Yatinder Mohan Dua And Ors. vs Delhi University, Delhi And Anr.
2013 Latest Caselaw 4904 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  W.P.(C) No.6188/1999

%                                                   25th October, 2013

YATINDER MOHAN DUA AND ORS.              ..... Petitioners
                Through: Mr. Shekhar Kumar, Advocate.


                          Versus

DELHI UNIVERSITY, DELHI AND ANR.             ...Respondents

Through: Mr. Shushank Shekhar, Advocate for UGC.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. Petitioners by this writ petition seek the relief of being granted

the pay scale of Rs.1400-2300/- from the original date of their appointments.

Petitioners on their original appointments were granted a pay scale of

Rs.1200-1560-2040/-. Petitioners seek the benefit of the higher pay scale by

seeking to place reliance upon the letter of the UGC of September, 1990

besides also by claiming that Prof. Abhai Mansingh Committee which

made its recommendation on 16.10.1996 wrongly placed petitioners in para

4B of the report instead of para 6C. Petitioners additionally claim that their

posts were equivalent to data entry operators of respondent no.1-University

and which is said to be admitted by the respondent no.1/University in its

letter dated 29.6.1999. Petitioners state that they have wrongly been denied

the higher pay scale of Rs.1400-2300/- from inception and they have been

granted the same only from 3.6.1997 and that petitioners should have got

this higher pay scale from their dates of appointment during September to

November, 1990 so far as petitioner nos.1 to 6 are concerned and so far as

petitioner no.7 is concerned w.e.f his date of appointment on 19.12.1991.

2. An entitlement in law for a person to claim higher pay scale can

be basically on two grounds. First ground is that the service rules of the

organization with which a person is working provides for a specific pay

scale and which is denied to the employees. The second reason for claiming

of the higher pay scale can be on the basis of application of doctrine of

„equal pay for equal work‟. In the present case, petitioners claim the higher

pay scale of Rs.1400-2300/- as being paid to the data entry operators

essentially on the ground of application of doctrine of „equal pay for equal

work‟. Though this doctrine is not specifically invoked as per the averments

made in the writ petition, however, the writ petition makes averments with

respect to qualifications of petitioners who are appointed as junior technical

personal assistants being equal to the qualifications required of data entry

operators and the consequent entitlement of the petitioners to the higher

scale of pay.

3(i) With respect to the contention urged on behalf of the petitioners

that petitioners would get benefit of letter of September, 1990 of UGC filed

as Annexure A to the writ petition, that argument purely and simply on the

basis of the language of the letter itself is liable to be rejected because the

letter of September, 1990 of UGC only applied to data entry operators

appointed in the computer centre of the respondent no.1-University and not

to other persons in other departments. As will be seen later the qualification

and scope of work of data entry operators were different than junior

technical personal assistants such as the petitioners. Also, Entry 5 of the

Annexure to the letter of September, 1990 of UGC refers to the data entry

operator as equivalent to senior technical assistant and technical assistant

posts, and which posts are higher than the posts of junior technical personal

assistants of the petitioners. When we refer to the advertisement No.6/1989

pursuant to which petitioners were appointed as junior technical personal

assistants in pay scale of Rs.1200-1560-2040/-, it is seen that the post of a

technical assistant is higher than the post of a junior technical personal

assistant because technical assistant in this advertisement on being appointed

was to be granted the pay scale of Rs.1400-2300/-. Therefore, on the basis

of the letter of UGC of September, 1990 and entry 5 of the annexure thereto

it can safely be held that the same cannot help the petitioners because

petitioners are junior technical personal assistants, and thus placed at a scale

lower to the scales of technical assistants as per the subject advertisement

No.6/1989 pursuant to which petitioners were appointed. Accordingly, no

reliance can be placed by the petitioners on this letter of the UGC of

September, 1990 to claim benefit of the higher pay scale of Rs.1400-2300/-.

The following averments made in the counter-affidavit of respondent no.1

show valid reasons for not treating petitioners as technical persons:-

"5-6. Para no.5 and 6 are matter of record. It is stated that a number of inter-disciplinary Departments were established in the South Campus in the eighties. Each Department had to be provided with some secretarial assistance to enable the Head of the Department to perform his duties. To meet the requirements, some post of Junior Technical Personal Assistant were created in the pay scale of Assistant (UDC). Knowledge of Computer operation was stipulated as typewriters were being replaced by computers gradually and it was considered adviseable to recruit persons with basic knowledge of computer operations. The petitioners were recruited not for any technical job but only for discharging functions otherwise being discharged by Assistant (UDC)/Stenographers. Since the duties to be performed by them are the same/similar as that of Assistants/Stenographers, they were granted the pay scale of Assistants and rightly so."

(ii) In this regard, it is also relevant to note that in the additional

affidavit which has been filed by the UGC dated 21.8.2008 it is specifically

mentioned that qualifications which were prescribed for the post of a

technical assistant (computer) in the computer centre at the time of

appointment to the post was diploma in engineering or electronics or B.Sc.

in science or mathematics or statistics or computer science. Therefore such

technical assistants (computer) who had the pay scale of Rs.1400-2300/-

cannot be compared to the petitioners appointed as junior technical personal

assistants and who only had to be graduates with knowledge of typing and

computer operation. Having a general knowledge of typing and computer

operation is totally different from having extensive knowledge of computer

operation which is required in a computer centre and therefore petitioners

who are essentially equivalent to UDCs cannot claim equivalence with a

higher post of a technical assistant which had different qualifications for

appointment. Not only the qualifications were different surely before the

doctrine of „equal pay for equal work‟ comes in it is necessary that the scope

of duties of two appointees have to be more or less identical. Surely scope

of junior technical personal assistants who were appointed in the scale of

UDCs in general departments are totally different from specialized jobs

which are performed by data entry operators and computer operators in a

computer centre by the respondent no.1/University. Specialized

qualifications and doing specialized work in a computer centre cannot be

equated to general qualification of a graduate and who works in general

administrative departments/offices of the respondent no.1/University.

Therefore, there is justification for the respondents to deny the petitioners

benefit of doctrine of „equal pay for equal work‟ including on the ground

that the nature and scope of work of petitioners were different than data

entry operators in the computer centre. The following averments made in

the additional affidavit dated 21.8.2008 are accordingly taken note of for

denying the claim of the petitioners:-

"5. The posts in Computer Centre of the University like Technical Assistant (Computers) are very different from the post of Junior Personal Technical Assistant (JPTA) in terms of their nomenclature, qualification and nature of duties and the technical nature of the job. The lowest post in the computer centre is that of Technical Assistant (Computer). The pay scale of the Technical Assistant (Computer) at the relevant time was `1400-2300 (pre- revised)/`4500-7000/- and the qualifications prescribed for the said post was "Diploma in Engineering or Electronics or B.Sc. in Science/Mathematics/Mathematics Statistics/Computer Science". It would be seen that qualifications prescribed for the post of Technical Assistant (Computer) was much higher as compared to the qualification prescribed for the post of Junior Technical Personal Assistant. The post of Technical Assistant (Computer) in the Computer Centre being a Technical position, qualifications such as Diploma in Engineering was prescribed and rightly so, having regard to the nature of duties to be performed by them and having regard to the qualifications prescribed, a higher pay scale of `1400-2300/` 4500- 7000 (revised) was prescribed for the said post. Subsequently with effect from 3.6.1997, the qualifications for the post of Technical Assistant (computer) was further revised as "graduation in science with minimum 50% mark with at least 2 years experience of using Micro/Mini/Works Station Computer system with Generic Software under Popular Operating System". The above said revised qualification prescribed is also different from the qualification prescribed for the post of Junior Technical Personal Assistant and was

higher in comparison to qualifications prescribed for the post of Junior Personal Technical Assistant. Apart from the fact that the qualifications are not same and are indeed not comparable, the nature of duties is also different. Whereas the duties of a Junior Technical Personal Assistant is administrative/ministerial in nature, similar of that of Assistant (UDC), duties to be performed by a Technical Assistant in the Computer Center is qualitatively different and are technical in nature which requires higher skills and abilities. There is no indeed comparison between the two."

4. So far as the challenge which is led by the petitioners to the

report of the Prof. Abhai Mansingh Committee which placed the petitioners

in para 4(B) instead of para 6(C), the argument raised is once again

misconceived for the reason that the committee was constituted with respect

to computer operators in the science department of the respondent

no.1/University. The science department had computer staff which was

treated as a technical side due to the type of work performed by them on the

computers. It was also found that these computer operators in science

department had not received promotions for 20 years and therefore various

aspects including this aspect were considered for granting a higher scale of

pay to the computer operators in science department. Surely, once there are

no relevant service rules which specifically deny entitlement to grant of a

particular pay scale, it is open to an employer such as the respondent no.1 to

create avenues for promotion and higher pay scale to those persons who had

stagnated for as many as 20 years in the same post. It is like an assured

career promotion or one time upward movement scheme. These persons

who were granted benefits as per the committee report were differently

placed than the petitioners because petitioners had only just some years back

and that too with open eyes took up appointments as junior technical

personal assistants in the pay scale of Rs.1200-1560-2040/-. Petitioners in

terms of the committee report got benefit of a higher pay scale of Rs.1400-

2300/- purely as personal cases w.e.f 3.6.1997 in view of the resolution of

the respondent no.1/University, however, such an act of the University

cannot mean that the University can be forced to grant the higher pay scale

of Rs.1400-2300 from the original dates of appointments of the petitioners

from September to November, 1990 so far as petitioner nos.1 to 6 are

concerned and December, 1991 so far as petitioner no.7 is concerned.

5(i) Reliance placed by the petitioners upon the letter of the

respondent no.1/University dated 29.6.1999 cannot help the petitioners

because a letter written by the University cannot mean that it is the legal

position applicable for the doctrine of „equal pay for equal work‟ to be

enforced although the requisite elements of the doctrine do not exist.

Before the doctrine of „equal pay for equal work‟ is enforced inter alia there

is required fulfillment of the crucial elements of equivalence in

qualifications of two posts, more or less identical work being performed in

two posts and hierarchy and structure of promotions being similar. These

essential criteria are not found for giving petitioners equivalence to data

entry operators in the computer center or science department.

(ii) Also, if after all the one Joint Registrar who signed on behalf of

the respondent no.1/University in the letter dated 29.6.1999 was correct,

then, nothing prevented the University by its executive council from

accepting its letter dated 29.6.1999, but this stand admittedly has not been

accepted by the University, and which obviously was not accepted by the

executive council of the University because there really is no equivalence

between a junior technical personal assistant and a data entry operator and

this was made abundantly clear by the committee when it granted benefit of

the higher pay scale on acceptance by the executive council of the

University purely as personal to the petitioners and without laying down a

general principle, by stating that so far as future appointments of junior

technical personal assistants are concerned they will continue to be

appointed on the core pay scale of the junior technical personal assistants

and not the pay scale of a technical assistant or a data entry operator.

Therefore, reliance placed by the petitioners upon the letter of one Joint

Registrar dated 29.6.1999 is misconceived and accordingly rejected. The

following averments made in the counter-affidavit of respondent no.1 show

the difference in the posts and qualifications of the two posts of junior

technical personal assistants (UDCs) and the technical assistant (computer)

and accordingly the valid basis to deny equivalence claimed by petitioners to

technical assistants:-

"12-25. In reply to paras 12 to 25 it is denied that the petitioners were entitled to the benefit of para 6-C or that they were entitled to the benefit of para 4-B or that there was any mistake committed by the Committee or the University or that there is any such admission. It is stated that when these petitioners made a representation to the vice- chancellor, the Vice Chancellor requested the Director, SDC, to examine as to how best the JTPAs could be helped. At this stage, the office suggested that the post of JTPA may be redesignated to that of Technical Assistant (Computer). Though the UGC scale of pay (`1350-2200) was less than that of University Technical Assistants, yet the Vice Chancellor has approved the proposal to place the JTPAs as Technical Assistants in the University Scale, i.e `1400-2300 as a special case. In fact the JTPAs have not fulfilled the qualification for the post of Technical Assistant as recommended by Professor Abhaiman Singh Committee. Instead of appreciating the gesture shown by the Vice Chancellor, it is unfortunate that the JTPAs have preferred to allege that it is an admission on the part of the University that there was a mistake committed earlier if the intention of the University was to fill up the post of Technical Assistant (Computer) with equivalent rank earlier the University would have filled up the posts in the grade of `1400-2300 for which the qualification is B.Sc Degree with Science, and none of the petitioners fulfil this qualification. When they did not have the requisite qualification in 1990 for the post of Technical Assistant, they cannot make a claim for the scale of pay of the post of Technical Assistant. Further, had the University advertised the post in the pay scale of `1400-2300, the University could have attracted better candidates than the petitioners and perhaps the petitioners would not have been selected at all. It is denied that there was any mistake committed by the University or by Professor Abhaiman Singh."

6. Accordingly, there is no basis whatsoever for the petitioners to

claim invocation and application of the doctrine of „equal pay for equal

work‟ for being granted a pay scale of Rs.1400-2300/- from the

commencement of their appointments, more so because with open eyes they

accepted a specific pay scale of Rs.1200-1560-2040/- from inception and for

a post which was advertised as a post at one step lower than a technical

assistant. There is no basis for claiming equivalence to a data entry operator

by the petitioners who were only junior technical personal assistants for the

reasons as stated above.

7. In view of the above, there is no merit in the writ petition and

the same is therefore dismissed, leaving the parties to bear their own costs.

OCTOBER 25, 2013                               VALMIKI J. MEHTA, J.
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