale, which is admissible to a regularly employed Chowkidar? Learned Counsel for the Petitioners has contended that the Petitioners are entitled to the minimum of the pay scale paid to a regular employee as has been held in the judgment rendered by the Apex Court in Civil Appeal No. 4942 of 1997 titled as State of Punjab and Ors. v. Devinder Singh and Ors. decided on July 21, 1997 (Copy Annexure P6). Reliance has also been placed on the two judgments rendered by the learned Single Judge of this Court in C.W.P. No. 7533 of 1995 (Talwinder Singh v. State of Punjab) decided on March 18, 1998 and CWP No. 10017 of 1995 (Kulbir Singh v. State of Punjab) decided on 20th August, 1998 by relying upon the judgment of the Apex Court in Devinder Singh's case (supra). Against one of the judgments in Talwinder Singh's case (supra), LPA No. 292 of 1998 had been filed by the State which was disposed of by a Division Bench of this Court, -vide order dated 19th July, 1998. The Division Bench made reference to two different judgments rendered by the Apex Court but on facts relied upon the judgment rendered in Devinder Singh's case (supra). The judgment rendered by the Apex Court in Devinder Singh's case (supra), is in the following terms: "Leave granted. By consent of learned Counsel for the parties the appeal is taken up for final hearing. The short question is whether the High Court was justified in directing the Appellant -State to pay to the Respondents -Petitioners before the High Court the salary and allowances as are being paid to the regular employees holding similar posts and whether the Respondents could be held entitled to the payment of difference of the scale for the period of last three years from the date of filing of the writ petition. It is not in dispute and cannot be disputed that the Respondents are daily wage ledger keepers/ledger clerks. Their contention before the High Court was that they were doing the same work as regular ledger clerks who are recruited by the employer. Consequently, they must be paid equal pay on the ground of equal works. In our view, the principle of "Equal pay of Equal work". Where to the Respondent to the limited extent that when they were found to have been giving similar works as Ledger Clerks/Ledger Keepers they could have been paid the minimum of the pay scale of a Ledger Keeper which was available to regularly appointed Ledger Keepers/Ledger Clerks. Learned Counsel for the Respondents could not successfully contend that such an order should not have been passed. We, therefore, allow this appeal to the limited on the principle of "Equal pay for Equal work" to get the salary available to the Ledger Keeper/Ledger Clerks who are regularly recruited, they would be entitled to the minimum of the pay scale of the ledger keepers which may be available to the regularly appointed Ledger Keepers and they cannot be straight way paid the running time scale as they were not regularly appointed as ledger Keepers/Ledger Clerks. If the Respondents claim to be regularised, it will be open to the Respondents to approach the Appellants for the same which request obviously will be considered by the Appellants on its own merits. The direction issued by the High Court in favour of the Respondents entitling them to get salary and allowances as regularly appointed employees is set aside and instead it is directed that the Respondents will be entitled to get the minimums of the pay scale available to the Ledger Keepers/Ledger Clerks with permissible allowances on that basis and the difference between the emoluments already paid to each of the Respondents and those payable to the Respondents for a period of three years prior to filing of the writ petition and thereafter minimum salary in the time of scale of Ledger Keepers/Ledger Clerks with appropriate allowances thereon shall be available to the Respondents as long they work as daily wage Ledger Keepers/Ledger Clerks. In view of the present order if in case any amount is found to have been paid to the Respondents in excess, it will be adjusted in a phased and reasonable manner so that the Respondents may not be put out of pocket to a large extent. No costs. The judgment rendered by the Division Bench of this Court in Talwinder Singh's case (supra), LPA No. 292 of 1998, decided on July 19, 1998, is in the following terms: Application under Section 5 of the Limitation Act praying that the delay of 53 days in filing the L.P.A. may kindly be condoned for the sake of justice. By the impugned judgment, the learned Single Judge has found that the concerned workmen were appointed in the department of P.W.D. Public Health, on daily wages, and they had been working as such since several years. Their demand for payment of equal pay for equal work has been allowed and a direction has been issued for payment of arrears for the period of three years prior to the filing of the writ petition and thereafter for payment of minimum salary to them in the time scale in which each of the workmen was employed. The learned Single Judge has relied upon the decision of the Supreme Court in the case of State of Punjab v. Devinder Singh (C.A. No. 4492 of 1997), dated July 21, 1997 (Annexure A -2). Learned Counsel for the Appellant has cited, 1997 (I) S.L.R. 143; : A.I.R. 1997 SC 2129 and : 1996 (7) S.C.C. 34 to contend that the Supreme Court has taken a different view in certain cases. We find that the facts of the present case are covered by the judgment of the Supreme Court in Devinder Singh's case (supra). Since we find no merit in the appeal, we are not inclined to go into the question of 53 days delay in filing the appeal. Dismissed. Learned Counsel for the Petitioners had also relied upon an interim order dated March 22, 1999 of the Apex Court passed in Civil Appeal No. 4867 of 1998 titled as State of Punjab and Ors. v. Talwinder Singh and Ors. which is as under: We have heard the counsel for the parties on the prayer for interim relief. We direct that during the pendency of the appeal, Respondents be paid minimum of the pay scale applicable to the particular category of posts on which they have been working. They will also be paid usual allowances with effect from March 1, 1999, subject to the ultimate decision of the appeal. The application for interim relief is finally disposed of. However, the Apex Court rendered a judgment in State of Haryana and Ors. v. Jasmer Singh and Ors. CA No. 14223 of 1996 decided on 7th November, 1996, reported as 1997(1) RSJ 445, by which a bunch of appeals were decided. The Apex Court had dealt with this point and had considered number of judgments rendered by the Apex Court itself including the latest judgments rendered by the Apex Court in Ghaziabad Development Authority and Ors. v. Vikram Chaudhary and Ors. : 1995 (5) SCC 210. The excerpt of the decision on the point is as under: It is, therefore, clear that the quality of work performed by different sets of persons holding different jobs will have to be evaluated. There may be difference in educational or technical qualifications which may have a bearing on the skills which the holders bring to their job although the designation of the job may be the same. There may also be other considerations which have relevance to the efficiency in service which may justify differences in pay -scales on the basis of criteria such as experience and seniority, or a need to prevent stagnation in the cadre, so that good performance can be elicited from persons who have reached the top of the pay scale. There may be various other similar considerations which may have a bearing on efficient performance in a job. This Court has repeatedly observed that evaluation of such jobs for the purpose of pay -scale must be left to expert bodies and unless there are any mala fides, his evaluation should be accepted. This Court in the case of Harbans Lal and Ors. v. State of Himachal Pradesh and Ors. (supra) further held that daily -rated workmen who were before the Court in that case 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 the daily -rated workmen. The same position is reiterated in the case of Ghaziabad Development Authority v. Vikram Chaudhary and Ors. (supra). The Respondents, therefore, in the present appeal who are employed on daily wages cannot be treated as on par with persons in regular service of the State of Haryana holding similar posts. Daily rated workers are not required to possess the qualifications prescribed for regular workers, nor do they have to fulfil the requirements 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 workman for the purposes for their wages. Nor can they claim the minimum of the regular pay -scale of the regularly employed. 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. (emphasis supplied). XXX XXX In the premises, the appeals are allowed and judgments and orders of the High Court are set aside. There will however, be no order as to costs. Apart from the above, the principle of "Equal pay for equal work" vis -a -vis the Petitioners working on daily wage basis had also been referred to a larger bench and the Full Bench answered the reference in CWP No. 10658 of 1994, Ranbir Singh v. State of Haryana, decided on 3rd February, 1998 (reported as, 1998 (2) SCT 189). The Full Bench of this Court concluded by observing that the point of reference stood answered by a decision rendered by the Apex Court in Ghaziabad Development Authority's case (supra). The judgment rendered in Jasmer Singh's case (supra) by the Apex Court was not considered by the Apex Court in Devinder Singh's case (supra). We find that the directions given in the said case are at variance with Jasmer Singh's case (supra). In the Letters Patent Appeal in Talwinder Singh's case (supra), there is a reference to Jasmer Singh's case but there is no discussion regarding the import of the judgment. Moreover, the said judgment in Talwinder Singh's case is under consideration in appeal by the Apex Court. Since the judgment of the Apex Court rendered in Ghaziabad Development Authority's case (supra) had been duly noticed and relied upon by the Full Bench judgment of this Court and was further noticed by the Apex Court in Jasmer Singh's case and by following the same, the effect and import of the same has been explained and in view of the other judgments noticed above, we are of the opinion that the question framed in the opening paragraph of this order requires consideration by larger Bench as the same is arising and is likely to arise again and again. The office is directed to place the papers of this case before Hon'ble the Chief Justice to constitute a larger Bench at an early date for answering the point of reference.
(3.) BEFORE we proceed to discuss the various aspects which require consideration of the court to enable it to answer the question formulated above, it is necessary for us to notice judgments of the Apex Court other than the ones referred in the reference order and where somewhat divergent views have been taken. Detailed reference to some of the pertinent judgments of the Apex Court where one or the other view has been predicated for a considerable time, would help to resolve the controversy. In the cases of Randhir Singh v. Union of India and Ors. : AIR 1982 S.C. 879 and Bhagwati Par shad v. Delhi State Mineral Corporation : AIR 1990 S.C. 371, a Bench of three Hon'ble Judges of the Apex Court had enunciated the principle that right to equal pay for equal work if not equatable to a fundamental right was certainly the constitutional goal of a democratic, social and republic set up like our country. This view has been followed in various judgments and in fact till recently in the case of Food Corporation of India v. Shyamal K. Chatterjee, 2000 (4) SCT 689, and Special Leave Petition (Civil) No. 6285 of 1997, Chandigarh Administration and Ors. v. Ved Pal and Ors. decided on October 17, 2000.;