Mt Varghese vs Union Of India & Ors
2013 Latest Caselaw 967 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      LPA 877/2011

       MT VARGHESE
                                                                 ..... Appellant
                          Through: Mr Jos Chiramel, Adv.

                          versus

       UNION OF INDIA & ORS                        ..... Respondents
                     Through: Counsel for the respondent

       CORAM:
       HON'BLE THE CHIEF JUSTICE
       HON'BLE MR. JUSTICE V.K. JAIN
                      ORDER

% 27.02.2013

Vide letter dated 20.05.1981, the appellant was offered employment

with respondent No. 2 Mazagon Dock Limited (MDL) as a Draftsman, on

the terms and conditions stipulated in the said letter and he was asked to

confirm in writing, in case the said terms were acceptable to him. The

appellant accepted the terms stipulated in the said letter and joined the

employment of respondent No. 2. Vide letter dated 27.07.1984, the

appellant was taken into regular employment as a Draftsman and put on

probation, on the terms and conditions, stipulated in the said letter. The

LPA 877/2011 page 1 of 8 services of the appellant were confirmed vide letter dated 29.04.1989. In the

meantime, vide representation dated 25.05.1987, made to the Managing

Director of respondent No. 2 MDT, the appellant sought fixation of his

salary at par with MDT staff at Mumbai. The said request was rejected by

respondent No. 2 MDT vide letter dated 01.10.1987. Being dissatisfied, the

appellant filed WP(C) No. 3272/1989, which came to be dismissed vide

impugned order dated 25.08.2011. Being aggrieved, the appellant is before

us by way of this appeal.

2. The learned counsel for the appellant submits that the learned Single

Judge, while dismissing the writ petition, took the view that the appellant

was guilty of laches though the writ petition was filed within two years of

rejection of the representation vide letter dated 01.10.1987 as far as the pay

parity with the employees posted at Mumbai is concerned and soon after the

appellant was confirmed with effect from 01.10.1984, vide letter dated

29.04.1989, as far as confirmation is concerned.

3. This is appellant's own case that on 01.07.1982, he had made a

representation, seeking regularization on the ground that he had completed

more than one year of service. Though the appellant claims to have made

LPA 877/2011 page 2 of 8 further representations in this regard, the fact remains that the writ petition,

seeking confirmation on completion of six months of service came to be

filed only in the year 1989, i.e., about 7 years, after making the first

representation in this regard. The appellant, in our opinion, was not justified

in waiting for as many as seven years to come to the Court. Even if his

representations were not being answered, he ought not to have waited after a

reasonable time from the date of submitting the representation. The time of

about seven years taken by the appellant in this regard, cannot be said to be

a reasonable time to wait for the respondents to take a decision on his

representation with respect to confirmation in the service and, therefore, to

this extent, the appellant certainly was guilty of laches. We agree with the

learned Single Judge that making repeated representations does not explain

the laches in approaching the Court for grant of appropriate relief.

4. More importantly, the appellant has not been able to show any rule or

regulation, entitling him to confirmation on completion of six months in the

service. In the absence of any such rule or regulation, the appellant cannot

seek confirmation in service on completion of six months of service with the

respondent No. 2 MDT. Therefore, the claim of the appellant, seeking

LPA 877/2011 page 3 of 8 confirmation on completion of six months of service, is liable to be rejected

on merit as well.

5. As regards pay parity with his counterparts in Mumbai and other

places, the submission of the learned counsel for the appellant was that the

said claim is based on the principle of equal pay for equal work. In reply,

the learned counsel for the respondents due our attention to clause (b) of the

Offer Letter dated 27.07.1984, whereby the appellant was informed that he

shall be paid a fixed Dearness Allowance of Rs 300/- P.M. linked to average

All India Consumer Price Index at 433 (1960-100). He was further

informed that variable D.A. will be paid to him at the rate of Rs 1.30 per

point movement of the average quarterly Index (1960-100) over Index

Figure of 433 and the same will be revised quarterly based on the average

CPI for the second preceding quarter. In addition, he was entitled to CCA

and HRA applicable at New Delhi. The appellant having accepted the

aforesaid specific term, contained in the Offer Letter dated 27.07.1984,

cannot, in our view, claim parity with his counterparts posted in Mumbai.

This is not the case of the appellant that any other employee posted at Delhi,

on the terms similar to the terms contained in the letter dated 27.07.1984 has

LPA 877/2011 page 4 of 8 been granted parity with his counterparts in Mumbai by applying textile DA

pattern, which is applicable to the Draftsmen at Mumbai. Therefore, there is

no discrimination with the appellant as far as the employees posted in Delhi

are concerned.

As regards applicability of the principle of equal pay for equal work,

in State of Madhya Pradesh and another Vs. Pramod Bhartiya and others

JT1992 (5) SC 683, the Hon'ble Supreme Court inter alia held as under:

"It would be evident from this definition that the stress is upon the similarity of skill, effort and responsibility when performed under similar conditions. Further, as pointed out by Mukerjee, J. (as he then was) in Federation of All India Customs and Excise Stenographers Vs. Union of India, 1988(3)SCC 91, the quality of work may vary from post to post. It may vary from institution to institution."

In State of Haryana and others Vs. Jasmer Singh and others

JT1996(10)SC 876, Supreme Court noted that there are inherent difficulties

in comparing and evaluating the work done by different persons in different

organizations or even in the same organization. The Hon'ble Supreme Court

observed as follows:

"It is, therefore, clear that the quality of work performed by different sets of persons holding different jobs will have to be evaluated. There LPA 877/2011 page 5 of 8 may be differences in educational or technical qualifications which may have a bearing on the skills which the holders bring to their job although the designation of the job may be the same. There may also be other considerations which have relevance to efficiency in service which may justify differences in pay-scales on the basis of criteria such as experience and seniority, or a need to prevent stagnation in the cadre, so that good performance can be elicited from persons who have reached the top of the pay-scale. There may be various other similar considerations which may have bearing on efficient performance in a job. This Court has repeatedly observed that evaluation of such jobs for the purpose of pay-scale must be left to expert bodies and, unless there are any mala fide, its evaluation should be accepted."

In State of Haryana and another Versus Haryana Civil Secretariat

Personal Staff Association JT 2002(5)SC 189, Supreme Court noted that in

Secretary Finance Department & Ors. V/s. West Bengal Registration

Service Association and Ors. JT 1992 (2) SC 27, the Court had observed as

under:

"Courts must, however, realize that job evaluation is both a difficult and time consuming task which even expert bodies having the assistance of staff with requisite expertise have found difficult to undertake some times on account of want of relevant data and scales for evaluating performance of different groups of employees.

This would call for a constant study of the external comparisons and internal relativities on account of LPA 877/2011 page 6 of 8 the changing nature of job requirements. The factors which may have to be kept in view for job evaluation may include (i) the work programme of his department (ii) the nature of contribution expected of him (iii) the extent of his responsibility and accountability of the discharge of his diverse duties and functions (iv) the extent and nature of freedoms/limitations available or imposed on him in the discharge of his duties (v) the extent of powers vested in him (vi) the extent of his dependence on superiors for the exercise of his powers (vii) the need to co-ordinate with others department etc. Ordinarily a pay structure is evolved keeping in mind several factors e.g. (i) method of recruitment, (ii) level at which recruitment is made, (iii) the hierarchy of service in a given cadre, (iv) minimum educational/technical qualifications required, (v) avenues of promotion, (vi) the nature of duties and responsibilities, (vii) the horizontal and vertical relativities with similar jobs, (viii) public dealings,(ix) satisfaction level, (x) employer's capacity to pay, etc. That the claim of the equal pay for equal work is not a fundamental right vested in any employee though it is a constitutional goal to be achieved by the Government. Fixation of pay and determination of parity and duties and responsibilities is a complex matter which is for the executive to discharge."

6. We do not know the job profile of the Draftsmen posted in Mumbai

office of MDL. We do not know what are the qualifications and experience

prescribed for them, what are their duty hours, what are the promotional

LPA 877/2011 page 7 of 8 avenues available to them, what is the extent of their responsibility and

accountability, what are the duties entrusted to them, what is the method of

their recruitment, what is the hierarchy of service in their cadre and what is

the level of satisfaction provided by them, to respondent No. 2 MDL from

their service. Therefore, neither it is possible for us nor are we equipped to

carry out a comparative evaluation of the Draftsmen in Delhi and the

Draftsmen in Mumbai on these parameters. These are issues of fact, which

cannot be gone into and adjudicated in a writ petition. We cannot lose sight

of the fact that pay scales are only one component of the service condition of an

employee and there are various other equally important factors in career

progression such as promotion avenues, work-culture, working-environment etc.

7. For the reasons stated hereinabove, we find no merit in the appeal and the

same is hereby dismissed. There shall be no order as to costs.

                                                                 CHIEF JUSTICE



                                                                     V.K. JAIN, J
FEBRUARY 27, 2013
BG




LPA 877/2011                                                       page 8 of 8