# State of U.P. & Ors v. Mahipal Singh & Anr

- **Citation:** (2014) 3 ILRA 1267
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-10-17
- **Case number:** Special Appeal Defective No. 861 of 2014
- **Bench:** Dr. Dhananjay Yeshwant Chandrachud, C.J. Pradeep Kumar Singh Baghel
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-mahipal-singh-anr-43120
- **Pages:** 6

## Headnote

Constitution of India, Art.-226- claim for
Regularization and payment of salaryrespondent/petitioner working on daily
wages basis since 1986-on post of part
time sweeper-claim of Regularization not
accepted
by
learned
Single
Judgehowever till consideration of request for
creation of regular post-direction to give
minimum basic pay-admissible to regular
employee along with arrears from the
date
of
initial
engagement-not
sustainable modification with current
payment of wages as per direction of
learned Single Judge maintainable.
Held: Para-14In several judgements of the Supreme
Court, it has been held that the principle
of 'equal pay for equal work' cannot be
attracted merely on the nature of the
work, irrespective of the educational
qualifications attached to a post or
irrespective of the source of recruitment
and
other
relevant
considerations.
Hence, it is now a well settled principle
of law that the doctrine of 'equal pay for
equal work' is not a matter of abstract
application or a mathematical formula
that can be applied to a case.
Case Law discussed:
(2006) 4 SCC 1; (2003) 6 SCC 123; (1996) 11
SCC 77; (2009) 9 SCC 514; (2003) 5 SCC 188;
(2004) 1 SCC 347; (2006) 9 SCC 321; (2009) 8
SCC 556.

## Text

3 All]. Brijesh Kumar Vs. State of U.P. & Ors.
1267
1416, and then determine as to whether
the conduct of the appellant is such as to
warrant
his
dismissal,
removal
or
reduction in rank within the meaning of
proviso (a) to Clause (2) of Article 311 of
the Constitution.
8. There shall be no order as to
costs.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.10.2014
BEFORE
THE HON'BLE DR. DHANANJAY YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.
Special Appeal Defective No. 861 of 2014
State of U.P. & Ors.
Appellants
Versus
Mahipal Singh & Anr.
Respondents
Counsel for the Appellants:
S.C., Sri A.K. Mishra
Counsel for the Respondents
Sri Jitendra Singh, Sri Veer Singh
Constitution of India, Art.-226- claim for
Regularization and payment of salaryrespondent/petitioner working on daily
wages basis since 1986-on post of part
time sweeper-claim of Regularization not
accepted
by
learned
Single
Judgehowever till consideration of request for
creation of regular post-direction to give
minimum basic pay-admissible to regular
employee along with arrears from the
date
of
initial
engagement-not
sustainable modification with current
payment of wages as per direction of
learned Single Judge maintainable.
Held: Para-14In several judgements of the Supreme
Court, it has been held that the principle
of 'equal pay for equal work' cannot be
attracted merely on the nature of the
work, irrespective of the educational
qualifications attached to a post or
irrespective of the source of recruitment
and
other
relevant
considerations.
Hence, it is now a well settled principle
of law that the doctrine of 'equal pay for
equal work' is not a matter of abstract
application or a mathematical formula
that can be applied to a case.
Case Law discussed:
(2006) 4 SCC 1; (2003) 6 SCC 123; (1996) 11
SCC 77; (2009) 9 SCC 514; (2003) 5 SCC 188;
(2004) 1 SCC 347; (2006) 9 SCC 321; (2009) 8
SCC 556.
(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C.J.)
1.
This special appeal arises from a
judgement of the learned Single Judge dated
16 April 2014 by which the State
Government has been directed to take a
decision in regard to the creation of a post of
sweeper for the office of the Sub-Divisional
Officer1, Dhampur, Bijnor within two
months, on a letter which was addressed by
the Board of Revenue on 8 February 1994.
The learned Single Judge has also directed
that from 8 February 1994 till the creation of
the post, the first respondent shall be allowed
salary equivalent to the salary at the lowest
grade of an employee on the post of sweeper
in the State, in the office of the Collector.
Arrears have been directed to be worked out
within a period of three months and to be
paid over to the first respondent. The first
respondent has also been granted continuity
of service.
2.
The first respondent was engaged
as a sweeper by the SDO when a new office
was established in 1986. By a letter dated 8
February 1990, the SDO requested the
District Magistrate to grant him permission
1268
 INDIAN LAW REPORTS ALLAHABAD SERIES
to appoint the sweeper. On 2 March 1990,
the District Magistrate issued directions for
the appointment of the first respondent on a
part-time basis as a sweeper on a
consolidated salary of Rs. 76/- per month.
The consolidated payment has since been
revised from time to time. On 24 January
1992, the District Magistrate addressed a
communication to the Board of Revenue for
the creation of a permanent post of sweeper
in the office of the SDO at Dhampur.
Correspondence ensued between the Board
of Revenue and the District Magistrate. By
a letter dated 8 February 1994, the
Secretary, Board of Revenue forwarded the
papers to the State Government for the
creation of a permanent post of sweeper in
the office of the SDO at Dhampur.
3. The first respondent had moved
the State Public Services Tribunal at
Lucknow by filing a claim petition2. The
claim petition was dismissed by an order
dated 13 February 1996 with the
following observations:
"At the time of admission stage, from
the record it is clear that he is part time
employee and he has worked as such. He
cannot show any rule under which a part
time employee can be converted into a
full time employee. It is also clear from
record that no post has been created in
which he might be considered as full time
employee. It is also clear that the
recommendation has been made by the
lower authority of the Govt. to create the
post so that the petitioner may be
considered for appointment as full time
employee on that post. No post has been
created so far, the petitioner cannot be
given a legal right to get a declaration as
full time employee.
Thus for the above reasons the claim
petition is not maintainable and is liable
to be dismissed at the admission stage."
4. Eventually, a writ petition3 was
filed by the first respondent. In the said
writ petition, the reliefs that were claimed
were for a direction in the nature of
mandamus directing the appellants to
regularize the services of the first
respondent as a class-IV employee in the
post of sweeper; for the payment of
arrears of salary since 1990 as payable to
a
regular
class-IV
employee;
and
restraining the appellants from interfering
with the discharge of duties by the first
respondent.
5. The learned Single Judge has,
after noticing the decision of the Supreme
Court in Secretary, State of Karnataka and
others v. Uma Devi (3) and others4, held
that the first respondent was continuously
working as a part-time employee since his
appointment on 2 March 1990 and had
completed
ten
years
of
continuous
service, the Board of Revenue had also
recommended to the State Government
for creation of a permanent post, since
there is a permanent establishment of the
SDO at Dhampur but the State had
delayed in taking a decision thereon. In
the meantime, the petition which was
filed in March 1996 remained pending.
On these facts, the learned Single Judge
issued the following directions while
allowing the aforesaid petition:
"9...State of U.P. is directed to take
decision relating to creation of post of
'sweeper' for the office of Sub-Divisional
Officer, Dhampur, Bijnor within a period
of two months, on the letter of Board of
Revenue
U.P.
at
Lucknow
dated
08.02.1994. From 08.02.1994 till creation
3 All]. State of U.P. & Ors. Vs. Mahipal Singh & Anr.
1269
of the post, the petitioner be given salary
equal to the salary at the lowest grade of
employees of the post of sweeper in State
of U.P., in the office of Collector. The
arrears be worked out within three months
and paid to the petitioner. The petitioner
shall be entitled for other benefits of
continuity in service."
6. Learned Standing Counsel
appearing on behalf of the appellants has
questioned both the direction to the State
to consider the request of the Board of
Revenue as well as the direction to allow
salary to the first respondent from 8
February 1994 on the lowest grade of an
employee in the post of sweeper in the
State. It is urged that no direction can be
issued for the payment of salary on the
minimum of the pay scale in the case of a
person who is admittedly a daily wager. It
is further urged that the principle of 'equal
pay for equal work' has no application
where an employee is not borne on the
permanent establishment, and in this
regard reliance is placed on a decision of
the Supreme Court in State of Haryana
and another Vs Tilak Raj and others5.
7. On the other hand, learned Senior
Advocate appearing on behalf of the first
respondent relied upon the observations
contained in Para-55 of the decision in
Uma Devi (supra), to the following effect:
"55...We are, therefore, of the view
that, at best, the Division Bench of the High
Court should have directed that wages equal
to the salary that is being paid to regular
employees be paid to these daily-wage
employees with effect from the date of its
judgment. Hence, that part of the direction
of the Division Bench is modified and it is
directed that these daily-wage earners be
paid wages equal to the salary at the lowest
grade of employees of their cadre in the
Commercial
Taxes
Department
in
government service, from the date of the
judgment of the Division Bench of the High
Court. Since, they are only daily-wage
earners, there would be no question of other
allowances being paid to them..."
8. In the first part of the direction
which has been issued by the learned
Single Judge, the State Government has
been directed to take a decision on the
request which was made by the Board of
Revenue in regard to the creation of a
permanent post of sweeper on the
establishment of the SDO, Dhampur,
Bijnor. On this aspect, the direction of the
learned Single Judge, it must be noted, is
not a direction either to create the post or
to regularize the first respondent. Whether
a post should be created or sanctioned, is
a matter entirely for the State Government
to decide.
9. In the present case, the office of
the SDO was established in 1986 and
since a sweeper had to be appointed, the
respondent workman was engaged on a
part-time basis, which arrangement has
been continuing since then. The Board of
Revenue had written to the State
Government as far back as on 8 February
1994 recommending the creation of a
permanent post. The State Government
had not taken its decision. The direction
of the learned Single Judge to the State
Government to take a decision, therefore,
cannot be faulted since the learned Single
Judge has neither directed the creation of
the post nor issued a mandamus for
regularization of the first respondent. A
direction for taking a decision, in fact, is a
direction to take a decision in accordance
with law and hence that part of the order
is unexceptionable.
1270
 INDIAN LAW REPORTS ALLAHABAD SERIES
10. The real bone of contention in
the special appeal is in regard to the
direction of the learned Single Judge to
pay to the first respondent the salary at the
lowest grade or, in other words, in the
minimum of the salary payable to a
regular employee of the State holding the
post of sweeper and to pay arrears w.e.f. 8
February 1994. On this direction of the
learned Single Judge for payment of
arrears, the learned Senior Advocate
appearing on behalf of the first respondent
fairly stated before the Court that this part
of the order for payment of arrears from 8
February 1994 cannot be sustained but it
was sought to be submitted that in
consistent with the direction contained in
Para-55 of the decision in Uma Devi's
case (supra), a direction for the payment
of salary on the minimum of the pay scale
would be justified and in accordance with
law. Learned Senior Advocate submitted
that the direction of the Supreme Court in
Para-55 of the decision in Uma Devi's
case can be divided in two parts, the first
in regard to the grant of minimum of the
scale of pay and the second in regard to
the grant of relaxation in the matter of
permanent engagement Hence, it was
urged that only the latter part constitutes a
direction under Article 142 of the
Constitution.
11. Before we deal with the
submissions, we must, at this stage, take
due note of the position which was laid
down in a judgement of the Supreme
Court in State of Haryana Vs Tilak Raj
(supra), which has been followed since in
several decisions of the Supreme Court.
The Supreme Court held that a scale of
pay is attached to a definite post, whereas
a daily wager does not hold a post.
Moreover, it was held that the doctrine of
'equal pay for equal work' applies as
between equivalents and would have no
application where a parity is sought by a
daily wager with permanent employees.
In that context, the following principles
were laid down:
"11. A scale of pay is attached
to a definite post and in case of a dailywager, he holds no posts. 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-a-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.
12. "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 a mathematical formula."
12. The same principle, it must be
noted, was laid down in an earlier
decision in State of Haryana Vs Jasmer
Singh6.
13. The decision of the Supreme
Court
in
Uma
Devi's
case,
more
specifically Para-55, has been considered
in State of Punjab Vs Surjit Singh7 by the
Supreme Court. The Supreme Court has
3 All]. State of U.P. & Ors. Vs. Mahipal Singh & Anr.
1271
considered the entirety of the observations
contained in Para-55, as extracted therein,
as constituting directions which are
referable to the exercise of jurisdiction
under Article 142 of the Constitution.
This is clear from the following extracts
contained in Paragraphs 29 & 30 of the
decision:
"29. It is in the aforementioned
factual backdrop, this Court in exercise of
its jurisdiction under Article 142 of the
Constitution of India, directed: (Umadevi
case8, SCC p. 43, para 55)
"55.....Hence,
that
part
of
the
direction of the Division Bench is
modified and it is directed that these
daily-wage earners be paid wages equal to
the salary at the lowest grade of
employees
of
their
cadre
in
the
Commercial
Taxes
Department
in
government service, from the date of the
judgment of the Division Bench of the
High Court. Since, they are only dailywage earners, there would be no question
of other allowances being paid to them. In
view of our conclusion, that the courts are
not expected to issue directions for
making such persons permanent in
service, we set aside that part of the
direction of the High Court directing the
Government to consider their cases for
regularisation. We also notice that the
High Court has not adverted to the aspect
as to whether it was regularization or it
was giving permanency that was being
directed by the High Court. In such a
situation, the direction in that regard will
stand deleted and the appeals filed by the
State would stand allowed to that extent.
If sanctioned posts are vacant (they are
said to be vacant) the State will take
immediate steps for filling those posts by
a regular process of selection. But when
regular recruitment is undertaken, the
respondents in CAs Nos. 3595-612 and
those
in
the
Commercial
Taxes
Department similarly situated, will be
allowed to compete, waiving the age
restriction imposed for the recruitment
and giving some weightage for their
having been engaged for work in the
Department for a significant period of
time. That would be the extent of the
exercise of power by this Court under
Article 142 of the Constitution to do
justice to them.
30. We, therefore, do not see that any
law has been laid down in para 55 of the
judgement
in
Umadevi
(3)
case9.
Directions were issued in view of the
limited controversy. As indicated, the
State's grievances were limited."
14. In several judgements of the
Supreme Court, it has been held that the
principle of 'equal pay for equal work'
cannot be attracted merely on the nature
of
the
work,
irrespective
of
the
educational qualifications attached to a
post or irrespective of the source of
recruitment
and
other
relevant
considerations. Hence, it is now a well
settled principle of law that the doctrine
of 'equal pay for equal work' is not a
matter of abstract application or a
mathematical formula that can be applied
to a case.
15. In this regard we may only refer,
at this stage, to the decisions of the
Supreme Court in Orissa University of
Agriculture & Technology and another Vs
Manoj K. Mohanty10, Government of
W.B. Vs Tarun K. Roy and others11, and
State of Haryana and others Vs Charanjit
Singh and others12.
16. We may also note that where
State legislation, such as the Maharashtra
1272
 INDIAN LAW REPORTS ALLAHABAD SERIES
Recognition
of
Trade
Unions
and
Prevention of Unfair Labour Practices
Act, 1971 provides for a catalogue of
unfair labour practices, such as engaging
employees on daily wage, casual or
temporary basis, the remedy under the
industrial law would, in such cases, be
available, as held by the Supreme Court in
Maharashtra Road Transport Corporation
Vs
Casteribe
Rajya
P.
Karmchari
Sanghatana13.
However,
a
general
direction of the nature which was issued
by the learned Single Judge in the present
case cannot be issued in exercise of the
writ jurisdiction under Article 226 of the
Constitution.
17. For these reasons, we are of the
view that the impugned judgement and
order of the learned Single Judge would
have to be set aside and is set aside to the
extent it directs the State to grant to the
first respondent salary equivalent to the
salary payable to the lowest grade of an
employee holding the post of sweeper in
the State and for the payment of arrears
w.e.f. 8 February 1994. We, however,
direct that from the date of the decision of
the learned Single Judge, namely 16 April
2014, the first respondent would be
entitled to the payment of minimum
wages as applicable in the State under the
relevant notification, or as the case may
be, Government Order holding the field.
18.

The
special
appeal
is,
accordingly, disposed of in the aforesaid
terms.
19. There shall be no order as to
costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.09.2014
BEFORE
THE HON'BLE DINESH MAHESHWARI, J.
THE HON'BLE RAJAN ROY, J.
Civil Misc. Writ Petition No. 17459 of 2012
Ram Rekha Singh
...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Manish Kumar Nigam, Sri Manoj
Kumar
Counsel for the Respondents:
C.S.C., Sri Ravi Prakash Srivastava, Sri
V.P. Mathur
U.P. Government Servant (Discipline &
Appeal) Rules 1999-Rule-7-Termination
with recovery of Rs. 26,17,408/- towards
alleged loss-petitioner working as Block
Development
Officer-placed
under
suspension-quashed on ground of unduedelay-after receiving reply to show cause
notice-impugned
termination
order
passed-without
following
procedure
prescribed under Rule in utter violation
Natural Justice-termination order quashed
with reinstatement in service-enquiry to
be concluded from stage of serving charge
sheet-to conclude disciplinary proceeding
within 4 months.
Held: Para-22 & 24
22. Noteworthy it is that even in the
punishment order, as regards practically
all the charges against the petitioner, the
disciplinary
authority
has
merely
observed that the delinquent had not
adduced any evidence to refute the
charges and hence, the same stood
proved. The basic requirement of the
primary evidence on the part of the
department to substantiate the charges
appears to have been ignored as if with
the assumption that levelling of charges
was sufficient and no evidence was
requisite to substantiate the same. This
approach cannot be countenanced.