SINGHVI, J. - (1.) ALTHOUGH this petition has been filed by the petitioner simply for enforcing the principle of equal pay for equal work and for issue of a direction to the respondents to make payment of salary to the petitioner in the regular pay scale and even though the petitioner has come forward with a case that in the cases of similarly situated persons this Court has given directions for payment of salary according to the principle of equal pay for equal work, I have decided to consider the case in a large perspective because the learned counsel for the petitioner has come forward with the plea that even though no post of Class IV servant is available and even though the petitioner may have been appointed in contravention of law, the Court must give relief.
(2.) THE petitioner has come forward with a plea that he was engaged as a daily wage employee by the Settlement Commissioner, Rajasthan Jaipur in November, 1992. He was made to discharge duties as Class-lv servant and was paid a sum of Rs. 20/- per day. Between November 1992 to December 1993 he has worked as a daily wage employee and he has discharged the duties which are identical to the duties being performed by other Class IV servants. He says that since there is an identity in the nature of duties being performed by the petitioner, both qualitatively and quantitatively, he has a right to be paid salary in the regular pay scale. His plea is that right to get salary according to the principle of equal pay for equal work is fundamental right of a Government servant and by denying pay to the petitioner in the regular pay scale, the respondents have subjected him to discrimination. In this manner he has been denied equality before law. A large number of similar cases have come before this Court involving employees of the Settlement Department who were appointed on daily wages. Though, this court has granted relief according to the principle of equal pay for equal work, I felt that issue of such directions by the Court has encouraged the departmental authorities to flout the rules and the constitutional provisions contained in Articles 14 and 16 by appointment of persons on daily wages. For this reason, I gave direction to the learned Additional Government Advocate on 24. 1. 94 to submit clarification on the following points : (1) How many persons have been appointed by the Settlement Commissioner on daily wages basis without availability of posts? (2) Why action has not been taken for making regular appointments against the vacant posts? On 11. 2. 94 the learned Dy. Government Advocate, Shri B. I. Awasthi, made a statement that Shri Manish Bhandari is standing counsel for the Revenue Department. It was ordered that the name of Shri Bhandari be shown in the cause list of 22. 2. 94. Shri Bhandari appeared on behalf of the Department. Arguments were heard on that day and the case was directed to be listed for dictation of order today. Shri Bhandari was asked to make a statement as to in what circumstances the Officers of the Settlement Department had made appointments of the employees on daily wages without the availability of the posts. Today Shri Bhandari has frankly stated that a large number of appointments have been made in the Settlement Department at Jaipur without the availability of the vacant posts. Shri Bhandari admitted that in making such appointments neither the provisions of the Rajasthan Class IV Service (Recruitment & other Service Conditions) Rules, 1963 have been followed nor any other method has been adopted by the competent authority where claims of other eligible persons could be considered. From this statement of the learned counsel appearing for the Government it is logical to conclude that the authorities of the Settlement Department of the Government of Rajasthan and particularly those at Jaipur have made appointments dehors the Rules. In recent times, the Court have on more than one cases condemned the practice of making appointments of daily wage employees and even the Government's action of creating posts on daily wages. In Delhi Development Horticulture Employees Union vs. Delhi Administration (1), the Supreme Court had made these observations : - "the courts can take judicial notice of the fact that such employment is sought and given directly for various illegal considerations including money. The employment is given first for temporary periods with technical breaks to circumvent the relevant rules, and is continued for 240 or more days with a view to give the benefit of regularisation knowing the judicial trend that those who have completed 240 or more days are directed to be automatically regularised. A good deal of illegal employment market has developed resulting in a new source of corruption and frustration of those who are waiting at the Employment Exchanges for years. Not all those who gain such backdoor entry in the Employment are in need of the particular jobs. Though already employed elsewhere, they join the jobs for better and secured prospects. That is why most of the cases which come to the courts are of employment in government departments, public undertakings or agencies. Ultimately it is the people who bear the heavy burden of the surplus labour. The other equally injurious effect of indiscriminate regularisation has been that many of the agencies have stopped undertaking casual or temporary works though they are urgent and essential for fear that if those who are employed on such works are required to be continued for 240 or more days they have to be absorbed as regular employees although the works are time-bound and there is no need of the workmen beyond the completion of the works undertaken. The Public interests are thus jeopardised on both counts. " In Ram Pratap vs. State of Rajasthan (2), this Court had taken note of similar malise prevailing in the public services. The Court observed : "last one decade has, however, seen multitude of cases in which the statutory rules have been fouted with impunity and without any consequence upon the violators of the Rules. Thousands of cases have been' filed in the Courts of Law/service Tribunals containing allegations of violation of Rules. Another development which has caused grave concern to the Courts is the methodology adopted by various authorities in giving appointment on daily wages or on part time basis. For economy reasons the Government as a policy decided not to make regular recruitment and appointments against various posts. However, in order to carry the urgent work permissions were given to engage casual labour. However, the object of the Government to effect economy has been completely frustrated by thousands of appointments made in different departments [by engaging daily wages employees or part-time employees. Even against the work of regular and permanent nature appointments on daily wages or part-time basis have been made. Innovative methods have been found to give a go-bye to the provisions of equality clause contained in the Constitution. For making such appointment on daily wages or on part-time basis neither the requisition is sent to the Employment Exchange nor any effort is made to give chance to the persons who are really entitled to be given such appointments. Despite the fact that lacs of persons are registered with the different employment Exchanges and long queue of meritorious persons wait in a hope of getting public employment, these long queues are ignored with contempt and by dubious methods a few favoured sneak into the arena of public employment. Employment is sought and given for various illegal considerations including money. Such appointments are first made for few days or months and then continued for such a period which "enables the employee to claim that he has completed 240 days of service. If the person making appointment was transferred, he usually asked the employee to approach a court of law and seek a restraint order that he might not be removed from service because he has completed 240 days of service. If termination is brought about by the successor-in-office, usually the mandatory requirements of Section 25f and 25g are not complied with. Another side effect of such employment has been that those appointed on daily wage make a claim for grant of salary in the regular pay scale. In the light of the new dimensions given to the concept of equality the Court has to enforce the principle of equal pay for equal work by issuing a direction that payment in the regular pay scale be made. Ultimately it is the public at large who is the sufferer. The State exchequer or the public revenue has to bear the burden of such illegal appointments. A large percentage of public money is to be spent in meeting the demand of such employees. This practice has given a rise to enormous corruption at different levels. There is a mad race amongst the younger generation to seek employment in government services. This mad race is because of the feeling that security of the conditions of the service of the government servants is unmatched. Once a person gets in the government service or public service by competition and on merit seek employment by illegal means. Thus in whom the powers have been vested by the Rules are the beneficiaries. It is, therefore, high time that employment on daily wages or on part time basis is brought to an end. "
(3.) THE malise towards which the Supreme Court had hinted in the case of Delhi Development Horticulture Employees Union vs. Delhi Administration (supra) and this Court in Ram Pratap vs. State of Rajasthan (supra) has apparently spread in all the departments of the Government and Settlement Department has proved to be no exception to it. The scheme of the Rules of 1963 envisages consideration of the claim of eligible persons who are registered with the Employment Exchange. Out of those who are registered with the Employment Exchanges preference is given to a person who is registered earlier and at times merit is the criteria for making appointment. Both these principles incorporated in the Rules of 1963 are regularly given decent burial by making appointments on daily wages. In making daily wage appointments, the employer and particularly the public authorities do not advertise the posts nor do they call names from the Employment Exchange. Those who are waiting in queue for years together, do not get an opportunity even to compete for the purpose of appointment and those who have kith and kins in the Government or other close relations at the helm of affairs, get the cake of public employment. The Courts in India have recognised the public employment as public property and all persons similarly situated have a right to share this property (Delhi Transport Corpn. vs. D. T. C. Mazdoor Congress In Nalin Kumar vs. State of Rajasthan (4), this Court has held that even while making of ad hoc/urgent temporary appointment, the employer has to consider cases of all eligible and suitable persons. Similarly in State of Haryana vs. Pyara Singh (5), their Lordships of the Supreme Court have held that if rules are silent about the method to be adopted for making ad hoc or urgent temporary appointments, the employer is under an obligation to advertise the posts in the official gazette or in the newspaper and consider the claims of all eligible persons to be appointed. ;