MADAN, J. - (1.) BY way of this petition, writ of mandamus is sought for : (1) regularising petitioner's services on the post of Asstt. Sanitary Inspector by directing the respondent Municipality to pay him salary of that post w. e. f. 17. 8. 85 when he joined, by promoting him with consequential benefits and (2) not sending back to his original post of Jamadar but for continuing to hold post of Assistant Sanitary Inspector.
(2.) AFTER issuing show cause notice on 5. 1. 90 this petition was admitted for hearing on 17. 7. 91 but till date, no reply to the petition has ever been filed by the by the respondents especially Municipality, despite specific direction issued by this Court to the respondent No. 2 on 3. 2. 98 asking for explaining the circumstances in the affidavit as to why it was chosen not to file reply though it has been pending for a decade inasmuch as further despite fresh notice having been issued on 2. 8. 2000 and served, none has appeared when final hearing has taken place. Hence, this Court has no option except to decide this writ petition only on the basis of arguments urged on behalf of the petitioner and material placed on record. The petitioner was appointed as Jamadar in place of his father who died in service, against vacant post on 28. 9. 1977 though initially temporarily but subsequently was confirmed vide order dated 4. 3. 81 (Ann. 5 ). His case was that albeit he was qualified for the post of LDC but initially he was appointed as Jamadar, therefore, he had sent representation firstly on 22. 2. 80 (Ann. 2) seeking priority for the post of LDC and further reminder on 13. 6. 1980 (Ann. 3) but he was deprived of, rather some class IV employees were promoted as L. D. C. vide order dated 15. 1. 81 (Ann. 4 ). The petitioner has produced a copy of letter dated 19. 10. 81 (Ann. 6) to show that even the Deputy Director of Local Self Department recommended his case for being considered to the post of LDC in view of his qualification but all in vain. It was also case of the petitioner that on 8. 2. 82 (Ann. 7) he again applied for grant of pay scale No. 3 of the posts of Nakedar etc. since his case for LDC could not have been yet considered, inasmuch as he sent various reminders on 22. 6. 1982, 6. 8. 82, 2. 3. 83 for giving him Scale No. 3 despite the fact that Dy. Director of Local Self Bodies by his letters dt. 2. 3. 82 (Ann. 8) & 21. 6. 82 (Ann. 9) recommended him for his recruitment as LDC. But all his efforts resulted in vain. Ultimately, he appeared in Intermediate Examination, 1983 and after having passed that examination, he also qualified examination of Sanitary Inspector in the year 1983 and therefore, he applied for being appointed as Sanitary Inspector on the vacant posts lying in the Municipality by his letter (Ann. 10) dt. 24. 11. 83. It is not in dispute rather admitted by the petitioner that as soon as he qualified the test of Sanitary Inspector, he was granted two additional grades of increment by order dated 1. 5. 85 (Ann. 11) and since he was granted two grade increments, in addition to holding of his original post of Jamadar, he was directed to supervise work as Sanitary Inspector to Ward Nos. 25 & 26 by order dated 12. 8. 85 (Ann. 12) and whereafter he was continued to work of Asstt. Sanitary Inspector in different wards and zones while holding the post of Jamadar. The petitioner has produced some of orders (Anns. 13, 14, 15, 16, 17 & 18) to show that he was posted time & again as Asstt. Sanitary Inspector in different wards. He has produced appreciation certificate (Ann. 19) issued for the year 1987-88 by the Municipality. The only grievance and controversy raised by the petitioner is that once the petitioner has been performing work of higher post holding lower post, pursuant to his posting orders since 17. 8. 85, he is entitled to the pay scale of higher post and therefore, denial of equal pay for equal work and denial for pay scale of higher post i. e. Asstt. Sanitary Inspector while holding post of lower post of Jamandar, is totally unconstitutional. Shri P. K. Sharma appearing for the petitioner placed reliance upon the decisions of Surindra Singh vs. Engineer in Chief PWD (1), & Bhgwandas vs. State of Haryana Having heard the learned counsel for the petitioner and perused the material placed alongwith writ petition, it has not been disputed during the course of hearing that though the petitioner has claimed pay scale of higher post i. e. Asstt. Sanitary Inspector w. e. f. 17. 8. 85 but it has been admitted that this pay scale has been granted to the petitioner by promoting him on 5. 8. 91 as Sanitary Inspector. Hence only grievance which remains to be considered is as to whether the petitioner is entitled to equal pay for equal work by way of promoting him as Asstt. Sanitary Inspector for the period from 17. 8. 85 to 1. 8. 91. Promotion plus higher pay scale is claimed only because the petitioner was posted to look after & supervise work of Sanitary Inspector while holding his original post of Jamadar.
(3.) IN Surinder Singh vs. Engineer in Chief PWD, ibid, the Apex Court held that the doctrine of equal pay for equal work is required to be applied to persons employed on a daily wage basis. IN Bhagwan Dass vs. State of Haryana (supra) the Apex Court observed that once the nature, functions and work of two persons are not shown to be dissimilar the fact that the recruitment was made in one way or the other would hardly be relevant from the point of view of "equal pay for equal work" doctrine, and further that whether appointments are for temporary periods and the schemes are temporary in nature is irrelevant once it is shown that the nature of the duties and functions discharged and the work done is similar and the doctrine of equal pay for equal work is attracted. Even in Bhagwan Dass vs. State of Harayana (supra) the Apex Court observed as under : " IN our opinion, therefore, the prayer of the petitioners to absorb them as regular employees on a permanent basis from the date of their initial appointment has no jurisdiction. That however does not mean that the petitioner should be deprived of the legitimate benefits of being fixed in a pay scale corresponding to the one applicable to respondents 2 to 6 by treating them as employees who have continued from the date of initial appointment by disregarding the breaks which have been given on account of the peculiar nature of the scheme. While, therefore, the petitioners cannot claim as a matter of right to be absorbed as permanent and regular employees from the inception. . . " Under Rule 24 (1) of the Rajasthan Municipal (Subordinate & Ministerial Service) Rules, 1963 (for short Rules) for the purpose of recruitment by promotion to the service, a selection strictly on the basis of seniority cum merit shall be made amongst members of the service eligible for promotion as provided in the Schedule, as per which, post of Assistant Sanitary Inspector is to be filled up by way of promotion i. e. 50% from the cadre of Sanitary Jamadars having qualification of matriculation (S. I. trained) with 5 years experience as sanitary Jamadar. Rule 25 provides for selection. It is not the case of the petitioner that he has undergone the process of selection under Rule 25 or he is eligible for promotion as provided in the Schedule. Only case urged on his behalf is that since he was posted and directed to hold work and supervise as sanitary inspector by order dated 17. 8. 85 (Ann. 12) and continued as such till he was regularly promoted, he is entitled to pay scale by promoting him as Asstt. Sanitary Inspector w. e. f. 17. 8. 85 to 1. 8. 91. Rather it is also admitted case that the petitioner had acquired qualification of sanitary inspector duly trained besides intermediate in the year 1983 and even on 17. 8. 85 he was not having 5 years requisite experience as Jamadar with qualified sanitary inspection training so also qualification of matriculation (SI trained) as provided in the Schedule which he completed on or after 1988 and accordingly he was promoted as Sanitary Inspector on 5. 8. 91. ;