JUDGMENT
G.S. Singhvi, J.
1. Petitioner Sangh which is a registered Trade Union and which represents the employees of the Chambal Command Area Development, Kota, has filed this writ petition seeking relief of quashing of order dated 9-1-81 and 24-8-82 with a further claim for declaration that the employees whose names have been given in the Schedule-A are entitled to the benefits of the Rajasthan P.W.D. (B & R) including Gardens, Irrigation, Water Works and Ayurvedic Department Workcharged Employees Service Rules, 1964. It has further been prayed that the respondents may be directed to pay the arrears of salary to the members of the petitioner Sangh from the date they have completed 2 years service after being declared semi permanent.
2. The petitioner has given list of its 129 members on whose behalf the petition has been filed. All the members of the petitioner Sangh are daily rated workers and nature of job performed by them brings them within the scope of the term workmen used in Section 2 of the Industrial Disputes Act. The petitioner’s case is that its members are employee of CAD Department. This department has two wings namely Irrigation and Agriculture. The rules of 1964 have been made applicable to the Irrigation Wing but those serving in Agriculture Wing are not being given the benefit of 1964 rules. On 12-4-79 the Government wrote a letter to the Area Development Commissioner, CAD Chambal, Kota that workcharged pay scales may be allowed with effect from 1-1-79 only to those employees who have completed two years of service or more on that day (i.e. 1-1-79). When the petitioner Sangh made a claim for allowing the benefit of workcharge pay scales to its members with effect from 1-1-79, the Area Development Commissioner wrote to the Financial Commissioner, Government of Rajasthan on 31-3-80 that the Government has issued clarification vide letter dated 12-4-79 allowing the workcharge pay scales with effect from 1-1-79 to those employees who have completed 2 years service or more on that day. He pointed out that there are two types of labourers working in the organisation, one belongs to Irrigation Wing and the other to the Agriculture Wing. According to the clarification of the Government employees belonging to both the wings of the department should be allowed workcharge pay scale. However, Rule 2 of 1964 rules does not apply to the employees of the Agriculture Wing of CAD Organisation. Thus the implementation of the decision of the Government has led to discontentment amongst the labourers of Agriculture Wing. He, therefore, requested that workcharge service rules may be suitably amended in order to extend the benefits of the labourers of Agriculture Wing. The Government then sought certain information from the Area Development Commissioner through letter dated 25-4-80. The point on which information was sought related to the question as to by which set of service rules of the workcharge employees of Agriculture Department are governed and whether workcharge employees of Agriculture Department are allowed workcharge pay scales applicable to engineering departments. The Area Development Commissioner wrote back on 14-11-80 that no workcharge service rules have been framed under the Agriculture Department and there is no provision for workcharge employees of Agriculture Department. He again requested for amendment of 1964 rules. The Commissioner, CAD Chambal, Kota to extent the benefit of workcharge pay scales to the labourers of Agriculture wing of CAD Organisation. The decision of the Government was communicate vide letter dated 9-1-82 and the office of the Area Development Commissioner in true communicated this decision to the President of Rajasthan State Drivers and Technical Employees Association Kota vide letter dated 24-8-82.
3. The petitioner has stated that members of the petitioner Sangh are in employment for a number of years and they are being subjected to discriminatory treatment. The nature of the duty and the work which is being performed by the employees of the two wings of CAD are identical. They belong to the same class and therefore, there is no justification in subjecting the employees to discriminatory treatment. Even the Government had vide letter dated 12-4-79 decided to grant workcharge pay scales to all the employees after completion of 2 years service. No discriminatory treatment was made between the employees of the Agriculture Wing on the one hand and Irrigation Wing on the other hand. Further case of the petitioner is that the workcharge service rules have been made applicable to CAD and therefore, there is no reason for discrimination between the employees working in CAD itself on the premises that they are employed in different wings.
4. In reply to the writ petition the respondents have admitted that the employees of the petitioner Sangh have been working since long in CAD Department. It, has however, been stated that Rules 1964 are not applicable to the employees of Agriculture Department. This statement has specifically been made in para 2 of the reply. Contents of para 5 of the writ petition wherein the petitioner Sangh has stated that its members come within the definition of workman, have been admitted. It has then been stated that rules, 1964 are not applicable to the workers of CAD (Agriculture Department). The workers of CAD are not paid as per BSR of P.W.D. but as per BSR of CAD Department. Rajasthan Service Rules, 1951 are not applicable to the workcharge employees of CAD Department. It has then been stated that the department of CAD, Kota is a project and every project requires specific time and after completion of the project the workers are retrenched as soon as project is completed and that is why the rules of workcharge workers are not applicable to them who are engaged for the time beings on works. In para 10 of the reply it has been stated that Exhibit 3 was applicable to particular category only and the workcharge Rules, 1964 have been made applicable to the workers of Irrigation Wing and not to those of Agriculture Department. The correspondence exchanged between the Area Development Commissioner, CAD Chambal, Kota and the Finance Department has been admitted and it has been stated that as per the decision of the Government the employee of CAD are not eligible to be given the benefit of workcharge rules, 1964. In para 17 (e) it has been stated that the department of CAD is a separate department and the workers of the said department appointed on workcharged basis are not entitled to the benefit under the said rules of 1964. In para 17 (p) it has been stated that Irrigation Department and Agriculture Department are two different departments and are governed by different set of service rules.
5. An additional affidavit has been filed on behalf of the respondents No. 1 to 4 on 14-4-87. In this affidavit of Shri G.N. Sharma, Executive Engineer, F.M.D.I. CAD, Kota, it has been stated that Rajasthan Rajya Vahan Chalak Avam Takniki Karamchari Sangh filed a civil suit in the Court of Munsif Magistrate (North) Kota for seeking permanent injunction against the removal of workers and for treating them as workcharged employees under the Service Rules. That case was treating them as workcharged employees under the Service Rules. That case was dismissed on 1-10-86 as not pressed. Another suit was filed by the same Sangh which was decided on 24-5-84. The learned Munsif and Judicial Magistrate held that workcharge service rules are applicable to workers and the workers can be removed by the learned Additional District Judge vide judgment dated 18-11-85 in appeal No. 61 to 84. The Drainage and Nahar Mandal Karmachari Sangh, Kota raised a dispute and the same is pending before the Industrial Tribunal, Kota. It has then been stated that the CAD Department is purely a temporary department constituted from 3 wings of the different department namely-Irrigation Department, Agriculture Department and the Revenue Department and the staff has been borrowed from these departments. On the basis of these facts stated in reply to the writ petition and the additional affidavit it has been stated that the writ petition of the petitioner deserves to be rejected.
6. During the pendency of the writ petition a Division Bench consisting of Hon’ble Chief Justice, Shri J.S. Verma (as he then was) and Farooq Hussain, J. gave a direction that all the workmen employed on daily wage basis shall be paid according to the minimum of the pay scale prescribed for the regular employees engaged in doing the same work. The necessary steps should be taken within one month. This order was clarified by another Division Bench consisting of Hon’ble S.N. Bhargava J. and Hon’ble Farooq Hussain, J. on 2-4-90. While disposing the application dated 1-2-89 filed by the State Government, the Court ordered that the workmen are entitled to the minimum of the pay scale prescribed for the workcharged employees service rules.
7. Shri R.C. Joshi learned Counsellor the petitioner has argued that Command Area Development Department consists of two wings namely-Irrigation Wing and Agriculture Wing. Duties being performed by the employees engaged in the two wings are identical. The members of the petitioner sangh have been engaged in the service between 15-11-74 to November, 1983 and they are continuously working. Some of them have rendered almost 17 years service, while others have rendered service ranging between 8 to 14 years. All of them are discharging the duties which are being discharged by other employees engaged in the department. The nature and quantum of work which is being performed by the employees in the two wings is identical. They are similarly situated in all respects. Once the 1964 rules have been made applicable to the employees of the department, no discrimination can be made by the respondents merely on the ground that the employees are serving in different wings. Shri Joshi argued that letter dated 12-4-79 (Exhibit 3) does not make a distinction between the employees of the Irrigation Wing and Agriculture Wing of the Department. In fact the Area Development Commissioner CAD Chambal Kota has written letter dated 31-3-80 under a misconceived notion about the applicability of the rules of 1964 and on a totally erroneous premises, he requested the Government to amend the rules of 1964. In fact, there was no necessity to amend the rules. Shri Joshi argued that once the employees have completed 2 years of continuous service as daily wage and the workcharge service rules have been made applicable to the employees the one wing there is no justification for not giving similar benefit to the of employees belonging to the other wing particularly when the employees of the 2 wings are discharging identical functions and are doing similar duties. Shri M.I. Khan on the other hand argued that the Command Area Development Department is a separate department. Employees are drawn to this Department from Irrigation Department and Agriculture Department. The government has applied the workcharge service rules to the employees of CAD Department excluding the Agricultural operation. The Command Area Development Department undertakes different projects of temporary nature and therefore, it is not possible and not permissible to extend the benefit of 1964 rules to the employees of CAD department. Employees are being paid wages according to the provisions of the Minimum Wages Act, 1948. Shri Khan then argued the posts are not available against which regular workcharge pay scale can be given to the employees of the CAD Department. The Court cannot issue direction for giving all the benefits without availability of the posts nor can be Court directed the State Government to enact or apply a particular set of rules for the employees belonging to a particular category. Lastly Shri Khan submitted on account of some financial stringency the Government will not be in position to make payment of salary in the regular pay scale to the employees.
8. Shri M.I. Khan was repeatedly asked by the Court to show as to by which order/s the employees named in Schedule-A were brought on deputation from Agriculture Department. However, he could not produce any such order or other material to establish that the employees were brought on deputation.
9. The petitioner has come with a specific case that these employees are engaged in the Command Area Development Department and are working for last 8 to 17 years in the said department. Command Area Development Department is a separate department. The Area Development Commissioner, Chambal, Kota is an independent Head of the Department as specified in Schedule-A appended to the Rajasthan Civil Service (Classification, Control and Appeal) Rules, 1958. It is clearly born out from the record that this department consists of two wings namely Irrigation Wing and Agriculture Wing and employees are engaged in these two wings. The petitioner have asserted that the employees are doing identical work and they are performing similar types of duties as are being performed by the employees working in the Irrigation Wing. These facts have not been controverted by the respondents. In fact the reply filed by the respondent contains contrary statements. In para 10 it has been stated that the workcharge Service Rules have been made applicable to workers of Irrigation Wing only but in para 17 (e) it has been stated that 1964 rules are not applicable to the CAD Department. In para 17 (k) it has been stated that order issued by the respondents does not hit any right of the petitioner because they are governed by the rules, 1964 and Section 25 of the Industrial Disputes Act. In para 8 also it has been stated that workcharge service rules are not applicable to CAD Kota. It is, thus clear that while filing reply the respondents were not clear what they intended to convey to the Court. The respondents were in utter confusion in presenting their case before the Court in the counter. The confusion is also evident from the fact that the respondents have treated the Agriculture Wing of CAD department as Agriculture Department and have then stated that workcharge service rules are not applicable to Agriculture Department. It is no body’s case that rules of 1964 are applicable to Agriculture Department. Agriculture Department is altogether a separate department. The controversy involved in the present case is only as to whether after issuing of exhibit 3 the Government could deny the benefit of workcharge pay scales of the employees of CAD Department who are employed in the Agriculture Wing. Ancillary question is as to whether there can be a discrimination between the employees of the same department in the matter of grant of pay scale etc. even though they are doing similar work. Since the respondents have filed to point out any difference in the nature and quantum of duties and functions of the employees employed in the Agriculture Wing vis-a-vis employees working in corresponding cadres in the Irrigation Wing of CAD Department it has to be held that the discrimination which has been practised by the respondent against the employees in the matter of grant of the benefits of workcharge service rules is wholly arbitrary and the employees have been subjected to hostile discrimination. From a perusal of Exhibit 3 it is evident that the Government had applied workcharge Service Rules and extended the benefits of workcharge pay scales to all these employees who completed 2 years service or more as on 1-1-79. Even the Command Area Development commission interpreted the letter dated 12-4-79 as extending the benefit of workcharge pay scale to the employees of both the wings. He, however, created a confusion by stating that Rule 2 of 1964 rules of workcharge service Rules is not applicable to Agriculture Department. Then Government made queries with reference to the applicability of 1964 rules to Agriculture Department and it finally declined to the request of the Area Development Commissioner to amend the rules. In fact there was no issue involved on the application of workcharge service rules to the employees employed in the Agriculture Department. Once the Government had taken a decision to extend the benefit of workcharge pay scales to the employee of the Command Area Development Department, no further discrimination could have been made between the similarly situated employees on the ground that some were employed in the Irrigation Wing and these were employed in the Agriculture Wing.
10. People of India gave unto themselves the Constitution of India and while doing so they are declared,
We, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to
all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity; and to promote among them all;
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY This twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.”
Article 14 provides for equality before the law. It reads as under:
“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
Article 16 provides for equality of opportunity in the matter of public employment. It reads as under:
“There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.”
Article 39 contains one of the principle of State policy and provides that the State shall, in particular direct its policy towards securing:
(a) x x x x x x
(b) x x x x x x
(c) x x x x x x
“(d) that there is equal pay for equal work for both men and women.
11. In Randhir Singh v. Union of India and Ors. their Lordships of the Supreme Court gave a new dimension to the principle of ‘equal pay for equal work’ and held:
Equal pay for equal work for both men and women in Article 39(d) means equal pay for equal work for every one and as between the sexes. The word ‘Socialist’ in the preamble to the Constitution, if does not mean “to each according to his need”, must mean “equal pay for equal work”. The directives principles have to be read into the fundamental rights as a matter of interpretation.
The principle of “equal pay for equal work” is not an abstract doctrine but one of substance. The higher qualification for the higher grade, which may be either academic qualifications or experience based on length of service, reasonably sustain the classification of the officers into two grades with different scales of pay. But in cases of unequal scales of pay based on no classification or irrational classification a breach of the principle is clearly made out.
12. This principle has been followed in almost all subsequent cases namely Dhirendra Chamoli v. State of UP , Surendra Singh v. Engineer in Chief CP.W.D. and Ors. , R.D. Gupta v. Union Governor, Delhi Administration , Bhagwandas v. State of Haryana , Jaipal v. State of Haryana 1988 (3) SCC 154. Dharwar District P.W.D. literate Daily Wage Employees Association v. State of Karnataka , Daily rated casual labour employed under P & T Department v. UOI .
13. In Jaipal’s case (supra) the question which arose for consideration before the Supreme Court was about the difference in the pay scales of the Teachers under the Adult and Non Formal Education Scheme of the Education Department of State of Haryana on the one hand and the Squad Teachers of the Social Education Scheme of the Education Department of the State of Haryana. After discussing the rival contention the Supreme Court has held as under:
There is no doubt that instructors and squad teacher are employees of the same employer doing work of similar nature in the same department therefore the appointment on a temporary basis or on regular basis does not affect the doctrine of equal pay for equal work. Article 39 contained in Part IV of the Constitution ordains the State to direct its policy towards securing equal pay for equal work for both men and women. Though Article 39 is included in the chapter on Directive Principles of State Policy, but it is fundamental in nature. The purpose of the article is to fix certain social and economic goals for avoiding any discrimination amongst the people doing similar work in matters relating to pay. The doctrine of equal pay for equal work has been implemented by this Court in Randhir Singh v. Union of India, Dhirendra Chamoli v. State of U.P., and Surendra Singh v. Engineer-in-Chief, CP.W.D. In view of these authorities it is too late in the day to disregard the doctrine of equal pay for equal work on the ground of the employment being temporary and the other being permanent in nature. A temporary or casual employee performing the same duties and functions is entitled to the same pay as paid to a permanent employee.”
The difference in mode of selection will not affect the application of the doctrine of “equal pay for equal work” if both the classes of persons perform similar functions and duties under the same employer. Similar plea raised by the State of Haryana in opposing the case of supervisors in the case of Bhagwan Dass was rejected, where it was observed that if the State deliberately chose to limit the selection of candidates from a cluster of a few villages it will not absolve the State from treating such candidates in a discriminatory manner to the disadvantage of the selectees once they are appointed provided the work done by the candidates so selected is similar in nature. The recruitment was confined to the locality as it was considered advantageous to make recruitment from the cluster of villages for the purposes of implementing the Adult Education Scheme because the instructors appointed from that area would know the people of that area more intimately and would be in a better position to persuade them to take advantage of the Adult Education Scheme in order to make it a success.
14. In Dharwar District P.W.D. Literate Daily Wage Employees Association case (supra) Their Lordships of the Supreme Court emphasized the need of enforcing the principle of ‘equal pay for equal work’ by observing as under:
Equal pay for equal work and providing security for service by regularising casual employment within a reasonable period have been unanimously accepted by the Supreme Court as a constitutional goal to our socialistic policy. What the Supreme Court has said by interpreting law on this subject would be binding on the instrumentalities of the State-be it of the Centre or the State-by virtue of Article 141. The philosophy of the Court as evolved in various cases is not that of the Court but is ingrained in the Constitution as one of the basic aspects and if there was any doubt on this there is no room for that after the Preamble has been amended and the Forty-second Amendment has declared the Republic to be a socialistic one. The relevant constitutional philosophy must be allowed to become a part of every man in this country, then only would the Constitution reach every one and he or she would be nearer the goals set by it. That perhaps can happen in every field.
15. The learned Single Judge of this Court in Mohan Singh v. State of Rajasthan 1987 (1) RLR page 702 held that when the Government has made rules regulating service conditions of the workcharge employees of P.W.D. and other departments, there is no justification as to why similarly situated employees of the forest department should be denied benefits of the relevant rules. Appeal against this judgment was taken up to the Supreme Court by the State Government and their Lordships of the Supreme Court upheld the directions given by the learned Single Judge for extending the benefit of workcharge rules to the employees of the forest department.
16. In the present case the Government has voluntarily extended the benefit of workcharge pay scales to the employees of the Command Area Development department and the only question which is being determined is as to whether the employees of the different wings of the same department.
17. So far as the workcharge service rules are concerned, Rule 3(3) makes it absolutely clear that it is the obligation of the State to grant the benefit of semi-permanency to all those employees who have completed 2 years service. In Vinay Kumar v. State of Rajasthan 1991 (1) WLR 192 a learned Single Judge has held as under:
Having gone through the rival submissions made in this regard, it appears from the scheme of the Rules that the categorization of permanent and semipermanent status and the casual workers has been made in the scheme of the Rule and it had been provided in the scheme of the Rules itself that those who have continuous service for two years or more and whose record of service in the opinion of the competent authority is satisfactory are to be conferred the semi-permanent status, the employees who have been in service for 10 years or more are eligible for the status of permanent workcharged employees provided their record of service in the opinion of the competent authority is satisfactory. Thus it is very clear in the scheme of the Rule itself that in the work charge services all employees enter as a casual workers and once an employees completes two years period he eligible for the status of semi permanent and on completion of 10 years service he is eligible for permanent status as workcharge employee. The only embargo provided under Sub-rules (2) and (3) is that the record of service in the opinion of the competent authority must be satisfactory, therefore, all those persons appointed as workcharged employees on completion of two years are entitled for semi-permanent status subject to the only condition that their record of service in the opinion of the competent authority is satisfactory and similarly all those employees who have completed 10 years of service are entitled for the permanent status in case their record of service in the opinion of the competent authority is satisfactory. The conferment of semi-permanent and/or permanent status as a workcharge employee has, therefore, no concern whatsoever with the number of sanctioned posts because the posts are already sanctioned against which the persons are continuing. It is absolutely erroneous and wholly irrelevant consideration to say that merely because a person is working as a casual worker, in case semi-permanent status/permanent status is to be conferred upon them there must be further sanction of that very post against which he is to be continued with semi-permanent/permanent status.
18. Similarly in Om Prakash Meghwal v. State of Rajasthan and Ors. 1991 (1) WLR 299 another learned Single Judge of the Court held as under:
It is true that the Apex Court was conscious of the human agony of these daily rated/wages bread earners who have continued in service for considerably long time and they are still on the paltry sum without any security of the job. The Hon’ble Supreme Court was also conscious of the financial constraints of the State Government thereof ore, they gave a phased direction. But after the issuance of this circular dated 1-11-1985 the State Government remained silent and no further orders in this regard have been issued redressing the agony of these daily rated employees. If the Government was conscious enough then perhaps it would have issued the order in line issued on 1-11-85. I am also conscious of the financial constraints of the State Government, but at the same time I cannot ignore the impact of Chapter IV of the Constitution and the decision delivered by their Lordships of the Supreme Court referred to above. The provision of Rule 3(2) has already been interpreted by the Division Bench at the Jaipur Bench of this Court but this clarification which has been given below the rule was not brought to the notice of the Hon’ble Judge constituting the Division Bench. Even if it is clarification has been brought to the notice of Division Bench the interpretation would not have been different as the clarification which has been issued by the authorities in exercise of their administrative power would not override Statutory Rules. According to the view taken by the Division Bench it is clear that the incumbents after having completing 10 years of service and their work being found satisfactory are entitled to be treated as permanent and likewise those incumbents who have completed two years of service with satisfactory record of service are entitled to be treated as semipermanent. It is true that under Sub-rule (4) of Rule 3 a positive order has to be passed by the competent authority and if the competent authority has been conscious enough and has realised the aspirations of these lowly paid employees then perhaps they would have issued the further circular in line with circular issued on 1-11-1985. But no such realisation has been down upon the Government and this anguish has been ventilated before the Court.
Therefore, in this view of the matter I hold that the incumbents who have completed 10 years service or more till this may be declared permanent if their record is satisfactory and those incumbents who have completed two years service or more and their record is satisfactory, may also be given the semipermanent status and other incumbents, who have completed less than two years of service may be progressively regularised.
19. In view of the principles discussed herein above and the law laid down by the Supreme Court as well as this Court, there can be doubt that every public employer is under obligation to pay same wages to the employees doing similar duties. If any discrimination is made between the employees doing similar duties under the same employer, the action of the employer is liable to be declared as unconstitutional unless the discrimination can be justified on same rational principle. As far as the present case is concerned as I have already noticed, the respondents have completely failed in showing any difference in the nature of duties being performed by the employees belonging to the Irrigation Wing on the one hand and the Agriculture Wing on the other hand of the Command Area Development Department. Thus it is held that the members of the petitioner Sangh have been subjected to discriminatory treatment and the respondents have violated their constitutional right of equality enshrined under Articles 14 and 16 of the Constitution by denying them the benefit of workcharge pay scale.
20. The writ petition is, therefore, allowed. The action of the respondent in denying workcharged pay scales to the members of the petitioner Sangh is declared unlawful and unconstitutional and respondents are directed to give benefit of workcharged pay scale in terms of Ex. 3 to the employees who are the members of the petitioner Sangh and also to other similarly situated persons. They are also directed to give benefit of Rule 3(3) of 1964 rules to all the employees after completion of 2 years service by them in view of the judgment of this Court in Vinay Kumar’s case and Om Prakash Meghwal’s case (supra). Since under the directions of the payment of minimum of the workcharged pay scales have already been made to the employees, the respondents will be entitled to adjust the said amount while making payment of arrears to the employees. The entire exercise shall be completed within a period of 4 months from the date of presentation of copy of the order. The petitioner shall get cost of Rs. 1000/- from the respondents.