Delhi High Court
K.O. Mathai vs Uoi & Ors. on 13 July, 2010
Author: Gita Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 13th July, 2010
+ W.P.(C) No.2713/1992
K.O. MATHAI ..... Petitioner
Through Nemo
versus
UOI & ORS. ..... Respondents
Through Mr. Ankur Chhiber, Adv.
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE J.R. MIDHA
1. Whether reporters of local papers may be allowed to
see the Judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Yes
Digest?
GITA MITTAL, J (Oral)
1. This matter has been on the Regular Board and has been repeatedly
called since re-opening of the court on 1st July, 2010. There has been no
appearance on behalf of the petitioner despite the matter being displayed in
the cause list and posted on the board of this court. Even today, the matter
was called earlier in the day and passed over as there was no appearance
for the petitioner.
2. In this background, learned counsel for the respondents has
submitted that during the pendency of the writ petition on 30th September,
2001, the petitioner made an unconditional request for voluntary retirement
from service which was accepted by the respondents. As such, the
petitioner has voluntarily retired with effect from 30th September, 2001. It is
submitted that the petitioner may consequently not be interested in the
WP (C) No.2713/1992 Page No.1
prosecution of this case. Be that as it may be, the writ petition was filed in
1992 and has remained pending since. We are therefore not inclined to
keep it pending any further.
3. We have accordingly carefully examined the record and find that the
writ petitioner has complained that he has been wrongly denied an
opportunity for promotion and has prayed for a direction to the respondents
for payment of a salary equal to that which is paid to ASI/Pharmacist
(Qualified) w.e.f. 1st January, 1986 and a further direction that the
respondents be directed to remuster him and treat the petitioner as an
ASI/Pharmacist (Qualified).
4. The petitioner was enrolled as Constable (GD) in the Border Security
Force (`BSF' hereafter) on 1st June, 1973. On completion of his basic
training at the BSF Academy, Tekanpur, he was posted to the 24 battalion,
BSF. During the course of his service, the petitioner attended a training
course relating to duties of a nursing assistant at 148 Base Hospital of the
Indian Army between 15th July, 1979 to 15th April, 1980 while he was
deployed with the 24 Battalion, BSF.
5. The petitioner has premised his claim of eligibility for appointment to
the said post in the writ petition on his having also successfully completed a
medical assistant diploma course from the Jammu & Kashmir Medical
Faculty undertaken by him through the SMGS Hospital at Jammu.
6. As per the extant recruitment rules, we find that the respondents had
a policy of employing persons on the posts of Pharmacist (Qualified) and
Pharmacist (Unqualified). The relevant extract of the recruitment rules has
been set out in the counter affidavit. So far as the essential qualification for
Pharmacist (Qualified) are concerned, the rules provide as follows:-
WP (C) No.2713/1992 Page No.2
"PHARMACIST, QUALIFIED (ASSTT-SUB-INSPECTOR)
i) Matriculation or equivalent.
ii) Degree or diploma in pharmacy granted by an
institutions of the Central or State Govts or an institution
recognised by the Central or State Govt.
or
Diploma in pharmacy of which the period of training is 2
yrs, followed by an internship of 4 months.
Iii) Possessing the qualifications under Sec-31 and 32 of
the pharmacy Act, 1948 and registered u/s 33 of the said
Act.
iv) Must possess the following physical standards:-
a) Minimum height - 167.5 cms
b) Minimum Chest - 80 cms (Unexpanded)
measurement - 85 cms (expended)"
7. So far as the post of Pharmacist (Unqualified) is concerned, these
rules provide the essential qualifications as follows:-
"PHARMACIST, UNQUALIFIED (ASSTT-SUB-INSPECTOR)
i) Matriculation or equivalent.
ii) Possessing the qualification specified in clause (d) of
Section 31 of the Pharmacy Act, 1948 and registered U/S
33 of the said Act.
iii) Must possess the following physical standards:-
a) Minimum height - 167.5 cms
b) Minimum Chest - 80 cms (Unexpanded)
measurement - 85 cms (expended)"
8. The above recruitment rules therefore prescribed different essential
qualifications for these two posts and also drew a distinction between the
pay scale which was admissible to the two posts. The Pharmacist
(Qualified) was in the pay scale of Rs.1350-2200/- whereas Pharmacist
(Unqualified) was in the pay scale of Rs.1200-1800/-. The channel of
appointment to the two posts is stated to be different. As per the rules
which were in vogue, the posts of Pharmacist (Unqualified) are filled up by
WP (C) No.2713/1992 Page No.3
appointment of personnel from Constable (General Duty) of the BSF after
having undergone the nursing course and gaining experience in
compounding and disbursing medicines while deployed at BSF unit hospitals
after having got themselves registered as Pharmacist through
remusteration. On the other hand, the Pharmacist (Qualified) are enrolled
directly from the open market.
9. The duties which are assigned to the Pharmacist (Qualified) are
different from those which are assigned to Pharmacist (Unqualified). The
respondents have further pointed out that as the Pharmacist (Unqualified)
do not have the requisite professional qualification and consequently are
required to work under the supervision of either a qualified pharmacist or
medical officer additionally and for this reason, they are not given
independent responsibility initially.
10. So far as the claim of denial of an opportunity of promotion and
achievement of a higher pay scale is concerned, the respondents have
pointed out that on successful completion of ten years of service as an
unqualified pharmacist, as per the recruitment rules, the petitioner had
been given a pay scale which is equivalent to that of a Pharmacist
(Qualified) after being cleared by a Departmental Promotion Committee.
11. Our attention is drawn to the pronouncement of the Supreme Court
reported at (2007) 8 SCC 279 S.C. Chandra & Ors. Vs. State of
Jharkhand & Ors. wherein a similar question had arisen in the context of
school employees. The Supreme Court had rejected the challenge to the
action of the respondents in providing for different pay scales for same work
being done by two sets of employees for the reason that their educational
qualifications were different. On this issue, the observations of the court in
WP (C) No.2713/1992 Page No.4
paras 26, 27, 28 & 36 are relevant and read as follows:-
"26. Fixation of pay scale is a delicate mechanism which
requires various considerations including financial
capacity, responsibility, educational qualification, mode
of appointment, etc. and it has a cascading effect. Hence,
in subsequent decisions of this Court the principle of
equal pay for equal work has been considerably watered
down, and it has hardly ever been applied by this Court
in recent years.
27. Thus, in State of Haryana v. Tilak Raj, it was held
that the principle can only apply if there is complete and
wholesale identity between the two groups. Even if the
employees in the two groups are doing identical work
they cannot be granted equal pay if there is no complete
and wholesale identity, e.g., a daily rated employee may
be doing the same work as a regular employee, yet he
cannot be granted the same pay scale. Similarly, two
groups of employees may be doing the same work, yet
they may be given different pay scales if the educational
qualifications are different. Also, pay scale can be
different if the nature of jobs, responsibilities,
experience, method of recruitment, etc. are different.
28. In State of Haryana and Ors. v. Charanjit Singh and
Ors. discussing a large number of earlier decisions it was
held by a three-Judge Bench of this Court that the
principle of equal pay for equal work cannot apply unless
there is complete and wholesale identity between the
two groups. Moreover, even for finding out whether there
is complete and wholesale identity, the proper forum is
an expert body and not the writ court, as this requires
extensive evidence. A mechanical interpretation of the
principle of equal pay for equal work creates great
practical difficulties. Hence in recent decisions the
Supreme Court has considerably watered down the
principle of equal pay for equal work and this principle
has hardly been ever applied in recent decisions.
xxx xxx xxx
36. It is well settled by the Supreme Court that only
because the nature of work is the same, irrespective of
educational qualification, mode of appointment,
experience and other relevant factors, the principle of
equal pay for equal work cannot apply vide Government
of West Bengal v. Tarun K. Roy and Ors."
The Apex Court placed reliance on the other prior judgments reported
WP (C) No.2713/1992 Page No.5
at State of Haryana and Ors. v. Charanjit Singh and Ors. (2006) I LLJ
431 SC; Dhirendra Chamoli and Anr. v. State of U.P. (1986) I LLJ 134
SC; Surinder Singh v. Engineer-in-Chief, C.P.W.D. (1986) I LLJ 403
SC; Randhir Singh v. Union of India (1982) I LLJ 344 SC; State of
Haryana v. Tilak Raj (2003) III LLJ 487 SC; State of U.P. and Ors. v.
Ministerial Karamchari Sangh AIR 1997 SC 4280; State of Haryana
v. Jasmer Singh and Ors. (1997) II LLJ 667 SC; Federation of All
India Customs and Excise Stenographers (Recognized) and Ors. v.
Union of India and Ors. [1988] 3 SCR 998 & Government of West
Bengal v. Tarun K. Roy and Ors. (2004) I LLJ 421 SC on the issue of
equal pay for equal work.
12. The above narration would show that so far as the assertion of the
petitioner based on identity of the nature of duties, pay scale and the
essential qualifications for the post of Pharmacist (Qualified) and Pharmacist
(Unqualified) is concerned, the same is not supported by the applicable
recruitment rules. The petitioner has not placed any material which would
enable this court to come to a different conclusion.
For this reason, the prayer of the petitioner who was appointed as
Pharmacist (Unqualified) for payment of salary on the same post as was
being drawn by Pharmacist (Qualified) is unjustified and legally not tenable.
13. From a reading of the above judgment, it is evident that even if it
were to be held that there was identity of work which has been done by the
Pharmacist (Qualified) and Pharmacist (Unqualified), the recruitment rules
has prescribed different sets of essential qualification. The very fact that
the Pharmacist (Qualified) would be holding better and higher qualification
than the Pharmacist (Unqualified) would by itself be sufficient justification
WP (C) No.2713/1992 Page No.6
for a differential pay scale for the two posts.
For all these reasons, we find no merit in this writ petition which is
hereby dismissed.
GITA MITTAL, J
J.R. MIDHA, J
JULY 13, 2010
aa
WP (C) No.2713/1992 Page No.7
