# Haryana & Ors v. Tilak Raj & Ors

- **Citation:** (2006) 3 ILRA 1243
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-02-23
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/haryana-ors-v-tilak-raj-ors-40693
- **Pages:** 4

## Headnote

Constitution of India. Art. 226-Minimum
Pay Scale-appointment on daily wages
basis as Driver-working on the basis of
interim Order if no substantive appointee
joined-claim for minimum pay scale as
payable
to
regular
Drivers-held-not
entitled except the minimum wages
prescribed in respect of employment.

Held: Para 7 & 8

In view of the aforesaid settled legal
position, the petitioner is not entitled to
the minimum of the pay scale admissible
to the post of driver appointed on
regular
basis.
It
is
held
that
the
petitioner may be paid wages strictly in
accordance with the minimum wages
prescribed
in
respect
of
such
employment.

## Text

1242 INDIAN LAW REPORT ALLAHABAD SERIES [2006
The revision is partly allowed with
the aforesaid directions.
Revision Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.02.2006

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 11194

Triloki Nath

...Petitioner
Versus
The State of Uttar Pradesh through
Principal Secretary Health Department,
Health Department, U.P., Lucknow and
others

 ...Respondents

Counsel for the Petitioner:
Sri Rajendra Rai

Counsel for the Respondents:
S.C.

Constitution of India. Art. 226-Minimum
Pay Scale-appointment on daily wages
basis as Driver-working on the basis of
interim Order if no substantive appointee
joined-claim for minimum pay scale as
payable
to
regular
Drivers-held-not
entitled except the minimum wages
prescribed in respect of employment.

Held: Para 7 & 8

In view of the aforesaid settled legal
position, the petitioner is not entitled to
the minimum of the pay scale admissible
to the post of driver appointed on
regular
basis.
It
is
held
that
the
petitioner may be paid wages strictly in
accordance with the minimum wages
prescribed
in
respect
of
such
employment.

8. So far as the judgment relied upon
the learned counsel for the petitioner in
the case of State of U.P. and others Vs.
Putti Lal reported in 2002 (2) UPLBEC,
1595, is concerned, suffice is to pointed
out
that
the
same
is
clearly
distinguishable in
the
facts of the
present case, more so when the legal
position
has
been
clarified
by
subsequent judgments of the Hon'ble
Supreme Court in the case of State of
Haryana & Ors. Vs. Tilak Raj & Ors.
(supra), the same must necessarily
prevail.
Case law discussed:
2002(2) U.P.L.B.C-1595

(Delivered by Arun Tandon, J.)

1. Heard Sri Rajendra Rai, Advocate
on behalf of the petitioner and kearned
Standing
Counsel
on
behalf
of
respondents.

2. From the records of the present
writ petition, it is apparently clear that the
services of petitioner, who was employed
as daily wage employee, were terminated
under an order dated 30th June, 1992. The
order dated 30th June 1992 was challenged
before this Court by means of Civil Misc.
Writ Petition No.29855 of 1992 (Mohan
Prasad and Others Vs. State of U.P. and
Others). In the writ petition an interim
order was granted by this Court dated 19th
August, 1992, whereunder the order
terminating, the petitioner's services, was
stayed, and it was provided that the
petitioner shall be paid salary and it was
provided that the petitioner shall be paid
salary and other benefits. It was further
clarified that the order will be effective
only if no substantive appointment has
been made on the post held by the
petitioner and the said post held by the
petitioner and the said post has not been
abolished. For ready reference interim
order of this court is being quoted herein
below:
3All] Triloki Nath V. The State of U.P. and others 1243
"Issue notice.
Until
ordered
otherwise,
the
operation of the impugned order dated
30-6-92
shall
remain
stayed.
The
petitioner shall be entitled to the payment
of the salary and other benefits, However,
it is made clear that this order will be
effective
only
if
no
substantive
appointment has been made on the post
held by the petitioner and the said post
has not been abolished."

3. In compliance of the interim order
of this Court dated 19th August, 1992 the
petitioner was restored back as daily wage
employee under an order passed by the
Divisional
Ayurvedic
Evam
Unani
Officer(Kshetriya Ayurvedic Evam Unani
Adhikari) Azamgarh dated 13th October,
1992. It is alleged that the petitioner
continued to function as daily wage
employee. Writ petition no. 29855 of
1995 was ultimately disposed of finally
by this Court vide order dated 9th May,
2002, which reads as follows:

"No counter affidavit has been filed.
The allegations made in the writ petition
remain uncontroverted.

It is the case of the petitioner that he
has been rendering continuous service
since long period without any interruption
and the interim order granted earlier
exists, in this case. The said fact has not
been denied, by filing, the counter
affidavit.
The respondents shall consider the case of
the petitioner for regularization of his
services in accordance with law and to
pay salary, if any, due to the petitioners,
forthwith.

With the aforesaid observations, the
writ petition stands disposed of."

4. Thereafter a fresh order was
issued by, the Director, Rajkiya Evam
Unnai Sewa, U.P. Lucknow (respondent
no.2) dated 27th February, 2003 offering
appointment to the petitioner as driver
from the date of appointment on daily
wage basis.

5. On the strength of the aforesaid
working, the petitioner seeks minimum of
the pay-scale admissible to the post of
driver appointed on regular basis.

6. The issue qua the payment of
minimum of the pay scale applicable to
the regular employees was subject matter
of consideration before the Hon'ble
Supreme Court of India in the case of
State of Haryana & Ors. Vs. Tilak Raj &
Ors. reported in JT 2003 (5) SC 544 after
referring to the various judgments on the
subject. The Hon'ble Supreme Court of
India in paragraph nos.7, 8,9 and 10 has
held as follows:

"7. At this juncture, it would be
proper to take note of what was stated in
Jasmer Singh's case (supra). In paragraph
10 and 11, it was noted as under:
"10. The respondents, therefore, in
the present appeals who are employed on
daily wages cannot be treated as on a par
with persons in regular services of the
State of Haryana holding similar posts.
Daily-rated workers are not required to
posses the qualifications prescribed for
regular workers, nor do they have to
fulfill the requirement relating to age at
the time of recruitment. They are not
selected in the manner in which regular
employees are selected. In other words
the requirements for selection are not as
rigorous. There are also other provisions
relating
to
regular
service
to
the
disciplinary jurisdiction of the authorities
1244 INDIAN LAW REPORT ALLAHABAD SERIES [2006
as prescribed, which the daily-rated
workmen are not subjected to. They
cannot, therefore, be equated with regular
workmen for the purposes for their wages.
Nor can they claim the minimum of the
regular pay scale of the regularly
employed.
11. The High Court was, therefore,
not right in directing that the respondents
should be paid the same salary and
allowances as are being paid to regular
employees holding similar posts with
effect
from
the
dates
when
the
respondents
were
employed.
If
a
minimum wage is prescribed for such
workers the respondents would be entitled
to it if iis more than what they are being
paid."
8.
In Harbans Lal's case (supra)
and Vikram Chaudhary's case (supra), it
was held that daily rated workmen were
entitled to be paid minimum wages
admissible to such workmen as prescribed
and not the minimum in the pay scale
applicable to similar employees in regular
service unless the employer had decided
to make such minimum in the pay scale
applicable to the daily rated workmen.
9. In a recent case this Court in
State of Orissa and Ors. V. Balaram Sahu
and Ors; speaking through one of us
(Doraiswamy Raju, J) expressed the view
that the principles laid down in the well
considered decision of Jasmer Singh's
case (supra) indicated the correct position
of law. It was noted that the entitled of the
workers concerned was to the extent of
minimum wages prescribed for such
workers, if it is more than what was being
paid to them.
10. A scale of pay, is attached, to a
definite post and in case of a daily wager,
he holds no post. The respondent workers
cannot be held to hold any posts to claim
even any comparison with the regular and
permanent staff for any or all purposes
including a claim for equal pay and
allowances. To claim a relief on the basis
of equality, it is for the claimants to
substantiate
a
clear
cut
basis
of
equivalence
and
a
resultant
hostile
discrimination before becoming eligible
to claim rights on a par with the other
group vis-à-vis an alleged discrimination.
No material was placed before the High
Court as to the nature of the duties of
either categories and it is not possible to
hold that the principle of "equal pay for
equal work" is an abstract one.
"Equal pay for equal work" is a
concept
which
requires
for
its
applicability complete and wholesale
identity between a group of employees
claiming identical pay scales and the other
group of employees who have already
earned such pay scales. The problem
about equal pay cannot always be
translated in to a mathematical formula."

7. In view of the aforesaid settled
legal position, the petitioner is not entitled
to the minimum of the pay scale
admissible to the post of driver appointed
on regular basis. It is held that the
petitioner may be paid wages strictly in
accordance with the minimum wages
prescribed in respect of such employment.

8. So far as the judgment relied upon
the learned counsel for the petitioner in
the case of State of U.P. and others Vs.
Putti Lal reported in 2002 (2) UPLBEC,
1595, is concerned, suffice is to pointed
out that the same is clearly distinguishable
in the facts of the present case, more so
when the legal position has been clarified
by subsequent judgments of the Hon'ble
Supreme Court in the case of State of
Haryana & Ors. Vs. Tilak Raj & Ors.
3All] Bantu V. State of U.P. 1245
(supra),
the
same
must
necessarily
prevail.

9. The writ petition is accordingly
dismissed subjected to the observations
made above. Petition Dismissed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.08.2006.

BEFORE
THE HON'BLE M.C. JAIN, J.
THE HON'BLE K.K. MISRA, J.

Criminal Jail Appeal (Capital Case) No.
200 of 2006

Bantu

...Appellant
Versus
State of U.P.

 ...Respondent

Counsel for the Appellant:
Sri Ram Ji Saxena
(AMICUS CURIAE)

Counsel for the Respondent:
Sri Karuna Nand Bajpai.
A.G.A.

Criminal Appeal-Confirmation of death
sentence-Phrase-rarest
of rare caseoffence under section 364/376/302 IPChelpless girl aged about 5 yrs.-murder
committed extremely brutal, grotesque
diabolical
revolting
and
dastardly
manner-after committing rape on herinserting '3' sticks inside vagina-causing
extensive damage taken out only at the
time of post mortem-cannot be allowed
to go back to the society-death sentence
affirmed.

Held: Para 42 & 43

Taking note of earlier decisions, tests to
determine the rarest of rare cases in
which death penalty can be inflicted
were summarized by the Apex Court in
the case of State of U.P. Vs. Satish 2005
SCC (Crl) 642. The gist is that rarest of
rare cases in which death sentence
should be awarded, is one when the
collective conscience of the community is
so shocked that it will expect the holders
of judicial power to inflict death penalty.

In our considered opinion, the present
case falls in the rarest of rare category
calling for death penalty for the murder
of helpless and hapless girl aged about 5
years who was murdered by the accused
appellant after committing rape on her.
The murder was committed in extremely
brutal, grotesque, diabolical, revolting
and dastardly manner, so as to arouse
intense and extreme indignation of the
community. The accused took away his
neighbor's daughter aged about 5 years
from the sit of 'Devi Jagran', where she
was present with her father and relatives
by deceitful means of giving her a
balloon. He straightaway took her to a
field, committed rape on her and then
brutally murdered her by inserting a
stem 13 inches inside her vagina causing
extensive damage. It is shuddering that
more than a fl. of stick had been inserted
into
her
vagina
causing
extensive
damage inside and the stick could be
taken out only at the time of post
mortem of the unfortunate girl. The
victim was an innocent child aged about
5 years. The accused is totally depraved.
He cannot be allowed to return back to
the society at all. The offence has
definitely generated a deep sense of
abhorrence in the society.
Case law discussed:

(Delivered by Hon'ble M.C. Jain, J.)

1. This is a capital case. The
accused-appellant
Bantu
has
been
convicted under section 364,376 and 302
I.P.C. by the impugned judgment and
order dated 24.12.2005, passed by Sri
Alok
Kumar
Bose,
Special
Judge
(E.C.Act)/Additional
Sessions
Judge,