Om Parkash And Ors. vs The Institute Of Chartered ...
2013 Latest Caselaw 2269 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C) No. 3340/1997
%                                                              May 15, 2013

OM PARKASH AND ORS.                                                 ......Petitioners
                 Through:                    Mr. Rishikesh, Advocate.


                            VERSUS


THE INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA AND ORS.
                                              ...... Respondents

Through: Ms. Maninder Acharya, Senior Advocate with Mr. Rakesh Agarwal, Advocate and Mr. Pulkit Agarwal, Advocate.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    To be referred to the Reporter or not?        Yes.


VALMIKI J. MEHTA, J (ORAL)

1. This writ petition is filed by three petitioners. All the three petitioners

were appointed as General Tradesman by the respondent No.1. Petitioners were

already working with the respondent No.1 prior to their appointments as General

Tradesman by the appointment letters dated 1.10.1992. The petitioner Nos.1 and

2 were originally appointed on temporary basis as Electricians in terms of letters

dated 25.9.1991 and 29.3.1992 of the respondent No.1, and the petitioner No.3 was

appointed as Plumber on ad hoc basis in terms of the letter dated 25.9.1991 of the

respondent No.1. Though the appointments of the three petitioners in terms of

letters dated 25.9.1991 and 29.3.1992 were on ad hoc basis their appointments

were specifically as Electricians and Plumber.

2. The case of the petitioners is that they have unfairly been denied the

appointments to the posts of Electricians and Plumber of the respondent No.1, and

have been appointed by being categorized as General Tradesman only to deny

them the pay scale which should be granted to regular Electricians and Plumbers of

the respondent No.1 who gets a scale of Rs.950-1500/-. It is the pleading on behalf

of the petitioners that by appointing the petitioners as General Tradesman instead

of Electricians and Plumber, respondent No.1 gave them the lower scale of pay of

Rs.750-940/- i.e a lesser scale of pay than the normal scale of Rs.950-1500/-. The

writ petition states that the petitioners have always continued to work with the

respondent No.1 as Electricians and Plumber at all points of time right from

inception till filing of the writ petition and even thereafter till date. It is contended

that the principle of „equal pay for equal work‟ squarely applies in the case of the

petitioners because a fraud ought not to be perpetuated upon them by their being

called „General Tradesman‟ but taking from them works only of regular

Electricians and Plumber. It is pleaded and argued that once the petitioners are

doing the same works which are to be done by Electricians and Plumbers in the

respondent No.1, the petitioners should get the same scale of pay as being given to

Electricians and Plumbers with the respondent No.1 viz of Rs.950-1500/-.

Reliance is placed by the petitioners upon the scales of pay of the respondent No.1,

filed as Annexure P-1 to the writ petition and which reads as under:-

"THE INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA

NEW DELHI SCALES OF PAY S. POST SCALE TOTAL(APPROX.) No.

1. Peons/Chowkidars, Sweepers, Rs.750-12-870- Rs.2,068/-

etc EB-14-940

2. Peons with 5 years of service Rs.800-15-1010- Rs.2,192/-

EB-20-1150

3. LDC., Peons with 11 yrs of Rs.950-20-1150- Rs.2,566/-

service, Jr. Gest. Operator, Lib.

        Attendant, Electrician            EB-25-1500


4.      UDCs., Steno-typists, Sr.G.O. Rs.1200-30-1560-         Rs.3,188
        Daftri, etc.
                                      EB-40-2040


5.      Assistants,      Stenographers, Rs.1640-60-2600-       Rs.4,284/-
        Librarian,     Jamadar,      Sr.
        Electricians,     Sr.      Gest. EB-75-2900
        Operator., Lib. Attendant, etc.
        (Next Grade available after 5
        years of service in a particular

            Grade)
6.         S.O.,A.O., P.S., Reporter, etc.    Rs.2000-60-2300-   Rs.5,180/-

                                              EB-75-3200-100-




7.         E.O., Education Officer etc.       Rs.2200-75-2800-   Rs.5,678/-

                                              EB-100-4000


8.         Asstt. Secretary/Dy.         Asstt. Rs.3000-100-      Rs.7,670/-
           Director, etc.
                                              3500-125-5000


9.         Deputy Secretary/Dr. Director      Rs.4500-150-5700 Rs.10,165/-


10.        Dy. Secretary/Jt. Director         Rs.5900-200-7300 Rs.13,180/-


11.        Addl. Secretary                    Rs.7200-200-7800 Rs.15,248/-


12.        Secretary/Director                 Rs.7300-200-       Rs.15,457/-

                                              7500-250-8000


              RATES                           2. HOUSE RENT ALLOWANCE
      1.      Dearness Allowance              35% of the Basic Pay
      Upto Rs.3500/- = 114%                   3. INTERIM RELIEF

From Rs.3501 to Rs.6000=85% Rs. 100/- for all (minimum Rs.3990/-) From Rs.6001 to and above= 74%

(Minimum Rs.5100/-)

4. CCA Below: Rs.950/- Rs. 30/- p.m. Rs.950/- to Rs.1499/- Rs.45/- p.m. Rs.1500/- to Rs. 1999/- Rs.75/- p.m. Rs.2000/- and above Rs.100/- p.m.

5. TRANSPORT SUBSIDY 1. For maintaining Motor Car = Rs.1035/- p.m. (available for E.O. & above)"

3. It is argued that so far as the petitioner Nos.1 and 2 who are

Electricians are concerned they quite clearly fall in Serial/Category (3) in the

aforesaid scales of pay, and though there is no category of a Plumber in the

aforesaid scales of pay, however, even the petitioner No.3 as a Plumber has to fall

in category 3 which is the third lowest category for scale of pay inasmuch as

petitioner No.3 is a skilled person being a Plumber whereas the first two categories

in the scales of pay pertain to Chowkidars, Peons and Sweepers who are unskilled

workers.

4. Respondent No.1 has countered the case of the petitioners by stating

that the petitioners with open eyes took employment as General Tradesman and

having taken the benefit of employment as General Tradesman they now cannot

claim parity with regular Electricians and Plumbers of the respondent No.1. It is

also pleaded in the counter-affidavit that petitioners were over age for

appointments and also lacked qualifications for appointments as Electricians and

Plumber with the respondent No.1 and therefore they cannot claim parity with

regular Electricians and Plumbers working with the respondent No.1.

5. The doctrine of „equal pay for equal work‟ is well established in

service jurisprudence. Persons who have same qualifications and are performing

the similar duties are ordinarily to be put under the same category for monetary

emoluments. There may be certain differences with respect to qualifications or

scope of duties but if such differences are minor and irrelevant, Courts can and do

ignore the same. The object of the law is that similarly situated persons must be

treated similarly for the purpose of payment of salaries. Once a person does

identical work as another person in the same organization, there is no reason to

deny parity in treatment to both the persons.

6. At the outset, I put to the learned senior counsel for the respondent

No.1 whether there were any recruitment rules of the respondent No.1 pleaded in

the counter-affidavit, to which the respondents could be said to be bound to, but

the learned counsel for the respondents could not point out any paragraph in the

counter-affidavit which states what were the applicable recruitment rules of the

respondent No.1. Clearly therefore the respondent No.1 has let the position remain

fluid and which position has to work definitely not against the petitioners but

against the respondent No.1 once we find that the petitioners are doing identical

work as regular Electricians and Plumbers working for the respondent No.1

organization and who get a higher scale of pay of Rs.950-1500/- instead of Rs.750-

940/- being paid to the petitioners. So far as petitioner Nos.1 and 2 are concerned,

the writ petition shows that petitioner No.1 is a matriculate holding Electrician

Licence from Delhi Administration and having experience of more than 13 years

as Electrician. Petitioner No.2 is a matriculate holding ITI diploma of Electrician

and has 13 years of experience as an Electrician. Petitioner No.3 is also a

matriculate and is an experienced Plumber. The experience of petitioner No.3 is

mentioned in para 7 of the writ petition. When we see the corresponding para of

the counter-affidavit of the respondent No.1, it is seen that with respect to these

specific averments of the qualifications of the petitioners, there is no specific

denial and which obviously is because petitioners had the necessary qualifications

with respect to Electricians and Plumber which have been stated in paras 4,5 and 7

of the writ petition. At this stage, I may state that petitioners have filed

voluminous documents alongwith rejoinder- affidavit showing that the respondent

No.1 has been taking duties from the petitioners only of Electricians and Plumber.

The documents filed by the rejoinder-affidavit pertain to the period of pendency of

the writ petition and petitioners have been specifically described as Electricians

and Plumber and have been specifically designated for electrical and plumbing

jobs. Some of the documents show that the petitioner nos. 1 and 2 have even been

sent outstation for the designated work of an Electrician. A reading of the

aforesaid documents which are from pages 93 to 125 of the paper book, leaves no

manner of doubt that actually duties being performed by the petitioners were

undoubtedly were of an Electrician and a Plumber.

7. Though the qualifications in CPWD for appointment of Electrician

and Plumber do not apply strictly, however, let us still see what these requirements

are for appointment to Electrician and Plumber in CPWD. These requirements are

as under:-

16. Electrician

1. Name of Post Electrician

2. Scale of pay Rs.330-8-370-10-400-EB-10-480

3. Duties General Supervision and guidance to the work of electrical including carrying out complicated maintenance work on H.T. nad L.T. Electrical installations.

4.   Method of Recruitment
     (i) Direct Recruitment             25%
     (ii) Promotion                     75% on the basis of seniority-cum-fitness
                                         (For Direct Recruits)
5.   Age Limit                          21-30 years.
6.   Qualifications                     (1) 10th Class standard

(2) I.T.I. Diploma in Electrician‟s Trade.

(3) He must possess electrical supervisory

competency.

(4) Must have minimum practical experience of 5 years in erection and running maintenance of different types of both H.T.

and L.T. electrical installations including U.G. Cable systems.

7. Departmental Test (1) Practical Test on equipments like switchpear, transformer etc connection of different motors and starters; location and rectification of faults in complicated installation; testing of electrical installation and equipments.

(2) Oral test on different H.T. & L.T.

electrical appliances; cable joining; safety regulations as per I.B. Rules and stock treatment etc. (3) He should be able to read wiring diagrams associated with different electrical appliances.

8. Whether age & educational No, except trade tests as prescribed and qualifications/Departmental supervisory certificate of competency. test prescribed for direct recruitment will apply in case of appointment by promotion

9. Grades/Sources from which Wireman; Armature Winder; Lineman; and promotion is to be made existing Electrician Work Mistries

10. Period of probation, if any One year.

xxxx                  xxxx              xxxx                xxxx
                      36. Plumber
1.     Name of Post                 Plumber
2.     Scale of Pay                 Rs.260-6-290-EB-6-326-8-366-EB-8-390-


                               10-400
3.   Duties                   Assembly, fitting, installation, maintenance

and repair of plumbering pipes, fixtures and fittings for water supply and for sanitary and drainage system.

4.   Method of recruitment
     (i) Direct recruitment   50%
     (ii) Promotion           50% on the base of seniority-cum-fitness
                              (For Direct Recruits)
5.   Age Limit                20-30 years.
6.   Qualifications           Those who have passed as Plumber from any

Technical Training Institute and had at least 2 years‟ practical experience or have had at least 5 years experience in the line and are conversant with items noted below:-

1. Should have a working knowledge of the various types of specials in use in the plumbering trade whether they be H.C.I., G.I. Lead, brass or earthenware and be able to estimate requirements for any job entrusted to him.

2. Should have a thorough knowledge of working with various tools used in the trade such as wrenches, spanners, caulking tools, stocks and dics etc.

3. Should be able to make leak proof joints for pipes made of (a) stoneware (b) earthenware (c) H.C.I., G.I., Cast Iron, lead.

4. Should have a good knowledge of materials that go to form joints and be able to estimate requirement, thereof.

5. Should be able to follow drawings and sketches and execute work according to lay out.

6. Should possess plumbing licences in localities where such licences are issued by local authorities.

7. Must be able to carry out overhaul of biboocks, ball valves, sluice valves including grinding and seating.

7. Departmental Test Trade test:

Oral Sample trade test questions are stated below. The question and selection of job may be framed accordingly:-

(i) What is the function of a gully trap? Why are waste pipe discharged to gully and not connected direct to manboics.

(ii) What is an trap and where is it used and why?

(iii) What is the of taking A/S pipe of W.C. and when is it usually taken.

(iv) Name traps only used in connection with sanitary fitting. Where are they

(v) Why is it necessary to use lead connection under basin and near W.C.,

(vi) What is C.I. Pipe and where it is used? How would you compare C.I. Pipe with M.C.I. Pipe?

(vii) On what principle does the Flushing cistern work?

(viii) Why do we use soil door fittings and

where?

(ix) Why is it necessary to use trap under W.C.?

(x) What are the advantages of an automatic Flushing cistern? Where is it used and why? Practical

1. Male out soil connection for range of three European Pattern W.C.s „S‟ Trap. The Centre to Centre of W.C. should be 3‟-0" Connect the Outlet of W.C. to 4‟ Soil Vertical Pipe with Door Branch. Take out the Antisyphonape of all the W.C.s in one Pipe and fix the 4" Soil and 2" A/S about 6‟- 0" high.

2. (a) Prepare 1 ½" lead or waste pipe 2‟-6" long for Sink waste with solder joint and coupling union.

(b) Prepare one lead connection ½" size 12" long with 1/" coupling union

(c) Prepare one ¾ lead ½" connection for Bath Tub with ¾ coupling unions.

8. Whether age & educational Trade Test prescribed for direct recruitment qualifications/Departmental will apply in case of appointment by test prescribed for direct promotion. Age-No Others-Yes recruitment will apply in case of appointment by promotion

9. Grades/Sources from which From Assistant Plumbers who have put at promotion to be made least 5 years‟ service as such.

10. Period of probation, if any One year."

8. A reading of the aforesaid qualifications prescribed by the CPWD that

so far as Electrician is concerned he must be a matriculate with an ITI diploma

besides having experience of five years and possess electrical certificate of

competency. So far as qualifications of a Plumber are concerned such person

either has to have passed plumber examination from any Technical Training

Institute with two years practical experience or have five years experience in the

plumbing line. When these aforesaid requirements are compared to the averments

made in paras 4,5 and 7 of the writ petition, it is found that more or less these

qualifications are met by each of the petitioners though it may not be strictly so to

the last alphabet. The fact of the matter is that so far as petitioner Nos.1 and 2 are

concerned they either had a Diploma or had an Electrician licence from the Delhi

Administration besides having experience of 13 years as Electrician and some of

which period as an Electrician was with none other than the respondent No.1. So

far as a Plumber is concerned, such person only had to have five years experience,

and petitioner No.3 has given his requisite experience in para 7 of the writ petition.

As already stated above, there is no denial of any worth by the respondent No.1 to

the averments made in paras 4,5 and 7 of the writ petition.

9. I have already stated above that there is nothing in the counter-

affidavit of the respondent No.1 that qualifications of CPWD apply, however, I

have referred to these CPWD qualifications just to state that it is not as if the

petitioners are grossly unqualified for their jobs as Electricians or Plumber but in

fact they comply with the requirements in spirit, and more or less in letter also,

though may be not strictly 100% in letter. What I am stating is that petitioners are

duly qualified to work as Electricians and Plumber with respondent No.1, and I do

not have before me what were the qualifications which were used by the

respondent No.1 for appointment of Electricians and Plumbers under them.

Therefore, qualifications of the petitioners to work as Electricians and Plumber

alongwith other such persons in the respondent No.1, in my opinion, stands quite

clearly established.

10. So far as scope of duties are concerned, I have already referred to the

voluminous documents of the respondent No.1 itself, filed by the petitioners with

rejoinder-affidavit, showing beyond any iota of doubt, that the petitioners have

always worked right from inception till filing of the writ petition and even

thereafter during the pendency of the writ petition only as Electricians and Plumber

with the respondent No.1.

11. In my opinion, the facts of the present case show that respondent No.1

is very unfairly using the appointment letters of the petitioners as General

Tradesman to deny them the scales of pay which they are otherwise entitled to and

being of category (3) in the scales of pay of respondent no.1 annexed as Annexure

P-1 to the writ petition. I have also failed to understand what can be the logic of

the respondent No.1 to deny parity between identically placed persons. It is not

open to the respondent No.1 in my opinion to rely upon appointment letters to give

a lesser scale of pay to the petitioners merely on the ground of a conveniently

given job designation which is not provided in the rules/scales of pay of respondent

no.1, and when otherwise the qualifications and the scope of duties of petitioners

are same as other Electricians and Plumbers of the respondent No.1. If I permit

acceptance of the contentions of the respondent No.1 for accepting petitioners

appointments as „General Tradesman‟ it would amount to allowing the respondent

No.1 to violate the well-established doctrine of „equal pay for equal work‟.

12. The upshot of the above discussion is as under:-

(i) Petitioners were originally appointed by the respondent No.1 itself as

Electricians and Plumber.

(ii) Though the subsequent job designation in the appointment letters of

the petitioners were as General Tradesman, however, the scope of duties of the

petitioners were actually of Electricians and Plumber, and which were/are the same

duties for being given to other Electricians and Plumbers of the respondent No.1.

(iii) Respondent No.1 has no rules of recruitment and when we take the

rules of CPWD petitioners more or less comply with the qualifications for being

appointed as Electricians and Plumbers.

(iv) Petitioners all along have worked only as Electricians and Plumber

with the respondent No.1 and hence they cannot be discriminated against by giving

them separate treatment viz giving them lesser and separate scales of pay than as

given to other Electricians and Plumbers of the respondent No.1.

13. The facts of the present case show the crying need to apply the

principle of „equal pay for equal work‟ failing which Constitution mandate of

Article 14 of the Constitution of India to avoid arbitrariness and directing for

equals to be treated equally would stand violated.

14. In view of the aforesaid discussion, writ petition is allowed.

Petitioners will be granted the pay scales of Rs.950-1500/- from the date of their

appointments as General Tradesman with the respondent No.1. Petitioners will get

all consequential monetary emoluments on their having been granted the scale of

pay of Rs.950-1500/- from the original date of their appointments. Of course, I

must hasten to clarify that if promotions in the respondent No.1 have to be as per

the criteria of merit-cum-seniority or seniority-cum-merit, then, the petitioners for

being entitled to promotions would have to meet the necessary criteria for being

given the higher scale of pay of the promotion post. The arrears as now payable to

the petitioners in view of allowing of the present writ petition be now calculated by

the respondent No.1 and be given to the petitioners within a period of eight weeks

from today. The petitioners will give their response to such calculations within

four weeks thereafter. Admitted dues of the petitioners be paid within a period of

four weeks thereafter i.e within a period of four months from today. In case, there

are any disputes with respect to higher scales of pay required to be given to

petitioners at a subsequent point of time, then their original dates of appointments

or entitlement of the petitioners to promotions or any other aspects which entitle

the petitioners to higher emoluments, and which if denied by the respondent No.1,

these aspects can be the subject matter of appropriate independent proceedings,

and if permissible even contempt proceedings.

15. Writ petition is allowed and disposed of with the aforesaid

observations. Parties are left to bear their own costs.

MAY 15, 2013                                         VALMIKI J. MEHTA, J.
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