D.C.Mehta vs Union Of India & Ors.
2013 Latest Caselaw 4998 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No. 2055/1999
%                                                   30th October, 2013
D.C.MEHTA                                                  ......Petitioner
                          Through:       Mr. K.K.Rohatagi, Advocate.


                          VERSUS

UNION OF INDIA & ORS.                                      ...... Respondents

                   Through:               Mr. Ravi Sakri, Mr. Vaibhav Kalra
                                         and Ms. Sumedha Dang, Advocates
                                         for R-2/AAI.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. By this writ petition, the petitioner who was appointed as Director

(Administration) in the erstwhile National Airport Authority of India seeks a

higher pay-scale from the first date of his appointment. A claim for higher

pay-scale, for the period after National Airport Authority of India merging

into Airport Authority of India, is also claimed by alleging arbitrariness in

the circular dated 9.2.1998 by asserting equivalence of petitioner with an

Executive Director.

2. I put it to counsel for the petitioner that there can ordinarily be two

basis to claim a higher pay-scale. First is that higher pay-scale is

specifically provided by the service rules of the organization and the second

basis is by application of doctrine of „equal pay for equal work‟.

3. On behalf of the petitioner admittedly no service rules of the

respondent-organization are relied upon which provide for the higher pay-

scales claimed by the petitioner, and the petitioner essentially only relies

upon the promise made to him before his appointment as stated in the note

dated 12.7.1990 filed at page 50 of the paper book and also the note dated

3.9.1990 filed at page 46 of the paper book. Petitioner joined subsequently

on 1.10.1990. These two notes dated 12.7.1990 and 3.9.1990 are reproduced

below:-

NOTE DATED 12.7.1990 "The Board met today the 12th July 1990 under the Chairmanship of Lt. Gen. T.B.Nanda out of the five candidates called for the interview, only two namely Shri P P Guha and Wg. Cdr. D C Mehta were present for the interview.

The Board considers Shri P P Guha as not acceptable for the post of Director of Administration.

Wg. Cdr. D C Mehta is considered eligible and suitable for the post of Director of Administration and he is recommended for appointment. However, the present emoluments of Wg. Crd. D C Mehta amount to Rs. 8213.00 whereas the emoluments as per the advertisement of the NAA

at the beginning of scale only amount to Rs.5930.00. Besides on reverting from Defence to the NAA, he would also have to forego some of the perks like free rations. In view of his suitability and in fairness to the individual, the Board recommends that he be given a higher start in the scale. This may be favourably considered by the Administration.

[LT. GEN. T.B.NANDA] CHAIRMAN"

NOTE DATED 3.9.1990

"Chairman has directed that the post of Director [Administration] in the scale of pay of Rs.4100-5300 should be created at the earliest, and immediately outlining the duties and job responsibilities attached to this post and also justification for creating this post in higher scale of pay of Rs. 4100-5300.

Simultaneously, there is also a need to create a post of Director [Finance & Accounts] in the scale of pay of Rs. 4100- 5300, a post that was in existence in NAA prior to the promotion of Mr. N.S.Parthasarathy to the post of Executive Director [F&A]. In this case also, the Chairman has directed that proposals should be put up to the Board for fresh creation of the post of Director [Finance & Accounts]. In this case also, a detailed note indicating the duties and job responsibilities of the post and also the need for creating this post/reviving the post should be brought out in this detailed note. Both these Board memos should be independent and the financial impact of these two creations may have to be ascertained from the Dy. Director [Finance] before the Board Memos are finalised.

Chairman desires that we prepare Board Memos on these two issues for being put at the next Board Meeting.

[N.C.KISHORE] Company Secretary"

4. Admittedly, the note dated 12.7.1990 only refers to the fact that the

recommendation is given for higher scale of pay for being favourably

considered by the administration. Same is the position as per the note dated

3.9.1990. Therefore surely there is no concluded contract with the petitioner

for him to get higher pay-scale because National Airport Authority of India

was functioning through the Board of Directors and there is no acceptance

by the board for higher pay scale to the petitioner. Recommendations by

anyone, unless accepted by the Board of Directors, cannot result in a higher

pay-scale merely and simply because some people in the organization deem

it fit that the Director (Administration) should get a higher pay-scale. The

same logic even applies to the note dated 3.9.1990 and the views of the

Chairman because Chairman of the National Airport Authority of India is

subservient to the Board and it is only the board which is the final authority

to decide the pay-scale. Counsel for the petitioner in spite of repeated

queries could not point out any resolution of the Board of Directors of the

National Airport Authority of India giving the specific higher pay-scale to

the petitioner as is being prayed for by him. Accordingly in absence of any

service rules of National Airport Authority of India or of any contractual

promise made out through the resolution of the Board of Directors of the

National Airport Authority of India, petitioner cannot get increased pay-

scale as is prayed for by him.

5. I may note that petitioner subsequently has got the higher pay-scale

w.e.f 20.5.1994, and petitioner is only claiming by this writ petition higher

pay-scale from 1.10.1990 to 20.5.1994.

6. So far as the issue of claim of higher pay-scale by invoking and

seeking to apply the doctrine of „equal pay for equal work‟ is concerned, it

was necessary for the petitioner to specifically plead and prove the following

four factors.

(i) Specifying that equivalence is being claimed with which post with the

post of Director (Administration) at which petitioner was working.

(ii) What are the qualifications of the two posts and that they are being

identical or more or less similar for the benefit of the pay-scale of other post

to be given to the petitioner.

(iii) What is the scope and nature of duties of a Director (Administration)

as compared with the Director (Pay and Accounts) or other directors of the

National Airport Authority of India with whom equivalence is claimed.

(iv) What is the hierarchy of promotion for the two posts to be considered

similar for application of the doctrine of „equal pay for equal work‟.

7. A reading of the writ petition shows that no averments have been

made as to qualifications of the posts of the Director (Administration) being

identical to that of Director (Pay and Accounts). Once qualifications are not

the same merely because certain duties in the two posts may be similar will

not help the petitioner to invoke and seek application for doctrine of „equal

pay for equal work‟. Being identical in qualifications is a major/vital

ingredient required to be established before seeking application of the

doctrine of „equal pay for equal work‟.

8. Finally, on behalf of the petitioner, it was argued for claiming of

higher pay-scale, that the circular of respondent no.2 dated 9.2.1998 was

arbitrary and illegal and equality is claimed of the petitioner to an Executive

Director. Once again, the necessary ingredients for application of the

doctrine of „equal pay for equal work‟ is not stated in the writ petition for

identity of an Executive Director with the Director(Administration) such as

the petitioner. Therefore, in the absence of pleadings, and much less of

proof in support thereof, petitioner cannot get a pay equivalent to an

Executive Director. I may note that there are various directors of various

subjects in every company, however, it cannot be and it is not the law that all

the directors merely because they are directors, should get the same pay-

scales.

9. In view of the above, though petitioner may have got a lesser pay-

scale than he had with his erstwhile employer at the time of his joining with

the respondent- National Airport Authority of India, however, in law

petitioner could have only got a higher pay-scale if there were service rules

of the employer entitling the higher pay-scales claimed or a Board of

Director‟s resolution existing entitling granting of a higher pay-scale, and

both of which aspects are missing in the facts of the present case.

10. In view of the above, the reliefs claimed in the writ petition cannot be

granted, and the same is therefore dismissed, leaving the parties to bear their

own costs.

OCTOBER 30, 2013                              VALMIKI J. MEHTA, J.
ib