Daily wage compassionate Clerk entitled to pay parity with contract basis counterpart from initial appointment for identical work; mode of appointment cannot justify lower emoluments, violating equal pay under Articles 14, 16, 39(d).

JUDGMENT :

RANJAN SHARMA, J.

1. Petitioner, Naresh Kumar, a compassionate appointee Clerk, on daily wages, at the relevant time, has come up before this Court, seeking the following relief:-

(i) That a writ in the nature of certiorari may kindly be issued thereby quashing the impugned order dated 16.03.2012 [Annexure P-4].

(ii). That a writ in the nature of mandamus may kindly be issued and the respondent be directed to pay emoluments at par with the contract basis Clerk i.e. Rs.7800/- per month instead of Rs.4300/- from the date of appointment alongwith arrears thereto with interest at the rate of 12% per annum or alternatively to pay regular pay scales of Clerks as hundreds of posts are lying vacant in the respondent Department since long.

(iii). That the respondents may kindly be directed to pay regular pay scale as the petitioner is working in vacant post.”

2. On instructions of the petitioner, Learned Counsel for the petitioner states that the alternative relief in prayer clause (ii) claiming regular pay scale of Clerk is not being pressed in the instant petition.

FACTUAL MATRIX:

3. Grievance of the petitioner is that petitioner was appointed as Clerk on daily wage basis on 12.04.2007 on compassionate grounds. On appointment and joining, the petitioner was granted monthly emoluments based on daily wages of Rs. 4300/- per month whereas other similarly placed Clerks, who were appointed on compassionate grounds, on contract basis were given emoluments at Rs.7810/- per month including one Shri Man Singh, which was stated to be arbitrary, discriminatory and not in spirit of Article 14 and 16 of the Constitution of India. It is averred that petitioner submitted a representation on 05.07.2010 [Annexure P-1] and pursuant to this the Superintending Engineer, 1st Circle, HPPWD, Mandi, forwarded the case to Chief Engineer (NZ), PWD, Mandi on 14.10.2010 [Annexure P-2] but with no response. The petitioner filed CWP No. 3564 of 2011, claiming parity in emoluments/salary as granted to his counterpart, namely, Man Singh and aforesaid CWP was disposed of by this Court, with the direction to Chief Engineer [CZ], Mandi to consider the matter and take appropriate action in accordance with law. Resultantly, Chief Engineer, Mandi, Respondent No.2, passed an order on 16.03.2012 [Annexure P-4] rejecting the claim of the petitioner for parity in salary vis-à-vis Shri Man Singh, aforesaid.

STAND OF RESPONDENT IN REPLY-AFFIDAVIT:

4. Pursuant to the issuance of notice on 29.03.2012 in these proceedings the Respondents-State Authorities filed a Reply-Affidavit dated 17.05.2012 of Superintending Engineer, 1st Circle, HPPWD, Mandi.

(i). Perusal of Preliminary Submissions and Reply on Merits, states that, the petitioner had applied on compassionate grounds to Executive Engineer, Ghumarwin, HPPWD Division, upon death of his father who was working as work charge Beldar in the said division. Pursuant to his application, the Competent Authority accorded the necessary sanction and appointed the petitioner as Clerk on daily wage basis and he joined as such on 12.04.2007. Reply-Affidavit states that as per Clause 11 of the Policy on Compassionate Appointment dated 18.01.1990 [Annexure R-1], once, the petitioner has accepted his appointment as Clerk on daily wage basis, therefore, the petitioner has no right to seek parity in emoluments-salary vis-à-vis emoluments-salary given to Shri Man Singh, who was appointed as Clerk on compassionate grounds on contract basis on 01.10.2007. Reply-Affidavit indicates that th