# State of U.P. and others v. Uttar Pradesh Madhyamik Shiksha Parishad and others

- **Citation:** (2004) 1 ILRA 123
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-09-29
- **Case number:** Civil Misc. Writ Petition No. 691 of 1988
- **Bench:** M. Katju, Umeshwar Pandey
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-and-others-v-uttar-pradesh-madhyamik-shiksha-parishad-and-others-40239
- **Pages:** 11

## Headnote

Constitution
of
India-Article
226
Regularisation
Service Law-daily wager-regularisationhave to face a regular selection in
accordance with the rules they cannot be
regularized without selection, non can
get regular pay scale

Held- Para 43

For getting regular appointment and
regular pay scale respondents 2 to 34
have to face a regular selection in
accordance with the rules and they
cannot be regularised without such
selection in accordance with the rules,
nor can they get the regular pay scale.

Constitution
of
India-Article
141Precedent-Binding-effect
Mere direction of the Supreme Court to
regularize an employee without laying
down any principle of law, held no
binding precedent.

Held- Para 44

No doubt in certain decisions the Courts
have given direction for regularising
daily
wagers
or
casual/temporary
employees but in our opinion such
directions do not amount to a precedent
vide
Indian
Council
of
Agricultural
Research vs. Raja Balwant Singh College,
2003(1) ESC 424, Delhi Administration
vs. Manoharlal, AIR 2002 SC 3088, etc.
What is a binding precedent is a principle
of law which has been laid down in a
decision of the Court, and a mere
direction
without
laying
down
any
principle of law is not a precedent. A
case is an authority for what it actually
decides vide Goodyear India Ltd. vs.
State of Haryana, AIR 1990 SC 781,
Sreenivasa General Traders vs. State of
A.P., AIR 1983 SC 1246 (para 29), Union
of India vs. Dhanwanti Devi, (1996) 6
SCC 44 (paragraphs 9 and 10), M/s Amar
Nath Om Prakash vs. State of Punjab and
others, AIR 1985 SC 218, etc. Everything
in a decision is not a precedent vide
State of Punjab vs. Baldeo Singh 1999
SCC (Crl) 1080.

Constitution of India-Article 39 (d)
Respondents-appointed when there was
heavier load of work e.g. during the
examination time, without undergoing
any selection in accordance with the
rules-cannot claim party in pay scale
with the regularly selected employees.

Held- Para 46

The regular clerks were appointed after
facing a selection which was held after
advertising the posts and after following
the rules. The daily wagers were not
appointed in that manner at all. In fact
the respondents appear to be purely ad
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hoc appointees appointed when there
was heavier load of work e.g. during the
examination
time,
but
without
undergoing any selection in accordance
with the rules. Hence they cannot claim
parity
with
the
regularly
selected
employees.
Case Law:
AIR 1992 SC 1203
1997(3) AWC 1476
1999 (1) UPLBEC 388
JT 1994(1) SC 574
2003(6) SCC 123
1988(3) SCC 91
1989(1) SCC 121
1995(5) SCC 210
1996 (11) SCC 77
2003(1) SCC 250
2002(2) UPLBEC 1680
JT 1997(4) SC 515
1995 (Supp.)(3) SCC 613
1996(10) SCC 56
AIR 1995 SC 1889
1997 SCC 633
JT 1997(3) 569
AIR 1996 SC 1188
2003(1) ESC 424
AIR 2002 SC 3088
AIR 1990 SC 781
AIR 1983 SC 1246 (Para-29)
1996(6) SCC 44 (Para-9 and 10)
AIR 1985 SC 218
1999 SCC (Cri) 1080

## Text

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1 All] Ajay Yadav V. Cantonment Board and another
123
21. For the reasons stated above the
writ petition is disposed of with the above
directions. The respondent Board is
directed to reconsider the matter in the
above light. No order as to costs. This
judgment will also decide the connected
writ petition nos. 1239 of 2003, Abhijeet
Kumar vs. Cantt. Board and another and
7313 of 2003,Surendra Kumar vs. Cantt.
Board and another.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.09.2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE UMESHWAR PANDEY, J.

Civil Misc. Writ Petition No. 691 of 1988

State of U.P. and others
 ...Petitioner
Versus
Uttar
Pradesh
Madhyamik
Shiksha
Parishad and others
...Opposite Party

Counsel for the Petitioner:
S.C.
Counsel for the Respondents:
Sri Banarsi Das

Constitution
of
India-Article
226
Regularisation
Service Law-daily wager-regularisationhave to face a regular selection in
accordance with the rules they cannot be
regularized without selection, non can
get regular pay scale

Held- Para 43

For getting regular appointment and
regular pay scale respondents 2 to 34
have to face a regular selection in
accordance with the rules and they
cannot be regularised without such
selection in accordance with the rules,
nor can they get the regular pay scale.

Constitution
of
India-Article
141Precedent-Binding-effect
Mere direction of the Supreme Court to
regularize an employee without laying
down any principle of law, held no
binding precedent.

Held- Para 44

No doubt in certain decisions the Courts
have given direction for regularising
daily
wagers
or
casual/temporary
employees but in our opinion such
directions do not amount to a precedent
vide
Indian
Council
of
Agricultural
Research vs. Raja Balwant Singh College,
2003(1) ESC 424, Delhi Administration
vs. Manoharlal, AIR 2002 SC 3088, etc.
What is a binding precedent is a principle
of law which has been laid down in a
decision of the Court, and a mere
direction
without
laying
down
any
principle of law is not a precedent. A
case is an authority for what it actually
decides vide Goodyear India Ltd. vs.
State of Haryana, AIR 1990 SC 781,
Sreenivasa General Traders vs. State of
A.P., AIR 1983 SC 1246 (para 29), Union
of India vs. Dhanwanti Devi, (1996) 6
SCC 44 (paragraphs 9 and 10), M/s Amar
Nath Om Prakash vs. State of Punjab and
others, AIR 1985 SC 218, etc. Everything
in a decision is not a precedent vide
State of Punjab vs. Baldeo Singh 1999
SCC (Crl) 1080.

Constitution of India-Article 39 (d)
Respondents-appointed when there was
heavier load of work e.g. during the
examination time, without undergoing
any selection in accordance with the
rules-cannot claim party in pay scale
with the regularly selected employees.

Held- Para 46

The regular clerks were appointed after
facing a selection which was held after
advertising the posts and after following
the rules. The daily wagers were not
appointed in that manner at all. In fact
the respondents appear to be purely ad
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
124
hoc appointees appointed when there
was heavier load of work e.g. during the
examination
time,
but
without
undergoing any selection in accordance
with the rules. Hence they cannot claim
parity
with
the
regularly
selected
employees.
Case Law:
AIR 1992 SC 1203
1997(3) AWC 1476
1999 (1) UPLBEC 388
JT 1994(1) SC 574
2003(6) SCC 123
1988(3) SCC 91
1989(1) SCC 121
1995(5) SCC 210
1996 (11) SCC 77
2003(1) SCC 250
2002(2) UPLBEC 1680
JT 1997(4) SC 515
1995 (Supp.)(3) SCC 613
1996(10) SCC 56
AIR 1995 SC 1889
1997 SCC 633
JT 1997(3) 569
AIR 1996 SC 1188
2003(1) ESC 424
AIR 2002 SC 3088
AIR 1990 SC 781
AIR 1983 SC 1246 (Para-29)
1996(6) SCC 44 (Para-9 and 10)
AIR 1985 SC 218
1999 SCC (Cri) 1080

(Delivered by Hon'ble M. Katju, J.)

1. This writ petition has been filed
against
the
impugned
order
dated
15.06.1987 vide Annexure-1 to the writ
petition.

2. The Petitioner no. 3, Board of
High School and Intermediate Education,
U.P. is statutory body established under
the U.P. Intermediate Education Act,
1921 as amended from time to time. Its
Headquarters is at Allahabad. It is an
examining body that holds Board of High
School and Intermediate Examinations
every year. As stated in paragraph 3 of the
petition, these examinations are one of the
biggest examinations conducted in the
world. About 20 lacs students appear in
the examinations conducted by the Board.
3. It is alleged in Para 4 of the
petition that to take care of the handling
of the examinations a large number of
daily wage causal workers and labourers
are engaged by the Board from time to
time.
These
persons
are
engaged
according to the exigencies of work in the
office of the Board. These causal daily
wage workers and labourers are employed
at the rate prevailing from time to time,
fixed by the Government. In the years
1975 to 1978 the workers were paid
Rs.5/- per day, during the years 1979 to
1983 they were paid Rs.7/- per day, from
1983 to 1985 they were paid Rs.10/- per
day, from 24.03.1985 to 11.12.1985 at
Rs.15/- per day.

4. It is alleged in Para 6 of the
petition that the respondents 2 to 34, who
were the petitioners before the U.P. Public
Service Tribunal, were engaged along
with other persons by the Board to
discharge various manual duties and
function at its head office at Allahabad. It
may be mentioned that the respondents
were causal daily wage employees, and
their services were never regularized nor
were they ever absorbed in the cadre of
the Board's Office. They were only doing
manual work and were not engaged to
ministerial, clerical or official work as
performed by the clerks or officials of the
Board. They were merely assisting the
clerks by carrying files, documents and
papers. Some times they acted as
messengers. Their job was not done
independently.
They
were
manual
workers and labourers employed for
specific purposes.
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1 All] State of U.P. and others V. U.P. Madhyamik Shiksha Parishad and others
125
5. It is alleged in Para 8 of the
petition that there was another category of
nominal roll writers, which was only a
nomenclature used for the sake of
convenience. These nominal roll writers
were in fact engaged to assist the Board
officials in reading and writing the
documents, paper, rolls, marks-sheets etc.
They were getting honoraria in the shape
of daily conveyance allowance, but no
regular pay-scale was given to them. Thus
no regular pay-scale was given to any of
the respondents.

6. In Para 10 of the petition it is
alleged that the respondents voluntarily
and of their own free will accepted this
arrangement. There were no service rules
in the Board by which the services of such
persons could be regularized, and the
respondents have no right to the posts. It
is also stated that the posts of the regular
establishment of the Board are filled in
through direct recruitment after formal
notification and formal selection by a
Selection
Committee.
No
such
advertisement, publication or selection
was held for appointing the respondents.

7. In Para 11 of the petition it is
stated that the State Government vide
G.O.
dated
14/11/1979
banned
the
recruitment of nominal roll writers vide
Annexure-2. In Para 12 it is stated that in
the year 1972 the first Regional Office of
the Board was established in Meerut, and
thereafter
Regional
Offices
were
established at Varanasi and Bareilly in the
years 1978 and 1981 respectively. In 1986
the State Government constituted a Task
Force of an eight member Committee
which recommended establishment of
another Regional Office at Allahabad,
vide Annexure-3 to the petition. Since
there were four Regional Office, the work
load at the Head Office, Allahabad
decreased due to the de-centralization of
the work load. As no work was left for the
respondents 2 to 34 in the head office of
the petitioner Board at Allahabad, it could
have terminated the services of these
respondents but taking a lenient and
sympathetic
view,
it
gave
them
opportunity to work as daily wage
workers at the Regional Office, but they
were not interested in leaving Allahabad.

8. It is stated in Para 15 of the
petition that by G.O. dated 28/02/1986 the
Government sanctioned 138 posts for
clerks, and by another G.O. dated
31/10/1986, 109 temporary posts were
created of assistant, vide Annexures 4 and
5 to the petition.

9. The respondents filed a claim
petition before the U.P. Public Service
Tribunal claiming that they be treated as
regularized clerks against the newly
sanctioned posts, 247 in number, sanction
by the State Government vide G.O.,
copies of which are Annexures 4 and 5.
They also claimed the same salary as
regular staff on the basis of the principle
of 'equal pay for equal work' The
Tribunal after hearing the parties allowed
the petitioners claim. Hence this writ
petition.

10. It is alleged in Para 22 of the
petition that the respondents 2 to 34 were
not members of the regular cadre or
establishment of the Board's Office. They
were
only
daily
wage
employees
discharging manual duties. Their duties,
functions
and
responsibilities
were
altogether different from those of the
regular ministerial clerks and staff of the
office of the Board. For example, some
respondents were just carrying documents
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and papers from one section to another or
carrying typewriters, files. Examination
copies, roll numbers etc. from one room
to another in the premises of the Board's
Office. A clerk in the Board's office
discharges
ministerial
functions
like
typing, writing, making notes on the files,
considering documents, recording opinion
and preparing brief for the senior officers.
Respondents 2 to 34 were not doing this
work, they were only causal labourers
doing manual work.

11. It is alleged in Para 24 of the
petition that in fact the Tribunal in the
impugned order has taken a short cut and
disposed off the matter in a summary
manner. It is alleged that the Board will
have to incur very heavy expenses in
paying the regular salaries directed to be
paid by the Tribunal. The Board had in
fact retained the respondents 2 to 34
taking a lenient view in the matter and
offered them service at the Regional
Office but they refused. It is alleged that
for recruitment and promotion there has to
be a selection and test which was not done
in the case of the respondents. According
to the rules, the post has to be first
advertised, and then a candidate has to
undergo a formal selection test-interview,
typing test and other tests to get
appointment. Grant of regularization to
the respondents in the manner done by the
Tribunal
would
discriminate
against
others who are excluded from getting
such appointments.

12. Two supplementary affidavits
have also been filed by the petitioners and
we have perused the same.

13. In the first supplementary
affidavit it is stated in Para 3 that
originally 247 posts were sanctioned but
those were not for the Head Office at
Allahabad alone but also for all the three
Regional Offices of the Board i.e. at
Meerut, Varanasi and Bareilly. Of these
247 posts, 3 posts were of Assistant
Secretaries (Gazetted Posts), 4 posts of
Assistant Secretaries (Ministerial), 5 posts
of Superintendent, Grade-I, 20 posts of
Superintendent Grade-II, 100 posts of
Senior Assistant, 35 posts of Senior
Clerks and 80 posts of Junior Clerks. So
far as the three posts of the Assistant
Secretaries (Gazetted) are concerned, they
were filled by transfer of Officers from
the Education Department. Except the
Junior Clerks, the other posts were to be
filled by promotion from the lower ranks.
80 posts of Junior Clerks were to be filled
up by fresh recruitment. Before the
aforesaid 247 posts were sanctioned there
were 48 persons who were working as
paid Apprentice, and 95 persons were
working as Nominal Roll Writers. They
were all accommodated against these
posts except 19 persons. After the
aforesaid accommodations, the persons
available with the Board for being given
regular appointment as Junior Clerks were
19 Nominal Roll Writers who had already
been working from before, and 99 persons
selected through the District Selection
Committee. Thus the Board has given
appointments to 154 person on regular
basis so far. Now there are 81 posts lying
vacant to be filled in by the Board, and
after
this
there
are
still
19
paid
Apprentices who have not yet been given
regular appointments, and besides these
19 there are 82 selected candidates whose
selection has been made by the respective
District Selection Committee. Thus 101
persons have to be accommodated first
before the respondents 2 to 34 can be
considered.
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1 All] State of U.P. and others V. U.P. Madhyamik Shiksha Parishad and others
127
14. It is mentioned in Para 6 of the
petition that 82 of the selected candidates
had filed writ petitions in this court in
which directions had been given to the
Board to pay salary to them. In Para 7 it is
stated that the Board is finding it difficult
to
regularize
the
services
of
the
petitioners. They can be accommodated
only as Class-IV employees, provided
some
additional
posts
of
Class-IV
employees
are
sanctioned
by
the
Government or regular posts of Class-IV
employees fall vacant.

15. In para 9 of the supplementary
affidavit it is stated that none of the
petitioners have ever worked as Clerks.
They have only been assisting the clerks
in discharging the duties assigned to them
from time to time by the Officers of the
Board.

16. In para 5 of the second
supplementary affidavit it is stated that
while appointing the respondents as daily
wage
labourers
their
educational
qualification were not considered. The
procedure for recruitment of class III
employees is that they have to face a duly
constituted
departmental
selection
Committee, whereas the daily wage
labourers (respondents 2 to 34) were
engaged without facing a selection and
without following the regular procedure.
The daily wagers were never entrusted to
do the job of clerks. The daily wagers
were never entrusted to do the job of
clerks. The clerks have to maintain
important registers and other records, but
this responsibility is not entrusted to the
daily wage labourers. The daily wage
labourers are not entitled or required to
handle important and confidential records
of the Board such as tabulation registers
etc. They are not allowed to enter the
confidential section.

17. A counter affidavit has been
filed on behalf of the respondents and we
have perused the same. It is alleged in
paragraph 4 (a) of the counter affidavit
that in the absence of requisite number of
clerical posts daily rated workers were
appointed by the Board on regular and not
on casual basis in anticipation that their
services would be regularized as regular
clerks. It is alleged that these employees
are doing the work of class III employees
(clerical duties). The respondents 2 to 34
are also performing clerical duties and
they were appointed in anticipation of
regularization
of
their
services.
In
paragraph 8 (b) it is stated that prior to
1975 due to inadequate number of
sanctioned clerical staff in the Board
Office to cope with the increased work
the Board recruited educated persons as
nominal
roll
writers
for
working
temporarily in the office of the Board on a
nominal payment of conveyance charges
to do similar work as was being done by
the regular clerks. After several years
some of nominal roll writers were
appointed as regular clerks at intervals.
Later on an audit objection was raised
against the recruitment to these nominal
roll
writers
and
hence
the
state
Government banned the recruitment of
such nominal roll writers.

18. In paragraph 8 (e) it is stated that
the nominal roll writers have been
absorbed as regular clerks in the office of
the Board. In paragraph 10 (d) it is stated
that during the last ten years or more the
daily rated workers were absorbed against
regular vacancies according to their
seniority and no other procedure was
followed. In paragraph 13 (g) it is denied
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that no work was left for the respondents
2 to 34 in the headquarter of the Board at
Allahabad. In paragraph 25 (a) it is stated
that the respondents 2 to 34 are
continuously performing the work of
routine clerical work of regular nature and
they
cannot
be
treated
as
casual
employee. They can at most be called
temporary employees on daily wages who
are continuously performing clerical work
in the office of the Board since a very
long time.

19. A rejoinder affidavit has been
filed and we have perused the same. It is
reiterated in paragraph 6 of the same that
the daily wage workers are engaged only
for doing manual work. Some daily
wagers are employed as class IV
employees in the Board but not as clerk.
To be appointed as a clerk one has to be
duly appointed after regular selection in
accordance with the legal procedure and
fulfilling the requisite formalities. The
respondents 2 to 4 were never appointed
in that manner and hence they cannot
claim status of class III employees. In
paragraph 10 it is denied that the
respondents 2 to 4 were employed to do
clerical work and they have been doing
only manual work.

20. There is no dispute that the
respondents 2 to 4 were appointed on a
purely temporary basis as daily wage
employees. The Tribunal has observed
that the petitioners (respondents 2 to 4 in
this writ petition) are doing the same
work as class III employees. Some of
them were appointed as nominal roll
writers and were given only conveyance
charges. They were initially appointed for
four months during heavy load of work.
In 1979 the Government abolished the
system of appointment of nominal roll
writers and directed the Board to employ
regular employees.

21. The Tribunal has only relied on
the paper which is annexed as Annexure 5
to the claim petition before the Tribunal
and on the basis of that it has observed
that the petitioner (respondents 2 to 4) to
this writ petition) are doing clerical work
as they are taking dictation, preparing
ledger, helping in the checking of
eligibility of examiners, etc. In our
opinion this at best means that sometimes
respondents 2 to 4 were also given some
clerical work in addition to do their
manual work as additional work. Merely
because respondents 2 to 4 were doing
some work at some time as clerk, this
does not mean that they are regular class
III employees. In fact they were never
regularly appointed as class-III employees
after following the legal procedure for
making such appointment. For making
such appointment the post has to be
advertised, selection has to be held in
accordance with the rules and then only
regular appointment can be done. There is
no dispute that this procedure was not
followed. In our opinion the Tribunal has
recorded its finding that the claimants
(respondents 2 to 34 in this petition) were
doing the same work as clerks in a
cursory and perfunctory manner, without
properly considering the version of the
Board, and relying on just one document
(Annexure 5 to the claim petition). In our
opinion this is not the proper way to
record such a finding. No doubt in a writ
petition this Court does not ordinarily
interfere with findings of fact, but in
exceptional cases it can interfere if it is of
the opinion that the finding was reached
in a slipshod and summary manner
without properly considering the entire
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1 All] State of U.P. and others V. U.P. Madhyamik Shiksha Parishad and others
129
evidence and version of the parties, as has
happened in this case.

22. As regards the principle of equal
pay for equal work, which has been
adopted by the Tribunal, we are of the
opinion that that principle has no
application in this case and was wrongly
applied by the Tribunal.

23. In our opinion the principle of
equal pay for equal work has a limited
application, as is evident from the recent
trend of decisions of the Supreme Court.
In particular it cannot apply when the
qualifications
and
the
mode
and
procedure of regular appointment have
not been followed.

In Secretary, Finance Department vs.
West
Bengal
Registration
Service
Association AIR 1992 SC 1203 it was
observed:

"It is well settled that equation of
posts and determination of pay scales is
the primary function of the executive and
not the judiciary and, therefore, ordinarily
Courts will not enter upon the task of job
evaluation which is generally left to
expert bodies."

In Dr. Bajrang Bahadur Singh vs.
State of U.P. 1997 (3) AWC 1476 a
Division Bench of this Court observed:

"From the conspectus of views taken
in the aforementioned decided cases, the
position is clear that to substantiate a
claim of higher scale of pay /salary on the
basis of the principle of equal pay for
equal work the petitioner will have to
establish that they are equally placed in
all respects with the person or persons
whose scale of pay/ salary they claim.
They must allege and prove that the mode
of recruitment, eligibility qualifications
prescribed,
the
nature
of
duties,
responsibilities discharged and the service
rules if any applicable to the two posts are
similar. They cannot succeed in the case
merely by showing that they have been
discharging the same duties which are
being discharged by persons holding the
other class of posts."

24. The above decision have been
approved by a Full Bench of this Court in
Ajai Kumar Jaitly vs. State of U.P. (1999)
1 UPLBEC 388.

25. In Shyam Babu Verma vs. Union
of India JT 1994(1) SC 574 it has been
held that the nature of work may be more
or less the same but the scale of pay may
vary based on academic qualification or
experience which justifies classification.

26. In State of Haryana vs. Tilak Raj
and others (2003) 6 SCC 123 the Supreme
Court pointed out that the principle of
equal pay for equal work is not always
easy to apply. There are inherent
difficulties in comparing and evaluating
the work done by different persons in
different organisations or even in the
same organisation.

27. In Federation of All India
Customs
and
Central
Excise
Stenographers vs. Union of India (1988)3
SCC 91 the Supreme Court explained the
principle of equal pay for equal work by
holding that differentiation in pay scales
among government servants holding the
same posts and performing similar work
on the basis of difference in the degree of
responsibility,
reliability
and
confidentiality
would
be
a
valid
differentiation. The same amount of
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130
physical work may entail different quality
of work, some more sensitive, some
requiring more tact, some less etc. The
judgement
of
the
administrative
authorities
concerning
responsibility
which attach to the posts and the degree
of reliability expected of an incumbent
would be a value judgment of the
authorities concerned which if arrived at
bona fide, reasonably and rationally, was
not open to interference by the Court.

28. In State of U.P. vs. J.P.
Chaurasia (1989) 1 SCC 121 it was
pointed out that the principle of equal pay
for equal work requires consideration of
various dimensions of a given job. The
accuracy required and the dexterity that
the job requires may differ from job to
job. It must be left to be evaluated and
determined by an expert body. The same
view
was
expressed
in
Ghaziabad
Development
Authority
vs.
Vikram
Chaudhary (1995) 5 SCC 210.

In State of Haryana vs. Jasmer Singh
(1996) 11 SCC 77 the Supreme Court
observed that daily rated workmen cannot
be equated with regular employees for the
purpose of wages nor can they claim the
minimum pay scale of the regular
employees. The High Court therefore was
not right in directing that the respondents
should be paid same salary and allowance
as are being paid to the regular employees
holding similar posts from the date when
the respondents were employed.

29. In State of Orissa vs. Balram
Sahu 2003(1) SCC 250 the Supreme
Court reiterated the principle laid down in
the case of State of Haryana vs. Jasmer
Singh (Supra).

30. In State of Haryana vs. Tilak Raj
(Supra) the Supreme Court (in paragraph
11 of its decision) observed that a scale of
pay is attached to a definite post and in
case of a daily wager, he holds no post.
Hence he cannot be compared with the
regular and permanent staff for any or all
purposes including a claim for equal pay
and equal allowances. 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 scale and the other
group of employees who have already
earned such pay scales. The problem
about equal pay cannot always be
translated into a mathematical formula.

31. In State Bank of India vs. M.R.
Ganesh Babu (2002) 2 UPLBEC 1680 the
Supreme Court observed that the principle
of equal pay for equal work must depend
upon the nature of work done and it
cannot be judged by the mere volume of
work. There may be qualitative difference
as regards reliability and responsibility.
The functions may be the same but the
responsibilities make a difference. One
cannot deny that often the difference is a
matter of degree and that there is an
element of value judgement by those who
are charged with the administration in
fixing the scales of pay and other
conditions of service. So long as such
value judgement is made bona fide,
reasonably on an intelligible criterion
which has a rational nexus with the object
of differentiation, such differentiation will
not amount to discrimination.

32. In State of Tamil Nadu vs. M.R.
Alagappan JT 1997 (4) SC 515 the
Supreme Court observed that the Deputy
Agricultural Officers cannot be given the
same pay scale as the Agricultural
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Officers
although
they
may
be
substantially discharging the same type of
duties and their place of work may be
interchangeable. The Deputy Agricultural
Officers are recruited by promotion from
the
lower
category
of
Assistant
Agricultural Officers. They remain nongazetted employees in the subordinate
service while the Agricultural Officers are
directly recruited to a gazetted service.
The qualifications are different, and
though substantially they carry out the
same type of work and duties, the
important assignment are exclusively
entrusted to Agricultural Officers.

33. In the present case also even if it
is assumed that the respondents 2 to 34
are carrying out substantially the same
duties as the regular employees but it
appears that important assignments and
confidential work (as stated in the writ
petition) are entrusted to the regular
ministerial staff only. Hence the principle
of equal pay for equal work will not be
applicable.

34. In Chandigarh Administration
vs. Anita Sood 1995 (Supp) 3 SCC 613
the Supreme Court observed that even
though the lecturers may be teaching the
same subject as Professor the quality and
standard of teaching by a professor is
bound to be of a much higher standard
than that of a lecturer, and hence a
lecturer cannot claim the same pay scale
as of Professor. Similarly Teaching
Assistant is a different class of teacher as
compared to a lecturer.

35. In State of West Bengal vs.
Manirujjaman Mullik and others (1996)
10 SCC 56 the Supreme Court observed
that where the method of appointment, the
source of recruitment, etc. are different
the principle of equal pay for equal work
will not apply.

36. In State of West Bengal vs. D.K.
Mukherjee AIR 1995 SC 1889 it was
observed by the Supreme Court that even
though the duties performed by the
Inspectors in two grades may be the same
no
fault
can
be
found
with
the
classification, since the classification in
the cadre on the ground of selection based
on merit is permissible.

37. In the present case also the
respondents 2 to 34 cannot claim the same
pay scale as regular clerks because the
latter had been appointed after being
selected on merit, whereas the former
were appointed without any selection.

38. In State of U.P. vs. J.P.
Chaurasia 1989(1) SCC 121 the Supreme
Court observed that the principle of equal
pay for equal work has no mechanical
application in every case of similar work.
In service matters merit and experience
could
be
the
proper
basis
for
classification.

39. In State of Haryana vs. Surender
Kumar (1997) SCC 633 the Supreme
Court observed that the respondents were
appointed on contract basis on daily
wages and hence they cannot have any
right to a post as such until they are duly
selected and appointed. Merely because
they are able to manage to have the posts
interchanged, they cannot become entitled
to the same pay scale which the regular
clerks are holding by claiming that they
are discharging their duties as regular
employees. The very object of selection is
to test the eligibility and then to make
selection in accordance with the rules.
Since the respondents recruitments were
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not made in accordance with the rules
they cannot claim equal pay.

40. The ratio of the above decision
is also applicable to the present case as
the respondents 2 to 34 in the present case
were
not
regularly
appointed
after
selection in accordance with the rules.

41. In Union of India vs. P.V.
Hariharan JT 1997 (3) 569 the Supreme
Court observed that the Tribunal are often
interfering with pay scales without proper
reason and without being conscious of the
fact that fixation of pay is not their
function. It is the function of the
Government which normally acts on the
recommendation of a Pay Commission.
Change of pay scale of a category has a
cascading effect. Several other categories
similarly situated, as well as those
situated above and below will put forward
their claims on the basis of such change.
The
Tribunal
should
realise
that
interfering with the prescribed pay scales
is a serious matter. The Pay Commission
goes into the problem at great depth and it
is the proper authority to decide upon the
issue. Very often the doctrine of equal pay
for
equal
work
is
also
being
misunderstood and misapplied freely
revising and enhancing the pay scales
across the board.

42. In State of U.P. vs. Ramashyraya
Yadav AIR 1996 SC 1188 the Supreme
Court observed that the employees
appointed to temporary posts are not
entitled to pay scale equivalent to the
regular employees.

43. Having noted the above
decisions we are of the opinion that the
Tribunal was not justified in giving the
direction which it has given in the
impugned order. The respondents 2 to 4
were only daily wagers and hence in view
of the decisions referred to above they
could not claim the same pay scale as
regular class III employees nor other
benefits admissible to other regular
employees.
For
getting
regular
appointment
and
regular
pay
scale
respondents 2 to 34 have to face a regular
selection in accordance with the rules and
they cannot be regularised without such
selection in accordance with the rules, nor
can they get the regular pay scale.

44. No doubt in certain decisions the
Courts
have
given
direction
for
regularising
daily
wagers
or
casual/temporary employees but in our
opinion such directions do not amount to
a precedent vide Indian Council of
Agricultural Research vs. Raja Balwant
Singh College, 2003(1) ESC 424, Delhi
Administration vs. Manoharlal, AIR 2002
SC 3088, etc. What is a binding precedent
is a principle of law which has been laid
down in a decision of the Court, and a
mere direction without laying down any
principle of law is not a precedent. A case
is an authority for what it actually decides
vide Goodyear India Ltd. vs. State of
Haryana, AIR 1990 SC 781, Sreenivasa
General Traders vs. State of A.P., AIR
1983 SC 1246 (para 29), Union of India
vs. Dhanwanti Devi, (1996) 6 SCC 44
(paragraphs 9 and 10), M/s Amar Nath
Om Prakash vs. State of Punjab and
others, AIR 1985 SC 218, etc. Everything
in a decision is not a precedent vide State
of Punjab vs. Baldeo Singh 1999 SCC
(Crl) 1080.

45. Hence a mere direction of the
Supreme Court to regularise an employee
without laying down any principle of law
will not amount to a binding precedent.
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46. The regular clerks were
appointed after facing a selection which
was held after advertising the posts and
after following the rules. The daily
wagers were not appointed in that manner
at all. In fact the respondents appear to be
purely ad hoc appointees appointed when
there was heavier load of work e.g. during
the
examination
time,
but
without
undergoing any selection in accordance
with the rules. Hence they cannot claim
parity
with
the
regularly
selected
employees.

47. In view of the above we are of
the opinion that the impugned judgement
of the Tribunal dated 15.6.1987 cannot be
sustained and it is hereby quashed. The
petition is allowed. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.10.2003

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No. 21214 of 1996

Committee of Management ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Amit Saxena
Sri P.N. Saxena

Counsel for the Respondents:
S.C.

Constitution
of
India,
Article
226Educational Institution-grant-in-aid to
Junior High School by State Governmentclaimed by committee of Managementbut
failed
to
produce
statutory
provisions in its support cannot claim, as
of
right-even
though
institution
is
recongnised one.

Held- Para 3

In this view of the matter, in my opinion,
the petitioner has miserably failed to
demonstrate either the malafides or
breach of any statutory provision, which
might affect the petitioner's statutory
right, which can be enforced by means of
this writ petition under Article 226 of the
Constitution of India.
Case Law discussed-
C.M.W.P. No. 6090 of 1992
CMWP No. 4112 of 1992

(Delivered by Hon'ble Anjani Kumar, J.)

1. The petitioner, committee of
management, has approached this Court
by means of present writ petition under
Article 226 of the Constitution of India
with the following prayers:-

"(a) issue a writ, order or direction
in the nature of Mandamus commanding
the respondents to sanction grant-in-aid
to the petitioner Institution with effect
from 1.3.1991 and pay arrears of salary
of teachers and other employees of the
Institution under U.P. Act No. 6 of 1978
with effect from 1.3.1991.
(b)
issue any other and further
suitable writ, order or direction that this
Hon'ble Court may deem fit and proper in
the circumstances of the case.
(c)
Allow this writ petition with cost
in favour of the petitioner."

2. A perusal of the relief prayed for
by the petitioner clearly demonstrate that
petitioner's institution claims sanction for
grants-in-aid for the institution with effect
from 1st March, 1991.