ORDER
Sudhir Ranjan Roy, J.
1. The petitioners Nos. 2 to 14, all ad hoc Homoeopathic Medical Officers in the Department of Health and Family Welfare, Government of West Bengal, who started their service life in 1973 at a consolidated monthly emoflument of Rs. 250/- which was subsequently enhanced to Rs. 425/- per month, have invoked the writ jurisdiction of this Court in quest of a scale of pay after having tried their luck abortively at departmental levels and then at the doors of the State Pay Commission.
2. The unfortunate part of the story is that they failed to get themselves regularised through Public Service Commission and it is actually their ‘ad hocism’ which has so long stood as a barrier between their consolidated pay and a pay scale worth the name. They are performing the same duties and functions as their luckier regularised counterparts who are enjoying a pay scale but it is sheer ‘ad hocism’ which has made their cry for equal pay, a cry in the wilderness.
3. As the last resort the petitioners are now in the writ Court; their demand being a proper pay scale with effect from the date of the Pay Commission’s Report, i.e. April 1, 1981.
4. The respondents oppose the claim by filing an affidavit-in-opposition.
5. Mr. Pal, the learned Advocate appearing on behalf of the petitioners, has contended before me that the refusal of the State Government to grant a scale of pay to the petitioners is discriminatory and violative of Articles 14 and 16 of the Constitution since different other employees of the Government of identical and inferior stature have been granted regular scale of pay. He further contended that the policy of ‘ad hocism’ for long periods may lead to automatic breach of Articles 14 and 16. ‘Equal pay for equal work’ according to Mr. Pal, is now a well-settled principle and is implicit in Article 14 of the Constitution. And since the petitioners are rendering service of identical value as the regularised Homoeopathic Medical Officers, who have been given a scale of pay, at least the said scale cannot be denied to the petitioners.
6. Mr. Mukherjee, the learned Advocate, appearing on behalf of the respondents, however, seriously controverted the contentions raised by Mr. Pal and submitted that the petitioners being merely ad-hoc employees yet to be regularised through the Public Service Commission, are not entitled to a scale of pay particularly when they accepted the ad-hoc employments with full knowledge that they were to work on fixed emoluments.
7. Coming now to the rival contentions of the parties, it is not disputed that the petitioners Nos. 2 to 14 who are qualified Homoeopaths, joined as Homoeopathic Medical Officers in the Department of Health and Family welfare, Government of West Bengal on ad-hoc basis as far back in the year 1973 on a fixed pay of Rs 250/- per month which was subsequently revised and fixed at Rs. 425/- per month. They have neither been given any scale nor are any allowances admissible to them.
8. It is also not disputed that such ad-hoc Officers are required to be regularised through the Public Service Commission and on such regularisation they are given a regular scale of pay (Vide paragraph 8 of the supplementary affidavit dated March 7, 1986, filed by the respondents Nos. 1 and 2 and” Annexure ‘G’ thereto) and that the petitioners Nos. 2 to 14 are yet to be regularised as such. They appeared before the Public Service Commission but failed to get themselves through and as such, still continue to be on ad-hoc basis.
9. After hearing Mr. Mukherjee, the learned Advocate representing the respondents, it appears that it is actually the non-regularisation of the petitioners which stands on their way of getting a regular scale.
10. Mr. Pal, the learned Advocate appearing on behalf of the petitioners, controverted this stand of the respondents on different grounds.
11. His first contention was that it was discriminatory since it is not only other ad-hoc Medical Officers who have been given regular scales; such scales have also been given to employees much inferior in rank and status.
12. The second contention of Mr. Pal in this regard was that the policy of ad-hocism clearly violates Article 14 of the Constitution since it is implicit in the said article that there should be equal pay for equal work, the status of the employee being totally irrelevant.
13. Coining to the first point first, Mr. Pal in support of his contention referred me to Annexure ‘B’ to the affidavit-in-reply dated April 3, 1984, at page 23. The said annexure relates to the appointment of certain Allopathic Medical Officers by the State on ad-hoc basis (Vide paragraphs 3 and 7 of the Annexure). It show’s that the said Officers we given a regular scale of pay subject to their being regularly Selected by the Public Service Commission. He also referred me to another such Government notification at page 32 of the said affidavit-in-reply.
14. Mr. Pal also referred me to Annexure ‘G’ to the writ petition (at page 53) which shows that even daily rated contingency workers were given regular pay scales by the Government.
15. It is, as such, clear that ad-hocism by itself was not considered to be a ground even by the Government to refuse a regular pay scale to its Medical Officers. The fact that these Officers are Allopaths should not, in my view, make any difference since the homoeopaths are also Medical Officers like them.
16. That being so, the refusal by the Government to allow a pay scale to the petitioners Nos. 2 to 14 on the ground that they are ad-hoc employees, should be held to be discriminatory and as such, violative of the constitutional provisions.
17. So far Mr. Pal’s next contention is concerned, there seems to be no dispute on the point that the ad-hoc homoeopathic Medical Officers, as the petitioners are, discharge, the same duties as their regularised counterparts. And as already seen regularised Officers are given a regular scale of pay.
18. The question is whether the petitioners can be denied a similar scale of pay simply because they are ad-hoc officers yet to be regularised though they are performing similar duties as the regularised officers.
19. The point whether there should be equal pay of equal work came up for consideration before the Supreme Court in Randhir Singh v. Union of India 1982 I LLJ 344. There the question arose whether the drivers in the Delhi Police Force who performed the same functions and duties as drivers in the Delhi Administration and the Central Government were entitled to the same scale of pay. Overruling the argument advanced by the respondents that the drivers of the Delhi Police Force and the other drivers belonged to different departments and that the principle of ‘equal pay for equal work’ is not a principle which the Courts may recognize and act upon, the Supreme Court held that there was no reason for giving the drivers of the Delhi Police Force a lower scale of pay than others.
20. The same view was taken by the Supreme Court in Dhirendra Chamab v. State of Uttar Pradesh 1986 I LLJ 134. It was held in that case that implicit in Article 14 of the Constitution was the principle that there must be equal pay for work of equal value. There the question was whether the casual employees who performed the same duties as were performed by Class IV employees appointed on regular basis against sanctioned posts, could claim the same salary and conditions of service. The question was answered in the affirmative. The Supreme Court observed that the fact that the employees accepted employment with full knowledge that they will be paid only daily wages and they will not get the same salary and conditions of service as other Class IV employees, cannot provide an escape to the Central Government to avoid the mandate of equality enshrined in Article 14 of the Constitution.
21. The Supreme Court also took similar view of the matter in Surindar Singh v. Engineer-in-Chief 1986 I LLJ 403.
22. In Rattan Lal v. State of Haryana 1986 I Lab LJ 23 the Supreme Court while considering the case of some ad-hoc teachers observed that the policy of ‘ad-hocism’ followed by the State Government for a long period had led to the breach of Articles 14 and 16 of the Constitution.”
23. There is no doubt that depriving the ad-hoc employees of equal financial benefit with their regularised counterparts in spite of their performing the same functions and duties, amounts to their naked exploitation which can hardly be expected from a Government committed to socialism.
24. It is immaterial what the status of such employees is, so long they perform the same duties as the regularised employees. They may not be regularised automatically but there can be no reason to deny them equal pay for equal work.
25. Non-regularisation has its own hazards since an ad-hoc employee has no right to his post and can be thrown out at any time. But a denial of equal pay to them for equal work so long they continue to be in service, by exploiting their helpless situation in the background of acute unemployment in the Country, cannot at least be expected from the State, which according to the Supreme Court should set example as a model employer.
26. So far the petitioners Nos. 2 to 14 are concerned, it is most unfortunate that since their joining in 1973 they have been denied a scale of pay in spite of their having the same qualification as their regularised counterparts and their performing the same functions and duties, simply because they have somehow failed to get themselves regularised. They started at a pay of Rs. 250/- per month which subsequently was revised to Rs. 425/- per month. And this, if I am correct, is even less than the total monthly emolument of a senior Class IV employee and many other employees of such inferior status as Annexure ‘G’ to the writ petition will show.
27. Desperate representations made by the petitioners to grant them a scale of pay failed to evoke any sympathy from any quarter and even the State Pay Commission remained indifferent to their most legitimate demand.
28. However, in view of what has been stated earlier, there can be no reason for refusing the petitioners a proper scale of pay.
29. The respondents are, accordingly, directed to give the petitioners Nos. 2 to 14 a proper scale of pay according to law with effect from the date of the award of the Pay Commission’s Report, that is, with effect from April 1,1981 and fix them in the said scale as per the existing rules.
30. This should be done positively within sixty days from the date of this order and within a further period of sixty days therefrom the petitioners should be paid all their arrears.
31 The Rule is, accordingly, made absolute.
32. There will be no order as to costs.
33. Let a copy of this order be communicated to the respondent No. 1 within a period of 10 days from this date at the cost of the petitioners.
