# Prem Chandra v. State of U.P. & Ors

- **Citation:** (2023) 5 ILRA 1416
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-28
- **Case number:** Writ-A No. 25213 of 2019
- **Bench:** Vivek Chaudhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prem-chandra-v-state-of-u-p-ors-50113
- **Pages:** 6

## Headnote

A. Service Law - Minimum pay scale -
Principle of 'equal pay for equal work',
which has emerged by interpretation of
different provision of the Constitution and
expounded through a large number of
judgments of Supreme Court, continues to
be the law declared by Supreme Court.
The same is binding upon all. The same is
extended to temporary employees including
work charge, daily wage, casual, adhoc,
contractual etc. Thus, it held that they are
entitled to draw wages on minimum of
pay scale (at the lowest grade, in the
regular pay scale), extended to regular
employees holding the same post. (Para
13)

In the present case, petitioner, who is
continuously working since 2013 except for
artificial breaks, is also entitled for payment of
minimum of pay scale that is being given to
regular employees providing same work in
respondent department. (Para 14)

B.
Merely
by
engaging
daily
wage
employees through a service provider
agency, State Government cannot shyaway from its responsibility of providing
minimum of pay scale which it is bound to
pay in accordance with law. (Para 17)

Respondent-State submits that petitioner is
engaged through a service provider agency,
therefore, he is not entitled for minimum of pay
scale also does not have any force as, Supreme
Court has held that the said benefit is available
to all temporary employees whatever their
nomenclature may be. (Para 16)

Writ petition allowed. (E-4)

Precedent followed:

St. of Pun. & ors. Vs Jagjit Singh & ors., (2017)
1 SCC 148 (Para 12)

Present petition challenges order dated
15.07.2019,
passed
by
Director,
Horticulture
and
Food
Processing,
Lucknow, whereby his representation for
minimum pay scale is rejected.

## Text

1416 INDIAN LAW REPORTS ALLAHABAD SERIES
selection process already commenced,
measures
to
facilitate
taken
in
the
interregnum prior to introduction of the
amended Rules would not apply likewise to
a selection process already commenced.
This is precisely the case with the selection
of the Headmistress of the Institution.

21. A perusal of the 7th Amendment
Rules shows that these Rules by virtue of
sub-Rule (2) of Rule 1 are ordained to
come into effect from the date of their
publication in the Gazette. There is nothing
to show in the amended Rules, either
expressly or by necessary implication, that
these have retrospective operation. The
principle adumbrated by the Full Bench in
Santosh Kumar Singh, therefore, would
apply to save the process of selection for
the post of Headmistress of the Institution,
that was initiated much before the 7th
Amendment Rules were enforced. In fact,
the process of selection was completed
before the 7th Amendment Rules were
notified. The process of selection would,
therefore, be governed by the Rules of
1978, unaffected by the 7th Amendment
Rules.

22. As already remarked, if the 7th
Amendment Rules do not affect the
selection
process
for
the
post
of
Headmistress of the Institution commenced
much earlier, the measures taken by the
State
Government in interregnum to
facilitate the application of the new regime
under the 7th Amendment Rules, would not
affect the validity of the selection process
either. After all, the ban on selection,
assuming that it could be orally imposed by
the Additional Chief Secretary, pending
enforcement of the 7th Amendment Rules,
would not affect the validity of the
selection process, because the ban was only
an interim measure in aid of the 7th
Amendment Rules. If it be assumed further
that the ban would nevertheless stall the
ongoing selection process, already near
completion, when it was orally issued by
the
Additional
Chief
Secretary,
the
recruitment
process,
upon
the
7th
Amendment Rules coming into force,
would have to be carried to its logical
conclusion as the 7th Amendment Rules
would not affect it. The two Government
Orders dated 26.09.2019 and 31.10.2019
are also in the nature of measures issued in
aid
of
the
then
contemplated
7th
Amendment Rules. The ban imposed under
those orders would have like effect as the
oral orders of the Additional Chief
Secretary issued earlier imposing the ban.
The selection process relating to the post of
Headmistress would remain unaffected.

23. No other point was pressed.

24. In view of what has been said
above, we do not find any good ground to
interfere with the judgment and order
impugned.

25. The appeal fails and is dismissed.

26. Costs easy.
----------
(2023) 5 ILRA 1416
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.04.2023

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.

Writ-A No. 25213 of 2019

Prem Chandra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
5 All. Prem Chandra Vs. State of U.P. & Ors.
1417
Sri Akhilesh Kumar Mishra, Sri Pawan Kishor
Mishra, Sri Raj Kumar Singh, Sri Vijay Kumar

Counsel for the Respondents:
C.S.C.

A. Service Law - Minimum pay scale -
Principle of 'equal pay for equal work',
which has emerged by interpretation of
different provision of the Constitution and
expounded through a large number of
judgments of Supreme Court, continues to
be the law declared by Supreme Court.
The same is binding upon all. The same is
extended to temporary employees including
work charge, daily wage, casual, adhoc,
contractual etc. Thus, it held that they are
entitled to draw wages on minimum of
pay scale (at the lowest grade, in the
regular pay scale), extended to regular
employees holding the same post. (Para
13)

In the present case, petitioner, who is
continuously working since 2013 except for
artificial breaks, is also entitled for payment of
minimum of pay scale that is being given to
regular employees providing same work in
respondent department. (Para 14)

B.
Merely
by
engaging
daily
wage
employees through a service provider
agency, State Government cannot shyaway from its responsibility of providing
minimum of pay scale which it is bound to
pay in accordance with law. (Para 17)

Respondent-State submits that petitioner is
engaged through a service provider agency,
therefore, he is not entitled for minimum of pay
scale also does not have any force as, Supreme
Court has held that the said benefit is available
to all temporary employees whatever their
nomenclature may be. (Para 16)

Writ petition allowed. (E-4)

Precedent followed:

St. of Pun. & ors. Vs Jagjit Singh & ors., (2017)
1 SCC 148 (Para 12)

Present petition challenges order dated
15.07.2019,
passed
by
Director,
Horticulture
and
Food
Processing,
Lucknow, whereby his representation for
minimum pay scale is rejected.

(Delivered by Hon'ble Vivek Chaudhary, J.)

1.

Heard
learned
counsel
for
petitioner and learned Standing Counsel for
State-respondents.

2. The petitioner has approached this
Court challenging order dated 15.7.2019
passed
by
respondent
no.2-Director,
Horticulture
and
Food
Processing,
Lucknow whereby his representation for
minimum of pay scale is rejected.

3. Facts of the case, as claimed by
petitioner, are that petitioner was engaged
as a daily wager on Class-IV post (Mali) in
the year 2013 in the office of Scientist,
State
Tissue
Culture
Lab,
Sector-G,
Aliganj, Lucknow, where he was being paid
daily wages only. He claims that other
similarly situated daily wage employees,
who have completed more than five years
of service, are being paid minimum of pay
scale while the same is denied to him.

4. Learned counsel for petitioner
submits that impugned order is passed on
false and incorrect facts. Submissions made
by petitioner are either not considered in
the impugned order or are rejected by
concocting incorrect facts.

5. On the other hand, learned
Standing Counsel strongly opposing the
petition, submits that since petitioner is
working as a daily wager through a service
provider agency, hence, he is not entitled
for minimum of pay scale. He further
1418 INDIAN LAW REPORTS ALLAHABAD SERIES
submits that impugned order is passed in
accordance with law.

6. It is not in dispute that aforesaid
Lab is run by department of Horticulture
and Food Processing and is part of the
same. It is the officers and employees of
Horticulture
and
Food
Processing
department of State of U.P., who are
working and running the said Lab. While
rejecting the representation, it is noted that
petitioner in the year 2013 had worked for
2 months, in 2014 again for 2 months, in
2016 for 5 months, in 2017 for 4 months, in
2018 for 2 months and since September,
2018, he has been working through a
service provider agency.

7. In counter affidavit dated 5.12.2019
also said facts are reiterated. However, a
detailed supplementary counter affidavit
was filed on 8.2.2023 and along with the
same working chart of petitioner from
September, 2013 onwards is enclosed as
Annexure-SCA-9. The said chart shows
that since the year 2013 till date, working
of petitioner only on muster-roll is
considered
while
rejecting
his
representation.
His
entire
working
admittedly through a service provider is not
considered. The same shows that petitioner
started working since September, 2013 and
worked for all four months of the year 2013
and thereafter in 2014, he worked for 8
months, in 2015 for 7 months, in 2016 for
11 months, in 2017 for 10 months, in 2018
for 7 months, in 2019 for 12 months and in
2020, he was continuously working till the
time chart was prepared.

8. Thus, from the aforesaid chart, it is
clear that impugned order is passed by
referring to wrong and incorrect facts. The
Director, Horticulture and Food Processing
is a senior officer. It is not expected that he
would refer to incorrect and incomplete
facts while considering the case of a person
under the orders of this Court. He is
cautioned not to conduct proceedings in
such manner in future.

9. The aforesaid facts clearly show
that petitioner is now working for last
around
ten
years
with
respondent
department.

10. The petitioner claims that persons,
who are working as daily wager for more
than five years, are paid minimum of pay
scale under the orders of this Court. For the
said purpose, learned counsel for petitioner
relies
upon
a
communication
dated
4.11.2004 made by Joint Director/Incharge
Officer,
Rajkiya
Utak
Sambardhan
Proyogshala, Aliganj, Lucknow to Director,
Horticulture
and
Food
Processing,
Lucknow. In the said communication, Joint
Director/Incharge Officer has specifically
stated that such daily wage employees in
the department, who have completed five
years or more service, are getting minimum
of pay scale of Rs.3050-4590 under the
orders
of
High
Court.
Sri
Pankaj
Srivastava,
Daily
Wager
is
getting
minimum of aforesaid pay scale. Thus, he
has recommended that other similarly
situated Class-IV employees should also be
granted minimum of said pay scale. The
said document is filed as Annexure-4 to the
writ
petition.
The
said
letter
dated
4.11.2004 is admitted in Para-16 of the
counter affidavit, but the same is explained
by saying that on the aforesaid letter dated
4.11.2004, no decision has been taken at
State level.

11. The same cannot be a ground for
refusing benefit of minimum of pay scale to
petitioner, which is already being extended
by respondent department to other similarly
5 All. Prem Chandra Vs. State of U.P. & Ors.
1419
situated persons. In fact, said submission of
petitioner though is noted in impugned
order, but is nowhere considered and
decided.

12. The law with regard to payment of
minimum of pay scale is settled by the
Supreme Court in State of Punjab and
others vs. Jagjit Singh and others (2017) 1
SCC 148. Paragraphs 56 to 61 of the said
judgment read as follows:

"56. We shall now deal with the
claim of temporary employees before this
Court.

57. There is no room for any
doubt that the principle of "equal pay for
equal
work"
has
emerged
from
an
interpretation of different provisions of the
Constitution. The principle has been
expounded through a large number of
judgments rendered by this Court, and
constitutes law declared by this Court. The
same is binding on all the courts in India
under Article 141 of the Constitution of
India. The parameters of the principle have
been summarised by us in para 42
hereinabove. The principle of "equal pay
for equal work" has also been extended to
temporary employees (differently described
as work-charge, daily wage, casual, ad
hoc, contractual, and the like). The legal
position, relating to temporary employees
has been summarised by us, in para 44
hereinabove. The above legal position
which has been repeatedly declared, is
being reiterated by us yet again.

58. In our considered view, it is
fallacious
to
determine
artificial
parameters to deny fruits of labour. An
employee engaged for the same work
cannot be paid less than another who
performs
the
same
duties
and
responsibilities. Certainly not, in a welfare
State. Such an action besides being
demeaning, strikes at the very foundation of
human dignity. Anyone, who is compelled
to work at a lesser wage does not do so
voluntarily. He does so to provide food and
shelter to his family, at the cost of his selfrespect and dignity, at the cost of his selfworth, and at the cost of his integrity. For
he knows that his dependants would suffer
immensely, if he does not accept the lesser
wage. Any act of paying less wages as
compared to others similarly
situate
constitutes
an
act
of
exploitative
enslavement,
emerging
out
of
a
domineering position. Undoubtedly, the
action is oppressive, suppressive and
coercive,
as
it
compels
involuntary
subjugation.

59. We would also like to extract
herein Article 7 of the International
Covenant
on
Economic,
Social
and
Cultural Rights, 1966. The same is
reproduced below:

"7. The States Parties to the
present Covenant recognise the right of
everyone to the enjoyment of just and
favourable conditions of work which
ensure, in particular:

(a) Remuneration which provides
all workers, as a minimum, with:

(i)
Fair
wages
and
equal
remuneration for work of equal value without
distinction of any kind, in particular women
being guaranteed conditions of work not
inferior to those enjoyed by men, with equal
pay for equal work;

(ii) A decent living for themselves
and their families in accordance with the
provisions of the present Covenant;
1420 INDIAN LAW REPORTS ALLAHABAD SERIES

(b) Safe and healthy working
conditions;

(c)
Equal
opportunity
for
everyone to be promoted in his employment
to an appropriate higher level, subject to
no considerations other than those of
seniority and competence;

(d) Rest, leisure and reasonable
limitation of working hours and periodic
holidays with pay, as well as remuneration
for public holidays."

 (emphasis supplied)

India is a signatory to the above
Covenant having ratified the same on 10-41979. There is no escape from the above
obligation in view of different provisions of
the Constitution referred to above, and in
view of the law declared by this Court
under Article 141 of the Constitution of
India, the principle of "equal pay for equal
work" constitutes a clear and unambiguous
right and is vested in every employeewhether engaged on regular or temporary
basis.

60. Having traversed the legal
parameters
with
reference
to
the
application of the principle of "equal pay
for equal work", in relation to temporary
employees (daily-wage employees, ad hoc
appointees, employees appointed on casual
basis, contractual employees and the like),
the
sole
factor
that
requires
our
determination is, whether the employees
concerned
(before
this
Court),
were
rendering
similar
duties
and
responsibilities as were being discharged
by
regular
employees
holding
the
same/corresponding posts. This exercise
would require the application of the
parameters of the principle of "equal pay
for equal work" summarised by us in para
42 above. However, insofar as the instant
aspect of the matter is concerned, it is not
difficult for us to record the factual
position. We say so, because it was fairly
acknowledged by the learned counsel
representing the State of Punjab, that all
the temporary employees in the present
bunch of appeals were appointed against
posts which were also available in the
regular cadre/establishment. It was also
accepted that during the course of their
employment, the temporary employees
concerned were being randomly deputed to
discharge duties and responsibilities which
at some point in time were assigned to
regular
employees.
Likewise,
regular
employees holding substantive posts were
also posted to discharge the same work
which
was
assigned
to
temporary
employees from time to time. There is,
therefore, no room for any doubt, that the
duties and responsibilities discharged by
the temporary employees in the present set
of appeals were the same as were being
discharged by regular employees. It is not
the case of the appellants, that the
respondent employees did not possess the
qualifications prescribed for appointment
on regular basis. Furthermore, it is not the
case of the State that any of the temporary
employees would not be entitled to pay
parity on any of the principles summarised
by us in para 42 hereinabove. There can be
no doubt, that the principle of "equal pay
for equal work" would be applicable to all
the temporary employees concerned, so as
to vest in them the right to claim wages on
a par with the minimum of the pay scale of
regularly engaged government employees
holding the same post.

61. In view of the position
expressed
by
us
in
the
foregoing
paragraph, we have no hesitation in
holding that all the temporary employees
5 All. State of U.P. & Ors. Vs. The Labour Court Gorakhpur & Anr.
1421
concerned, in the present bunch of cases
would be entitled to draw wages at the
minimum of the pay scale (at the lowest
grade, in the regular pay scale), extended
to regular employees holding the same
post."

13. The Supreme Court after
considering all the earlier law settled on the
issue has again reiterated that principle of
'equal pay for equal work', which has
emerged by interpretation of different
provision
of
the
Constitution
and
expounded through a large number of
judgments of Supreme Court, continues to
be the law declared by Supreme Court. The
same is binding upon all. The same is
extended to temporary employees including
work charge, daily wage, casual, adhoc,
contractual etc. Thus, it held that they are
entitled to draw wages on minimum of pay
scale (at the lowest grade, in the regular
pay scale), extended to regular employees
holding the same post.

14. In the aforesaid circumstances,
petitioner, who is continuously working since
2013 except for artificial breaks, is also entitled
for payment of minimum of pay scale, that is
being given to regular employees providing
same work in respondent department.

15. The respondents again try to hide
behind the argument that they have not engaged
any Class-IV employee in the Laboratory. The
Laboratory itself is part of Horticulture and Food
Processing department. It is not in dispute that
regular Class-IV employees are working in
Horticulture department. It is also not in dispute
that in absence of petitioner, other Class-IV
employees of the department would be bound to
perform duties that are being performed by
petitioner. Therefore, petitioner is entitled to
minimum of pay scale that any Class-IV
regularly appointed employee would be entitled
to, in case petitioner is not available for
performing his duties.

16. Submission of respondent-State that
petitioner is engaged through a service provider
agency, therefore, he is not entitled for minimum
of pay scale also does not have any force as in
Para-60 of the aforesaid judgment, Supreme
Court has held that the said benefit is available to
all
temporary
employees
whatever
their
nomenclature may be.

17. Merely by engaging daily wage
employees through a service provider agency,
State Government cannot shy-away from its
responsibility of providing minimum of pay
scale which it is bound to pay in accordance with
law.

18. Hence, impugned order dated
15.7.2019 cannot stand and is set aside.
Respondents are directed to pay minimum of pay
scale to petitioner as is being paid to similarly
situated employees performing the same work in
respondent department forthwith without any
delay.

19. Accordingly, writ petition stands
allowed.
----------
(2023) 5 ILRA 1421
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.05.2023

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Writ-C No. 3192 of 2017

State of U.P. & Ors. ...Petitioners
Versus
The Labour Court Gorakhpur & Anr.
 ...Respondents

Counsel for the Petitioners: