Siya Ram Rai And Ors. vs The Chairperson, Navyug School ...
2007 Latest Caselaw 1016 Del

JUDGMENT

Mukundakam Sharma, C.J.

1. This appeal is directed against the impugned order dated 24th May, 2005 passed by the learned Single Judge dismissing the writ petitions filed by the appellants herein, and also against the order dated 1st December, 2005 whereby the learned Single Judge dismissed the review petition filed by the appellants.

2. The appellants herein were initially appointed as Laboratory Assistants in Navyug School in the pay scale of Rs. 1200-2040 (pre revised). On representation made by the Lab Assistants working in Navyug Schools, they were given pay scale at par with the pay scale of Primary Teachers working in the schools run by Delhi Administration and New Delhi Municipal Council i.e. 1400-2600 (pre revised). After 5th Pay Commission, the pay scale of Rs. 1200-2040 was revised to Rs. 4000-6000. The pay scale of Primary Teachers was also revised, but divided into separate categories. The Primary School Teacher, who were earlier in the pay scale of Rs. 1400-2600, were given pay scale of Rs. 5000-8000 and Trained Graduate Teachers/Headmaster, Primary School were given the pay scale of Rs. 5500-9000. After the 5th Pay Commission, the appellants were given pay scale of Rs. 5500-9000 but on subsequent re-examination the appellants were placed in the pay scale of Rs. 5000-8000. By the impugned judgment the said action of the respondent has been upheld. Minimum qualification prescribed for recruitment to the post of Laboratory Assistant in Navyug Schools is Senior Secondary with three years experience. Minimum qualification for the post of Primary Teacher in the pay scale of 5500-9000 is Trained Graduate Teacher i.e. graduate with B.Ed.

3. The appellants herein tried to make out a case for being entitled to receive equivalent higher scale by way of parity with the teaching staff in the schools run by the NDMC/Delhi Administration. The appellants demanded parity of pay scale as compared to the Primary Teachers and for being placed at the scale of 1400-2600, which was revised to Rs. 5500-9000. It was submitted that after the 5th Central Pay Commission, the scale of Rs. 5500-9000 was made available to the appellants. It was submitted in the writ petitions that the Director of the Navyug School Educational Society passed an order on 23th October, 1998, as per the decision taken by the Board of Governors of the Navyug School Educational Society that the pay scale of Lab Assistants in Navyug Schools would be revised from 1200-2040 to 1400-2600 (pre-revised). The appellants pursuant to the aforesaid order were also paid salary in the corresponding revised pay scale of Rs. 5500-9000, granted by the 5th Pay Commission. Subsequent thereto, the Navyug School Educational Society issued an office order dated 1st March, 2000 superseding the order dated 23rd October, 1998 and directed for fixing pay of Lab Assistants in the scale of Rs. 5000-8000 and requested the heads of the schools to fix the pay of Lab Assistants in the new scale and to make recovery of money from the appellants.

4. Being aggrieved by the aforesaid order, the appellants challenged the legality of the same by filing the aforesaid writ petitions. Several writ petitions were filed by various appellants, however, none of them appeared before the learned Single Judge when the cases were listed for hearing. Consequently, the learned Single Judge proceeded to dispose of the said writ petitions ex parte, but on merits, as is reflected from the impugned order dated 24th May, 2005, whereby the aforesaid writ petitions were dismissed, giving reasons for such dismissal. A review application was also filed by the appellants which was also dismissed consequent upon which the present appeal is filed on which we have heard the learned Counsel appearing for the parties.

5. The issue that arises for our consideration in the present appeal is regarding parity of pay scale between Primary Teachers and Laboratory Assistants. According to the appellants they have been appointed as Lab Assistants and their nature and responsibilities of duties are similar to that of Primary Teachers and, therefore, they are entitled to be paid the same pay scale and salary as is being paid to the Primary Teachers in Delhi.

6. There is no dispute to the fact that both the Primary Teachers and Lab Assistants belong to distinct, different and separate cadres. The pay scale which was given to the Primary Teachers was 1400-2600 whereas the pay scale that was being given to the Lab Assistant was Rs. 1200-2040. It was also clearly established that the minimum educational qualification to be appointed as Lab Assistant is Intermediate or Senior Secondary whereas for being appointed as Primary Teacher, a candidate must possess the qualification of Graduation with B.Ed Degree/Diploma. Therefore, there is difference in the two cadres so far as the criteria for appointment is concerned. The fact that the appellants were Graduates at the time of their appointment would be totally irrelevant and therefore no comparison can be made as to the nature and character of duties of the two posts. It is also established that in Navyug Schools there is no promotion quota for Lab Assistants to the post of TGT. Therefore there is difference between the case of Primary Teachers and Lab Assistants as their educational qualifications as prescribed as well as nature and responsibilities of their service are quite different.

7. In U.P. State Sugar Corporation Ltd. v. Sant Raj Singh , the Supreme Court has held as under:

The doctrine of equal pay for equal work, as adumbrated under Article 39(d) of the Constitution of India read with Article 14 thereof, cannot be applied in a vacuum. The constitutional scheme postulates equal pay for equal work for those who are equally placed in all respect. Possession of a higher qualification has all along been treated by this Court to be a valid basis for classification of two categories of employees.

8. Similarly, in Shyam Babu Verma v. Union of India , a three-Judge Bench of this Court has held thus:

The nature of work may be more or less the same but scale of pay may vary based on academic qualification or experience which justifies classification. The principle of 'equal pay for equal work' should not be applied in a mechanical or casual manner. Classification made by a body of experts after full study and analysis of the work should not be disturbed except for strong reasons which indicate the classification made to be unreasonable. Inequality of the men in different groups excludes applicability of the principle of 'equal pay for equal work' to them.

9. In State of Orissa v. Balaram Sahu , this Court has held thus:

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.

10. It was submitted by counsel for appellant that there is a mistake apparent on the face of the record and that the aforesaid revision was made in view of the objection raised by the Finance Department. Counsel appearing for the appellant submitted before us that the aforesaid higher pay scale was given to the Lab Assistants after obtaining approval and concurrence of the Finance Department. It was also submitted by him that the order withdrawing the higher pay scale was passed by the respondent in violation of the principles of natural justice as they were enjoying the aforesaid pay scale and if they were to be deprived from getting the benefit of the aforesaid higher pay scale, they should have been given an opportunity of hearing. It was also submitted that the impugned order was passed by an officer subordinate to the competent authority, empowered to pass such orders with regard to withdrawal of pay scale once given to its employees.

11. We have given our conscious consideration to the aforesaid submissions and on appreciation thereof, we find that the aforesaid grounds are without any merit. The contention that order dated 1st March, 2000 has not been passed by competent authority has to be rejected. The office order dated 1st March, 2000 states that it has been issued with prior approval of Chairperson, Navyug School Society. Chairman, NDMC is the ex officio Chairperson of the said Society. It has been explained in the counter affidavit that after the recommendations of the 5th Central Pay Commission, the scale of Lab Assistants was revised to Rs. 4,000-6000, while the pay scale of Primary Teachers working in Delhi Administration schools and NDMC schools was revised to Rs. 4500-5700. By mistake the Lab Assistants were given pay scale of Rs. 5500-9000 w.e.f 4th September, 1998 which is even more than the pay scale of Primary Teachers. In the counter affidavit the respondents have further clarified that as a result of Office Order dated 1st March, 2000, the anomaly in the revision of the pay scales, which was wrongly granted after the 5th Pay Commission, has been rectified. The appellants have now been given pay scale of Rs. 5000-8000 which is higher than the pay scale of Rs. 4000-6000, given to their counter parts in non-Navyug Schools. Moreover, neither the appellants nor the respondents have pointed out as to who has the authority to fix or change the pay scales with reference to the Articles of Association of the educational society herein or the relevant rules.

12. If a pay scale is given to employees to which they are not entitled, the same can be withdrawn and the mistake can be rectified by passing an appropriate order. It is clearly established from the records that the nature of responsibilities and duties of the two posts of Primary Teachers and Lab Assistants are distinctly different and therefore they cannot be equated and they cannot claim the same pay scale on the ground that they are discharging the same duties.

13. In Punjab National Bank v. Manjeet Singh , the Supreme Court has held as under:

...The principles of natural justice were also not required to be complied with as the same would have been an empty formality. The court will not insist on compliance with the principles of natural justice in view of the binding nature of the award. Their application would be limited to a situation where the factual position or legal implication arising there under is disputed and not where it is not in dispute or cannot be disputed. If only one conclusion is possible, a writ would not issue only because there was a violation of the principles of natural justice. In Viveka Nand Sethi v. Chairman J & K Bank Ltd. the law is stated in the following terms:

22. The principle of natural justice, it is trite, is no unruly horse. When facts are admitted, an enquiry would be an empty formality. Even the principle of estoppel will apply. See Gurjeewan Garewal (Dr.) v. Dr. Sumitra Dash . The principles of natural justice are required to be complied with having regard to the fact situation obtaining therein. It cannot be put in a straitjacket formula. It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case. See State of Punjab v. Jagir Singh and Karnataka SRTC v. S.G. Kotturappa .

14. We, therefore, find no merit in this appeal and the same dismissed. No costs.