Dr. Annika Singh vs State Of U.P. And 3 Others
2018 Latest Caselaw 3053 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 

 
RESERVED
 

 
Court No. - 39
 

 
Case :- WRIT - A No. - 12584 of 2018
 

 
Petitioner :- Dr. Annika Singh
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Shivendu Ojha,Radha Kant Ojha, Sr. Advocate
 
Counsel for Respondent :- C.S.C.,Rohit Pandey
 

 
			connected with 
 

 
Case :- WRIT - A No. - 12882 of 2018
 

 
Petitioner :- Dr. Manoj Kumar Singh
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Shrawan Kumar Tripathi
 
Counsel for Respondent :- C.S.C.,Rohit Pandey
 

 
				and
 

 
Case :- WRIT - A No. - 13373 of 2018
 

 
Petitioner :- Dr. Dharmendra Kumar Singh
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Hari Om Ojha,Rishi Kant Rai
 
Counsel for Respondent :- C.S.C.,Rohit Pandey
 

 
				and 
 

 
Case :- WRIT - A No. - 13400 of 2018
 

 
Petitioner :- Dr. Rashmi Gautam
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Hari Om Ojha,Rishi Kant Rai
 
Counsel for Respondent :- C.S.C.,Rohit Pandey
 

 
				and
 

 
Case :- WRIT - A No. - 13374 of 2018
 

 
Petitioner :- Dr. Archana Yadav
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Hari Om Ojha,Rishi Kant Rai
 
Counsel for Respondent :- C.S.C.,Rohit Pandey
 

 
				and
 

 
Case :- WRIT - A No. - 13448 of 2018
 

 
Petitioner :- Dr. Swati Srivastava And 2 Others
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Hari Om Ojha,Rishi Kant Rai
 
Counsel for Respondent :- C.S.C.,Rohit Pandey
 

 
				and
 

 
Case :- WRIT - A No. - 15444 of 2018
 

 
Petitioner :- Anamika Dixit And Another
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Hari Om Ojha,Rishi Kant Rai
 
Counsel for Respondent :- C.S.C.,Rohit Pandey
 

 
			*********************
 

 
Hon'ble B. Amit Sthalekar,J.

Hon'ble Jayant Banerji,J.

(Delivered by Hon'ble B. Amit Sthalekar, J.)

Since the above writ petitions, which are connected together, involve identical and similar controversy, therefore, this bunch of writ petitions is being decided by a common order.

Heard Shri R.K. Ojha, learned senior counsel assisted by Sri Shivendu Ojha for the petitioners. Sri Shrawan Kumar Tripathi and Shri Rishikant Rai, learned counsel for the petitioners and Shri Ashok Khare, learned senior counsel assisted by Shri Rohit Pandey for the respondent nos. 2,3 and 4 and the learned Standing Counsel for respondent no. 1.

The petitioner in the Writ Petition no. 12584 of 2018 is seeking a direction in the nature of mandamus commanding the respondents to pay him salary of the post of Lecturer/Assistant Professor in the pay scale of 8000 - 13500 now revised to 15,600 - 37,400 in the grade pay of Rs. 6000/-. The case of the petitioner, in brief, as stated in the writ petition is that Chhatrapati Sahu Ji Maharaj University, Kanpur (the University for short) issued an advertisement for appointment on the posts of Professor, Readers and Lecturers in several departments vide Notification dated 18.6.2010 including department of Bio Technology in which 6 posts of Lecturer/Assistant Professors were advertised and out of six posts one post was reserved for OBC and one post was reserved for SC and remaining four posts were unreserved. It is stated that the petitioner is having the qualification of M.Sc. Bio-Chemistry and has completed her Ph. D. in 2004 with specialization in Biotechnology and also qualified her National Eligibility Test in Life Science in 2000. It is stated that against the advertisement dated 8.6.2010 the petitioner submitted her application and the selection committee recommended her case for appointment on the post of Lecturer/Assistant Professor. Thereafter the selection result was also approved by the Executive Council of the University vide resolution dated 4.3.2011 and thereafter the Registrar of the University also issued an appointment letter dated 11.3.2011 to the petitioner on the post of Lecturer (UR) on contract basis under the Self Finance Scheme in the department of Bio Technology IDSBD for a period of three years on the fixed salary of Rs.19,680/- per month. The appointment letter has been filed as Annexure-3 to the writ petition. In pursuance of the letter of appointment, the petitioner has joined her services as Lecturer/Assistant Professor in the department of Bio Technology on 18.3.2011. It is stated that the petitioner has been continuously working as Lecturer/Assistant Professor in the Department of Bio Technology without any break. Her contract services were extended for a period of five years on 26.7.2017, Annexure-5 to the writ petition.

In Writ petition no. 12882 of 2018, the case of the petitioner is that he has been appointed as Lecturer, in the Department of Mathematics under the Self Finance Scheme on 11.3.2011 on a fixed salary of Rs.19,680/- per month. He is seeking a direction to the respondents to regularize his services and to pay the regular pay scale of Rs. 8000 - 275 - 13,500.

In Writ petition no. 13373 of 2018, the case of the petitioner is that he has been appointed as Lecturer, in the Department of Mathematics under the Self Finance Scheme on 18.4.2011 on a fixed salary of Rs.19,680/- per month. He is seeking a direction to the respondents to pay the regular pay scale of Rs. 8000 - 275 - 13,500 in the light of the judgement and order passed by this court in W.P. A No. 62792 of 2009 (Vishal Chand Vs. State of U.P. and others).

In Writ petition no. 13400 of 2018, the case of the petitioner is that she has been appointed as Lecturer (SC), in the Institute of Journalism and Mass Communication under the Self Finance Scheme on 11.3.2011 on a fixed salary of Rs.19,680/- per month. She is seeking a direction to the respondents to pay the regular pay scale of Rs. 8000 - 275 - 13,500 in the light of the judgement and order passed by this court in W.P. A No. 62792 of 2009 (Vishal Chand Vs. State of U.P. and others).

In Writ petition no. 13374 of 2018, the case of the petitioner is that she has been appointed as Lecturer (OBC) Department of Microbiology under the Self Finance Scheme on 11.3.2011 on a fixed salary of Rs.19,680/- per month. She is seeking a direction to the respondents to pay the regular pay scale of Rs. 8000 - 275 - 13,500 in the light of the judgement and order passed by this court in W.P. A No. 62792 of 2009 (Vishal Chand Vs. State of U.P. and others).

In Writ petition no. 13448 of 2018, the case of the petitioners are that the petitioner no. 1 has been appointed as Lecturer (UR), petitioner no.2 as Lecturer (UR) and petitioner no. 3 as Lecturer in the Department of Biotechnology under the Self Finance Scheme on a fixed salary of Rs.19,680/- per month. The petitioners in this writ petition are seeking a direction to the respondents to pay the regular pay scale of Rs. 8000 - 275 - 13,500 in the light of the judgement and order passed by this court in W.P. A No. 62792 of 2009 (Vishal Chand Vs. State of U.P. and others).

In Writ petition no. 15444 of 2018 , the case of the petitioner is that she has been appointed as Lecturer, Department of Nutrition Sciences (IBSBT) under the Self Finance Scheme on 11.3.2011 on a fixed salary of Rs.19,680/- per month. She is seeking a direction to the respondents to pay the regular pay scale of Rs. 8000 - 275 - 13,500 in the light of the judgement and order passed by this court in W.P. A No. 62792 of 2009 (Vishal Chand Vs. State of U.P. and others).

The petitioners' case is that one Vishal Chand filed a Writ Petition No. 62792 of 2009 (Vishal Chand Vs. State of U.P. and others) claiming parity in the matter of salary with one Dr. Varsha Gupta. It is stated that Vishal Chand and one Dr. Varsha Gupta were appointed as Lecturer/Assistant Professor against the same advertisement in the selection against the Advertisement of 2005 but Vishal Chand was appointed on a consolidated salary of Rs.9,000/- per month while Dr. Varsha Gupta was given appointment in the regular pay scale of 8000 - 13500. The Division Bench of this Court however held that the respondents therein could not justify as to why Vishal Chand who was selected in the same selection was appointed on a consolidated salary of Rs.9,000/- per month, on the other hand, Dr. Varsha Gupta had been appointed as Lecturer in the same selection and granted the regular pay scale of 8000 - 13500. The Division Bench in paragraph 8 of its judgement has considered the matter and ultimately allowed the writ petition on the ground that the respondents have not been able to explain that when there is no distinction in the duties nor performance nor responsibilities between the petitioner and Dr Varsha Gupta who were appointed on the same post of Lecturer BT after undergoing the same process of selection/recruitment of the same criteria why the petitioner Vishal Chand was appointed on a consolidated salary of only Rs. 9000/- per month whereas Dr. Varsha Gupta was granted the regular pay scale. Paragraphs 8, 19 and 20 of the judgement read as under:

"8. In the present matter, it is a clear case of denial of the principle of "equal pay for equal work" inasmuch same posts in the same Department for discharging same duties in the same recruitment have been filled in. While petitioner has been appointed as Lecturer (Biotechnology) on consolidated salary of Rs. 9000/-, another candidate appointed as Lecturer (Biotechnology) has been placed in regular pay scale of Rs. 8000-13,500/-. Neither in respect to the duties nor performance nor responsibilities nor otherwise, any distinction, whatsoever, has been pointed out or pleaded by respondent-University in respect to petitioner vis-a-vis Dr. Varsha Gupta who both have been appointed on the same post, i.e., Lecturer (Biotechnology) after undergoing same process of selection/recruitment and same criteria. Even it is admitted by respondent-University that petitioner is highly qualified and educated person. We find it difficult as to how and why respondent-University in such circumstances can discriminate petitioner vis-a-vis other similarly placed persons in the matter of salary/wages. 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 the Courts that if in all other aspects, 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.

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19. Looking to the entire dispute in the case in hand from various determining factors enumerated in the above authorities, we find no reason to discriminate petitioner vis-a-vis another incumbent appointed on the same post, i.e., Lecturer (Biotechnology) pursuant to the same advertisement, same recruitment process, same criteria and same selection etc. particularly when none has been pointed out by respondent-University in the counter affidavit.

20. Ex-facie, therefore, we have no hesitation in holding that respondent-University has acted illegally in discriminating petitioner vis-a-vis another incumbent appointed on the post of Lecturer (Biotechnology) in the matter of pay by providing a consolidated salary of 9000/- per month to petitioner while another counterpart, Dr. Varsha Gupta, has been appointed in regular pay scale of Rs. 8000 to 13,500/-. In our view, both are entitled to be treated alike and should have been given same salary."

Shri Rohit Pandey, learned counsel for the respondent University, on the other hand, submitted that the advertisement was for filling up the post in various departments under the Self Finance Scheme and appointment to these posts are to be made on contract basis on honorarium and the appointments made are not against regular vacancy and the creation of teaching and non teaching posts would not be made by the Government and no aid would be sanctioned for the same. The Self Finance Scheme also provides that if it is not feasible to run the course under the Self Finance Scheme then the course shall be closed and the services of the teaching and non teaching staff appointed on contract basis would automatically come to an end. It was also submitted that under the Self Finance Scheme, the teaching and non teaching staff under the Government Order dated 8.6.1999 would be entitled to receive honorarium/emoluments equivalent to the middle point of revised pay scale and no allowances would be payable to the employees. He further submitted that the G.O. dated 28.6.1999 was subsequently superseded by another G.O. dated 4.2.2000 which also provided that no post of teaching and non teaching staff under the Self Finance Scheme would be created by the State Government and the University would operate the post on contract basis as per norms and standards fixed by the State Government in the UGC/AICTE after obtaining approval from the Finance Committee and the Executive Council of the University and information in this regard would be given to the State Government.

In the counter affidavit, it is stated that the appointment of teaching and non teaching employees under the Self Finance Scheme would be made on contract basis and the employees appointed on contract would be paid honorarium/emolument as fixed by the Finance Committee of the University which would be lesser or higher of the mean of the pay scale as in the G.O. of 1999. The G.O. dated 4.2.2000 also provided that if it is not possible for the University to run the courses, the same shall be closed and the services of teaching and non teaching employees appointed on contract basis would come to an end.

Shri Pandey also referred to another G.O. dated 9.5.2000 whereby the Government has fixed the norms and standard for supporting Self Finance Courses in the field of higher education. Shri Pandey also referred to the G.O. dated 15.7.2015, Annexure-3 to the counter affidavit, whereby certain amendments have been made to the Self Finance Scheme in terms of the order passed by the Lucknow Bench of the High Court in W.P. No. 729 (S/B) of 2012 (Dr. Suresh Kumar Pandey Vs. State of U.P. and others) decided on 1.3.2013 wherein the court had given the following direction:

53. We have noticed that not only in the respondent's college, but in other colleges of the State of U.P., the students are admitted without following the norms prescribed by the Statute as well as the UGC. Accordingly, we are of the view that the Government should look into it and appropriate orders/circulars should be issued immediately commanding different universities and colleges aided as well as non-aided, containing following directions:-

(i) No student shall be admitted in the college and universities beyond the sanctioned strength.

(ii) Director of Higher Education or the State Government as the case may be, shall sanction the teachers keeping in view the sanctioned strength of the students in the recognised courses of the universities, colleges receiving grant-in-aid and pay salary.

(iii) All those courses which are open under self-financing scheme, the universities as well as colleges shall at least pay minimum pay scale admissible to teachers in accordance with Rules. The services of teachers appointed under the self-financing scheme, should be permitted to continue till continuance of course or satisfactory discharge of duty.

(iv) Since 2000 and onward, the Government has stopped the grant-in-aid and sanction of new course, even then Government shall ensure that Committee of Managements do not exploit the teachers and pay reasonable salary in contractual and ad hoc appointments in the recognised and affiliated colleges.

(v) Keeping in view the strength of students sanctioned prior to August, 2000, by the State Government, the Committee of management of Government aided colleges receiving grant-in-aid, be informed to send their proposal keeping in view the teacher-student ratio within specified period for sanctioning of posts for respective course by the Government."

The G.O. dated 15.7.2015 incorporated the directions given by the High Court in the case of Dr. Suresh Kumar Pandey (supra).

Shri R.K. Ojha, learned senior counsel in his submission mentioned that in some cases of the contract employees who are appointed against the advertisement no. 3 of 2010 giving rise to the dispute in the present case, had filed writ petitions and those writ petitions have been allowed by a Division Bench relying upon the earlier judgement of the Division Bench in the case of Vishal Chand (supra) and therefore the present petitioners cannot be denied the benefit of the judgement of the Division Bench of this Court in the case of Vishal Chand (supra).

The petitioners are essentially relying upon the judgement of the Division Bench of this Court in the case of Vishal Chand (supra) and is claiming parity therewith to lay a claim of regular pay scale as was allowed to Vishal Chand claiming parity with Dr. Varsha Gupta. What we find however is that in the case of Vishal Chand (supra) the Division Bench has allowed the writ petition solely on the ground that both Vishal Chand and Dr. Varsha Gupta had been selected and appointed against the same selection but when it came to fixation of emoluments Dr. Varsha Gupta was granted the regular pay scale whereas Vishal Chand was granted a consolidated salary of Rs.9,000/- per month. It is in that context that the Division Bench had held that when two persons were appointed against the same advertisement and selection and the same post of Lecturer Bio Technology, there was a case of denial of justice to Vishal Chand by granting only a consolidated pay and on the principle of equal pay for equal work but both Vishal Chand and Dr. Varsha Gupta were performing the same duties and bearing the same responsibilities, the respondents University had acted illegally in discriminating between the petitioner (therein) and Dr. Varsha Gupta in the matter of pay by providing a consolidated salary of Rs.9,000/- per month to the petitioner while another person Dr. Varsha Gupta had been appointed in the regular pay scale of 8000 -13,500. The paragraphs 19 and 20 of the judgement in the case of Vishal Chand (supra) have already been quoted above. The Division Bench in Vishal Chand (supra) has clearly held that "We find no reason to discriminate the petitioner viz-a-viz another incumbent appointed on the same post i.e. Lecturer (BT) pursuant to same advertisement, the same recruitment process, same criteria and same selection etc. particularly when nothing has been pointed out by the respondents University in the counter affidavit.

In the present case, it is not the case of the petitioner that any other Lecturer/Assistant Professor selected against the advertisement no. 3 of 2010 is drawing a higher honorarium than that being paid to the petitioner. It is not disputed that in terms of the various Government Orders, the petitioner was appointed on contract basis under the Self finance Scheme against a fixed salary of Rs.19,680/-. The Finance Committee of the University in its meeting held on 11.2.2010 has also determined the honorarium at Rs.19,680/- in the scale of 8000 - 13,500 for the post of Lecturer having regard to the G.O. dated 4.2.2000.

In our opinion the judgement of the Division Bench of this court in the case of Vishal Chand (supra) has no application to the facts of the present case as it has not been the case of the petitioner that she was appointed against the same advertisement, same recruitment process, same criteria and same selection as Vishal Chand or Dr. Varsha Gupta. The case of Vishal Chand was one of parity with Dr. Varsha Gupta and was based on its own facts.

Shri Rohit Pandey has placed reliance upon a judgement of the Supreme Court reported in (2017) 1 SCC 148 (State of Punjab and others Vs. Jagjit Singh and others) and has referred to paragraph 51.1 51.2 and 51.3 as well as paragraph 57 and paragraph 61, which read as under:

"51.1.It is apparent, that this Court in State of Punjab v. Surjit Singh, did hold, that the determination rendered in paragraph 55 of the judgment in Umadevi(3) case, was in exercise of the power vested in this Court, under Article 142 of the Constitution of India. But the above observation does not lead, to the conclusion or the inference, that the principle of ''equal pay for equal work' is not applicable to temporary employees. In fact, there is a positive take-away for the temporary employees. The Constitution Bench would, in the above situation, be deemed to have concluded, that to do complete justice to the cause of temporary employees, they should be paid the minimum wage of a regular employee, discharging the same duties. It needs to be noticed, that on the subject of pay parity, the findings recorded by this Court in the Umadevi (3) were limited to the conclusions recorded in paragraph 55 thereof (which we have dealt with above, while dealing with the case law, on the principle of ''equal pay for equal work').

51.2. Even in the case under reference - State of Punjab v. Surjit Singh, this Court accepted the principle of ''equal pay for equal work', as applicable to temporary employees, by requiring the State to examine the claim of the respondents for pay parity, by appointing an expert committee. The expert committee was required to determine, whether the respondents satisfied the conditions stipulated in different judgments of this Court including State of Punjab v. Charanjit Singh, wherein this Court had acceded to the proposition, that daily-wagers who were rendering the same duties and responsibilities as regular employees, would be entitled to the minimum wage payable to regular employees. And had therefore, remanded the matter back to the High Court for a fresh adjudication. Paragraph 38 of the judgment in State of Punjab v. Surjit Singh, wherein the remand was directed, is being extracted below:-

"38. We, therefore, are of the opinion that the interest of justice would be subserved if the State is directed to examine the cases of the respondents herein by appointing an expert committee as to whether the principles of law laid down herein viz. as to whether the respondents satisfy the factors for invocation of the decision in State of Haryana v. Charanjit Singh, in its entirety including the question of appointment in terms of the recruitment rules have been followed."

51.3. For all the above reasons, we are of the view, that the claim of the temporary employees, for minimum wages, at par with regularly engaged Government employees, cannot be declined, on the basis of the judgment in State of Punjab v. Surjit Singh.

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57. There is no room for any doubt, that the principle of ''equal pay for equal work' has emerged from an interpretation of different provisions of the Constitution. The principle has been expounded through a large number of judgments rendered by this Court, and constitutes law declared by this Court. The same is binding on all the courts in India, under Article 141 of the Constitution of India. The parameters of the principle, have been summarized by us in paragraph 42 hereinabove. The principle of ''equal pay for equal work' has also been extended to temporary employees (differently described as work-charge, daily-wage, casual, ad-hoc, contractual, and the like). The legal position, relating to temporary employees, has been summarized by us, in paragraph 44 hereinabove. The above legal position which has been repeatedly declared, is being reiterated by us, yet again.

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61. In view of the position expressed by us in the foregoing paragraph, we have no hesitation in holding, that all the concerned temporary employees, in the present bunch of cases, would be entitled to draw wages at the minimum of the pay-scale (at the lowest grade, in the regular pay scale), extended to regular employees, holding the same post."

In the judgement of Jagjit Singh (supra), the Supreme Court has held that temporary employee (described as work charge, daily wage, casual, Adhoc, and contractual) would be entitled to the regular scale of pay as paid to regular employees. What has been held by the Supreme Court is that the principle of equal pay for equal work would be applicable to all the temporary employees concerned so as to vest in them the right to claim wages at par with the minimum of pay scale of regularly engaged government employee holding the same post. In the present case what we notice is that in the regular pay scale of 8000 - 13,500 the minimum pay was Rs. 8000/- but the petitioner was also being paid 50% towards D.A. which after adding other emoluments comes to Rs.19,680/-, which is more than the middle point of the revised pay scale and is more than the minimum of the pay scale.

Learned counsel for the petitioner also submitted that the persons who were selected against the advertisement no. 3 of 2010, placing reliance on the judgement of the Division Bench of this court in the case of Vishal Chand (supra), filed their own writ petitions, which are as under:-

(1) Writ petition no. 40846 of 2014 (Dr. Dharam Singh Vs State of U.P. and others)

(2) Writ petition no. 12301 of 2018 (Smt. Shilpi Uttam Vs State of U.P. and others)

(3) Writ petition no.12299 of 2018 (Dr. Ekta Khare Vs State of U.P. and others)

(4) Writ petition no. 12296 of 2018 (Dr. Shalini Verma Vs State of U.P. and others)

The above writ petitions have been allowed by the Division Bench of this Court in the light of the directions given by the Court in the case of Vishal Chand (supra).

We have gone through the orders of the Division Bench given in the above referred cases and we find that in none of the cases the Division Bench has dealt with the Self Finance Scheme under which those petitioners have been appointed nor has it considered the judgment of Supreme Court in the case of Jagjit Singh (supra) even though the advertisement no. 3 of 2010 clearly mentions that the advertisement was for contractual appointment against vacant posts running under the Self Finance Scheme and that the emoluments would be admissible as fixed by the Finance Committee of the University in accordance with the Government Order dated 4.2.2000. The Division Bench has not considered the Self Finance Scheme or the Government Order dated 4.2.2000 and therefore, those judgments have no binding precedence in the present case.

So far as the judgment in the case of Vishal Chand (Supra) is concerned, we have already discussed the same above and we may also add that in the advertisement in that case, copy of which has been filed as Annexure-4 to the counter affidavit, there is a note which mentions that all the above posts relate to Self Finance Courses but the government orders relating to self-finance courses have not been taken into consideration by the Division Bench while deciding Vishal Chand (supra). We may, however, hasten to add that the Court may not have been required to deal with the Government Orders relating to Self Finance Scheme because the writ petition of Vishal Chand (supra) was allowed solely on the ground that the respondents had acted illegally and in a discriminatory fashion between Vishal Chand and Dr. Varsha Gupta by granting Vishal Chand a consolidated pay of Rs. 9000/- per month but granting a regular scale of pay of Rs. 8000-13,500/- to Dr. Varsha Gupta although both had been selected against the same advertisement, same selection, in the same recruitment process and by the same criteria, therefore, in our opinion, the judgment of Vishal Chand (supra) is also not a binding precedent in the present case.

Therefore, on a conspectus of facts of the present cases and the law laid down by the Supreme Court, we do not find any merit in the above writ petitions and the same are accordingly, dismissed.

Dated: 5th October, 2018

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