REPORTABLE                

                 IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.    9487       OF 2010 (arising out of SLP(C)No.1178 of 2008)

AJMER VIDYUT VITRAN NIGAM             …. APPELLANTS & OTHERS

   Versus

NAVIN KUMAR SAINI         …. RESPONDENT

WITH  CIVIL APPEAL NO.     9488              OF 2010   (arising out of SLP(C)No.3448 of 2008)

RAJASTHAN STATE ELECTRICITY  BOARD NOW, AJMER VIDYUT VITRAN  NIGAM & OTHERS       ….APPELLANTS

   Versus

SHYAM LAL       ….RESPODNENT

J U D G M E N T

CHANDRAMAULI KR. PRASAD, J.

1. Petitioners, aggrieved by the orders dated 9th July, 2007  

passed  by  the  Rajasthan  High  Court  in  D.B.Civil  Special  

Appeal (Writ) No. 623 of 2007 and D.B. Civil Special Appeal

(Writ)  No.421  of  2007  affirming  the  order  dated  18th  

September,  2006  passed  by  a  learned  Single  Judge  of  that  

Court  in  S.B.  Civil  Writ  Petition  No.2331  of  2002,  have  

preferred these petitions for grant of leave.   

2. Leave granted.

3. These appeals arise in the following circumstances:

Naveen Kumar Saini and Shyam Lal, respondents herein  

along with other persons were appointed as Helpers in work-

charge  establishment  on  28th November,  1979  at  a  

consolidated salary of Rs.150/- per month for a period of three  

months.  However, the respondents were allowed to continue  

in  service  after  the  expiry  of  the  aforesaid  period  of  three  

months. Later on a limited competitive examination was held  

by the Rajasthan State Electricity Board (hereinafter referred  

to as the “Board”) for appointment to the post of Junior Clerk,  

in which the respondents and other candidates participated  

and on merit altogether 81 persons including the respondents  

were appointed by Order dated 26th June, 1984 in the regular  

pay scale of the Junior Clerks.  It is relevant here to state that  

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the Board took a decision to consider regularisation of such  

work  charge  employees  who  had  completed  two  years  of  

service upto 31st March 1983 and for that purpose  directed  

such employees to appear before the Selection Committee on  

27th August, 1987. Respondents appeared before the Selection  

Committee,  when  they  were  informed  that  since  they  had  

already been appointed as Lower Division Clerks, there is no  

necessity  to  regularise  them.  Between  the  period  from 17th  

September, 1987 to 13th October, 1987, altogether 27 persons,  

who joined as work charge employees like  the respondents,  

became regular employees with effect from 1st April, 1982 and  

given regular pay scale of  the post of Lower Division Clerk.  

Accordingly, respondents raised a grievance that they be given  

the pay scale of the post of Junior Clerk with effect from 1st  

December,  1979 and regular  pay scale  of  the  post  of  Clerk  

from 1st April, 1982 to 26th June, 1984.  Respondents claimed  

the scale of pay of Junior Clerk from 1st December, 1979 on  

the plea that though they were engaged as helpers but they  

performed the work of Junior Clerk. The regular pay scale of  

post of Junior Clerk from 1st April, 1982 to 26th June, 1984  

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was sought on the ground that persons junior to them were  

given the said scale of pay with effect from 1st April, 1982.  The  

aforesaid grievance of the respondents was considered by the  

Board  but  finding  no  merit  in  the  same,  it  was  rejected.  

Respondents  then  filed  writ  petitions  before  the  Rajasthan  

High Court which by its order dated 25th April, 1997 passed in  

S.B.Civil  Writ  Petition  No.3321 of  1991 and S.B.  Civil  Writ  

Petition No.3683 of 1991 declined to interfere on its finding  

that respondents had alternative efficacious remedy before the  

Industrial Tribunal.  

4. Ultimately, the State Government by its letter dated 17th  

October,  1997  referred  for  adjudication  to  the  Industrial  

Tribunal  as  to  whether  the  action  of  the  appellants  in  not  

giving the respondents the scale of  Junior  Clerk with effect  

from Ist October, 1979 and for the period from Ist April, 1982  

to 26th June, 1984, is valid and proper.

5. The Industrial Tribunal by its award dated 29th January,  

2002 did not find any fault with the Board in not regularising  

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the services of the respondents on the post of  Junior Clerk  

with  effect  from  1st December,  1979  but  directed  that  

respondents shall be entitled to the wages of the Junior Clerk  

from  the  said  date.  Relevant  portion  of  the  award  of  the  

Industrial  Tribunal  in  respect  of  respondent  Naveen Kumar  

Saini reads as follows:

“Hence, in the context of State (Appropriation  of  Appointments  in  Public  Services  and  Staff  Systematisation)  Act  1999  not  regularising  Applicant Naveen Kumar Saini on the post of Junior  Clerk  with  effect  from  1.12.79  by  the  Secretary,  Rajasthan State Electricity Board, Vidyut Bhawan,  Vidyut  Marg,  Jaipur,  Superintending  Engineer  (Udaipur  Circle)  RSEB  Udaipur  (3)  Assistant  Engineer (O&M), RSEB Debari Head Office, Udaipur  is proper and lawful.  But the opposite party Board  has been continuously taking work of Junior Clerk  from  the  Applicant  from  1.12.79  the  date  of  his  selection on the post of Junior Clerk till the date of  assuming charge, therefore, in accordance with the  principle  of  equal  wages  for  same  work  the  Applicant is entitled to get from the Opposite Party  Board salary and other perquisites prevailing at the  relevant  time.  The  Opposite  Party  Ajmer  Vidyut  Vitaran Nigam Ltd., Ajmer to pass order as per rules  in this regard in one month and make payment of  the arrear amount payable to the Applicant.”

6. Identical  award  was  given  in  respect  of  respondent  

Shyam Lal.   

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7. Aggrieved by the aforesaid awards, the Board preferred  

S.B. Civil Writ Petition No.2331 of 2002 before the Rajasthan  

High Court and the learned Single Judge by order dated 18th  

September, 2006 partly allowed the writ petition and directed  

the Board to notionally grant the benefit of the pay of the post  

of Lower Division Clerk with effect from 1st December, 1979  

with  a  rider  that  the  respondents  shall  not  be  entitled  to  

receive actual arrears of the said period.  Relevant portion of  

the order of the learned Single Judge reads as follows:

“In view of the fact that the learned Tribunal  has  recorded  a  finding  that  number  of  labourers  who  were earlier junior to the respondent-workman were  regularized on the post of LDC earlier and were in  receipt  of  higher  scale  of  pay  than  him,  ends  of  justice would be met by directing the respondent to  only notionally grant the benefit of pay on the post  of  LDC  to  the  respondent-workman  w.e.f.  1st  December, 1979 although the respondent shall not  be entitled to receive actual arrears for such period.”

8. Ajmer Vidyut Vitran Nigam Limited, the appellant herein  

being the successor of the Rajasthan State Electricity Board  

and its officers aggrieved by the order of  the learned Single  

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Judge preferred separate appeals, which have been dismissed  

by the impugned orders.

9. Appellants are, therefore, before us with the leave of the  

Court.

10. Mr.  Sushil  Kumar Jain,  learned Counsel  appearing on  

behalf  of  the  appellant  submits  that  the  respondents  

(hereinafter referred to as the “workmen”) were employed as  

the work charge helpers and they did not discharge their duty  

as  Junior  Clerks  by  any  order  passed  by  any  competent  

authority and hence they are not entitled to be given the pay  

scale of Junior Clerk on the principle of equal pay for equal  

work.  He emphasises that for invoking the principle of equal  

pay for equal work the volume of work is not decisive but the  

degree of responsibility and liability are also to be looked into.

10. Mr.  M.R.  Calla,  learned  Senior  Counsel  appearing  on  

behalf  of  the respondents,  however,  contends that workmen  

having been asked to perform the function of the Junior Clerk,  

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they are entitled to be given the regular scale of pay of the  

Clerk.

11. We  have  bestowed  our  consideration  to  the  rival  

submissions and we find substance in the submission of Mr.  

Jain. Nothing has been brought on record by the workmen to  

show that they were asked to perform the function of a Junior  

Clerk by any competent authority. The plea of equal pay for  

equal work is founded on Article 14 of the Constitution,  hence  

it was incumbent upon workmen to establish that they were  

performing  the  work of  the  Junior  Clerk  under  orders  of  a  

competitive  authority.  Further,  workmen  were  admittedly  

engaged as helpers in work charge establishment and in that  

view of the matter for applying the principle of equal pay for  

equal work, mere the volume of work, shall not be relevant,  

there being qualitative difference as regards the liability and  

responsibility.  We are of the opinion that workmen were not  

entitled  for  the  scale  of  pay  of  the  Junior  Clerk  even  on  

notional basis from the date of their engagement as helpers.

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12. Next  question  which  falls  for  consideration  is  as  to  

whether workman shall be entitled for scale of Junior Clerk  

from Ist April, 1982?  It is relevant here to State that workmen  

were  appointed  as  Junior  Clerks  on  the  basis  of  limited  

competitive examination by order dated 26th June, 1984. It is  

further relevant here to state that the employer considered the  

cases of such work charge employees who had completed two  

years  of  service  as  work  charge  employees.   Respondents  

appeared before the Selection Committee constituted for this  

purpose  on  27th August,  1987  but  their  cases  were  not  

considered  on  the  ground  that  they  have  already  been  

appointed as Lower Division Clerks.  However, a large number  

of  workmen  like  the  workmen  herein  were  regularised  as  

Junior Clerks with effect from 1st April,  1982 and given the  

regular scale of pay. It is the plea of the workmen that at least  

they are entitled to be given the regular scale of pay from the  

date, their juniors were given.  

13. Mr.  Jain,  however,  submits  that  the  workmen  cannot  

claim regularisation on completion of  two years service and  

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they utmost may be entitled to be considered for regularization  

to the  post of Junior Clerk with effect from 1st April, 1982 and  

the pay scale thereof when, persons junior to them were  given  

the  said  scale  of  pay.   In  this  connection  he  referred  to  a  

decision of this Court in the case of  Jodhpur Vidyut Vitran  

Nigam Ltd. and another vs Nanu Ram and others, 2006  

(12)  SCC  494,  and  our  attention  has  been  drawn  to  the  

following passage of the aforesaid judgment:

“9. Applying  the  above  test  to  the  facts  of  the  present case, the Screening Committee was required  to examine the question as to how many workmen  could be regularised,  keeping in mind the  budget  provisions, availability of the posts, the number of  muster  roll  workers  engaged  in  the  construction  work  without  their  being  in  existence  vacant  sanctioned  posts,  the  manner  in  which  these  muster roll workers were initially recruited with or  without  the  approval  of  the  management  and,  thereafter, on the basis of eligibility the Screening  Committee  had to  recommend their  absorption in  regular service. These aspects were required to be  examined  by  the  Screening  Committee.  Mere  completion of two years was not the only criterion.  Even in the award dated 31-5-1978 read with award  dated  15-6-1979  the  fixation  in  the  regular  pay  scale  was  only  for  those  employees  who  were  recruited with the approval of the management and  in accordance with law. Even under the awards, as  they then stood,  the  Screening Committee  had to  examine  the  performance  of  the  workmen  before  granting them the regular pay scale. Granting of pay  scale  simplicitor  is  different  from  grant  of  permanency. While granting permanency, the State  has to consider the number of posts falling vacant,  

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those posts should exist as and by way of regular  vacancy,  the  financial  burden  of  granting  permanency and, therefore,  in our view,  the  High  Court  has  failed  to  keep  in  mind  the  difference  between the concept of grant of pay scale as distinct  from grant of permanency. The State was not under  an obligation to constitute Screening Committee at  the end of each year. Constitution of the Screening  Committee  was  within  the  discretion  of  the  State  Government  dependent  upon  the  above  factors.  Therefore, there was no question of comparing the  case of the present respondents with the case of the  workmen who got  regularised  prior  to  31-3-1982.  Each exercise by the Screening Committee has to be  seen in  the  light  of  the  above  factors.  In  a  given  exercise,  the State may have sufficient  number of  vacant  posts  to  accommodate  certain  number  of  workers. However, that may not be the case in the  subsequent years. Therefore, there is no question of  any discrimination in the matter of regularisation or  in the matter of grant of permanency.”

14. Mr.  Calla  submits  that  when  persons  junior  to  the  

workmen having been given the regular pay scale with effect  

from  1st April,  1982  and  the  workmen  cases  were  not  

considered, the appellants cannot deprive the workmen of the  

regular scale of pay with effect from 1st April, 1982 as given to  

the employees junior to them.

15. We are of the opinion that the case of the workmen ought  

to have been considered for regularisation as Lower Division  

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Clerk when the case of other persons similarly situated were  

considered by the Selection Committee. Persons junior to the  

workmen have been given the regular pay scale of the post of  

Junior  Clerk  with  effect  from  1st April,  1982  whereas  the  

workmen  herein  were  appointed  as  Junior  Clerks  by  order  

dated 26th June, 1984. They cannot be allowed to suffer only  

because they qualified in written examination and appointed  

as Junior Clerks by order dated 26th June, 1984.

16. In the facts and circumstances of the case, we deem it  

expedient  to  direct  the  appellants  to  consider  the  cases  of  

respondents  for  regularization  as  Junior  Clerks  with  effect  

from  1st April,  1982  and  in  case  they  are  found  fit  for  

regularization, grant them the pay-scale thereof from the said  

date.  As the respondents were found fit for appointment as  

Junior Clerks on the basis of the limited written examination,  

there does not seem any valid reason to suggest that they shall  

not  be fit  to  be regularised as Junior  Clerks when persons  

junior to them were regularised and given the regular scale of  

pay with effect from 1st April, 1982.   

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13. In  the  result,  the  appeals  are  partly  allowed  with  the  

direction aforesaid.  No costs.

…….………………………………….J.                              ( HARJIT SINGH BEDI )

                                          ………..……………………………….J.

                                  (CHANDRAMAULI KR. PRASAD) NEW DELHI, OCTOBER 29, 2010.

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