Validity of contractual appointment rule under article 309
Debabrat Swain
(Querist) 09 September 2018
This query is : Resolved
Sir/Madam,
Govt. of Odisha in General Administration Department have framed a Contractual Appointment Rule in exercise of the powers conferred by proviso to Article 309 of the Constitution of India for all Group-C & D employees vide Notification No.32010-GAD-SC-RULES-0009-2013/Gen. By this rule contractual employees can draw consolidated monthly remuneration equal to the initial of the corresponding pay plus grade pay without any allowance. Is it legal to frame recruitment rules under Article 309 which is violating the fundamental rights (Art-14 & 16 ) and equal pay for equal work (Art-39 D)???
Guest
(Expert) 09 September 2018
Nothing illegal. Wages of contractual employees can be with or consolidated without allowance, but the only thing has to be seen that the wages do not fall below the minimum wages fixed by the Government from time to time. There is no independent Article, like 39-D in the Constitution of India. It is sub-clause (d) of the main Article 39.
Further, equal pay for equal work, as per Art. 39(d) would apply between men and women of the same status, i.e., the contractual employees only, not of the different status. Distinction provided by the sub-clause of the Article needs be interpreted properly. Article stresses about equal pay between men and women for the purpose of pay for the same work, but not for equal pay for employees of two different cadres, i.e., regular employees and contractual employees.
Debabrat Swain
(Querist) 09 September 2018
Thank you very much Sir for the valuable reply. So far I know, monthly minimum wages is given to Daily Wage workers posted in Govt. But I have been selected through Direct Recruitment by State Staff Selection Commission on a consolidated remuneration of initial pay plus grade pay (Pay-5200 + GP-1900). After 7th Pay commission 2017, Govt. fixed the initial pay of the concerned pay scale to Rs.19900 but we are only getting Rs.8880/- (25% hike over the pre revised pay). What can be done to get justice???
Guest
(Expert) 09 September 2018
You can check wages for skilled workers. There are monthly rates also, not merely daily rates of wages.
Sudhir Kumar, Advocate
(Expert) 09 September 2018
Rules framed under article 309 can be challanged only if these are against any provision of the Constitution.
Debabrat Swain
(Querist) 10 September 2018
Many many thanks to Sudhir Sir. Sir I know there is a fundamental right “right to constitutional remedies “ safeguards all other fundamental rights . It gives a person the right to approach High Court or Supreme Court in case of violation of their fundamental rights .The Supreme and High Courts can give directives to the government for the enforcement of their rights . In this sense it is the most important fundamental right . Dr. B.R Ambedkar called it “ The heart and soul of the Constitution” . It is covered in Article 32 and 226 of the Constitution .
Dr J C Vashista
(Expert) 10 September 2018
Before opting for "contractual" appointment you had checked and accepted the terms and conditions of service which specifically provide "X" amount shall be paid.
However, you are at liberty to move to the Court challenging government RRs.
Consult and engage a local prudent lawyer for better appreciation of facts, analyses, guidance and proceeding.
Guest
(Expert) 10 September 2018
@ Mr. Debabrat Swain,
I don't think you have any real life problem, like that pertaining to contractual employment. Rather, your own descriptions of the problem clearly reveal that it is your academic query, but with some problem about correct interpretation of the law. When you can quote so many Articles of the Constitution of India in your case, you should also try to interpret the Constitutional Law appropriately by reading the Articles very carefully.
My assumption is also supported by your continued avoidance of response to the last 28 days on the old query of the expert, Mr. Ramachandran in the Forum section, as available at the following thread, who asked you to come with truth through his post, stating "I dont think the Govt. might have made contractual appointment for 6 years in one go." ........... "Please come with clear facts." .................. "According to me, you have not told the truth when you said that the govt. has made contractual appointment for a period of 6 years."
http://www.lawyersclubindia.com/forum/Contractual-Appointment-187526.asp
So, why you failed to come out with truth for his information for the last 28 days?
However, you have every right to approach the HC or even the SC to get justice, provided you have fundamental right to continue with a contractual employment and also if you can prove that you are entitled to the same benefits of regular employees is your fundamental right, while working in contractual capacity.
MIND IT, THEORETICAL APPROACH HAS NO MEANING. EVEN IF YOU ARE REALLY SERVING AS A CONTRACTUAL WORKER. AT FIRST, YOU HAVE TO WORRY ABOUT CONTINUITY OF YOUR SERVICE, AS THERE IS NO CERTAINTY OF GETTING ALONG WITH CONTRACTUAL EMPLOYMENT EVEN FOR A SINGLE DAY AFTER YOU FILE A WRIT PETITION AGAINST YOUR EMPLOYER, SPECIFICALLY THE STATE GOVERNMENT. ANY STATUTORY RULES, IF MADE, ARE ISSUED AFTER DUE CONSULTATION WITH THE LEGAL DEPARTMENTS OF THE GOVERNMENT CONCERNED. IN A CONTRACTUAL EMPLOYMENT, YOU DO NOT EVEN ENJOY THE GENERAL RIGHT TO CONTINUE WITH CONTRACTUAL EMPLOYMENT BY EARNING DISPLEASURE OF THE COMPETENT AUTHORITY OF THE STATE, WHAT TO SAY OF CLAIMING OF SERVICE BENEFITS AS OF FUNDAMENTAL RIGHT.
Better come with real truth, instead of unduly stretching the thread. If a student, better concentrate on your studies, read the provisions twice or thrice to enable you interpret the law correctly and to understand its real implication.
Debabrat Swain
(Querist) 10 September 2018
Thanks a lot Sir for the valuable reply. Actual fact is that I have been posted as Junior Assistant under Govt of Odisha on contractual basis against sanctioned posts by direct recruitment through Staff Selection Commission with guarrantee of regularization after 6 years of continious service as per "Odisha Group-C and Group-D posts (contractual appointment) Rules, 2013" where it is mentioned that We can draw remuneration of initial pay plus grade pay of our pay band i.e. 5200+1900 for six years with yearly 10% increment.
But after 7th pay commission our respective pay band was revised to Rs.19900/- whereas Govt amended the above rule named "Odisha Group-C and Group-D Posts (Contractual Appointment) Amendment Rules, 2017 " and not allowed to draw the revised initial pay band on the otherhand Govt hiked our remuneration 25% above the prerevised pay scale i.e Rs.7100 to Rs.8880/-. So Sir in view of the aforesaid rules, please share the legal aspects.
