Delhi High Court

S.S.K. Shandilya vs Union Of India And Others on 11 May, 2011

Author: A.K.Sikri

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P. (C) No.26 of 1995

%                                     Orders Dictated On: 11th May, 2011.

       S.S.K. SHANDILYA                                 . . . PETITIONER

                          through :           Mr. Arun Kumar, Advocate.


                                VERSUS

       UNION OF INDIA AND OTHERS                     . . .RESPONDENTS

                          through:            Mr. Neeraj Chaudhari, CGSC.

CORAM :-
    HON'BLE MR. JUSTICE A.K. SIKRI
    HON'BLE MR. JUSTICE M.L. MEHTA

       1.     Whether Reporters of Local newspapers may be allowed
              to see the Judgment?
       2.     To be referred to the Reporter or not?
       3.     Whether the Judgment should be reported in the Digest?


A.K. SIKRI, J. (ORAL)

1. The present writ petition was filed in the nature of mandamus

seeking the directions to respondents to upgrade the existing

pay scale of the petitioner in 1992. To recite the genesis of the

petition the facts are concisely stated as under:

The petitioner was functioning in the office of the Judge,

Small Causes Court, Delhi a way long back, he had joined

service on 23.02.1956 & was deployed on many posts in the

same office like C.O.C. etc. The existing pay scale at the time of

the petitioner's posting was `1200-2040 since 01.01.1986 and

prior to that it was `330-560. However, the petitioner was

governed by the Rules as contained in Chapter 18-A of the

Punjab High Court Rules & Orders Vol. 1. It is pertinent to

mention here that prior to the establishment of the High Court

of Delhi, all subordinate courts functioning in Delhi, were also

under the control of Punjab High Court now Punjab & Haryana

High Court.

2. The main contention of the petitioner is that the similar officials

of the Judge, Small Cause Court, Amritsar (Punjab) has been

assigned higher pay scale of `1800-40-2000-50-2400-60-2700-

75-3000-100-3200 w.e.f. 01.01.1986 and earlier their scale was

`570-1080. It was a clear assassination of doctrine of equal pay

for equal work as portrayed under 39 (d) read with article 14 of

the Constitution of India.

3. The petitioner had knocked the doors of the Learned Judge

(S.C.C., Delhi) against the inequality & glitch in the pay scales

as compared to the other court by the way of representation

dated 23.06.1990. Subsequently, the Learned Judge (S.C.C.)

has positively considered the entreaty of the petitioner and

further he had forwarded the petitioner's representation to

District & Sessions Judge, Delhi with the view that his grumble

is legitimate and deserves to be accepted. Furthermore, Ld.

District & Sessions Judge, Delhi had forward the same to the

Registrar, High Court of Delhi with the view that the post of

C.O.C. in Delhi requires upgradation at par with the C.O.C. in

Punjab on the principles of natural justice and "equal pay for

equal work".

4. On 12.02.1992, the vital information was gathered from the Ld.

Judge, S.C.C. (Punjab) by Ld. Judge, S.C.C. & afterwards it had

been transferred to Ld. Diss. & Session Judge, Delhi regarding

the pay scales prevailing in Punjab. Also, Ld. Diss. & Session

Judge, after being fully satisfied, referred the matter to the

Secretary (Law & Judl.) of Govt. of N.C.T. Delhi, for necessary

action.

5. We may take note of the fact that as per Schedule III of the

Rules contained in Chapter 18-A of the Punjab High Court Rules

& Orders Vol. 1, the post of C.O.C. to Judge, S.C.C., which was

held by the petitioner, was higher and senior than the posts of

stenographers.

6. Equal pay for equal work is not just an adage but a

constitutional guarantee to the people, who perform same and

similar functions in an organization and contribute in the same

manner. It is a constitutional goal capable of attainment

through constitutional remedies, by the enforcement of

constitutional rights.

7. We may take note of the aforementioned facts and also that

cases of the staff of the District Court claiming parity with their

counterparts in Punjab & Haryana have been decided by this

Court and granted relief to uphold the principle of equal pay for

equal work. In the case of Kamalanand vs. UOI & Others

[W.P. (C) No. 1397/1984], the Restorers of the High Court filed

petitions claiming parity with restorers of High Court of Punjab

& Haryana as well as the High Court of Himachal Pradesh, who

were given the pay scale of `400- 600/-. This petition was

allowed by this court vide judgment dated 03.2.1986.

Subsequently, LDCs of this Court had filed W.P. (C) 1865/1986,

which was also allowed by the High Court vide its judgment

dated 11.11.1986 holding that they would be entitled to the

same benefit as the Restorers. There was further revision in the

pay scales with effect from 01.01.1986 after the 4 th Pay

Commission's recommendations were executed by the

Government. On the basis of the pay scale of `400- 600/- given

to the Restorers and LDCs in compliance with the aforesaid

judgment, the Restorers & LDCs of this court were given the

replacement scale of `1,350-2,200/.

8. In the abovementioned background, the prayer of the petitioner

is that to upgrade the existing pay scale of the petitioner i.e.

`1200-2040/- and its pre-revised scale of `330-560 and to grant

the following pay scales to the petitioner as which are

applicable to this counter-part in the office of the Judge, S.C.C.

(Punjab) with all consecutive benefits thereupon.

9. We have heard the arguments of the learned counsel for both

the parties and gone through the documents carefully.

10. We may state that we are wide awake of the fact that fixation

or amendment of the pay scale is normally an executive

function. These facets are usually to be examined by the pay

commission or the expert bodies. Comparison requires various

considerations, including the responsibilities, educational

qualification, mode of appointment etc. Nevertheless, at the

same time when it is found that there is a complete and

wholesome identity between the two groups and denying

benefit of pay scale to one group, which is enjoyed by another

group, would amount to odious discrimination, then courts can

step into the shoes of executive and remove such

discrimination. We are of the opinion that present case falls in

the same category.

11. This very issue in respect of the employees of this Court or the

District Court has come up for consideration several times. All

these cases were taken note of and law visited on the point in

the case of Mirza Zahid Beg & Ors. Vs. Union of India &

Ors. [W.P.(C) No.484 of 1988 decided on 02.05.2008]. In that

case, Lower Division Clerks working in Tis Hazari Courts were

seeking parity in pay-scale. Those Lower Division Clerks were

placed in pay-scale of `260-400, as per the recommendations

of 3rd Pay Commission. They claimed the pay scale of `400-

600/- on the ground that their counterparts in the High Court

were enjoying the said pay-scale. The case of the petitioners is

that they are entitled to seek parity with their counterparts

working in the High Court as the work done by them is

identical; the mode of recruitment is also the same; before the

judgment given by this Court in the aforesaid case, the LDCs of

the District Court as well as the High Court were treated at par

and were getting the same pay scale and that on the basis of

rationale and reasoning given by this Court, their cases would

also be covered.

12. This contention was accepted after taking note of the earlier

judgments and tracing out the history of such

comparisons/parity. Following discussion in the said decision

equally applies to the present case as well:

"7. Perusal of the judgment of this Court in Kamla Nand (supra) would reveal that after taking note of relevant facts, following features available therein:

(a) the post of restorer of this Court carried pay scale of Rs.80-110/- until 1970. In May 1970, the post of Restorer was made equivalent to that of LDC in this Court and therefore, the Restorers also started getting the pay scale of Rs.110-180/, which was admissible to the LDCs;

(b) after the implementation of 3rd Pay Commission report, this pay scale was revised to Rs.260-400/-. However, for reasons which were not clear, the Restorers in Punjab and Haryana High Court as well as the Himachal Pradesh High Court started getting the pay scale of Rs.400-600/-;

(c) the duties of the Restorer in Delhi as well as Punjab and Haryana High Court or Himachal Pradesh High Court were, by and large, identical. Punjab and Haryana High Court as well as Himachal Pradesh High Court were the successor and Predecessor of the Delhi High Court.

8. On the basis of the aforesaid factual premise, the Court held that not only on the ground that two High Courts

where the Restorers were getting higher pay scale were the successor and predecessor of this Court but also on the principles of "equal pay for equal work" which is made a constitutional goal of Article 39(d) of the Constitution of India, the Restorers of this Court would be entitled to the same pay scale. We may reproduce the relevant portion from the said judgment:-

"11. But that is not the end of the matter because executive action in the matter of employment, as indeed, in other matters, must also satisfy the test of being "just, fair and reasonable". A claim to parity in the matter of scale of pay by those working under a State with a person carrying out similar work in an institutional under the Central Government in a city like Delhi would perhaps fail because even though both are doing equal work but having regard to the higher cost of living index applicable to Delhi and the financial constraints of the State revenues, the disparity could not be unfair or unreasonable. But could the reverse be true? A claim of parity by someone working in the Central Administration in Delhi with those employee in similar institution in States in places like Chandigarh or Simla must succeed because such a disparity is bound to be looked upon as being neither fair nor reasonable. In industrial law, the principle of "equal pay for equal work" is recognized subject to the doctrine of "region-cum-industry", the reason being that the different regions of the country have different indexes of living and different industries have the different capacity to pay, even though it is recognized that the matter of payment of minimum wages to a worker, the capacity to pay is irrelevant. But how does one justify in the context of an allegation of arbitrariness and discrimination denial of a scale of pay to someone working in a city like Delhi, under the Central Government or the Delhi Administration on the basis of which a similarly situated person is being paid in a similar institution in cities like Chandigarh or Simla, where the cost of living indexes are admittedly lower than that obtaining in Delhi. While the case of a reverse claim, one would be justified in saying that they are not similarly situated, such a distinguishing feature would not be available where a claim to parity is sought with those working in similar situations in less costly areas as in the present case. It appears to us

that the principle of "equal pay for equal work" would be squarely available to the petitioner, particularly, having regard to the admitted fact that of the two High Court, in relation to which parity is claimed, one was a predecessor of this court and the other its successor. In the circumstances, to pay to the Restorers of this Court on a scale which is Lower than the scale applicable to their counterparts in the two High Courts referred to above, could not but be termed arbitrary and discriminatory. If the matter was before an expert body like the Pay Commission, it would perhaps be inclined to consider that if the scale of pay applicable to the other two High Courts is a fair basis, those working in similar posts in a city like Delhi would be entitled to a still higher scale of pay but that is not the claim of the petitioner nor are we in a position in which we may embark on the work of fixation of pay scales which involves a variety of technical factors, as indeed, would require consideration supporting material and such an exercise is neither necessary nor possible in the present case."

9. Likewise, while allowing the claim of the LDCs vide its judgment dated 11.11.1986 in Civil Writ No.1865/1986, the Court made the following pertinent observations:-

"Notice of this Writ petition has been served on the respondents and they have filed a reply. It is not contested in the reply that the posts of Lower Division Clerks and the Restorers are equal in status. On the other hand, it has been clearly stated that, except that the Restorers have to work in Court Rooms while the Lower Division Clerks work in the office, in all other respect the two posts are equal and are so described in the various rules. In view of this admitted position, the petitioners are entitled to their prayer in the writ petition. We, therefore, allow the writ petition and direct the respondents to revise the pay scales of the petitioners and other Lower Division Clerks working in Delhi High Court and the same in the same pay scale of Rs.400-600 as Restorers with effect from the same date."

10. In view of the aforesaid position there is no reason to deny the benefit of same pay scale to the LDCs of District Court which is the pay scale of the LDCs enjoyed by the

High Court staff. It is more so when the pay scales granted to the LDCs of District Court as well as Delhi High Court pursuant to Third Pay Commission was the same. Because of this reason we are also not agreeable with the reason given by the District and Sessions Judge in his communication dated 27.1.1988. In this communication reason given is that the pay scale applicable to the staff of District and Sessions Judge cannot be equated with the pay scale sanctioned to the staff of the Punjab and Haryana High Court. What is missed out is that these pay scales were same at one point of time. Thus, even if the pay scales are to be compared with the staff of the District and Sessions Courts in Punjab and Haryana, the position is same. We may point out at this stage that as the pay scale of the LDCs working in Delhi High Court was revised on the parity of the pay scales of their counter-parts in High Court of Punjab & Haryana as well as High Court of Himachal Pradesh, we wanted to find out as to what is the pay scale of LDCs in the District Courts in Punjab & Haryana. Learned counsel for the petitioner has placed before us the material in the form of appointment letters issued to such staff in Punjab & Haryana as well as notice inviting applications for the post of LDCs in District Courts as per which the pay scale in the year 1999 were Rs.3,120-5,160/-. We are informed that the said pay scale has since been revised to Rs.5,000-8,100/-, which is more than the pay scale admissible to the LDCs of this Court which is Rs.4500-125- 7000/-. In these circumstances whether we compare the case of the petitioners with the LDCs of this Court or with the LDCs of Punjab & Haryana and Himachal Pradesh High Courts, there is no reason to deny the benefit of the same pay scale to the petitioners i.e. Rs.4500-125-7000/-."

13. We are of the considered view that petitioner is entitled to seek

parity with his counterparts working in the high court, also the

work done by him is identical, therefore the petitioner is

entitled to the same benefit on the principles of equality &

natural justice. Hence, in view of the aforesaid position there is

no reason to deny the benefit of the same pay scale to Clerk of

Court, Delhi so that there may be no discrimination and

violation of the doctrine "equal pay for equal work".

14. Therefore, we make the Rule absolute and allow this writ

petition by bridging the gap between the pay scales. The

respondents are directed to grant the pay scale to petitioner

i.e. `570-1080 with effect from 01.06.84 to 31.12.85 and