Understanding the concept of Regularization and Equal payfor Equal Work in Service Jurisprudence

The present article is intended to be created in order to explore the two

very important concept of service jurisprudence i.e a) Consideration of

an employee for regularization b) Equal pay for equal work. Firstly

taking up an issue regards to Consideration of an employee for

regularization, so the very important conditions which are essentially

needed for any employee so that an employee can approach before his

employer for regularizing his services however a point which is to be

noted here is that the certain categories of employees like Daily wagers,

Ad hoc employees, Probationers, Temporary employees, Contractual

employees, etc if they are appointed via back door are not entitled for

the said relief but there is something which is legally known as Irregular

appointments so whenever particularly if this kind of problem arisen

then it is important to discover that which kind of employment is

Irregular appointment.

So now the important pre requisite are discussed below and if fulfilled

with the conditions of services of any employee only than the

appointment is irregular. Those conditions are-:

I. That if the said appointment is done by a process ,meaning

thereby if any employer is making any employment by way of

an open advertisement .

II. If the essential qualification for that post is at par with the

regular employee.

III. If the authority who is making appointment is competent to do

so.

IV. If reservation policy is applicable in the process .

V. And if the said post is sanctioned ( the post must not be of

temporary or contractual in nature).

VI. If the services sought by the employer is equivalent to a service

required by regular employee in terms of quantity and quality.

And if all these conditions are fulfilled than a claim for

regularization can be made by an employee.

The Similar matrix has been dealt by Hon’ble Supreme court in the

Landmark case of “State of Karnataka and others VS Uma Devi and

others” AIR 2006 SC 1806. In this Constitutional bench every law

regards to the subject is examined and a very important observation is

given by Hon’ble SC in paragraph no 15. So whenever controversy of this

type came before any employee seeking permanent status in his

employment and if his terms and conditions of service fulfills above

mentioned elements then definitely he may be considered for

permanent status. Hon’ble Supreme court in the case of “ Municipal

Corporation Jabalpur Vs Om Prakash Dubey “SCC Vol 1( 2007) Page no

373 has defined the definition of Irregular appointment and also carved

out the difference between irregular appointment and illegal

appointment. Hence the point which is to be noted is that only those

can claim regularization of their service or permanent status if their

condition and method of their appointment fulfills the above mentioned

elements. A very important aspect which also needs to be seen that if

any employee is appointed irregularly and has satisfactorily completed

his services for about 240 days, this is also a legitimate reason for

consideration of his candidature for the sake of regularization.

That now the discussion is going to be on the topic which is known as

“Equal pay for Equal work”, so if any employee is seeking any prayer of

this kind before any appropriate court of law than the essential things

which are needed to be examine is whether any kind of temporary

employee is performing services which are equivalent to any regular

employee in terms of quality and quantity of that particular work, it is

also very important to note here that there are some more aspects in

order to achieve clarity on this issue of payment of equal pay to various

categories of temporary employees which are discussed point wise

below

1. The first test would be that whether employee claiming parity in

pay must prove that the nature of services provide by him is same as

compare to regular employee.

2. Secondly an employee claiming equal pay for equal work must

explain conclusively that the job performed by him is of equal

sensitivity.

3.Thirdly the responsibility given to both categories of employee must

be of similar magnitude.

4.Fourthly the nature of work must be at par in terms of Quality and

Quantity .

All these above mentioned elements has also been dealt by Hon’ble

Supreme Court in in the famous case of state of “ State of Punjab and

other V/S Jagjit Singh and others” in civil appeal no 2013 decided on

26/10/2016 in this famous judgment it is declared by Hon’ble Supreme

court that if any kind of temporary employee who is performing similar

services in compression to a regular employee then not paying him

minimum pay scale is in contravention to Article 14 of Constitution of

India and also against the principal of welfare state(Paragraph No 42

of the judgment) in this case a lot of judgments past by apex Court was

considered in detail and thereafter declaration of law is made by the

Hon’ble court under Article 141 of the Constitution of India, that there

are two more cases that needs to be mentioned in which the above

mentioned criteria was also declared and it was briefly defined by the

Hon’ble apex Court that what are the paramount consideration for

different categories of temporary employees claiming parity in pay and

the examination which is going to be done by courts is to consider the

similarity in the nature of job between different kind of temporary and

regular employees working on same post in terms of quality and

quantity, similarity in work assign, similarity in responsibility given to

both sets of employee etc, and if these factors are calculated at par

then the claim for Equal Pay For Equal Work is justified(“State of up V/S

J.P Chaurasia” SCC 1981 Vol-1 Page.No121)