Dismissed

Fateh Shankar Tiwari and Ors. v. Nuclear Power Corp and Anr.

Rajasthan HC1 Apr 2013CW/8107/2010

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition seeking regular pay scale and arrears. The court held that since the petitioners were appointed on a fixed-term basis and their earlier regularisation pleas were dismissed without recourse to equal pay principles, granting pay scale would contradict prior findings. The claim was also untenable as respondents were no longer in service.

What did the court decide?

Writ petition and stay application dismissed; petitioners to receive nothing based on prayer for regular pay scale.

Fateh Shankar Tiwari and Ors. Vs Nuclear… — Pension and Retirement Benefits | Rajasthan HC (2013)

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THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

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JAIPUR BENCH, JAIPUR

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ORDER

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SB Civil Writ Petition No. 8107/2010

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Fateh Shankar Tiwari & ors versus Nuclear Power Corporation of

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India Limited & anr

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1.4.2013

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HON'BLE MR. JUSTICE MN BHANDARI

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Mr Rajveer Sharma – for petitioners

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Mr Dharmendra Jain – for respondents

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BY THE COURT:

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By this writ petition, following prayer has been made-

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“a) by an appropriate writ order and direction in the nature thereof the respondents may be directed to pay them regular pay scale of their respective category and it is further prayed that your Lordship may kindly be pleased to direct the respondents to fix the petitioner No.1 to 12 in regular pay scale of the Scientific Assistant A Cadre Pay Scale 9300-34800 + Grade pay and Petitioner No.13 to 16 in regular pay scale of the Scientific Officer C Cadre in Pay Scale 15600-39100 and

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accordingly the respondents may be directed to pay salary of the petitioners in the regular pay scale since the date of regular appointment and whole arrears may kindly be paid to them with interest @ 12% p.a.”

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Petitioners have prayed for regular pay scale from the date of their initial appointment. A direction is sought for arrears of salary.

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On the last date of hearing, it was pointed out that earlier writ petitions for regularisation were dismissed by this court on 10.1.2012. Accordingly, direction was given to list this case along with CW 1445/2010 and 1966/2010.

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Learned counsel submits that, initially, appointment of the petitioners was in accordance with the rules and were discharging regular duties. In view of above, they are entitled to equal pay for equal work in view of Article 39(d) of the Constitution of India. The respondents have denied benefit of regular pay scale ignoring the aforesaid. This is more so when petitioners were continued in service even beyond the period for which they were appointed. It was at the instance of the

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respondents. In view of aforesaid, petitioners may be granted regular pay scale from the date of their initial appointment. Reference of the document at Annexure-4 has been given to show that revision in the pay scale was allowed vide order dated 10.11.2008. In view of above also, petitioners are entitled to the benefit of equal pay for equal work.

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Learned counsel for respondents, referring to the judgment in the connected writ petitions, submits that a relief for regularisation was prayed and rejected by this court. A detailed judgment has been passed. Before dismissal of the above writ petitions, present writ petition was filed in the year 2010 to seek same benefit indirectly which could not be given to the petitioners when it was prayed directly.

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It is also stated that petitioners are not in service because they have already been terminated though continued pursuant to the interim order for some time but after dismissal of the earlier writ petitions and remaining unsuccessful in the appeal before the Division Bench, they are not working with the respondents. In the light of the aforesaid, prayer made in the writ petition is not even tenable.

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It is lastly urged that appointment of the petitioners was not by the mode provided for regular appointment, rather it was under a project thus appointment was made without calling applications on all India basis. In view of above, claim for equal pay for equal work is not made out. Now, the law is well settled that merely discharging similar duties would not entitle a person to claim regular pay scale. The writ petition may accordingly be dismissed.

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I have considered rival submissions of the parties and perused the record and scanned the matter carefully.

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The perusal of the order of appointment at annexure-1 reveals that petitioners were appointed for fixed term and designation was mentioned as Fixed Term Supervisor (Level-1). It was on consolidated amount. The petitioners accepted the terms of appointment. The Writ Petitions were thereafter preferred for regularisation bearing No.1445/2010 and 1966/2010. Those writ petitions were dismissed by this court vide order dated 10.1.2012. During pendency of above writ petitions, present writ petition was filed in the year 2010. After dismissal of the writ petition for regularisation, petitioners have sought regular pay scale on the post they were not engaged on regular basis. Their appointments

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were on fixed term and on certain terms and conditions enumerated in Anneuxre-1.

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The question now comes as to whether petitioners, not appointed on regular basis and a prayer for regularisation has been rejected by this court, can be given regular pay scale. There is nothing on record to show that the petitioners were appointed by the mode provided for regular appointment. The document at annexure-4 does not provide award of pay scale to the contractual or fixed term based appointees. The revision of pay scale is for those who are governed by the regular pay scale rules. The pay scale was revised in the year 2008, accordingly, order at annexure4 was passed. In the background aforesaid, merely working or discharging similar duties one cannot make out claim for equal pay for equal work. This is more so when the claim aforesaid has been made by none else but employees not in service. The claim is otherwise from the initial date of appointment thus goes contrary to the terms of appointment so accepted by the petitioners on issuance of letter of appointment at Annexure-1 dated 24.1.2006.

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In the case of “Orissa University of Agriculture & Technology & anr versus Manoj K Mohanty”, reported as (2003) 5 SCC 188, the Hon'ble Supreme Court held that the High Court

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is not justified in directing for regular pay scale to the respondent employee who had not undergone process of regular recruitment and no material to establish applicability of principle of equal pay for equal work. Para 10 of the said judgment is reproduced hereasunder -

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“10.The High Court before directing to give regular pay-scale to the respondent w.e.f. September, 1997 on the principle of 'equal pay for equal work' did not examine the pleadings and facts of the case in order to appreciate whether the respondent satisfied the relevant requirements such as the nature of work done by him as compared to the nature of work done by the regularly appointed Junior Assistants, the qualifications, responsibilities etc. When the services of the respondent had not been regularized, his appointment was on temporary basis on consolidated pay and he had not undergone the process for regular recruitment, direction to give regular payscale could not be given that too without examining the relevant factors to apply the principle of 'equal pay for equal work'. It is clear from the averments made in the writ petition extracted above, nothing is stated as regards the nature of work, responsibilities attached to the respondent without comparing them with the regularly recruited Junior Assistants. It cannot be disputed that there was neither necessary averments in the writ petition nor was any material placed before the High Court so as to consider the application of principle of 'equal pay for equal work'.”

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I find that petitioners have pleaded working on the

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same post and are in possession of requisite qualification and eligibility apart from same responsibilities. However, averments in that regard are not supported with the material or by giving details, as to what is the requisite qualification of the post and duties. Same way, what is the qualification of the petitioners so as the responsibilities? In absence of material, a direction for equal pay for equal work cannot be given casually. In the instant case, writ petition for regularisation of services of the petitioners has already been dismissed during pendency of the writ petition and, if, now, a direction for regular pay scale is given, it would be in contradiction to the judgment earlier given more so when the judgment thereupon has been upheld by the Division Bench.

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In view of discussion made above, writ petition so as the stay application are dismissed.

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(MN BHANDARI), J.

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bnsharma

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All corrections made in the judgment/ order have been incorporated in the judgment/ order being emailed.

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(BN Sharma) PS-cum-JW

Fateh Shankar Tiwari and Ors. v. Nuclear Power Corp and Anr.

Case brief

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Fateh Shankar Tiwari and Ors. v. Nuclear Power Corp and Anr.

Case brief

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