17 December 1996
Supreme Court







DATE OF JUDGMENT:       17/12/1996




JUDGMENT:                             WITH                 CIVIL APPEAL NO. 653 OF 1993                       J U D G M E N T      NANAVATI, J.      Both these  appeals arise out of the judgment and order dated 29.1.92 of the Rajasthan High Court in D.B. Civil Writ Petition No.  187 of  1987. Civil  Appeal No. 652 of 1993 is filed by the State of Rajasthan, Respondent No.1 in the writ petition and  Civil Appeal No. 653 of 1993 is filed by Kunji Raman who  was the  writ petitioner. Both these appeals are, therefore, heard  together and  disposed of  by this  common judgment.      Kunji Raman  was employed on March 28, 1974 as a Fitter in the  Mechanical  Division-II  of  Mahi  Project.  He  was promoted and  appointed as  Lathe Operator  on  October  23, 1975. On  january 12,  1985  he  filed  the  aforesaid  writ petition on  his behalf and on behalf of 36 other employees, as benefits  of house  rent  allowance,  project  allowance, leave encashment  are not  given to  them on the ground that the Rajasthan  Service Rules,  1951 (for  short RSR) and the Rajasthan Service  (Concessions on Project) Rules, 1962 (for short ’Project  Rules’) are  not applicable  to them as they are work-charged  employees. It  was the  contention of  the petitioner that  persons employed  as work-charged employees perform the  same functions and discharge the same duties as workmen  on   the  regular   establishment  and,  therefore, differential treatment  given to  them  amounts  to  hostile discrimination. It  was also contended that on the principle of ’equal  pay for  equal work’  workmen of the work-charged establishment are  available to  the workmen  on the regular establishment. The validity of the RSR and Project Rules was also challenged  on the  ground that  they are  violative of Articles 14 and 16 of the Constitution inasmuch as they deny equal  treatment   to  the   workmen  of   the  work-charged establishment.      The High  Court held  that the  employees  who  are  on regular establishment  and the  employees employed  on work- charged establishments  do not  belong to the same class and are governed by different set of Rules; and, therefore, they cannot claim parity with the regular establishment employees



on the basis of the principle of ’equal pay for equal work’. It rejected  the contention that clauses (g), (h) and (i) of Rule 2  of RSR  are discriminatory and, therefore, violative of Articles  14 and  16 of the Constitution. However, on the ground that  project allowance  payable  under  the  Project Rules is  compensatory in  nature and not a source of profit to the  employees, it held that on the basis of the doctrine of ’equal  pay for equal work’ compensatory allowance has to be paid  to the work-charged employees also at the same rate at which  it is  being paid  to  the  employees  on  regular establishment. The  High Court, for that reason, struck down Rules 2(b)  and (d) of the 1962 Project Rules and Rules 4(2) and (4)  of 1975  Project Rules  also (as 1975 Project Rules had replaced 1962 Project Rules) as violative of Articles 14 and 16 of the constitution. It further held that the Project Rule would, therefore, apply to all the employees working on Mahi Project  irrespective of  whether they  are  permanent, temporary or  work-charged employees. The High Court allowed the writ petition and declared that the petitioner and other work-charged employees working on the Mahi Sagar Project are entitled to  payment  of  project  allowances  in  the  same manner in  which they are paid to the permanent or temporary staffs working  on the  Project. Calling  in question,  this part of  the judgment  and order,  the State has filed, with the leave  of this  Court, Civil  Appeal No. 652 of 1933. As the High  Court held  that the  petitioner and  other  work- charged employees  shall not  be entitled to any arrears and that they  should be  paid the  project allowance  under the 1975 Rules  from the  date of  the order, the petitioner has filed Civil Appeal No.653 of 1993.      The contention of the appellant-State is that the work- charged employees  have always been treated differently from employees on  the regular  establishment and, therefore, the State Government  has framed  separate Rules,  under Article 309 of  the Constitution,  for regulating  their recruitment and conditions  of service.  They are  the Rajasthan  Public Works  Department   (Building  &  Roads  including  Gardens, Irrigation, Water  Works and  Ayurvedic  Departments)  Work- charged Employees  Service Rules, 1964 (hereinafter referred to as  the  work-charged  Employees  Service  Rules).  Their service conditions are, therefore, governed by the Rules and not by the RSR and the ’Project Rules’. Even in the class of work-charged employees  there are two categories namely, (1) General category  - work-charged  employees  and  (2)  work- charged employees  who are  employed on projects; and, their service conditions also differ. For the employees engaged in the work-charged  establishment of  Mahi Sagar Project there are separate  standing orders  framed under  the  Industrial Employment (Standing  Orders) Act, 1946, governing the terms and conditions  of their service. The high Court having held that the Governor has power under the proviso to Article 309 of the  Constitution to  frame different rules for different categories of  government servants  in various  services and therefore it  was open  to the  Government  to  exclude  the applicability of  Rajasthan Civil  Service Rules committed a grave error  in holding  that Rules  2(b)  and  (d)  of  the Project Rules  1962 which have now beer superseded and Rules 4(2) and  (4) of the Project Rules, 1962 which have now been superseded and  Rule 4(2) and (4) of the Project Rules, 1975 are violative  of Articles  14 and  16. It further contended that the High Court failed to appreciate that the petitioner and the  work-charged employees on whose behalf the petition was filed  had acquired the status of permanent work-charged employees of  the  Mahi  Project  and  thus  belonged  to  a separate category of work-charged employees and the petition



was viz.  apprentice, casual, temporary and quasi-permanent. The High  Court,  therefore,  committed  a  grave  error  in striking down  Rules 2(b) and (d) of the Project Rules, 1962 and Rule  4(2) of  the Project  Rules, 1975  with respect to those other  categories of  work-charged employees  also. On the other  hand it  was contended  on behalf  of  the  work- charged employees that there being no difference between the nature of  work and  the duties  performed by  them and  the employees  on   regular  establishment,   treating  them  in different manner in the matter of service conditions amounts to hostile  discrimination and,  therefore, those provisions of the  RSR and  the Project  Rules which  make those  Rules inapplicable to  work-charged employees employed on projects are violative  of Articles 14 and 16 of the Constitution. It was also  contended that the High Court having held that the work-charged employees  of the  Mahi Project are entitled to project allowances wrongly deprived them of the said benefit for the period prior to the date of the decision.      Therefore, the  question that  arises for consideration is whether  by treating  the work-charged  employees of  the Mahi Project  differently from  the employees working on the regular establishment  of P.W.D.  and making the RSR and the Project Rules,  1962 and  l975  inapplicable  to  them,  the Government can be said to have acted in a discriminatory and arbitrary manner.      A work-charged  establishment as  pointed out  by  this Court in  Jaswant Sing  vs. Union  of India (1979) 4 SCC 440 broadly  means  an  establishment  of  which  the  expenses, including  the  wages  and  allowances  of  the  staff,  are chargeable to  "works". The  pay and allowances of employees who are  borne on a work-charged establishment are generally shown as  a separate  sub-charged employees  are engaged  on temporary basis  and their  appointments are  made  for  the execution of a specified work. From the very nature of their employment, their  services automatically  come to an end on the completion  of the  works for  the sole purpose of which they are  employed. Thus  a  work-charged  establishment  is materially  and   qualitatively  different  from  a  regular establishment.      In the  State of  Rajasthan the Public Works Department is maintaining  two separate establishments: (1) Regular and (2) Work-charged.  The  employees  working  in  the  regular establishment are  governed by  the RSR and the work-charged employees are governed by the Work charged Employees Service Rules. The  RSR are  made inapplicable,  inter alia,  to the work-charged  employees.  The  work-charged  employees  fall under two categories: (1) those who are working on a project and (2)  those who  are not working on a project. It appears that  for   the  workmen   engaged   on   the   work-charged establishment of Mahi Bajaj Sagar Project the Government has framed  separate   standing  orders   under  the  Industrial Employment (Standing Orders) Act, 1946 and they apply to all persons engaged  on work-charged  establishment of  the said Project whose terms of service are not regulated by the RSR, Rajasthan Civil Service (Classification, Control and Appeal) Rules and  any other   Rules framed under Article 309 of the Constitution by  the Government  of Rajasthan.  The standing orders provide  not only for classification, recruitment and termination of service but also for wages and allowances and other service  conditions of the persons engaged on the Mahi Project. Whereas  the employees  who are  not working  on  a project get  work-charged pay scale those who are working on a project get a special pay scale and they are also entitled to other  benefits and  allowances as  are applicable to all the employees  covered under  the Industrial  Disputes  Act,



1947,  Factories   Act,  1948   and  Industrial   Employment (Standing  Orders)  Act,  1946.  The  petitioner  and  other employees represented  by him  are undisputably  governed by the said  certified standing orders. They are not treated as full-time Government  employees and,  therefore, are free to utilise their  free time  in the  manner they wish. They are also entitled  to grant of overtime wages. A sub-division is regarded as  a unit  for the purpose of establishment of the work-charged employees.  A separate  seniority list  of each category is  maintained in  each unit  for  the  purpose  of promotion as  well as  retrenchment. The  service of a work- charged employee  is ordinarily  not transferable  from  one work-charged  establishment   to   another   work-   charged establishment.      A  work-charged   establishment  thus  differs  from  a regular establishment  which is permanent in nature. Setting up  and  continuance  of  a  work-charged  establishment  is dependent upon  the Government  undertaking a  project or  a scheme or  a ’work’  and availability of funds for executing it.  So   far   as   employees   engaged   on   work-charged establishments  are   concerned,   not   only   that   their recruitment and  service conditions  but the  nature of work and duties to be performed by them are not the same as those of the  employees of  the regular  establishment. A  regular establishment  and  a  work-charged  establishment  are  two separate types of establishments and the persons employed on those establishments  thus form  two separate  and  distinct classes. For  that reason,  if a  separate set  of rules are framed for the persons on the work-charged establishment and the general  rules applicable  to  persons  working  on  the regular establishment  are not  made applicable  to them, it cannot be  said that  they are  treated in  an arbitrary and discriminatory manner  by the Government. It is well-settled that the  Government has  the power to frame different rules for different  classes of  employees, we,  therefore, reject the contention  raised on  behalf of  the appellant in Civil Appeal No. 653 of 1993 that clauses (g), (h) and (i) of Rule of  RSR   are  violative  of  Articles  14  and  16  of  the Constitution and uphold the view taken by the High Curt.      The Project Rules have been framed by the Government in exercise of  the power  available to it under Rule 42 of the RSR. They  are subsidiary  Rules made  for  the  purpose  of granting special  concessions and  allowances to  Government servants working  on projects.  When non-application  of the main Rules,  namely, RSR  to work-charged  employees is  not found to  be violative  of Articles  14 and  16 by. The High Court it is difficult to appreciate how the subsidiary Rules for that  reason only  can be  held to be violative of those Articles. The  High Court failed to consider this aspect and in our  opinion, erroneously  struck down Rules 2(b) and (d) of the 1962 Project Rules and Rules 4(2) and (4) of the 1975 Project Rules.      It was  also contended  on behalf of the State that the High Court  having held  that the  workmen  working  on  the regular establishment  and the  employees working on a work- charged establishment belong to two separate categories and, therefore, separate classification made by the Government in that behalf  is  reasonable,  committed  a  grave  error  in striking down Rules 2(b) and (d)  of the 1962 Project equal pay for equal work. The reason given by the High Court for taking  that view  is  that  the  project  allowance  is compensatory in  nature and,  therefore, the  classification made between  the work--charged  employees and the employees of the  regular establishment has no rational nexus with the object sought  to be  achieved by those Rules. What the High



Court failed  to appreciate is that when an employee working in the  regular establishment is transferred to a project he has to leave his ordinary place of residence and service and go and  reside within  the project  area. That  is  not  the position in  the case  of an  employee who is engaged on the work-charged   establishment   of   excluting   that   work. Respondent Kunji  Raman and  other employees on whose behalf he had  filed the petition were all engaged for execution of the Mahi  Project and  thus they  became a part of the work- charged  establishment   of  Mahi  Project.  They  were  not required to  from their  regular place  of service. The High Court also  failed to  consider that  for such employees the pay scales under the Pay Scale Rules are also different. The material produced  by the  State goes  to  show  that  while fixing the  pay scales  of  employees  of  the  work-charged establishment  of   mahi  Project  the  element  of  project allowance was  also included  therein and  for  that  leason their pay  scales were higher than the pay scales of general category  work-charged   employees,  some   of   whom   were transferred and posted on the Mahi Project. Except a general denial in  the rejoinder  affidavit by  Kunji Raman no other material has  been produce  to point out that the said claim of the  Government is  not correct.  The order dated 30.4.81 annexed with  the rejoinder affidavit of Kunji Raman is with respect of those work-charged employees who were absorbed on 43 regular  posts which  were newly created. They thus cased to be  work-charged employees  employed  on  a  project  and become general  category work-charged  employees  whose  pay scales were  different and were, therefore, paid the project allowance. Thus the claim made by Respondent Kunji Raman and other similarly situated employees for granting them project allowance was  really misconceived.  From what is now stated by them  in the counter affidavit, it appears that what they really want  is parity in all respects with the employees of the regular establishment. In other words, what they want is that they  should be  treated as  regular employees  of  the Public Works  Department of  the  Rajasthan  Government  and should be  given all benefits which are made available under the RSR and the Project Rules. Such a claim is not justified and, therefore,  the contention raised in that behalf cannot be accepted.  We hold that the High Court committed an error in declaring  Rules 2(b)  and (d)  of the Project Rules 1962 and Rules  4(2) and  (4) of the Project Rules, 1975 as Ultra vires Articles 14 and 16 of the Constitution.      We, therefore,  allow Civil  Appeal No. 652 of 1993 and dismiss Civil  Appeal No.  653 of 1993. In view of the facts and circumstances  of the case there shall be no order as to costs.