SINGHVI, J. - (1.) IN this petition, the petitioner has sought issue of writ of mandamus directing the respondents to make him substantive on the post of Diesel Pump Operator and to give him salary in the regular scale with consequential benefits.
(2.) THE facts of the case are that the petitioner was appointed as Diesel Pump Operator in the service of the Municipal Council, Kota w. e. f. 1. 4. 1982 on daily wages and since then he is serving the Municipal Council, Kota in that capacity. His name has been included in the provisional seniority list of daily rated employees which has been issued by the Municipal Council, Kota on 16. 8. 1988 (Annx. 1 ). THE petitioner has asserted that he is doing duties which are identical to the duties being performed by the other Pump Operators. He made a number of representations for being given regular pay scale and for regularisation of the service. Copy of one such representation has been placed on record as Annexure-2. THE Municipal Council, Kota, on its part wrote a letter dated, 14. 11. 1987/1. 12. 1987 to the Director, Local Bodies, Rajasthan, Jaipur for creation of the post of Diesel Pump Operator for the purpose of regularisation of the service of the petitioner. However, the Municipal Council did not receive any response from the Director, Local Bodies, Rajasthan, Jaipur, and, therefore, the petitioner continues to be on daily wages. He has claimed that action of the Municipal Council in not paying him salary in the regular pay scale of Pump Operator is arbitrary and discriminatory and has resulted in violation of his right of equality. THE petitioner has claimed that on the basis of principle of equal pay for equal work he has a right to get salary in the same pay scale which is being paid to other Pump Operators in the Municipalities in Rajasthan. In its reply, respondent No. 2 has stated that the petitioner was not appointed as Diesel Pump Operator on 1. 4. 82, but, he was appointed as daily wage Helper on Muster Roll. It has been stated that the petitioner has not been doing the same and identical duty as is being done by other Diesel Pump Operators. Annexure-1, according to the respondent No. 2, is not a seniority list but only a list of persons working as daily wagers on Muster Roll basis. The respondent No. 2 has denied that duties of daily rated Pump Operators and substantive Pump Operators are similar. The petitioner has not been regularly selected for appointment on the post of Pump Operator and there is no vacant post of Diesel Pump Operator. It has then been stated that grant of sanction is not within the jurisdiction of the Municipal Council but it is done by the respondent No. l and, therefore, merely on the basis of recommendation made by the Municipal Council, Kota, the petitioner cannot claim any right. Respondent No. 2 has asserted that the petitioner cannot claim any direction from the Court in the absence of availability of clear vacant post. Although, the respondent No. 2 has pleaded that the petitioner was not appointed as Pump Operator w. e. f. 1. 4. 1982 and was only appointed as a Helper, this statement of respondent No. 2 is belied by the contents of Annexure 1. Annexure 1, dated, 16. 5. 88 is a provisional seniority list of daily wage employee and name of the petitioner appears at serial No. 19 in the said list. His post is given out as that of Pump Operator. The date of appointment has been shown to be 1. 4. 1982 with academic qualification 8th pass and date of birth as 28. 6. 1961. It is not the case of the respondent No. 2 that the particulars indicated in Annexure-1 are not correct. More over, respondent No. 2 has not placed any other material on record to show that the petitioner was ever appointed as Helper. Annexure-3 further belies the statement of respondent that the petitioner was not appointed as Pump Operator. That document is a letter written by the Commissioner, Municipal Council Kota, seeking sanction of the Director, Local Bodies, for the post of Diesel Pump Operator in order to give benefit of regularisation to the petitioner. It is, therefore, clear that the petitioner has been working in the service of the Municipal Council, Kota, as Diesel Pump Operator/pump Operator w. e. f. 1. 4. 1982 and he has by this time rendered service of almost 11 years without any intervention. It is a different thing that for this entire period the petitioner has been paid salary as a daily wager. Regarding the nature of duties being performed by the petitioner it can be seen that he is doing the duties of Diesel Pump Operator. The petitioner has also emphatically asserted that he is doing duties which are identical to the duties being performed by the other Pump Operators. Respondents No. 2 has chosen to offer a bald denial. Respondent No. 2 is the employer of the petitioner and, therefore, it is reasonable to presume that the respondent No. 2 is in possession of the record relating to the work being performed by the petitioner. It is therefore, solemn duty of the respondent No. 2 to have placed cogent material before the Court in support of its assertion that the duties being performed by the petitioner are not similar to that of other Pump Operators and since the respondent No. 2 has failed to fulfil its obligation, its assertion in the reply that the petitioner's duties are different than that of those Pump Operators who are being paid salary in the regular pay scale, has to be rejected. Thus, I hold that the petitioner is working in the service of the Municipal Council, Kota as Pump Operator since 1. 4. 1988 and is discharging the duties which are similar to the duties being performed by the other Pump Operators who are being paid salary in the regular time scale. The post of Pump Operator is encadred in the Rajasthan Municipal (Subordinate Ministerial Service) Rules, 1963, which have been framed by the State Government in exercise of its powers under section 297 (2) (b) read with section 88 of the Rajasthan Municipalities Act, 1959. The qualification for recruitment on the post of Drivers/pump Operator is two years' experience of the line and certificate from the Executive Officer regarding the capacity and capability to work or having diploma of the line. Rule-6 of 1963 Rules lays down that service shall consist of the various categories of posts specified in the rule and the post of Pump Driver/operator Gr. I and Pump Driver/operator Gr. II has been specified under the Heading "water works. " Pay scales of the post of Pump Driver/pump Operator has been prescribed under the various pay rules framed by the Government in exercise of its power under section 207 (2) (b) read with Section 88 (b) and (c) of the Rajasthan Municipalities Act, 1959 and Rule 32 of the Rajasthan Municipal (Subordinate Ministerial Service) Rules, 1963.
(3.) IN view of the above fact, situation and the provisions of Rule there is no manner of doubt that the respondent No. 2 has acted arbitrarily in denying payment of salary to the petitioner in the regular pay scale. The principle of equal pay for equal work embodied in Article 39 (d) of the Constitution of INdia has been held to be a part of the equality clause contained in Articles 14 and 16. Randhir Singh vs. Union of INdia (1), the decision rendered by the Apex Court in Randhir Singh's case has been followed in all the cases which have been decided subsequently during the last one decade. It can, therefore, be said that the persons doing similar duties are ordinarily entitled to be paid same wages. For making a departure from this rule the employer has to show that different wages are being paid to the persons doing similar duties on the basis of some rationale, principle or classification having a direct relation with the nature of the post and the nature of duties being performed by two employees or two sets of employees or two groups of employees. In the present case, since it has not been shown as to what distinction between the duties being performed by the petitioner as a Diesel Pump Operator and other Pump Operators, it has to be held that the respondent No. 2 has subjected the petitioner to discrimination and his right to get equal pay for equal work has been infringed without any justification. On the question of regularisation of service of the petitioner, I may refer to relevant provisions of the Rajasthan Municipalities Act and the Rules framed under it. Section 309 relates to the determination of strength of the staff. Rule 5 of the Rajasthan Municipal (Subordinate and Ministerial Service) Rules, 1963 relates to composition of the strength of service. These two provisions are quoted below for the purpose of ready reference. "309. Determination of strength of the staff- (l) Subject to any general or special directions issued by the State Government, a council or Board as the case may be, may be resolution determine the number of assessors, sanitary inspectors, other inspectors and subordinate officers, accountants and ministerial establishment other servants required for the municipality. (2) Subject as aforesaid, a council or a Board may direct that one person shall be appointed to discharge the duties of any two or more officers. "rule-5 Composition of the strength of service - "the strength of the service shall be such as may be fixed by the Board with the prior approval of the Government from time to time. " ;