Narmad Shanker Awasthi And ... vs The Central Administrative ...
2017 Latest Caselaw 8104 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
RESERVED
 
Court No. - 7
 
Case :- SERVICE BENCH No. - 1877 of 2014
 
Petitioner :- Narmad Shanker Awasthi And Another
 
Respondent :- The Central Administrative Tribunal Lko.Bench Lko.And Ors.
 
Counsel for Petitioner :- O.P.Tiwari
 
Counsel for Respondent :- A.S.G.,Ajay Kumar Singh,Raj Kumar Singh
 
Hon'ble Anil Kumar,J.

Hon'ble Rang Nath Pandey,J.

Heard Shri O. P. Srivastava, learned Senior Advocate assisted by Shri Virendra Kumar and Shri O. P. Tiwari, learned counsel for the petitioner, Shri Raj Kumar Singh, learned counsel for the respondent and perused the record.

By means of the present writ petition, the petitioners have challenged the impugned judgment and order dated 14.07.2014 passed by Central Administrative Tribunal, Lucknow Bench, Lucknow in Original Application No.355 of 2011.

Facts in brief of the present case are that petitioners were appointed as Gramin Dak Sevak-Delivery Agent on 23.07.1979 and 07.10.1991 respectively at Unnao Head Office. From the year 2001, they did not complete the work of delivery of dak within 4 to 5 hours. They were required to cover about 30 to 35 Kms for delivering of dak at different places which took about 06 to 07 hours. Further, it takes about 02 hours for collecting the dak from the post office and in this way, the petitioners worked 08 to 09 hours daily. It has been stated that the regularly appointed Postmen also discharge the same nature of duties for 08 hours daily like the petitioners but the petitioners are not paid the same pay and allowances and they are discriminated from the regularly appointed Postman. Accordingly, they moved a representation on the ground that petitioners are doing the same nature of work and for the same period as Departmental Postmen but they are not being paid salary on the principle of equal pay for equal work. As no heed paid, so they filed a Original Application No.179 of 2010 before the Central Administrative Tribunal, Lucknow Bench, Lucknow, which was disposed of by order dated 26.04.2010 with a direction to the respondent no.4 to consider and decide the case of the petitioners.

By order dated 19.07.2010, opposite party no.4 has rejected the claim of the petitioners of equal pay for equal work, challenged by them by filing Original Application No.355 of 2011. By order dated 14.07.2014, Central Administrative Tribunal, Lucknow Bench, Lucknow has dismissed the same with the following observations :-

"It is well settled that the principle of "equal pay for equal work" could be invoked only when the employees are similarly situated and their mode of recruitment, qualification, nature of work and experience are also same. In the case of State of Orissa Vs. Bala Ram Sahu and other reported in 2003 (1) SCC 250, Hon'ble Supreme Court has held that equal pay for equal work would depend not only on the nature and volume of work but also on the qualitative differences as reliability and responsibility and though the functions may be the same, the responsibility does make a real and substantial difference. It is also a settled law that the burden to establish the right to equal pay is on the person claiming the same and once this initial burden is discharged, the burden is shifted to the State to establish that the services are dissimilar in essence and substance and the Court must be satisfied with regard to similarity of work and other relevant factors from clear and acceptable factors.

In the light of the discussions above and the facts and circumstances of the case we are of the view that the petitioners were appointed as GDS DA and they are governed by GDS (Conduct and Engagement) Rules, 2011 and they have to work 04 to 05 hours daily. They also could not qualify the departmental examination for promotion to the post of Postmen. As their mode of recruitment and service conditions are totally different from the departmental Postmen they cannot be equated with them and the principle of"equal pay for equal work" could not be invoked in the case of petitioners."

Learned counsel for the petitioners while challenging the impugned order submits that petitioners are doing same nature of work and for the same period as Departmental Postmen but they are not being paid salary, which is paid to a person, who is regularly working and discharging his duties on the post of Postman.

It is further submitted on behalf of the petitioners that petitioners are required to cover about 30 to 35 Kms for delivering of dak at different places which takes about 06 to 07 hours. Further, it takes about 02 hours for collecting the dak from the post office and in this way, the petitioners worked 08 to 09 hours daily, which is being done by the persons,who are regularly appointed on the post of Postmen, as such, petitioners are entitled for the same pay and allowances, which is being paid to the said persons but they are not being paid the same.

It is also submitted on behalf of the petitioners that official respondent in the garb of GDS Service Rules have been making the payment of their pay and allowances illegally taking into account their working hours as 4 to 5 hours, although, they have never performed less than 08 hours work daily, which is performed by regularly appointed postmen. The above act of opposite parties is illegal and discriminatory within the meaning of Article of 14 and 16 read with Article 39 (d) of the Constitution of India. Accordingly, the case of the petitioners are liable to be considered for regular appointment so that the past continuous satisfactory service of more than 20 years rendered by them may be treated as qualifying service for the purpose of payment of retiral benefits after the superannuation of the petitioners.

In support of his arguments, he has placed reliance on the following judgment :-

"State of Punjab and others vs. Jagjit Singh and others (2017) 1 SCC 148.

Yashpal and others vs. Union of India and others (2017) 3 SCC 272."

Accordingly, his submission is that the impugned orders dated 19.07.2010 passed by opposite party no.4 as well as dated 14.07.2014 passed by Central Administrative Tribunal, Lucknow Bench, Lucknow in Original Application No.355 of 2011 are liable to be set aside.

We have heard learned counsel for the parties and gone through the records.

In the present case, admittedly, petitioners are working on the post of Gramin Dak Sevak-Delivery Agent at Unnao Head Office and their mode of recruitment and working hours are different from departmental Postmen. Their service conditions are governed by Department of Post Gramin Dak Sevaks (Conduct and Engagement) Rules, 2011. It has also been stated that the departmental Postmen work in the town area of Unnao District whereas the petitioners have been engaged to work in Industrial/Village area for a period of 04 to 05 hours per day and, therefore, they are not entitled to the same pay and allowances as admissible to the departmental Postmen.

Article 14 of the Constitution enjoins the State not to deny any person equality before the law or the equal protection to law and Article 16 declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. It is true that the principle of "equal pay for equal work" is not expressly declared by our Constitution to be a fundamental right, but it is certainly a constitutional goal. Article 39 (d) of the Constitution proclaims "equal pay for equal work for both men and women" as a directive principal of State Policy. In the case of Official Liquidator v. Dayanand and others reported in (2008) 10 SCC 1, it has been held by Hon'ble the Apex Court that similarity in the designation or quantum of work are not determinative of equality in the matter of pay scales and that before entertaining and accepting the claim based on the principle of equal pay for equal work, the Court must consider the factors like the source and mode of recruitment/appointment, the qualifications, the nature of work the value judgment, responsibilities, reliability, experience, confidentiality, functional need etc.

Before turning to various principles laid down by the Hon'ble Supreme Court we would examine first whether the petitioner has succeeded to prove that they are similarly situated and are performing the same nature of work and for same duration as departmental Postmen are performing. The learned counsel for the petitioners has drawn our attention to annexure No.R-4 which is said to be the photocopies of attendance register relating to the month of February, 2011 in which the time of arrival of petitioners in the office is mentioned as 9:10, 9:15 etc. and he has also drawn our attention to annexure No.R-1 and R-2 in which the time of delivery slip has been mentioned as 5:00 PM, 5:10 Pm etc. On the basis of these documents, the learned counsel for the petitioners has contended that the petitioners used to perform their duties from 9:00 AM to 5:00 PM (08 hours) as the other departmental Postmen do. As regards the nature of work it is not disputed that the petitioners as well as departmental Postmen are performing the same job of distributing the dak.

Learned counsel for the respondent has categorically denied that the petitioners are performing their duties for 08 to 09 hours and submitted that the work load of petitioners was assessed as per standard formula provided by the Department of Post on 23.07.2010 and it was found that the work load of beat No.11 and 12 were 4.45 hours and 4.30 hours respectively, where the petitioners are performing their duties. It has also been submitted that the work load of delivery of mail has been decreased due to services of private couriers and utilization of E-mail and mobile. It has also been contended that the distance of any such beat does not exceed 25 kms and the work load of the petitioners beat does not exceed more than 05 hours. It has also been mentioned that the service conditions of the petitioners are governed by GDS (Conduct and Engagement) Rules, 2011 and GDS can be promoted to Group ''D' post after qualifying the departmental examination, but the petitioners could not qualify in the said examination due to in-competency.

The core question which is to be decided in the present case is whether the petitioners, who are working and discharging their duties on the post of Gramin Dak Sevak-Delivery Agent, are entitled for the same pay scale and allowances which is paid to regular incumbent, who are working and discharging their duties on the post of Postmen in the postal department, Government of India.

So far as the matter in regard to payment under the Principle of "Equal Pay for Equal Work" is concerned, this principle has no mechanical application in every case of similar work. It has to be read into with context of article 14 of the Constitution. Article 14 permits reasonable classification founded on different basis. It is now well established that the classification can be based on some qualities or characteristics of persons grouped together and not in others who are left out. Those qualities or characteristics must, of course, have a reasonable relation to the object sought to be achieved. In service matters, merit or experience could be the proper basis for classification to promote efficiency in administration. He or she learns also by experience as much as by other means. It can not be denied that the quality of work performed by persons of longer experience is superior than the work of new comers. (See State of U. P. v. J. P.Chaurasia, 1988 (5) SLR 638).

The principle is not abstract one, it is open to the State to prescribe different scales of pay for different cadres having regard to nature, duties, responsibilities and educational qualification. The application of the doctrine arises where employees are equal in every respect, in educational qualifications, duties, functions and measures of responsibilities and yet they are denied equality in pay. If the classification for prescribing different scales of pay is founded on reasonable nexus the principle will not apply.

Hon'ble the Apex Court in the case of State of Punjab and others vs. Jagjit Singh and others (2017) 1 SCC 148, after taking into consideration the various judgment in regard to Principle of "Equal Pay for Equal Work", held as under :-

"42.1. The ''onus of proof', of parity in the duties and responsibilities of the subject post with the reference post, under the principle of ''equal pay for equal work', lies on the person who claims it. He who approaches the Court has to establish, that the subject post occupied by him, requires him to discharge equal work of equal value, as the reference post (See - Orissa University of Agriculture & Technology v. Manoj K. Mohanty (2003) 5 SCC 188).

42.2 The mere fact that the subject post occupied by the claimant, is in a "different department" vis-a-vis the reference post, does not have any bearing on the determination of a claim, under the principle of ''equal pay for equal work'. Persons discharging identical duties, cannot be treated differently, in the matter of their pay, merely because they belong to different departments of Government (See - Randhir Singh v. Union of India (1982) 1 SCC 618).

42.3. The principle of ''equal pay for equal work', applies to cases of unequal scales of pay, based on no classification or irrational classification. For equal pay, the concerned employees with whom equation is sought, should be performing work, which besides being functionally equal, should be of the same quality and sensitivity (See - Federation of All India Customs and Central Excise Stenographers v. Union of India, (1988)3 SCC 91).

42.4. Persons holding the same rank/designation (in different departments), but having dissimilar powers, duties and responsibilities, can be placed in different scales of pay, and cannot claim the benefit of the principle of ''equal pay for equal work'. Therefore, the principle would not be automatically invoked, merely because the subject and reference posts have the same nomenclature.

42.5. In determining equality of functions and responsibilities, under the principle of ''equal pay for equal work', it is necessary to keep in mind, that the duties of the two posts should be of equal sensitivity, and also, qualitatively similar. Differentiation of pay-scales for posts with difference in degree of responsibility, reliability and confidentiality, would fall within the realm of valid classification, and therefore, pay differentiation would be legitimate and permissible. The nature of work of the subject post should be the same and not less onerous than the reference post. Even the volume of work should be the same. And so also, the level of responsibility. If these parameters are not met, parity cannot be claimed under the principle of ''equal pay for equal work' (See - State of U.P. v. J.P. Chaurasia (1989) 1 SCC 121).

42.6. For placement in a regular pay-scale, the claimant has to be a regular appointee. The claimant should have been selected, on the basis of a regular process of recruitment. An employee appointed on a temporary basis, cannot claim to be placed in the regular pay-scale.

42.7. Persons performing the same or similar functions, duties and responsibilities, can also be placed in different pay-scales. Such as - ''selection grade', in the same post. But this difference must emerge out of a legitimate foundation, such as - merit, or seniority, or some other relevant criteria.

42.8. If the qualifications for recruitment to the subject post vis-a-vis the reference post are different, it may be difficult to conclude, that the duties and responsibilities of the posts are qualitatively similar or comparable. In such a cause, the principle of ''equal pay for equal work', cannot be invoked.

42.9. The reference post, with which parity is claim ed, under the principle of ''equal pay for equal work', has to be at the same hierarchy in the service, as the subject post. Pay-scales of posts may be different, if the hierarchy of the posts in question, and their channels of promotion, are different. Even if the duties and responsibilities are same, parity would not be permissible, as against a superior post, such as a promotional post (See - Union of India v. Pradip Kumar Dey (2000) 8SCC 580).

4.10. A comparison between the subject post and the reference post, under the principle of ''equal pay for equal work', cannot be made, where the subject post and the reference post are in different establishments, having a different management. Or even, where the establishments are in different geographical locations, though owned by the same master. Persons engaged differently, and being paid out of different funds, would not be entitled to pay parity (See - Official Liquidator v. Dayanand (2008) 10 SCC 1).

4.11. Different pay-scales, in certain eventualities, would be permissible even for posts clubbed together at the same hierarchy in the cadre. As for instance, if the duties and responsibilities of one of the posts are more onerous, or are exposed to higher nature of operational work/risk, the principle of ''equal pay for equal work' would not be applicable. And also when, the reference post includes the responsibility to take crucial decisions, and that is not so for the subject post (See - State Bank of India v. M. R. Ganesh Babu (2002) 4 SCC 556).

4.12. The priority given to different types of posts, under the prevailing policies of the Government, can also be a relevant factor for placing different posts under different pay-scales. Herein also, the principle of ''equal pay for equal work' would not be applicable. (See - State of Haryana v. Haryana Civil Secretariat Personal Staff Association (2002)6 SCC 72).

4.13 The parity in pay, under the principle of ''equal pay for equal work', cannot be claimed, merely on the ground, that at an earlier point of time, the subject post and the reference post, were placed in the same pay -scale. The principle of ''equal pay for equal work' is applicable only when it is shown, that the incumbents of the subject post and the reference post, discharge similar duties and responsibilities. (See - State of West Bengal v. West Bengal Minimum Wages Inspectors Association (2010) 5 SCC 225).

4.14. For parity in pay-scales, under the principle of ''equal pay for equal work', equation in the nature of duties, is of paramount importance. If the principal nature of duties of one post is teaching, whereas that of the other is non-teaching, the principle would not be applicable. If the dominant nature of duties of one post is of control and management, whereas the subject post has no such duties, the principle would not be applicable. Likewise, if the central nature of duties of one post is of quality control, whereas the subject post has minimal duties of quality control, the principle would not be applicable (See - Union Territory Administration, Chandigarh v. Manju Mathur (2011) 2 SCC 452).

4.15. There can be a valid classification in the matter of pay-scales, between employees even holding posts with the same nomenclature i.e., between those discharging duties at the headquarters, and others working at the institutional/sub-office level, when the duties are qualitatively dissimilar.

4.16. The principle of ''equal pay for equal work' would not be applicable, where a differential higher pay-scale is extended to persons discharging the same duties and holding the same designation, with the objective of ameliorating stagnation, or on account of lack of promotional avenues. (See - the Hukum Chand Gupta case v. ICAR, (2012) 12 SCC 666).

4.17. Where there is no comparison between one set of employees of one organization, and another set of employees of a different organization, there can be no question of equation of pay-scales, under the principle of ''equal pay for equal work', even if two organizations have a common employer. Likewise, if the management and control of two organizations, is with different entities, which are independent of one another, the principle of ''equal pay for equal work' would not apply. (See - S. C. Chandra v. State of Jharkhand, (2007) 8 SCC 279)."

Hon'ble the Apex Court in the case of Yashpal and others (Supra) after placing reliance on the judgment given in the case of State of Punjab (Supra) has held as under :-

"The Apex Court has recently revisited the entire body of law on the subject. The Court observed that the principle of equal pay for equal work has been extended to temporary employees (differently described as work-charged, daily wage, casual, ad hoc, contractual and the like). The principles have been succinctly summarised thus :

"58. In our considered view, it is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work cannot be paid less than another who performs the same duties and responsibilities. Certainly not, in a welfare State. Such an action besides being demeaning, strikes at the very foundation of human dignity. Anyone, who is compelled to work at a lesser wage does not do so voluntarily. He does so to provide food and shelter to his family, at the cost of his self-respect and dignity, at the cost of his self-worth, and at the cost of his integrity. For he knows that his dependants would suffer immensely, if he does not accept the lesser wage. Any act of paying less wages as compared to others similarly situate constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation."

Now reverting to the facts and circumstances of the case, service condition of the petitioners is governed by GDS (Conduct and Engagement) Rules, 2011. As per the said rules, persons can be permitted to join the Group ''D' post after qualifying the examination in question but in the present case, petitioners could not qualify the said examination, hence they cannot claim any parity with the pay and allowances which are being paid to a person, who is regularly appointed on the post of Postman in the postal department, as such, in view of the settled proposition of law as stated herein above, petitioners, while working and discharging their duties on the post of Gramin Dak Sevak, are not entitled for salary and other allowances which are being paid to a regular incumbent, who is working on the post of Postman.

Accordingly, we do not find any illegality or infirmity in the impugned judgment under challenge in the present writ petition.

In the result, writ petition lacks merit and is dismissed.

Order Dated : 19.12.2017

Mahesh