Bombay High Court
The State Of Maharashtra And ... vs Ravindra Hanmantrao Kulkarni And ... on 29 June, 2016
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1017 OF 2016
1. The State of Maharashtra,
through the Secretary,
Higher and Technical Education
Department, Mantralaya, Mumbai
2. The Director of Technical
Education, Mumbai
3. The Joint Director of Technical
Education, Osmanpura, Aurangabad
4. The Principal,
Government Polytechnic,
Aurangabad PETITIONERS
VERSUS
1. Ravindra Hanmantrao Kulkarni,
Age : 32 years, Occu. Service,
R/o Kulkarni Niwas,
Tilak Road, Beed
2. Vishwajit Anantrao Landge,
Age : 33 years, Occu. Service,
R/o Near Sangli Bank,
Ashirwad Colony, Subhash Road,
Beed
3. Umesh Uttamrao Kamlaaskar,
Age : 33 years, Occu. Service,
R/o Keskar Niwas, Sahyog Nagar,
Beed RESPONDENTS
----
Mr. S.B. Yawalkar, A.G.P. for the petitioners
Mr. Chandrakant R. Thorat, Advocate for the respondents
----
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CORAM : S.S. SHINDE AND
SANGITRAO S. PATIL, JJ.
JUDGMENT RESERVED ON : 17th JUNE, 2016
JUDGMENT PRONOUNCED ON : 29th JUNE, 2016
JUDGMENT (PER : SANGITRAO S. PATIL, J.):
The petitioners have taken exception to the
order dated 10th December, 2014, passed by the
Maharashtra Administrative Tribunal, Mumbai, Bench at
Aurangabad ("M.A.T.", for short) in Original Application
No. 71 of 2012, filed by the present respondents,
whereby the present petitioners have been directed to
fix the pay of the respondents in the scale of
Rs. 5500-9000 as per the Fifth Pay Commission and its
equivalent as per the Sixth Pay Commission.
2. Respondent Nos. 1 and 2 joined as the
Instructors in Printing Technology in the Government
Polytechnic at Beed on 4th March, 2015, while respondent
No. 3 joined the said post on 4th October, 2008. Since
the above mentioned dates, they have been continuously
serving on the said posts. They have been given pay
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scale of Rs. 4000-6000 as per the Fifth Pay Commission.
The said Government Polytechnic is being run under the
control of petitioner Nos. 1 to 3. The Joint Director
of Technical Education, Mumbai, who is equivalent in
rank to respondent no.3, filled up three posts of
Instructors in the Government Institute of Printing
Technology at Mumbai (hereinafter referred to as "the
Instructors at Mumbai" for short) as per the order dated
16th March, 2007 in the pay scale of Rs. 5500-9000 as per
the Fifth Pay Commission. The said Institute also is
under the control of petitioner Nos. 1 and 2.
3. According to the respondents, the eligibility
criterion for recruitment and the nature of the duties
of the Instructors at Mumbai are similar to that of the
respondents. There is absolutely no reason to have
disparity in their pay scale qua the pay scale of the
Instructors at Mumbai. They are entitled to get the pay
scale of Rs. 5500-9000 as per the Fifth Pay Commission
and its equivalent pay scale as per the Sixth Pay
Commission, on the principle of "equal pay for equal
work". Therefore, they made several representations to
the petitioners for granting them the said pay scales.
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However, it was of no use. Therefore, they filed the
above numbered original application before the M.A.T.
4. The petitioners opposed the said original
application by filing affidavit-in-reply through Vijay
Laxman Bhangre, working as Assistant Director (Non
Technical) in the office of petitioner No. 3. According
to the petitioners, the Diploma in Printing Technology
was started at Government Polytechnic, Beed in the year
1996. The posts of Instructors were created for the
Government Polytechnic, Beed as per the Government
Resolution dated 17th January, 2003, issued by the
Department of Higher and Technical Education, in the pay
scale of Rs. 4000-6000. The Government Institute of
Printing Technology at Mumbai is a unique institute
running from the year 1962, where all the diploma level
printing courses only are being conducted. The posts of
Instructors have been created for this Institute in the
year 1962 in the pre-revised pay scale of Rs. 5500-9000
as per the Fifth Pay Commission. The said posts are
under the purview of Regional Office, Mumbai. It is
admitted that the same procedure has been followed for
filling up the posts of the Instructors in the Institute
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of Printing Technology, Mumbai and in the Government
Polytechnic at Beed by the Regional Offices at Mumbai
and Aurangabad, respectively. The Regional Office at
Aurangabad, in the advertisement dated 20th April, 2008,
mentioned the pay scale of Rs. 4000-100-6000 for the
post of Instructor (Printing) in Government Polytechnic,
Beed because the said post was newly created vide
Government Resolution dated 17th January, 2003. As per
the Sixty Pay Commission, the pay scale of the
Instructors at Mumbai is Rs. 9300-34,800/- and grade pay
of Rs. 4300/-, while that of the Instructors at Beed is
Rs. 5200-20,200 with grade pay of Rs. 2400/-. It is
stated that the Institute at Mumbai and Government
Polytechnic at Beed are conducting different types of
courses. They are working under different Directorates.
Their duties and responsibilities are different. It is
stated that the Institute at Mumbai conducts full-time
diploma level printing technology courses. Therefore,
it is contended that there cannot be comparison between
the Instructors working at Mumbai and the Instructors
working at Beed for the purpose of pay scales. On these
grounds, the petitioners prayed for dismissal of
original application No. 71/2012.
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5. Considering the rival contentions of the
parties and the documents produced on record, the
learned Bench of M.A.T. found substance in the claim of
the respondents for parity of pay scale with that of the
Instructors at Mumbai and as per the impugned order,
directed the petitioners to fix the pay scale of the
respondents at par with that of the Instructors at
Mumbai.
6.
The learned A.G.P., appearing for the
petitioners submits that the nature of the duties
assigned to the Instructors working at Government
Polytechnic, Beed and the Instructors at Mumbai are
totally different. The Instructors at Mumbai are
running the full-time courses in printing technology
only, while the Instructors at Beed are conducting
various courses and one of the courses is the Diploma in
Printing. Therefore, the Instructors at Beed cannot
claim parity in the pay scale with the Instructors at
Mumbai. He further submits that even if it is assumed
that the Instructors at Beed are holding identical
posts, performing identical and similar duties under the
same employer as that of the Instructors at Mumbai, they
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cannot claim parity of pay scales with the Instructors
at Mumbai in view of the judgment in the case of Hukum
Chand Gupta Vs. Director General, Indian Council of
Agricultural Research and others (2012) 12 S.C.C. 666.
7. Relying on the judgments in the cases of
Federation of All India Customs and Central Excise
Stenographers (Recognised) and others Vs. Union of India
and others (1988) 3 S.C.C. 91 and Steel Authority of
India Limited and others Vs. Dibyendu Bhattarcharya
(2011) 11 S.C.C. 122, the learned A.G.P. submits that
the equality clause can be invoked in respect of the pay
scales only when there is wholesome/wholesale identity
between holders of two posts and the burden of
establishing such identity lies on the persons who claim
such right. The learned A.G.P. submits that considering
the difference in the nature of the courses conducted by
the Institute at Mumbai and the Government Polytechnic
at Beed, the respondents are not entitled to claim the
pay scale which is being paid to the Instructors at
Mumbai on the principle of "equal pay for equal work".
He submits that the learned Bench of the M.A.T. has
wrongly allowed the original application and wrongly
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directed the petitioners to fix the pay scales of the
Instructors at Beed at par with that of the Instructors
at Mumbai. He, therefore, submits that the impugned
order may be set aside.
8. As against this, the learned counsel for the
respondents submits that the nomenclature of the posts
held by the Instructors at Government Polytechnic, Beed
(i.e. the respondents), the eligibility criterion for
their recruitment and the nature of their duties is
totally identical with that of the Instructors at
Mumbai. There is absolutely no rationale to cause
disparity in the pay scales of the Instructors at Beed
and the Instructors at Mumbai. The respondents have been
subjected to discrimination by asking them to work on a
lower pay scale than that of the Instructors at Mumbai,
which is against the provisions of Articles 14 and 21 of
the Constitution of India. Relying on the judgment in
the case of Union of India and others Vs. Dineshan K.K.
AIR 2008 S.C. 1026, he submits that the disparity in the
pay scale of the Instructors at Beed and that of the
Instructors at Mumbai is irrational, arbitrary and
unjust. He, therefore, supports the impugned order
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which has removed this disparity and prays that the writ
petition may be dismissed.
9. There is no dispute that the nomenclature of
the posts held by the respondents is identical to that
of their counterparts working in the Institute at
Mumbai. The copies of the advertisements of the years
2006 and 2008 whereunder the Instructors at Mumbai and
the present respondents (Instructors at Beed)
respectively were recruited, show that the eligibility
criterion for filling up the said posts was identical
i.e. S.S.C. and Diploma in Printing Technology. In
paragraph No. 3 of the original application, it is
specifically mentioned that the Lecturers working in
Government Institute of Printing Technology, Mumbai were
being transferred in Government Polytechnic, Beed. This
fact has not been denied by the present petitioners in
their reply. On the contrary, it is admitted that
initially, some Lecturers had been transferred from the
Institute at Mumbai to the Polytechnic at Beed when the
course of Printing Technology was started in the year
2003. Now, the present respondents are holding the said
posts of Instructors in printing and imparting training
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for the Diploma of Printing. The Instructors at Mumbai
are imparting the same training in the Institute at
Mumbai. Thus, not only the nomenclature, but the
eligibility, mode of selection, responsibilities and
nature of duties of the Instructors at Beed and the
Instructors at Mumbai are quite identical.
10. In view of the above circumstances, merely
because the posts of the Instructors at Beed and that of
the Instructors at Mumbai were created under two
different Government Resolutions and the Institute at
Mumbai is unique one, the Instructors at Beed cannot be
denied the pay scale equal to that of the Instructors at
Mumbai.
11. The contention of the learned A.G.P. that the
Instructors at Beed and the Instructors at Mumbai are
controlled by two different departments cannot be
accepted. The advertisements in response to which the
posts of Instructors at Mumbai and that of Beed were
filled up, show that those were issued by the Joint
Directors of Technical Education, Regional Offices at
Mumbai and Beed, respectively, which are under the
control of respondent Nos. 1 and 2. Their pay scales
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have been fixed by the Director of Technical Education
only. Thus, the Instructors at Mumbai and that of Beed
are controlled by the same department i.e. Higher and
Technical Education Department.
12. In the case of Federation of All India Customs
and Central Excise Stenographers (Recognised) and others
(supra), the petitioners who were personal assistants
and stenographers, attached to the heads of the
departments in the Customs and Central Excise
Departments of the Ministry of Finance, had claimed
party in the pay scale with that of the personal
assistants and stenographers attached to the joint
secretaries and officers above them in the Ministry.
The claim of the said petitioners was rejected
considering the difference in the nature and the types
of the work done by them and the other stenographers and
the personal assistants who were getting higher pay
scales. In paragraph No. 11 of the judgment, it was
observed that in the light of the averments made in the
facts mentioned-before, it is not possible to say that
the differentiation is based on no rational nexus with
the object sought for to be achieved.
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13. In the case of Steel Authority of India Limited
and others (supra), it has been observed in paragraph
No. 30 of the judgment as under :-
"30. In view of the above, the law on the
issue can be summarised to the effect that
parity of pay can be claimed by invoking the
provisions of Articles 14 and 39 (d) of the
Constitution of India by establishing that the
eligibility, mode of selection/recruitment,
nature and quality of work and duties and
effort, reliability, confidentiality,
dexterity, functional need and
responsibilities and status of both the posts
are identical. The functions may be the same
but the skills and responsibilities may be
really and substantially different. The other
post may not require any higher qualification,
seniority or other like factors. Granting
parity in pay scales depends upon the
comparative evaluation of job and equation of
posts. The person claiming parity, must plead
necessary averments and prove that all things
are equal between the posts concerned. Such a
complex issue cannot be adjudicated by
evaluating the affidavits filed by the
parties."
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14. As stated above, in the present case, it is
specifically pleaded and proved by the respondents
before the learned Bench of the M.A.T. that there is
complete identity between the Instructors working in the
Institute at Mumbai and themselves. Therefore, the
judgments cited and relied upon by the learned A.G.P.
would be of no help to the petitioners to deny the
benefit of the principal of "equal pay for equal work"
to the respondents.
15. In the case of Hukum Chand Gupta (supra), the
petitioner was promoted to the post of Superintendent in
the pay scale of Rs. 1640-2900 after passing the
departmental examination and then was further promoted
as Assistant Administrative Officer on the basis of
seniority-cum-fitness on 7th March, 1994. The
respondents therein revised the pay scale of Assistants
on 17th June, 1995 from Rs. 1400-2600 to Rs. 1640-2900
with effect from 1st January, 1986. However, the pay
scale of Superintendent was not revised. Therefore, the
petitioner submitted a representation on 24th October,
1995, requesting that his pay scale may be revised on
the ground that in the headquarters of Indian Council of
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Agricultural Research (ICAR), the post of Superintendent
is a promotional post from that of Assistant which
carries the pay scale of Rs. 1640-2900. He approached
the Central Administrative Tribunal, Bench at
Chandigarh. His Original Application No. 299/HR of 2003
filed before the Central Administrative Tribunal was
dismissed on the ground that his post at headquarters
cannot be compared with the post at institutional level
as both are governed by different sets of service rules.
The writ petition filed by the appellant therein also
came to be dismissed by the High Court. The civil
appeal filed by the said appellant before the Hon'ble
Supreme Court also came to be dismissed with the
following observations made in paragraph No. 20 of the
judgment :-
"20. We are also not inclined to accept the
submission of the appellant that there can be
no distinction in the pay scales between the
employees working at headquarters and the
employees working at the institutional level.
It is a matter of record that the employees
working at headquarters are governed by a
completely different set of rules. Even the
hierarchy of the posts and the channels of
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promotion are different. Also, merely because
any two posts at the headquarters and the
institutional level have the same
nomenclature, would not necessarily require
that the pay scales on the two posts should
also be the same. In our opinion, the
prescription of two different pay scales would
not violate the principle of equal pay for
equal work. Such action would not be
arbitrary or violate Articles 14, 16 and 39-D
of the Constitution of India........."
16.
In the present case, the nomenclature, the
eligibility criterion for recruitment, the nature of the
duties of the Instructors at Beed and that of Mumbai,
their responsibilities and status are quite identical.
There is absolutely no justifiable reason shown by the
petitioners to prescribe two different pay scales for
the Instructors at Beed and that of Mumbai. The
disparity in the pay scales of Instructors at Beed and
that of Mumbai is exfacie arbitrary and unreasonable. It
is sans rationale and justification. In the
circumstances, the above cited judgment would be of no
help to the learned A.G.P. to justify the disparity in
the pay scales of the Instructors at Beed and that of
Mumbai.
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17. The learned Bench of the M.A.T. has considered
all the factual aspects about the nomenclature, the
eligibility criterion for recruitment and the nature of
the duties of the Instructors at Beed and that of Mumbai
and found that the disparity in their pay scales is not
at all justifiable. It is observed that there is
absolutely no basis for discriminating the Instructors
at Beed in the matter of pay scales as against the
Instructors at Mumbai. We do not find any reason to
differ from the view taken by the learned Bench of the
M.A.T. The impugned order is supported by the documents
produced on record. It is not at all perverse. It does
not call for any interference.
18. In the result, we dismiss the writ petition.
No costs.
Sd/- Sd/-
[SANGITRAO S. PATIL] [S.S. SHINDE]
JUDGE JUDGE
npj/wp1017-2016
