Pradeshik Sanskrit ... vs State Of U.P. & Others
2017 Latest Caselaw 3422 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

							    		                 AFR
 
							     Reserved on  25.04.2017
 
							    Delivered on  21.08.2017
 
Court No.-34
 
Case :- WRIT - A No. - 25200 of 2009
 

 
Petitioner :- Pradeshik Sanskrit Mahavidyalaya Adhaypak Kalyan Samiti and Another
 
Respondent :- State Of U.P. and Others
 
Counsel for Petitioner :- J.P. Singh,Ashok Khare,Nitin Kumar Agrawal
 
Counsel for Respondent :- C.S.C.,Neeraj Tripathi,V.B. Mishra
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Mukhtar Ahmad,J.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. This writ petition under Article 226 has been filed by two petitioners. Petitioner-1, Pradeshik Sanskrit Mahavidhyalaya Adhyapak Kalyan Samiti is a registered society of Teachers working in Sanskrit Degree Colleges affiliated to Sampurnand Sanskrit Vishvidhyala, Varanasi (hereinafter referred to as S.S.U.) and 47 such Sanskrit Degree Colleges, are members of the society. Petitioner-2 is one of the Science Teachers and is also President of the Society.

2. By Government Order dated 28.02.2009, benefit of revised pay scale has been granted to all Universities governed by U.P. State Universities Act, 1973 other than agricultural, medical and technical Universities as also the Colleges associated and affiliated with such Universities.

3. It is contended that by the aforesaid Government order, benefit of revised pay scale has illegally been denied to S.S.U. and Colleges affiliated to it. Members of petitioner Society are entitled to the benefit of revised pay scale along with other State Government servants, in view of recommendation of University Grants Commission (hereinafter referred to as U.G.C.) communicated by Ministry of Human Resources and Development, vide letter dated 31.12.2008. It is further contended that exclusion of S.S.U. and Colleges affiliated to it from the benefit of revised pay scale is wholly arbitrary and violative of Articles 14 and 16 of Constitution of India. S.S.U. is one of the existing Universities as defined under Section 2(8) of U.P. Act 1973, therefore, exclusion of S.S.U. and Colleges affiliated to it from benefit of revised pay scale is arbitrary and illegal and Teachers of the Colleges are entitled to same benefit.

4. It is pointed out that earlier also when Fifth Pay Commission recommendations were implemented with effect from 1.1.1996 in regard to Teachers of Universities governed by U.P. Act 1973, S.S.U. and affiliated Colleges were excluded vide Government Order dated 16.02.1999. Again when recommendations of Sixth Pay Commission are being implemented to the Universities governed by U.P. Act 1973, vide order dated 23.02.2009, Teachers of S.S.U. and its affiliated Colleges are being excluded though there is no valid reason inasmuch as, S.S.U. and its affiliated Colleges are also governed by provisions of U.P. Act 1973 and First Statutes of S.S.U, framed thereunder.

5. The reason for refusal of benefit is said to be that U.G.C. has not given any direction with respect to S.S.U. under Section 2(f) read with section 12(B) of University Grants Commission Act, 1956 (hereinafter referred to U.G.C. Act, 1956).

6. It is said that Teachers of S.S.U and its affiliated Colleges were communicated printed proforma inviting their opinion for consideration by Pay Review Committee 2008 constituted by U.G.C. Affiliated Colleges of S.S.U are included within the term "Colleges" under Section 16(A)(1) of U.P. Act, 1973. Since Sanskrit Degree Colleges include teaching up to secondary level, vide Government Order dated 22.12.2001, it was clarified that management of higher classes like Shastri and Acharya shall continue to remain under the control of S.S.U but up to secondary level, it will be taken out from University and assigned to Sanskrit Shiksha Parishad.

7. Vide another Government Order dated 22.12.2001, it was provided that selection and appointment of Teachers of secondary level in Sanskrit Colleges shall remain through U.P. Secondary Education Service Selection Commission while selection and appointment of Degree College's Teachers shall be made through U.P Higher Education Service Selection Board. It also said that appropriate amendment shall be incorporated in U.P Secondary Education Service Selection Board Act, 1982 and U.P. Higher Education Services Commission Act, 1980 and in the First Statute of S.S.U. No progress in the matter could be shown, but in the mean time, question of benefit of revised pay scale had arisen. It has been conferred upon all other Universities governed by U.P. Act 1973 except S.S.U. which is clearly arbitrary and violative of Articles 14 and 16.

8. Contesting the writ petition, respondent-1 has filed counter affidavit sworn by Sri R.K. Mishra, under Secretary, Higher Education Department U.P. Lucknow. It is not disputed that Teachers of Colleges affiliated to S.S.U. are governed by First Statute of S.S.U. and qualifications of Teachers including Principal are determined by Ordinances issued by S.S.U. However, qualification of "Teachers of Colleges", affiliated to other Universities, governed by U.P. Act 1973 are prescribed by U.G.C and they stand on different footings. It is further said that pay scales of Teachers including Principal of Colleges affiliated to S.S.U are determined by State Government and they are at par with the Teachers of Secondary Education Department while Teachers of Colleges affiliated to other Universities governed by U.P. Act 1973 are determined on the basis of recommendations of U.G.C. It is also said that Salary of Teachers of Colleges affiliated to S.S.U has been revised vide Government Order dated 19.03.2010 and copy of the said Government Order has been placed as annexure-1 to counter affidavit "Teachers of Colleges", affiliated to Universities governed by U.P. Act 1973 are different than Teachers of Colleges affiliated to S.S.U and both stand on different footings. It is thus contended on behalf of respondents that there is no parity, hence Articles 14 and 16 or the plea of "equal pay for equal work" is not applicable to the Teachers and Principal of S.S.U. and Colleges affiliated to it.

9. A separate counter affidavit has been filed by respondent-4 i.e., S.S.U. stating that Teachers getting U.G.C scale are appointed through U.P. Higher Education Service Commission while Teachers of Colleges affiliated to S.S.U are selected and appointed by Committee of Management with approval of Vice Chancellor. Therefore, even in the matter of recruitment and appointment of Teachers of Colleges affiliated to S.S.U. and Teachers of affiliated Colleges of other Universities governed by U.P. Act, 1973, procedure is wholly different.

10. A third counter affidavit has been filed by respondent-3 stating that U.G.C does not come into picture so far as question of financial assistance to State Government for implementation of the scheme of revision of pay is concerned. There is no liability of U.G.C. in this regard. The decision has to be taken by the State Government.

11. In the backdrop of pleadings, and facts and circumstances, we have to examine "whether Teachers of Colleges affiliated to S.S.U. are entitled to parity in the matter of pay scale with the Teachers of other Colleges affiliated to Universities governed by U.P. Act 1973", and the "principle of equal pay for equal work whether would be applicable or not"?

12. It is not in dispute that revision of pay scale with effect from has been made pursuant to Sixth Pay Commission, effective from 01.01.2006. By a separate Government Order, corresponding revision has also been allowed. Neither before implementation of Sixth Pay Commission, petitioners were getting salary in the pay scales at par with Teachers of other affiliated Colleges of University governed by U.P. Act 1973, nor the same has been allowed while implementing recommendation of Sixth Pay Commission, but separatibly revision has been allowed to Teachers of Colleges affiliated to S.S.U giving benefit of Sixth Pay Commission.

13. The admitted facts making distinction between Teachers of Colleges affiliated to other Universities governed by U.P. Act, 1973 and Teachers of Colleges affiliated to S.S.U may be summarized as under.

(i) Selection of such Teachers in Colleges affiliated to other Universities governed by U.P. Act, 1973 is made through U.P Higher Education Service Commission under the provisions of Act, 1981 while Teachers of Colleges affiliated to S.S.U are still selected and appointed by Committee of Management of respective Colleges with the approval of Vice Chancellor of S.S.U.

(ii) Qualifications of Teachers of Colleges affiliated to other Universities governed by U.P. Act, 1973 are such as prescribed by U.G.C but the same are not applicable to Teachers of the Colleges affiliated to S.S.U.

(iii) U.G.C pay scales are recommended for the post of Teachers as are applicable in other Universities governed by U.G.C but Teachers in Colleges affiliated to S.S.U. are not in such a position.

(iv) It is true that S.S.U is one of the existing Universities under U.P. Act, 1973 and Colleges affiliated to S.S.U may also come within the definition of "College" under Section 60A(i) of U.P. Act, 1973, but different provisions of U.P. Act, 1973 would show distinction in the Constitution and other conditions of S.S.U. For example, while in respect of other Universities governed by U.P. Act 1973, specified area of operation has been prescribed but a separate provision has been made under Section 5(2) of U.P. Act 1973 for S.S.U. Similarly, under Section 9, highest Officer of University is Chancellor to all Universities other than S.S.U where it is Pro-Chancellor.

14. Provisions dealing with Pro-Chancellor are contained under Section 11 of 1973. By Gazette notification dated 11.12.1974 certain modifications have been made in various provisions of U.P. Act 1973, providing that they would apply to S.S.U. Chapter XI Sections 56 to 60 have been omitted for its application to S.S.U. with regard to selection, qualifications and conditions of service of Teachers of Colleges affiliated to S.S.U. Sections 31 and 35 have been amended and it is provided that same shall be for prescribed period.

15. It is thus, evident that S.S.U and Colleges affiliated to S.S.U in some respect are placed with other Universities and Colleges affiliated to them governed by U.P. Act, 1973 but since beginning, there has been a substantial difference in various respects, maintained therein. In view of the above existing distinction in the matter of process of recruitment, qualifications and other conditions of service, in our view it will not be appropriate to apply principle of "equal pay for equal work" and exclusion of Teachers of Colleges affiliated to S.S.U. from Teachers of Colleges affiliated to other Universities governed by U.P. Act, 1973 cannot be said to be perse arbitrary and discriminatory or violative of Articles of 14 and 16 of the Constitution.

16. Principle of equal pay for equal work is well recognized and in the past 30 years and more it has been reiterated time and again by Courts that if in all other aspects like recruitment, qualification, procedure of appointment, duties, responsibilities, obligations etc. two persons are similarly placed performing same duties, they cannot be denied equal pay and any otherwise treatment would amount to treating equals as un-equals and shall violate fundamental right of equality enshrined under Article 14 and 16 of Constitution of India. But when there is a substantial difference in one or more of the above factors, the above principle would not apply.

17. In Randhir Singh v. Union of India and Ors., (1982) 1 SCC 618, Court, considering principle of equal pay for equal work held that it is not an abstract doctrine but one of substance. Construing Articles 14 and 16 in the light of Preamble and Article 39(d) of the Constitution, Court held that principle of equal pay for equal work is deducible from those Articles and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though those drawing different scales of pay do identical work under the same employer.

18. In R.D. Gupta and Ors. v. Lt. Governor, Delhi Administration and Ors. (1987) 3 SCC 505, Court applying principle of equal pay for equal work, in para 20 of the judgment, considered correctness of defence taken by employer justifying non application of said principle, and, held

"the ministerial staff in the NDMC constitute a unified cadre. The recruitment policy for the selection of the ministerial staff is a common one and the recruitment is also done by a common agency. They are governed by a common seniority list. The ministerial posts in the three wings of the BDNC viz, the general wing, the electricity wing and the waterworks wing are interchangeable posts and the postings an made from the common pool according to administrative convenience and exigencies of service and not on the basis of any distinct policy or special qualifications. Therefore, it would be futile to say that merely because a member of the ministerial staff had been given a posting in the electricity wing, either due to force of circumstances or due to voluntary preferment, he stands on a better or higher footing or in a more advantageous position than his counterparts in the general wing. It is not the cast of the respondents that the ministerial staff in the electricity wing perform more onerous or more exacting duties than the ministerial staff in the general wing. It therefore follows that all sections of the ministerial staff should be treated alike and all of them held entitled to the same scales of pay for the work of equal nature done by them." (para 20)

19. In Jaipal and Ors. v. State of Haryana and Ors., (1988) 3 SCC 354, Court held:

"The doctrine of equal work equal pay would apply on the premise of similar work, but it does not mean that there should be complete identity in all respects. If the two classes of persons do same work under the same employer, with similar responsibility, under similar working conditions the doctrine of 'equal work equal pay would apply and It would not be open to the State to discriminate one class with the other in paying salary. The State is under a constitutional obligation to ensure that equal pay is paid for equal work." (para 6) (emphasis added)

20. In Grih Kalyan Kendra Workers' Union v. Union of India and Ors. JT 1991 (1) SC 60, it was observed:

"the question of parity in pay scale cannot be determined by applying mathematical formula. It depends upon several factors namely nature of work, performance of duties, qualifications, the quality of work performed by them. It is also permissible to have classification in services based on hierarchy of posts, pay scale, value of work and responsibility and experience. The classification must, however, have a reasonable relation to the object sought to be achieved." (para 7) (emphasis added)

21. In State of Orissa and Ors. v. Balaram Sahu and Ors. (2003) 1 SCC 250 : 2003 (1) AWC 273 (SC), Court observed as under:

"Though "equal pay for equal work" is considered to be a concomitant of Article 14 as much as "equal pay for unequal work" will also be a negation of that right, equal pay would depend upon not only the nature or the volume of work, but also on the qualitative difference as regards reliability and responsibility as well and though the functions may be the same, but the responsibilities do make a real and substantial difference." (para 11) (emphasis added)

22. In State Bank of India and Anr. v. M.R. Ganesh Babu and Ors. (2002) 4 SCC 556, Court observed in para 16:

"The principle of equal pay for equal work has been considered and applied in may reported decisions of this Court. The principle has been adequately explained and crystallized and sufficiently reiterated in a catena of decisions of this Court. It is well settled that equal pay must depend upon the nature of work done."

23. In Deb Narayan Shyam and others Vs. State of West Bengal and others, 2005(2) SCC 286, Court summarized as to when doctrine of "equal pay for equal work" would apply in the light of exposition of law laid down in catena of earlier decisions and said:

"Large number of decisions have been cited before us with regard to the principle of 'equal pay for equal work' by both sides. We need not deal with the said decisions to overburden this judgment. Suffice it to say that the principle is settled that if the two categories of posts perform the same duties and function and carry the same qualification, then there should not be any distinction in pay scale between the two categories of posts similarly situated. But when they are different and perform different duties and qualifications for recruitment being different, then they cannot be said to be equated so as to qualify for equal pay for equal work." (emphasis added)

24. In State of Madhya Pradesh and others Vs. Ramesh Chandra Bajpai, 2009(11) SCALE 619 Court said that it is well settled that the doctrine of "equal pay for equal work" can be invoked only when the employees are similarly situated. Similarity in designation or nature or equation of work is not determinative for equality in the matter of pay scales. Court has to consider factors like the source and mode of recruitment/appointment, qualifications, nature of work, the value thereof, responsibility,reliability, experience, confidentiality, functional need, etc. In other words the equality clause can be invoked in the matter of pay scale only when there is a whole sale identity between the two posts.

25. In State of Madhya Pradesh and Ors. Vs. Ramesh Chandra Bajpai, 2009(13) SCC 635, Court said that doctrine of equal pay for equal work can be invoked only when the employees are similarly situated and that similarity of the designation or nature or quantum of work is not determinative of equality in the matter of pay scales and that the Court has to consider several factors and only when there was wholesale identity between the holders of two posts, equality clause can be invoked and not otherwise.

26. In A.K.Behra Vs. Union of India & Anr., JT 2010 (5) SC 290, Court, in paras 84 and 85, said:

"84. The principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of differences of circumstances. It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed.

85. The law can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognize even degree of evil, but the classification should never be arbitrary, artificial or evasive."

27. If we examine the present case in the light of above exposition of law, we find that qualifications, procedure for selection and appointment of Principal and Teachers of S.S.U. and affiliated colleges and the governing bodies like U.G.C. etc. are different than that applicable to other Universities and Colleges affiliated to them, governed by U.P. Act, 1973, hence we are of the view that petitioner's claim for "equal pay for equal work" cannot be accepted and has to be rejected.

28. In view of above discussion, writ petition lacks merit and is accordingly, dismissed. No costs.

Order Date :- 21.08.2017

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