Delhi High Court
Khazan Singh vs Dtc on 1 December, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on:15th September, 2017
Pronounced on: 1st December, 2017
+ W.P (C) No. 3174/2004
KHAZAN SINGH .... Petitioner
Through: Mr.Sudershan Rajan, Adv.
versus
DTC ..... Respondent
Through: Mr.Sarfaraz Khan, Adv.
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
JUDGMENT
%
1. There appears, on the face of it, to be so much vacillation, in the
stance of the petitioner in the present case from time to time, that it
would probably be best to "start at the beginning, and, when we come
to the end, stop" - to borrow the timely advice of the Mad Hatter to
Alice.
The Facts
2. This writ petition is directed against an Award, dated 27 th June
2003, of the learned Industrial Tribunal, Karkardooma (hereinafter
referred to as "the learned Tribunal"). Inasmuch as the other
applicants, before the learned Tribunal, have not chosen to challenge
the impugned Award, the recital of facts hereinafter, shall be limited
to the case of the petitioner. The petitioner was one of four Draftsmen,
employed by the respondent-Corporation, who initialized the
industrial dispute wherefrom the present proceedings emanate. There
is, however, considerable road to be covered, before we reach the
stage of such initialization.
3. The story, in a way, starts with the agitation, by Draftsmen, in
the Central Public Works Department (CPWD), for
enhancement/upward revision in the scales of pay being drawn by
them. The matter was referred, by the Ministry of Labour, to a 3-
member Board of Arbitration (hereinafter referred to as "the Arbitral
Board"), headed by a learned retired Judge of the Supreme Court,
Hon‟ble Jaswant Singh, J. It is not necessary to allude to the details of
the Award, dated 20th June 1980 (hereinafter referred to as "the
Arbitral Award"), which came to be delivered by the Arbitral Board;
suffice it to state that the operative portion, thereof, read thus:
"Having given its careful consideration to the whole of the material
on the record and having examined the merits of the case presented
both by the Official and Staff Sites, in the light of the entire material
and the arguments advanced by the aforesaid representatives of both
sides and having taken into account all other relevant factors,
including the special features of the case, the Board gives the
following Award: -
1. The Three categories of Draftsmen, viz. Grade III, Grade II
and Grade I shall be inducted in the Payscales showed hereunder
against each of the aforesaid categories:-
Draftsmen Grade III - Rs. 330-560
Draftsmen Grade II - Rs. 425-700
Draftsmen Grade I - Rs. 550-750
2. The above-mentioned categories of Draftsmen shall be fixed
notionally in their respective scales of pay as aforesaid from
1.1.1973 in accordance with the recommendations of the 3rd A
Commission in respect of weightage and fitment. But for
computation of arrears, the date of reckoning shall be the date of
recording of disagreement in the Departmental Council viz.
29.7.1977.
3. The arrears of pay which shall be worked out in accordance
with the above-mentioned formula shall be paid to the affected
employees within 3 months from the date of the receipt of the Award
by the Ministry of Labour."
It is essential, here, to note that, in the CPWD, there were three grades
of Draftsman, i.e. Draftsman Grade III, II and I, who possessed the
respective qualifications/experience of matriculation with 1 year‟s
experience, matriculation with 2 years-diploma in draftsmanship and
matriculation with 3-year diploma in Engineering. The position may
be depicted in a tabulated manner, as under:-
Post Qualification Scale as on Recommended
date of revised scale
Arbitral as per Award
Award
Draftsman Matriculation with 1 year‟s 260-430 330-560
Grade III experience
Draftsman Matriculation with 2 year- 330-560 425-700
Grade II diploma in draftsmanship
Draftsman Matriculation with 3-year 425-700 550-750
Grade I diploma in Engineering
As is clear from the operative portion of the Arbitral Award as
reproduced hereinabove, the aforementioned scales were directed to
be notionally granted with effect from 01st January 1973, with actual
arrears to be paid from 29th July 1977.
4. The petitioner was, admittedly a matriculate, who, after
matriculation, went on, in 1981, to acquire a 2-year diploma in
Draftsmanship. On the basis of the said qualification, the petitioner
who, at the time, was employed with the respondent as a conductor
applied for, and was appointed, Draftsman (Civil) on 24th September
1982, in the scale of Rs. 260-430. Thereafter, on 09th November 1982,
the pay-scale of the petitioner was raised to Rs.290-480. Neither of
these scales is palatable to the petitioner, who asserts that he was
entitled to be paid more. How, why, and to what extent, would
become clearer from the recital that follows hereinbelow.
5. On 24th September 1983, the petitioner was confirmed as
Draftsman (Civil), in the respondent-Corporation.
6. On 13th March 1984, an Office Memorandum was issued by the
Department of Expenditure, Ministry of Finance, conveying the
sanction of the Hon‟ble President of India to the extension, to
Draftsmen Grade III, Grade II and Grade I, in offices and departments
of the Government of India, other than the CPWD, to the revised
scales as recommended by the aforementioned Arbitral Award dated
20th June 1980 in the case of Draftsmen in the CPWD. This was
subject, however, to the condition that the recruitment qualifications
of such Draftsmen were similar to those stipulated in the case of
Draftsman in the CPWD. The benefits, of the revised scale were to be
made available notionally with effect from 13th May 1982, with actual
benefits to be disbursed from 01st January 1983. The OM deserves to
be reproduced, in extenso, as under:
"Subject: Revision of scales of Draftsmen Grade III, II and I in
all Government of India offices on the basis of the
Award of Board of Arbitration in the case of Central
Public Works Department.
-----------------------------------------------------------------------------------
The undersigned is directed to state that a committee of the National
Council (Joint Consultative Machinery) was set up to consider the
request of the Staff Side that the following revised scales of pay
allowed to the Draftsmen Grade I, I and III working in Central
Public Works Department on the basis of the Award of Board of
Arbitration may be extended to Draftsmen Grade III, II and I in all
Government of India offices:-
Original Sscale Revised Scale on
the basis of the
Award
Draftsmen Grade I Rs.425-700 Rs.550-750
Draftsmen Grade Rs.330-560 Rs.425-700
II
Draftsmen Grade Rs.260-430 Rs.330-560
III
2. The President is how pleased to decide that the scales of pay
of Draftsmen Grade III, II and I in Offices/Departments of the
Government of India, other than the Central Public Works
Department, may be revised as above provided their recruitment
qualifications are similar to those prescribed in the case of
Draftsmen in Central Public Works Department. Those who do not
fulfill the above recruitment qualification will continue in the pre-
revised scales. The benefit of this revision of scales of pay would be
given notionally with effect from 13.05.1982, the actual benefit being
allowed with effect from 1-11-1983.
3. Hindi version will follow."
7. On the face of it, the reliance of the petitioner, on the
aforementioned OM dated 13thMarch 1984, is misplaced, as para 2 of
the said OM clearly states that the decision of the Hon‟ble President,
as communicated thereby, was that "the scales of pay of Draftsman
Grade-III, Grade II and Grade I in offices -Department of the
Government of India, other than, the Central Public Works
Department may be revised as above....." whereas it is an admitted
position that, in the respondent-Corporation, there were no posts of
Draftsman Grade III, Grade II or Grade I; instead, there existed only
two posts, i.e. of Draftsman and Head Draftsman. Unlike the CPWD,
which had three Grades of Draftsman, the respondent-Corporation had
only two.
8. Or so has been the factual position conceded ad idem, from
1989 till 30th September 2017, when the present petition was argued
before me. Now, after the river has run dry, it is being sought to be
urged, by the petitioner, that there were, in fact, not two, but three
grades of Draftsmen in the CPWD; more on that, however, later.
9. On 01st March 1989, the petitioner and three fellow-workmen
employed with the respondent-Corporation addressed a representation,
to the Chairman-cum-Managing Director of the respondent, which
read thus:
" The qualification laid down in the D.R.T.A. (Conditions of
Appointment and Service) Regulations, 1952 for the post of
Draughtsmen is as under:
„Matric with Diploma
OR
Certificate in Draughtsmanship‟ (Civil)
The pay scale attached to this post prior to 1.1.1973 was Rs.
110-5-150-8-190-EB-10-220. This pay scale was revised to 260-8-
300-EB-8-340-10-390-EB-10-430 w.e.f. 1.7.1972 vide memo No
PLD/2479 dated 7.3.1974. This revision was based on the several
notifications issued by the Central Government and referred to in the
said Office Order dated 7.3.1974. In other words it may be stated
that this revision was on the basis of the recommendations given by
the IIIrd Pay Commission. The DTC subsequently revised this pay
scale to 290-480 and again to 322-522 w.e.f. 1.6.1983.
The DTC made a mistake in adopting the scales of
Draughtsmen i.e. 260-430 w.e.f. 1.1.1973. In fact Draughtsmen
(Gr-III) in Central Government were placed in the scale of Rs. 330-
560 w.e.f. 1.1.1973. On the basis of the Board of Arbitration (see a
Reference 02 of 1979) Govt of India vide circular No F.5 (59) - E.
111/82 dated 13.3.1984 revised the scale of Draughtsman of
different categories as under:
Original Sscale Revised Scale on
the basis of the
Award
Draftsmen Grade I Rs.425-700 Rs.550-750
Draftsmen Grade Rs.330-560 Rs.425-700
II
Draftsmen Grade Rs.260-430 Rs.330-560
III
On the other side several Draftsmen of Ordinance Factory
Organisation, Ministry of Defence filed an appeal no. 3121/1981 in
the Supreme Court. The Supreme Court accepted the appeal and
allowed replacement of scale of pay to 425-700 to those draftsmen
who were in the scale of Rs. 330-560. The Government of India vide
its circular dated 11.9.1987 decided to extend the benefit of
judgement to Draftsmen in other Ministries/Departments and
decided that those draftsmen who were placed in the pay scale of Rs.
205-280 prior to 1.1.1973 and were placed on the scale of Rs. 330-
560 based on the III Central Pay Commission be given the scale of
Rs. 425-700 w.e.f. 1.1.1973. The qualifications of the draftsmen in
the different cadre in the Central Government are as under:
Cadre
I. Matric plus 1 years experience.
II. Matric plus two-year diploma in draughtsmanship or its
equivalent.
III. Matric plus 3 years diploma in engineering or its equivalent.
IV. Degree in engineering or its equivalent.
V. Degree in engineering or its equivalent with experience.
Since the draftsmen of Grade-II & III were placed in the scale
of Rs. 425-700 and the draftsmen in the category of Gr-I were placed
in the scale of Rs. 550-750.
We the following Draftsmen working in the Delhi Transport
Corporation request you to revise our grades in the scale of Rs. 425-
700 w.e.f. 1.1.1973. The following documents in support of
submission are also enclosed:
1. Photostat copy of the award of Board of Arbitration (CA -
Reference No 2 of 1979).
2. Photostat copy of the circular No 12014 (4)/73-EW-2 dated
10.11.1980.
3. Photostat copy of the circular No F. 5 (59)-E.III/82 dated
13.3.1984.
4. Photostat copy of the circular No F.5 (13)/-E. III/87 dated
11.9.1987.
Thanking you."
10. Clearly, the claim of the petitioner, and his fellow workmen, as
reflected in the above representation dated 01st March 1989, was to be
extended the scale of Rs. 425-700 w.e.f. 1.1.1973, being the
replacement scale granted to Draftsmen Grade III, consequent upon
the Arbitral Award and the decision, of the Supreme Court, in Civil
Appeal 3121/1981.
11. It is an undisputed factual position that the scales of Rs. 330-
560 and Rs. 425-700 were replaced, by the 4th CPC, to Rs. 1200-2040
and Rs. 1400-2300, respectively w.e.f. 1st January 1986. The
petitioner, and his fellow Draftsmen in the respondent-Corporation
were, however, placed in a revised scale of Rs. 975-1660, vide order
dated 8th March 1991. This perceived anomaly prompted the
petitioner, and his fellow workmen, to address a further representation,
dated 29th of August 1991, to the respondent, which read as under:
" We, the following Draftsmen, would like to invite your kind
attention to our representation dated 4.7.1991 in this representation,
we have brought to the notice of the Corporation that our pay-scales
have not been made applicable as to recommendations of the 3rd Pay
Commission and as per the decision of Board of Arbitration (JCM)
(see a Reference No 2 of 1979) and orders issued by the Government
of India vide Memorandum No F.5 (59)-E.III/82 dated the 13th of
March 1984. In her memo No PLD-II/Draftsmen/89/7405 dated
24.11.1989, the Administrative Officer (PLD) has intimated to as
that it was not possible for the Corporation to consider our demand
as the matter for revision of pay structure of the DTC employees was
under consideration of the Government of India.
We have noted with great regret that when adopting the pay-
scales of IVth Pay Commission vide memo No PLD-V
(465)/91/1146 dated 8.3.1991, no attention has been paid to our said
representation in the pay scales in the range of Rs. 975-1660 has
been given. We have been demanding our scales at par with a
counter-parts in the Central Government right from the date the
recommendations of 3rd Pay Commission were adopted. We would
request you to please look into the matter and rectify wrong done, at
the earliest possible, failing which we shall have no other alternative
but to seek justice in the court of law.
Thanking you."
12. Consequent upon the aforementioned recommendations of the
4th CPC, the workers of the respondent-Corporation, through the DTC
Workers Union, moved WP (C) 320/1987, under Article 32 of the
Constitution of India, before the Supreme Court of India, seeking
issuance of "a writ of mandamus or direction to the respondent the
Delhi Transport Corporation to implement with effect from January 1,
1986 the recommendations of the Fourth Pay Commission as
approved by the Government of India to the Central Government
employees as per the undertakings given to its employees vide Office
Order No. PLD-IX(465)/83/10589 dated September 15, 1983 and
DGM (IR)/84/93 dated February 7, 1984." This writ petition came to
be decided on 2ndApril 1991, the judgment being subsequently
reported in and as D.T.C. Workers' Union v D.T.C., (1991) 2 SCC
618.
13. A brief recital of the circumstances in which the aforementioned
writ petition came to be filed before the Supreme Court, as they
emerge from a reading of the judgment, dated 2nd April 1991, passed
by the Supreme Court thereon, would be appropriate at this juncture. It
appears that, during the pendency of the consideration of the matter by
the 4th CPC, a Wage Group was constituted by the Government of
India for considering the demand for revision of pay scales of
employees of the DTC. The said Wage Group recommended revision
of pay scales of all Class-III and Class-IV employees of the DTC as an
interim measure, pending receipt of the report of the 4th CPC. These
revised scales, were therefore, in the nature of interim relief.
Simultaneously, interim relief was also announced by the Central
Government to the employees under it, whereupon certain Unions of
the DTC approached the Management opposing the new scales to be
introduced in their case and asking for interim relief at par with that
announced by the Central Government for its employees. The
employees of the Corporation were, in a circular dated 15 th September,
1982 given the option either to avail the benefit of interim relief and
retain their old pay scales, or avail the benefit of revised pay scales as
stipulated for the Corporation. It was clarified, to the agitating Unions
of the respondent Corporation, that (i) there was absolutely no
intention to delink the DTC from the Central Government pay
structure and DA pattern arbitrarily or unilaterally, (ii) if the 4th CPC
granted any further interim relief or benefit before the final report,
such benefit would be available to the DTC employees; (iii) the
differential in the "head start" now given in the pay scales should be
maintained even while implementing the scales recommended by the
4th CPC, and (iv) the pay scales recommended by the Working Group
would be enforceable for a period of four years or the receipt of report
of the Commission, whichever was earlier.
14. It was in these circumstances that the Office Order dated 7 th
February 1984, with reference whereto mandamus had been sought by
the DTC Workmen‟s Union from the Supreme Court, was issued. The
said Office Order, having set out the above facts, reiterated that the
differential "head statrt" given in the revised scales, would be
maintained even while implementing the scales recommended by the
4th CPC. It was further clarified, by the Office Order, that, while
fixing pay in the scales recommended by the 4th CPC, employees
coming over to the revised pay scales would be given due benefit of
Central Government Interim Relief, so as to ensure that they were not
a disadvantage because of their having opted for the revised scales.
15. The Supreme Court, dealing with the issue, ruled thus, in paras
6 and 7 of the judgment as reported in DTC Workmen Union
(supra):.
"6. A careful reading of the order dated February 7, 1984 shows
that certain interim benefits were granted to the employees preceding
the introduction of the new pay scale on the basis of the
recommendations of the Fourth Pay Commission. These benefits
which were either in the nature of an additional payment or a revised
interim pay scale were intended to cover the period preceding the
introduction of the regular pay scale which came into effect on
January 1, 1986. The order further shows that the Corporation was to
carry the same pay structure and DA pattern as in the case of the
government employees in the corresponding categories. All benefits
granted by the Fourth Pay Commission in the nature of interim
reliefs were also to be made available to the Corporation employees.
The interim reliefs granted by the Corporation in the nature of what
is imprecisely referred to as "head start" were to be maintained in
implementing the scales recommended by the Fourth Pay
Commission. The figures worked out in the penultimate paragraph
of the Report indicate that whether the employees were retained on
the original pay scale with the additional emoluments by way of
interim relief or they had, as in the instant case, opted for the revised
interim scale, they should suffer no loss by reason of the option they
had exercised. But the overriding consideration behind the order
dated February 7, 1984 is that, as in the case of all government
employees, so in the case of the Corporation employees, the new
scale recommended by the Fourth Pay Commission should be fully
implemented. Whatever may be the amounts actually payable in
terms of the interim reliefs, the employees of the Corporation should
neither be paid less nor more than the government employees in the
corresponding categories.
7. This means that all employees, whether retained on the
original pay scale or placed on the revised interim pay scale during
the period preceding January 1, 1986, will be placed on the pay scale
adopted as per the recommendations of the Fourth Pay Commission
in such a way that they will be fitted exactly in positions
corresponding to their positions on the earlier pay scales. But the
corresponding positions in the new pay scales will naturally carry
better emoluments, so as to maintain parity with the government
employees in like categories."
16. Contending that, by virtue of the aforementioned judgment in
DTC Workmen's Union (supra), the recommendations of the 4th CPC
were required to be extended, in their entirety, to employees of the
respondent Corporation as well, the petitioner, and three other
workmen, raised an industrial dispute through their Union which was
referred to the learned Tribunal vide reference dated 27th January,
1992. The claimant-workmen also raised the question of their
entitlement to promotion to the next Grade. As such the reference,
made by the Secretary (Labour) Government of NCT of Delhi to the
learned Tribunal contained the following terms of reference,
"Whether S/Sh. R.K. Ghosh, B.K. Sharma, Khazan Singh and
Smit. Usha Sharma are entitled to the pay scale of draftsman Gr.
III recommended by the pay commission from time to time and
if so, to what relief including promotion to next grade are they
entitled and what directions are necessary in this respect?"
17 It is important to mention, here, that no cavil, with the above
extracted term of reference, as drawn up in contained in the Reference
Order dated 25th January 1993 supra, has been expressed by the
petitioner, or his fellow-applicants before the learned Tribunal, at any
stage. Clearly, therefore, the issue referred to the learned Tribunal, for
adjudication and decision, was the entitlement, of the petitioner, and
his fellow-workmen, to the pay scale of Draftsman Grade III, as
granted/recommended by the various Pay Commissions, from time to
time.
18. The claimant-workmen filed a Statement of Claim, before the
learned Tribunal, on around 15th April 1993. Notably, paras 17 to 19
thereof read as under:
"17. That the draughtsman employed in DTC are having the same
level of skill educational qualification and strength of
responsibilities as done by draftsmen grade III employed in other
Central Government Servants.
18. That is the duties performed on the responsibilities discharged
by Draftsmen Gr. III/employed in DTC are identical in skill etc to
those assigned to an performed and discharged by their counterparts
in other departments and organisations of the Government of India.
19. There is no justification whatsoever for denying the
draftsmen Gr. III in DTC the benefit of grade in terms of 4th Pay
Commission report." (Emphasis supplied)
The prayer clause, in the Statement of Claim, read thus:
" It is prayed that an award be passed directing Rs. 330-560 to
the draftsmen grade III from 1.1.1973 in terms of recommendations
of 3rd pay commission.
` ii) Gave the Pay Scale of Rs. 1400-2300 from 1.1.1986 as
recommended by 4th pay commission recommendations and as
undertaken by DTC in writ petition No 300 of 1987 before the
Supreme Court.
iii) Promote Draftsmen Grade III they have served in DTC as Gr.
III Drafts for the last 20 years but we have not been placed on
Grade-II although they fulfil all the qualifications. They may be
granted the pay of II grade Draftsmen. The management be directed
to pay the above named Draughtsman in the scale of Rs. 1400-40-
1800-EB-50-2300."
19. Though the aforementioned Statement of Claim, as filed by the
petitioner and his fellow-workmen before the learned Tribunal, was
delightfully vague and ambivalent in its recitals, the long and short of
the claim appears to have been, for grant of the pay scale available to
Draftsmen Grade III, in Central Government departments, for
promotion to Grade II and, consequent, thereupon, grant of the pay
scale applicable to the said grade.
20. The respondent-Corporation filed a written statement, opposing
the aforementioned Statement of Claim filed by the petitioner and his
fellow workmen. Apart from raising certain preliminary objections,
regarding jurisdiction, locus etc., the respondent-Corporation asserted,
on merits, that its entire set up was different from that of the Central
Government in that there were, in the respondent-Corporation, no
posts of Draftsman Grade I, II and III; instead, the Recruitment Rules
applicable to the corporation provided only for the posts of Draftsman
and Head Draftsman. As such, it was asserted that the OM, dated 13th
March 1984, of the Department of Expenditure, would also not apply
to the respondent-Corporation, the grades of Draftsman stipulated
therein being entirely absent in its organization. The respondent-
Corporation adopted the stand that, consequent on the
recommendations of the 3rd CPC, it had awarded, to the Draftsmen
employed with it, the nearest equivalent replacement pay scale (as
recommended by the CPC), corresponding to the existing scale of pay
of that category of Draftsman. As such, Draftsmen in the respondent-
Corporation, it was asserted, were granted the revised pay scale of Rs.
260-430, i.e. Rs. 975-1660, whereas Head Draftsmen were granted the
replacement pay scale of Rs. 425-700, i.e. Rs. 1400-2300.The
assertion, of the petitioner and his colleagues, that their duties were
equivalent, or similar, to those discharged by Draftsman-III in the
CPWD, was also denied. In view of its distinct organizational
structure, which was different from CPWD, it was contended that the
prayer in the Statement of Claim was misconceived.
21. The claimant-workmen filed a rejoinder to the said reply of the
respondent-Corporation, which does not contain anything substantial,
and was merely in the nature of a non-speaking traversal.
22. During the pendency of the said reference before the learned
Tribunal, the 5th CPC rendered its recommendations in 1996, whereby
the scales of Draftsman Grade III, Draftsman Grade II, Draftsman
Grade I in the CPWD were revised as under:
Post Pre-revised (Rs.) Revised (Rs.)
Draftsman Grade III 1200-2040 4000-6000
Draftsman Grade II 1400-2300 5000-8000
Draftsman Grade I 1640-2900 5000-9000
23. Affidavit-in-evidence was filed by the petitioner, as Ex.WW-
1/A and affidavit-in-evidence of Mr J.R. Rana, who appeared as MW-
1 on behalf of the respondent was filed as Ex. MW-1/A.
24. The petitioner while reiterating this claim in his affidavit,
emphasized that the illegality in fixation of scales, at the end of the
respondent, commenced with the grant, to him and his fellow
Draftsmen in the respondent-Corporation, of the scale of Rs.260-430
instead of Rs. 330-560 to which, in his submission, they were entitled
in view of their being matriculates with a 2-years‟ diploma in
Draftsmanship. These qualifications, it was emphasized, placed them
at par with Draftsman Grade II in the CPWD and other Central
Government Departments, whose pay scale was fixed as Rs.330-560.
The initial erroneous fixation of their pay in the scale of Rs.260-430, it
was submitted, resulted in a cascading effect, with each subsequent
revision of pay scales. Pursuant to the 4th CPC, it was submitted, the
petitioner and his fellow Draftsmen in the respondent-Corporation
were entitled to the revised scale of Rs.1200-2040 which, too, was not
granted to them. These acts of the respondent-Corporation, it was
sought to be submitted, transgressed the undertaking given by the
Supreme Court in DTC Workers Union (supra).
25. Per contra, the affidavit of J.R. Rana (MW1), predictably
highlighted the difference, in the cadre of Draftsman, in the
respondent-Corporation, as compared to other Central Government
Departments including the CPWD. The fact that there were, in the
respondent-Corporation, only two levels of Draftsman, i.e. Draftsman
and Head-Draftsman, was emphasized, to contend that the entire "set
up" in the respondent-Corporation was different from that of the
CPWD. Even though the organizational structure of the respondent-
Corporation was distinct and different, it was sought to be submitted,
consequent to the recommendations of the 3 rd CPC, the nearest
replacement scale, of Rs.260-430 had been extended to the Draftsmen
working with it. There was, it was submitted, no justification for the
said Draftsmen to claim the same scales as were granted to Draftsman
Grade III in the CPWD. In fine, it was reiterated that, in the
respondent-Corporation, there were Draftsmen and Head Draftsmen,
in the pre-revised scales of Rs.290-480 and Rs.425-700, which
pursuant to the 4th CPC, were revised to Rs.975-1660 and Rs.1400-
2300. Nothing illegal, it was submitted, could be said to exist therein.
26. In the proceedings before the learned Tribunal, the workmen led
the evidence of the petitioner and Kundan Lal as WW-1 and WW-2
respectively, whereas the respondent-Corporation led the evidence of
J.R. Rana alone as MW-1. It is not necessary to refer to the
examination and cross examination of the said witnesses, as nothing
substantial turns thereon.
27. The learned Tribunal, after adumbrating the aforementioned
facts proceeded, vide the impugned award dated 27th June 2003, to
reject the claim of the petitioner and his fellow workmen. In so doing,
the learned Tribunal proceeded on the reasoning that, as against three
levels of Draftsmen in CPWD, there were only two levels of
Draftsmen in the respondent-Corporation i.e. Draftsman and Head
Draftsman, thereby revealing that the "set up" in the respondent-
Corporation was fundamentally different from that obtaining in the
CPWD and other Central Government departments. It was further
observed that the workmen had failed to produce any material to
parallelize their work or their organizational structure with those of
Draftsmen in the CPWD. They, therefore, had failed to establish their
entitlement to the scale of Rs.330-560 with effect from 01st June 1983
or to higher replacement/revised scales from time to time. The prayer
for promotion to Grade-II was also rejected on the ground that there
was no such Grade in the respondent-Corporation. Paras 10 to 13 of
the impugned award, which contains the findings of the learned
Tribunal, may, for ready reference, be reproduced as under:
"10. I have carefully gone through the evidence led by the parties.
The workmen has deposed that the scale was revised from 290-480
to 322-522 w.e.f. 1-6-83 but no such order has been placed on the
record whereas the management has categorically admitted that the
pay was revised from one-6-83 but it has not denied the revision of
pay scale from 290-480 322-522. The workmen have claimed that
they were not awarded the scale of 1200-30-1560-EB-40-2040. The
IV pay commission‟s report has not been brought on record though it
is admitted case of the parties that pay scale of Rs. 1200-30-1560-
EB-14-2040 is the corresponding scale of 330-560. During the
course of arguments, the argument advanced is that the workmen
were entitled to the pay scale of 330-560 on the basis of 3rd pay
commission but they were awarded only Rs. 260-430. However,
subsequently that was revised to 322-522 and they were not given
the scale of 330-560 which they were entitled. The claim of
Workman is based upon the plea that their work is equivalent to
work done by draftsmen in CPWD whereas they are not being
awarded the pay scale of draftsmen given in CPWD. The document
Ex. WW 1/1 shows that the 3 types of draftsmen. Category 1 is of
the Draftsman having pay scale of 425-700, category 2 of draftsmen
is having pay scale of 330-560 and 3rd category i.e. Draftsman Grade
III is having pay scale of 260-430. Whereas the clear-cut case
established by the management is that there are only 2 categories in
the DTC 1st category is draftsmen and 2nd is Head draftsmen. The
draftsmen were awarded the pay scale of 322-522 w.e.f. 1-6-83 and
Held Draftsmen were enjoying the scale of 425-700. The admitted
case of the parties is that so far as the Held Draftsmen are concerned
they were being paid the scale of Draftsman grade IV in CPWD and
after the recommendation for a commission, they were being paid in
the pay scale of 1400-2300.
11. The only dispute confined is whether the draftsmen in the
DTC are entitled for the pay scale of 330-560 from one-6-83. As
discussed above, it is established on the record that there were 2
categories of draftsmen in CPWD i.e. Cat. II and Cat. III.
Admittedly, category II and category III of Draftsman by having the
pay scale of 330-560 but category III was having the skill of 260-430
whereas the draftsmen with the management i.e. DTC is having only
one category as compared to 2 categories in CPWD and they were
awarded the pay scale of 322-522. In the different setup of working
in CPWD and present management i.e. DTC, the workmen have
failed to brought any material to establish that their work and
structure is comparable with the draftsmen in CPWD. In other
words, workmen have failed to establish that they are entitled for pay
scale of 330-560 w.e.f. 1-6-83.
12. So far as the claim for pay scale of Rs. 1400-2300 is
concerned, the workmen have failed to establish that how they are
entitled for the scale from 1-1-87. The workmen have failed to
brought schedule showing the corresponding scale. However, the
authorised representative of management has vehemently argued that
the scale of 1400-2300 is the corresponding scale of Rs. 425-700.
13. The 3rd claim made by the Workman‟s promotion of
Draftsmen Grade II. But as discussed above, the management has
categorically stated that there are only 2 categories. One is
draughtsman and other is Head draughtsman. Consequently, it is
held that Workman has failed to establish the categories of Grade III
and Grade II what to say about promotion from Grade III to Grade II.
14. Consequently, in the light of above-mentioned discussion, this
held that the workmen have failed to establish its claims and so there
are not entitled for any relief. Award is passed accordingly. File be
consigned to record room."
28. Of the workmen who had moved the Tribunal, the petitioner
alone has approached this Court thereagainst, by way of the present
writ petition.
29. The petitioner has, in the writ petition, sought to make out an
entirely new case, totally distinct from the claim that formed the
subject matter of the proceedings before the learned Tribunal. The
claim of the petitioner, in the writ petition, is for the scale of
Draftsmen Grade-II in the CPWD, i.e. Rs. 425-700, w.e.f. 01st January
1973 and Rs. 1400-2300 with effect from 01st September 1986. The
prayer clause in the writ petition reads as under:-
"Prayer
It is, therefore, most respectfully prayed that this Hon‟ble Court may
be pleased to:
Set aside award dated 27.06.2003 (Annexure-B) and direct
respondent to pay to the petitioner the pay scale of Rs. 425-700
w.e.f. 01.01.1973 and the pay scale of Rs. 1400-2300 w.e.f.
01.01.1986 as recommended by IV pay commission and further as
revised from time to time by various pay commissions with arrears
of salary with interest by issuance of writ of Certiorari, mandamus or
any other writ, rule, order or direction.
Any other relief as deemed fit in the facts and circumstances of the
case may also be passed in favour of the petitioner".
30. Where, therefore, the claim of the petitioner, and his fellow-
workmen, in the Statement of Claim filed by them before the learned
Tribunal, was, quite categorically, for being granted the scale of
Draftsman Grade III in the CPWD and other Central Government
Departments, i.e. Rs 330-560, the writ petition prays for grant of the
scale of Draftsman Grade II w.e.f. 1st January 1973 and thereafter.
The fact that the case being sought to be canvassed by the petitioner,
in his writ petition, is fundamentally different from that ventilated in
the Statement of Claim filed before the learned Tribunal, is further
apparent from paras 5, 7, 10, 11 and 13 of the writ petition, which are,
for ready reference, reproduced as under:
"5. While working as conductor petitioner applied to DTC for
being appointed to the post of Draftsman (Civil) as he was eligible
for the same. By order dated 24-9-1982 petitioner was appointed as
draftsman (Civil) on probation of one year. Petitioner was given the
pay scale of 260-8-300-10-430. This scale was given to the
Draftsman Grade-III in CPWD whose qualification was
matriculation plus one-year experience. As already stated above
that the petitioner was having the qualification of matriculation plus
two-year diploma in draftsmanship, which is the qualification for
Draftsman Grade-II in CPWD, Government of India and pay-scale
applicable to it is Rs. 300-560.
7. Petitioner completed his probation successfully and was
confirmed as draftsman (Civil) with effect from 24-9-1983. He
continued to get the same pay scale as above. It may be mentioned
here that on representation by the some of the workmen of Union of
India regarding revision of pay scale the Ministry of Labour referred
the dispute to the arbitrator for adjudication whose chairman was
Justice Jaswant Singh. By award dt. 20-6-1980, the Board of
Arbitrators categorized the draftsmen on the basis of their
qualifications and fixed their pay scale as under:-
Level Qualification for Direct Recruitment
I Matric plus one year‟s experience
II Matric plus two year diploma in Draftsmanship
or its equivalent
III Matric plus three year diploma in engineering
or its equivalent
The three categories of Draftsmen viz. Grade III, Grade II and Grade
I shall be included in the pay scales shown hereunder against each of
the aforesaid categories.
Draftsmen Grade III Rs.330-560
Draftsmen Grade II Rs.425-700
DraftsmenGrade I Rs.550-750
In this award the draftsmen having qualification of matric and 2
year diploma were categorized as Draftsman Grade-II and their pay
scale was fixed at Rs. 425-700 w.e.f. 1-1-1973 notionally but for
computation of arrears the date of reckoning was fixed from 29-7-
1977. The original scale of 425-700 was 330-560. Govt. of India by
a memorandum dated 13-3-1984 implemented the award dated 20-6-
1980. Copy of order dated 13-3-1984 is Annexure-A hereto.
10. In 1992 the petitioner, herein, alongwith certain other
draftsman of DTC raised an Industrial Dispute that they were
entitled to the pay scale as applicable to the Draftsman Grade-II and
as recommended by the Pay Commission from time to time. DTC
contested the claim of petitioner and other draftsmen on the ground
that in DTC there were only Head Draftsmen and Draftsmen and
there was no classification of Grade-I, II and III.
11. In 1996 while the dispute was still pending, at the
recommendation of the 5th Pay Commission the scale of Rs. 1400-
2300 was revised to Rs. 5000-8000 an the pay scale of Draftsmen
Grade-1 was revised from Rs. 1640-2900 to Rs. 5500-9000 and pay
scale of Grade-III was revised from 1200-2040 to 4000-6000. Since
the qualification of the petitioner was that of Draftsmen Grade-II in
CPWD and they were entitled to the same pay scale as applicable to
them and as revised from time to time by various Pay Commissions,
he denied the allegations of DTC by filing rejoinder.
13. Since the award dated 27.06.2003 of the Industrial Tribunal
has failed to consider that the qualification of the petitioner and
other draftsmen was equivalent to that of Draftsmen Grade-II of
CPWD and such they were entitled to similar pay scale, the same is
wrong, illegal, without considering the evidence on record, arbitrary
and unconstitutional and liable to be set aside". (Emphasis supplied)
31. Clearly, the above extracted paras from the writ petition seek to
make out a case of entitlement, of the petitioner, to the pay-scale being
granted to Draftsman Grade-II in the CPWD, as opposed to the claim
in the Statement of Claim, filed before the learned Tribunal which
was, specifically, for grant of the pay-scale of Draftsman Grade III in
the CPWD. The averment, in the above extracted passages from the
writ petition (as reflected by the italicized portions thereof), that the
petitioner had, before the learned Tribunal, raised an industrial dispute
for being granted the pay scale of Draftsmen Grade II in the CPWD, is
obviously incorrect and, in fact, misleading - especially as no copy of
the Statement of Claim has been filed with the writ petition. In the
circumstances, the contention, of the petitioner, in para 13 of the writ
petition that "since the award dated 27.06.2003 of the Industrial
Tribunal has failed to consider that the qualification of the petitioner
and other draftsmen was equivalent to that of Draftsmen Grade-II of
CPWD and such they were entitled to similar pay scale, the same is
wrong, illegal, without considering the evidence on record, arbitrary
and unconstitutional and liable to be set aside" is, consequently,
equally misleading. The learned Tribunal can hardly be faulted for not
considering a case which was never put before it.
32. The respondent-Corporation had filed a counter-affidavit, in
response to the writ petition, which, it needs to be regretfully stated,
was extremely unsatisfactory, and do not address any of the relevant
issues in the case. All that the said affidavit seeks to aver, by way of
rebuttal to the averments contained in the writ petition, is by way of a
bold denial of the contention that the petitioner was performing the
same duties, in the respondent - Corporation, as were being performed
by Draftsman Grade II in the CPWD.
33. The petitioner has not chosen to file any rejoinder to the said
counter affidavit. Given the absolutely skeletal nature of the counter
affidavit, he can hardly be faulted for not having done so.
34. Written submissions have been filed by the petitioner as well as
respondent, on more than one occasion, and the petition has also been
argued before me at length.
35. In his written submissions dated 28th September 2015, the
petitioner, for the first time, sought to contend that, as per the Delhi
Transport Corporation (Scales of Pay) Regulations, 1992, there were
three grades of Draftsman in the DTC, whose pay scales could, in a
tabulated manner, be depicted thus:
Sl. No. Category Existing Pay Revised Pay
Scale Scale
1. Draftsman 290-480 950-1500
2. Draftsman Gr.I 380-500 1320-2040
3. Head Draftsman 425-700 1400-2300
As such, the contention, of the respondent, that there were only two
grades of Draftsman in the DTC, it is sought to be contended, was
incorrect. Interestingly, immediately following the aforementioned
assertion, it is contended, in the said written submissions, that the
claim of the petitioner was "that his post being the lowest term of
Draftsman in DTC, was comparable to Draftsman Grade-III in the
CPWD". As such, the written submissions seek to contend, the pay
scale of Rs.290-480 granted to the petitioner, was required to be
replaced by Rs.330-560 as per the OM dated 13th March 1984 supra.
By this submission, the petitioner has effectively abandoned the case
set up by him the writ petition i.e., for being granted the scale of
Draftsman Grade II in the CPWD, and has, apparently, reverted to his
original claim, as raised in the Statement of Claim filed before the
learned Tribunal, for being granted the grade of Draftsman Grade-III
in the CPWD.
36. Reliance was also placed, in the written submission of the
petitioner, on the Delhi Transport Authority Act 1958, and the Delhi
Road Transport Authority (Conditions of Appointment & Services)
Regulations 1952, as well as Delhi Transport Corporation (Scales of
Pay) Regulations 1992, to contend that, right from its inception,
administrative control over the respondent-Corporation was that of the
Central Government, to the extent that even when, for some time, the
respondent-corporation was under the MCD, the pay scale extended to
its employees used to be equivalent to that of Central Government
employees.
37. The petitioner further relied, in his written submissions dated
28th September 2015, on U.O.I. v Debashish Kar (1995) Supp 3 SCC
528, wherein the Supreme Court upheld the judgment of the Central
Administrative Tribunal, to extend, to tracers in the EME of the
Ministry of Defence the scale of Rs.330-560, as was made available
vide the O.M. dated 13th March 1984 (supra). As such, the petitioner
has sought to contend that the nomenclature of the posts was irrelevant
and that what mattered was the qualification, i.e. matriculation with 2
years‟ diploma in Draftsmanship, which was the basis for grant of
relief by the Supreme Court in Debashis Kaur (supra) as well.
38. The petitioner also referred, in the written submissions, to a
subsequent OM dated 19th October 1994, which, too, he submits, was,
in law, available to him; however, no such case having been raised
before the learned Tribunal, refrain from expressing any opinion on
the said OM, or its availability to the petitioner.
39. In response, the respondent-corporation filed written
submissions dated 14th September 2015; however, as they merely
reiterate the findings of the learned Tribunal, it is not necessary to
burden this judgment with any detailed allusion thereto.
40. The petitioner also filed a "brief written synopsis", on 22nd
September 2017, which merely reiterated the assertion that there were,
in fact, three grades of Draftsman in the respondent-corporation and
not two grades as the respondent had sought to contend. Apparently
without prejudice, the said submissions further aver that, as the
petitioner was claiming parity with Draftsman Grade III, which had
been revised to Rs.330-560, the issue of whether there were two
grades or three grades of Draftsman in the DTC, was immaterial. He
also emphasized the undertaking, given by the DTC, to the effect that
it would extend, to its employees, the pay scales recommended by the
CPC.
41. The respondent, too, filed a "brief synopsis" dated 22nd
September 2017, by way of response thereto, contending as under:
(i) The OM dated 13th March 1984supra, issued by the
Department of Expenditure, specifically stated that it applied to
offices of the Government of India. The DTC was not an office
of the Government of India in view of Office Order No.8 dated
07th August 1996, which stated that, with effect from 05 th
August 1996, the Hon‟ble President had delegated the powers
of the Central Government, in respect of the respondent-
Corporation, to the Lieutenant Governor of the National Capital
Territory of Delhi. As the OM dated 13th March 1984, was not
adopted by the DTC, it was contended that no benefit, thereof,
could be availed of by the petitioner. Reliance was also placed,
for this purpose, on the judgment of this Court in Balbir Singh
v DTC in W.P (C) 3634/2012.
(ii) Autonomous bodies were not bound to adopt the
recommendations of the CPC, as held by the Supreme Court in
Surya Narayana Sahoo v C.S.I.R., (1988) 2 SCC 162.
(iii) The contention, of the petitioner, that there were three
grades of Draftsman in the respondent-Corporation, was denied,
and the stand that there were only two such Grades - Draftsman
and Head Draftsman, was reiterated. For this purpose, the
statement showing the various categories of posts, pay scales
and qualifications, as drawn up by the respondent-Corporation
itself, was annexed, which, admittedly, shows only two
categories of Draftsman i.e. Draftsman and Head Draftsman. No
evidence, to support his claim for parity, in pay, with Draftsman
Grade III in the CPWD had been adduced by the petitioner.
(iv) The judgment in Debashis Kar (supra), relied upon by
the petitioner, was of no avail for him, as the OM, dated 13th
March, 1984, did not apply to the respondent-Corporation, by
virtue of its not being an office of the Government of India.
(v) The set up of the cadre of Draftsman in the respondent-
Corporation was different from that which existed in the CPWD
and Central Government Departments.
42. During arguments before me, both counsel especially reiterated
the aforementioned contentions already advanced in the written
submissions filed by them.
Analysis
43. Viewed any which way, the petitioner has, unfortunately, no
case.
44. First, to address the issue of whether the claim of the petitioner
can be sustained by applying the "equal pay for equal work" principle,
i.e., on the doctrine of parity of pay.
45. The last word on the parity of pay principle, at least till date,
stands said, by the Supreme Court, in its recent judgment in State of
Punjab v Jagjit Singh, (2017) 1 SCC 148. Paras 41.1 to 42.17 of the
report, which are illuminatingly self speaking, may be reproduced, to
advantage, as under:
"42.1 The "onus of proof" of parity in the duties and responsibilities
of the subject post with the reference post under the principle of
"equal pay for equal work" lies on the person who claims it. He who
approaches the court has to establish that the subject post occupied
by him requires him to discharge equal work of equal value, as the
reference post (see Orissa University of Agriculture & Technology
v. Manoj K Mohanty, (2003) 5 SCC 188, U.T Chandigarh, Admn.
v. Manju Mathur, (2011) 2 SCC 452 : (2011) 1 SCC (L&S) 348,
SAIL v. Dibyendu Bhattacharya, 2011) 11 SCC 122 : (2011) 2 SCC
(L&S) 192 and National Aluminium Co. Ltd. v. Ananta Kishore
Rout, (2014) 6 SCC 756 : (2014) 2 SCC (L&S) 353).
42.2 The mere fact that the subject post occupied by the claimant is
in a "different department" vis-à-vis the reference post does not have
any bearing on the determination of a claim under the principle of
"equal pay for equal work". Persons discharging identical duties
cannot be treated differently in the matter of their pay, merely
because they belong to different departments of the Government (see
Randhir Singh v. U.O.I., (1982) 1 SCC 618 : 1982 SCC (L&S) 119
and D.S. Nakara v. U.O.I., (1983) 1 SCC 305 : 1983 SCC (L&S)
145).
42.3 The principle of "equal pay for equal work", applies to cases
of unequal scales of pay, based on no classification or irrational
classification (see Randhir Singh v. U.O.I., (1982) 1 SCC 618 :
1982 SCC (L&S) 119). For equal pay, the employees concerned with
whom equation is sought, should be performing work, which besides
being functionally equal, should be of the same quality and
sensitivity (see Federation of All India Customs and Central Excise
Stenographers v. U.O.I., (1988) 3 SCC 91 : 1988 SCC (L&S) 673,
Mewa Ram Kanojia v. All India Institute of Medical Sciences,
(1989) 2 SCC 235 : 1989 SCC (L&S) 329, Grih Kalyan Kendra
Workers' Union v. U.O.I., (1991) 1 SCC 619 : 1991 SCC (L&S)
621 and S.C Chandra v. State of Jharkhand, (2007) 8 SCC 279 :
(2007) 2 SCC (L&S) 897 : 2 SCEC 943).
42.4 Persons holding the same rank/designation (in different
departments), but having dissimilar powers, duties and
responsibilities, can be placed in different scales of pay and cannot
claim the benefit of the principle of "equal pay for equal work" (see
Randhir Singh v. U.O.I., (1982) 1 SCC 618 : 1982 SCC (L&S) 119,
State of Haryana v. Haryana Civil Secretariat Personal Staff Assn.,
(2002) 6 SCC 72 : 2002 SCC (L&S) 822 and Hukum Chand Gupta
v. ICAR, (2012) 12 SCC 666 : (2013) 3 SCC (L&S) 493). Therefore,
the principle would not be automatically invoked merely because the
subject and reference posts have the same nomenclature.
42.5 In determining equality of functions and responsibilities under
the principle of "equal pay for equal work", it is necessary to keep in
mind that the duties of the two posts should be of equal sensitivity,
and also, qualitatively similar. Differentiation of pay scales for posts
with difference in degree of responsibility, reliability and
confidentiality, would fall within the realm of valid classification,
and therefore, pay differentiation would be legitimate and
permissible (see Federation of All India Customs and Central
Excise Stenographers v. U.O.I., (1988) 3 SCC 91 : 1988 SCC
(L&S) 673 and SBI v. M.R Ganesh Babu, (2002) 4 SCC 556 : 2002
SCC (L&S) 568).The nature of work of the subject post should be
the same and not less onerous than the reference post. Even the
volume of work should be the same. And so also, the level of
responsibility. If these parameters are not met, parity cannot be
claimed under the principle of "equal pay for equal work" (see State
of U.P. v. J.P. Chaurasia, (1989) 1 SCC 121 : 1989 SCC (L&S) 71
and Grih Kalyan Kendra Workers' Union v. UO.I, (1991) 1 SCC
619 : 1991 SCC (L&S) 621).
42.6 For placement in a regular pay scale, the claimant has to be a
regular appointee. The claimant should have been selected on the
basis of a regular process of recruitment. An employee appointed on
a temporary basis cannot claim to be placed in the regular pay scale
(see Orissa University of Agriculture & Technology v. Manoj K
Mohanty, (2003) 5 SCC 188 : 2003 SCC (L&S) 645).
42.7 Persons performing the same or similar functions, duties and
responsibilities, can also be placed in different pay scales. Such as -
"selection grade ", in the same post. But this difference must emerge
out of a legitimate foundation, such as - merit, or seniority, or some
other relevant criteria (see State of UP. v. J.P. Chaurasia, (1989) 1
SCC 121 : 1989 SCC (L&S) 71).
42.8 If the qualifications for recruitment to the subject post vis-à-
vis the reference post are different, it may be difficult to conclude
that the duties and responsibilities of the posts are qualitatively
similar or comparable (see Mewa Ram Kanojia v. All India Institute
of Medical Sciences, (1989) 2 SCC 235 : 1989 SCC (L&S) 329 and
State of W.B. v. Tarun K. Roy, (2004) 1 SCC 347 : 2004 SCC
(L&S) 225). In such a case the principle of "equal pay for equal
work" cannot be invoked.
42.9 The reference post with which parity is claimed under the
principle of "equal pay for equal work" has to be at the same
hierarchy in the service as the subject post. Pay scales of posts may
be different, if the hierarchy of the posts in question, and their
channels of promotion, are different. Even if the duties and
responsibilities are same, parity would not be permissible, as against
a superior post, such as a promotional post (see U.O.I. v. Pradip
Kumar Dey, (2000) 8 SCC 580 : 2001 SCC (L&S) 56and Hukum
Chand Gupta v. ICAR, (2012) 12 SCC 666 : (2013) 3 SCC (L&S)
493).
42.10 A comparison between the subject post and the reference post
under the principle of "equal pay for equal work" cannot be made
where the subject post and the reference post are in different
establishments, having a different management. Or even, where the
establishments are in different geographical locations, though owned
by the same master (see Harbans Lal v. State of HP, (1989) 4 SCC
459 : 1990 SCC (L&S) 71). Persons engaged differently, and being
paid out of different funds, would not be entitled to pay parity (see
Official Liquidator v. Dayanand, (2008) 10 SCC 1 : (2009) 1 SCC
(L&S) 943).
42.11 Different pay scales, in certain eventualities, would be
permissible even for posts clubbed together at the same hierarchy in
the cadre. As for instance, if the duties and responsibilities of one of
the posts are more onerous, or are exposed to higher nature of
operational work/risk, the principle of "equal pay for equal work"
would not be applicable. And also when the reference post includes
the responsibility to take crucial decisions, and that is not so for the
subject post (see SBI v. M.R. Ganesh Babu, (2002) 4 SCC 556 :
2002 SCC (L&S) 568).
42.12 The priority given to different types of posts under the
prevailing policies of the Government can also be a relevant factor
for placing different posts under different pay scales. Herein also, the
principle of "equal pay for equal work" would not be applicable (see
State of Haryana v. Haryana Civil Secretariat Personal Staff Assn.,
(2002) 6 SCC 72 : 2002 SCC (L&S) 822).
42.13 The parity in pay, under the principle of "equal pay for equal
work", cannot be claimed merely on the ground that at an earlier
point of time the subject post and the reference post, were placed in
the same pay scale. The principle of "equal pay for equal work" is
applicable only when it is shown, that the incumbents of the subject
post and the reference post, discharge similar duties and
responsibilities (see State of W.B. v. W.B. Minimum Wages
Inspectors Assn., (2010) 5 SCC 225 : (2010) 2 SCC (L&S) 1).
42.14 For parity in pay scales under the principle of "equal pay for
equal work", equation in the nature of duties is of paramount
importance. If the principal nature of duties of one post is teaching,
whereas that of the other is non-teaching, the principle would not be
applicable. If the dominant nature of duties of one post is of control
and management, whereas the subject post has no such duties, the
principle would not be applicable. Likewise, if the central nature of
duties of one post is of quality control, whereas the subject post has
minimal duties of quality control, the principle would not be
applicable (see U.T. Chandigarh, Admn. v. Manju Mathur, (2011)
2 SCC 452 : (2011) 1 SCC (L&S) 348).
42.15 There can be a valid classification in the matter of pay scales
between employees even holding posts with the same nomenclature
i.e. between those discharging duties at the headquarters, and others
working at the institutional/sub-office level (see Hukum Chand
Gupta v. ICAR, (2012) 12 SCC 666 : (2013) 3 SCC (L&S) 493),
when the duties are qualitatively dissimilar.
42.16 The principle of "equal pay for equal work" would not be
applicable, where a differential higher pay scale is extended to
persons discharging the same duties and holding the same
designation, with the objective of ameliorating stagnation, or on
account of lack of promotional avenues (see Hukum Chand Gupta
v. ICAR, (2012) 12 SCC 666 : (2013) 3 SCC (L&S) 493).
42.17 Where there is no comparison between one set of employees
of one organization, and another set of employees of a different
organization, there can be no question of equation of pay scales
under the principle of "equal pay for equal work", even if two
organizations have a common employer. Likewise, if the
management and control of two organizations is with different
entities which are independent of one another, the principle of "equal
pay for equal work" would not apply (see S.C Chandra v. State of
Jharkhand, (2007) 8 SCC 279 : (2007) 2 SCC (L&S) 897 : 2 SCEC
943 and National Aluminium Co. Ltd. v. Ananta Kishore Rout,
(2014) 6 SCC 756 : (2014) 2 SCC (L&S) 353)."
46. The doctrine of pay parity, therefore, stands regulated by the
following principles [as enunciated in Jagjit Singh (supra)]:
(i) The onus of proof, to establish that the requisite
ingredients, for claiming pay parity, exist, is squarely on the
claimant.
(ii) Other requisites being satisfied, parity in pay cannot be
denied on the sole ground that the posts concerned are in
different departments.
(iii) The principle of "equal pay for equal work" applies to
cases of unequal pay scales, without rational classification.
(iv) Equality in work is the paramount consideration, for
claiming pay parity. "Equality" in work, as would entitle
invocation of the doctrine, denotes work that is functionally,
hierarchically, qualitatively and quantitatively equal, with equal
sensitivity and confidentiality.
(v) The nature of work, in the two posts, must be equally
onerous, involving the same amount of operational work/risk.
(vi) A post which entails the requirement of taking crucial
decisions may legitimately be placed in a higher pay scale.
(vii) The qualifications prescribed for the posts are also
required to be equal.
(viii) Promotional avenues available to the posts, parity
whereof is being sought, have also to be equal. No parity in pay
can be claimed, with a promotional post.
(ix) The posts, wherein parity is being claimed, are required
to be in the same establishment, and in the same geographical
location. Different pay scales may, for example, be granted to
employees who, though holding the same posts, are working in
the headquarters, and at institutional/sub-office level.
(viii) Equality in rank/designation is not sufficient to press, into
service, the "equal pay for equal work" doctrine. Persons of the
same rank/designation, but having dissimilar powers, duties and
responsibilities, may justifiably be placed in different scales of
pay.
(x) Regular pay scale may be claimed only by a regularly
appointed employee, i.e. an employee appointed pursuant to a
regular recruitment process.
(xi) Difference in merit, seniority, and other such criteria may
also justify difference in pay scales, or placement of some
employees, performing the same functions, duties and
responsibilities, in, for example, a "selection grade".
(xii) Persons paid out of different funds cannot claim pay
parity.
(xiii) Posts, which, per policy, are given different priority by
the Government, may also be placed in different pay scales, and
the "equal pay for equal work" principle would not apply in
such cases.
(xiv) Historical parity in pay is, by itself, insufficient to invoke
the doctrine at a later stage.
(xv) Higher pay scales may also be granted for ameliorating
stagnation, or neutralizing absence of promotional avenues.
47. Without delving into specifics, it is clear that the petitioner, and
his fellow workmen, miserably failed to discharge the burden, which
the law cast on them, to establish that the above indicia stood fulfilled,
so as to make out a case for claiming parity with Draftsmen in the
CPWD or other Central government departments. Judicial notice may
be legitimately taken of the fact that the respondent-Corporation is,
functionally, a Corporation with an entirely different agenda, entailing
entirely different duties and responsibilities, as compared to the
CPWD or any other department of the Central Government. In the
absence of specific and clear-cut evidence to that effect, it would,
prima facie, be impossible to presume, far less believe, that draftsmen
in the CPWD would discharge duties similar to draftsmen in the
respondent-Corporation. Of course, had the petitioner discharged the
burden, cast on him to establish this fact, then, one essential ingredient
- and one alone - would stand fulfilled, to support his claim to pay
parity. In the present case, however, except for lone averment, in his
affidavit, to the effect that the petitioner, and his fellow workmen,
were discharging duties similar to those discharged by draftsmen in
other Central Government departments, including the CPWD, there is
precious little to establish the said fact. The aforementioned averment,
though made on affidavit by the petitioner as, equally, be denied, on
affidavit, by the respondent, in its written statement filed, in
oppugnation to the Statement of Claim, before the learned Tribunal. It
becomes, therefore, a case of oath versus oath, and this Court,
exercising certiorari jurisdiction under Article 227 of the Constitution
of India, is hopelessly ill-equipped to resolve the difference.
48. Resultantly, the petitioner, quite clearly, cannot base his claim
on the principle of "equal pay for equal work".
49. Can, then, the petitioner seek to rely on the OM, dated 13 th of
March 1984, issued by the Department of Expenditure? Unfortunately
for him, it does not seem so.
50. Petitioner and respondent have, till 2015 at least, been ad idem
that there are only two grades of Draftsman in the respondent-
Corporation, i.e. Draftsman and Head Draftsman. This position, taken
by the respondent-Corporation in its written statement in response to
the Statement of Claim of the petitioner and his fellow-workmen, was
never traversed by the latter. Neither did the claimant-workmen seek,
before the learned Tribunal, to urge that the submission, of the
respondent, that there were, in the respondent-Corporation, only two
grades of Draftsman, was incorrect on facts. Neither, for that matter,
does even the present writ petition, so seek to contend. It was for the
first time, in the written submissions filed by him in 2015, that the
petitioner raised the contention that there were, in the respondent-
Corporation, actually three grades of Draftsman, and not two. The
scales of pay applicable to an organization is a pure question of fact,
and it was clearly impermissible for the petitioner, in its written
submissions, to raise such an issue for the first time. The respondent-
Corporation, for its part, denied the said asseveration of the petitioner,
and also attached an organizational Chart, drawn up by the
respondent-Corporation itself, clearly indicating only two posts of
Draftsman. Neither the Regulations, on which the petitioner seeks to
rely, nor the organizational chart which the respondent, per contra,
would press into service, were before the learned Tribunal and this
court is loath, at this juncture, to choose one over the other. In any
event, it is clear that the learned Tribunal cannot be faulted, in any
manner, in having rejected the claim of the petitioner, and his fellow-
workmen, on the ground that the OM dated 13th March 1984 supra
being, on its terms, applicable only to organizations having the posts
of Draftsman Grades I, II and III, the said OM would not, very well,
be applied to the respondent-Corporation, which had only two such
grades of Draftsman, i.e Draftsman and Head Draftsman. The OM is
clear and unambiguous on its terms. It conveys the decision, of the
Hon‟ble President of India, "that the scales of pay of Draughtsmen
Grade III, II and I in Officer/Departments of the Government of India,
other than the Central Public Works Department, may be revised as
above provided the recruitment qualifications are similar to those
prescribed in the case of Draftsmen in Central Public Works
Department." The said OM, therefore, has no applicability,
whatsoever, to an organization/department which does not, in its
organizational structure, have the posts of Draftsmen Grade III, II and
I. The respondent-Corporation not having, in its organization, the said
three Grades of Draftsman, the OM, plainly, cannot apply to it.
51. Even if, for that matter, the submission, of the petitioner, that
there were three grades of Draftsman in the respondent-Corporation,
and not two, were to be accepted, the petitioner would, still, be unable
to succeed, for the simple reason that the scales of pay of Draftsman,
applicable to the said three grades, as contended by the petitioner, are
Rs 290-480, 380-500 and 425-700, respectively, which are, clearly,
different from the "original scales" which the OM, dated 13th of March
1984, sought to revise - being Rs. 260-430, 330-560 and 425-700.
52. That carries the discussion, a step forward, to the emphatic
contention, of the petitioner, that, being a matriculate with a 2-year
diploma in Draftsmanship under his belt, his pay ought to have been
fixed in the scale of Rs. 330-560, rather than Rs. 290-480. This
contention is premised on certain fundamental misconceptions
regarding fixation of pay, and the right to claim a particular scale.
Scales of pay attach to posts, and not to qualifications. While parity in
qualifications is, undoubtedly, a sine qua non for laying a claim to
parity in pay, it does not follow, as a corollary, that any employee, or
workman, can claim a higher scale of pay only on the ground that
persons, in other departments, possessing the qualifications possessed
by him, are drawing such higher scales. We are in an unfortunate age
in which persons, having high qualifications, are forced, by constraints
of hearth and home, to accept positions totally incommensurate with
the qualifications held by them. Having accepted such positions,
however, it is not open to any such person to seek a higher scale
merely by dint of the qualifications held by him. The petitioner has not
been able to place, on record, any statutory provision, or even policy
decision, on the part of the Government, to extend, across the board,
the scale of Rs. 330-560, to all Draftsmen who are matriculates and
possess a 2-year diploma in Draftsmanship. Service jurisprudence
does not recognize any principle permitting upward enhancement of
pay solely on the basis of the qualification held by the claimant. The
assertion, of the petitioner, before the learned Tribunal, as well as
before this court, that, as he was a matriculate, with an additional
qualification of a 2-year diploma in Draftsmanship, he was entitled to
the scale being drawn by Draftsman Grade II in the CPWD and other
Central Government departments, is, therefore, entirely without merit.
53. Adverting, now, to the judgment of the Supreme Court in
Debashis Kar (supra), the reliance, by the petitioner, thereon, is
founded on paras 16 and 17 of the said decision, which read thus:
"16. Dealing with draughtsmen in the Army Base Workshops in
the EME, the Principal Bench of the Tribunal has observed that in
the EME for the post of draughtsman, the qualifications that are
prescribed are "Matriculation or its equivalent with two years'
Diploma in Draughtsmanship Mechanical or its equivalent". The
Tribunal has referred to the Report of the Third Pay Commission
wherein, while dealing with draughtsmen who were in the pay scale
of Rs 150-240 (as per report of Second Pay Commission), it is
stated:
"(ii) for the next higher grade of Rs 150-240 the
requirement is generally a Diploma in Draughtsmanship or an
equivalent qualification in Architecture (both of 2 years'
duration after Matriculation)."
17. The Tribunal has observed that Tracer in the EME could not
be treated in any other manner but on a par with Grade III
Draughtsman of CPWD, keeping in view their recruitment
qualifications. The Tribunal held that the benefit of Office
Memorandum dated 13-3-1984 had been rightly extended to
Draughtsmen in EME and that its withdrawal was illogical and
irrational. The learned counsel for the appellants has been unable to
show that the said view of the Tribunal suffers from an infirmity
which would justify interference by this Court."
54. Adjudication is never an exercise conducted in vacuo. While
the law declared by the Supreme Court, undoubtedly, binds, by virtue
of Article 141 of the Constitution of India, it is equally trite that any
reliance, on precedent, unmindful of the background factual matrix,
would be folly. It is an oft-quoted, and well-recognized, truism, that
one additional fact is sufficient to make all the difference in the
applicability, of one judicial authority, to the facts of another. The
following passages, from Collector of Central Excise v Alnoori
Tobacco Products, (2004) 6 SCC 186, unmistakably lay down the law
in this regard:
"11. Courts should not place reliance on decisions without
discussing as to how the factual situation fits in with the fact
situation of the decision on which reliance is placed. Observations
of courts are neither to be read as Euclid's theorems nor as
provisions of a statute and that too taken out of their context. These
observations must be read in the context in which they appear to
have been stated. Judgments of courts are not to be construed as
statutes. To interpret words, phrases and provisions of a statute, it
may become necessary for judges to embark on lengthy discussions
but the discussion is meant to explain and not to define. Judges
interpret statutes, they do not interpret judgments. They interpret
words of statutes; their words are not to be interpreted as statutes.
In London Graving Dock Co. Ltd. v. Horton, 1951 AC 737 :
(1951) 2 All ER 1 (HL) (AC at p. 761), Lord MacDermott
observed: (All ER p. 14 C-D)
"The matter cannot, of course, be settled merely by treating
the ipsissima verba of Willes, J., as though they were part of
an Act of Parliament and applying the rules of interpretation
appropriate thereto. This is not to detract from the great
weight to be given to the language actually used by that most
distinguished Judge...."
12. In Home Office v. Dorset Yacht Co. [(1970) 2 All ER 294 :
1970 AC 1004 : (1970) 2 WLR 1140 (HL)], Lord Reid said (All ER
p. 297g-h), "Lord Atkin's speech ... is not to be treated as if it were
a statutory definition. It will require qualification in new
circumstances". Megarry, J. in Shepherd Homes Ltd. v. Sandham
(No. 2)[(1971) 1 WLR 1062 : (1971) 2 All ER 1267] observed:
"One must not, of course, construe even a reserved judgment of
Russell, L.J. as if it were an Act of Parliament." And, in British
Railways Board v. Herrington [(1972) 1 AC 877 : (1972) 2 WLR
537 : (1972) 1 All ER 749 (HL)] Lord Morris said: (All ER p.
761c)
"There is always peril in treating the words of a speech or a
judgment as though they were words in a legislative
enactment, and it is to be remembered that judicial utterances
are made in the setting of the facts of a particular case."
13. Circumstantial flexibility, one additional or different fact
may make a world of difference between conclusions in two cases.
Disposal of cases by blindly placing reliance on a decision is not
proper.
14. The following words of Hidayatullah, J. in the matter of
applying precedents have become locus classicus: (Abdul
Kayoom v. CIT [AIR 1962 SC 680] , AIR p. 688, para 19)
"19. ... Each case depends on its own facts and a close
similarity between one case and another is not enough
because even a single significant detail may alter the entire
aspect. In deciding such cases, one should avoid the
temptation to decide cases (as said by Cardozo) by matching
the colour of one case against the colour of another. To
decide therefore, on which side of the line a case falls, the
broad resemblance to another case is not at all decisive."
***
"Precedent should be followed only so far as it marks the
path of justice, but you must cut the dead wood and trim off
the side branches else you will find yourself lost in thickets
and branches. My plea is to keep the path to justice clear of
obstructions which could impede it." "
55. Applying the above noted principles, it becomes apparent that
the reliance, by the petitioner, on the decision in Debashis Kar
(supra), cannot carry his case any further. In the first place, a bare
reading of para 17 of the said decision makes it apparent that it has
been rendered because of the inability, on the part of the learned
counsel appearing for the appellants in that case, to point out any basis
to question the correctness of the impugned decision of the Tribunal.
That apart, the applicability, of the said decision, also stands
discountenanced by the following observations, figuring in para 14 of
the report:
"The Tribunal has held that the decision of the Ordnance Factory
Board based on the Sub-Committee report that the applicants
(respondents herein) should be equated with Tracers and
Draughtsmen Grade III of CPWD was fallacious. In this context, it
would be relevant to mention that as per the pay scales fixed on the
basis of report of the First Pay Commission of 1947 there was no
difference in the pay scales of Draughtsmen and Tracers in the
Ordnance Factories and the pay scales of Draughtsmen and Tracers
in CPWD Senior Draughtsmen in the Ordnance Factories and
Draughtsmen in the CPWD were placed in the pay scale of Rs 150-
225, Draughtsmen in the Ordnance Factories and Assistant
Draughtsmen in CPWD were placed in the scale of Rs 100-185 and
Tracers in Ordnance Factories as well as in CPWD were placed in
the scale of Rs 60-150. On the basis of the report of the Second Pay
Commission in 1959 there was a slight modification in the pay scale
of Senior Draughtsmen in Ordnance Factories. Tracers in the
Ordnance Factories and CPWD were placed in the same pay scale of
Rs 110-200 and Draughtsmen in Ordnance Factories and Assistant
Draughtsmen in CPWD were placed in the same pay scale of Rs
150-240. Senior Draughtsmen in Ordnance Factories were placed in
the pay scale of Rs 205-280 while Draughtsmen in CPWD were
placed in the pay scale of Rs 180-380. By Notification dated 1-9-
1965, there was change in the designation of posts of drawing office
staff in CPWD and Draughtsman was designated as Draughtsman
Grade I, Assistant Draughtsman was designated as Draughtsman
Grade II and Tracer was designated as Draughtsman Grade III.
Thereafter on the basis of the report of the Third Pay Commission in
1973, Tracers in the Ordnance Factories and Draughtsmen Grade III
in CPWD were placed in the same pay scale of Rs 260-430,
Draughtsmen in Ordnance Factories and Draughtsmen Grade II in
CPWD were placed in the same pay scale of Rs 330-560 and Senior
Draughtsmen in Ordnance Factories and the Draughtsmen Grade I in
CPWD were placed in the same pay scale of Rs 425-700. This would
show that Tracer in Ordnance Factories has all along been treated as
equivalent to Tracer/Draughtsman Grade III in CPWD and
Draughtsman in Ordnance Factories has all along been treated as
equivalent to Assistant Draughtsman/Draughtsman Grade II in
CPWD. As a result of the revision of pay scales in CPWD on the
basis of the Award of the Board of Arbitration, the pay scale of
Draughtsman Grade III was revised to Rs 330-560, while that of
Draughtsman Grade II was revised to Rs 425-700 and of
Draughtsman Grade I was revised to Rs 550-750. The denial of
similar revision of pay scale to Draughtsmen in Ordnance Factories
would result in their being downgraded to the level of
Tracer/Draughtsman Grade III in CPWD. Office Memorandum dated
13-3-1984 cannot, in our opinion, be construed as having such an
effect."
56. The facts, applicable to tracers, as set out in the above extracted
passage, quite obviously, do not apply to the case of the petitioner, or
his fellow-workmen in the respondent-Corporation. These facts, quite
obviously, have played their part in guiding the decision of the
Supreme Court, which has, on a holistic appreciation of all existing
circumstances, equated tracers with Draftsmen Grade III. The
Statement of Claim, filed by the petitioner and his fellow-workmen
before the learned Tribunal do not even remotely seek to draw
attention to any such facts, parallelizing their case, as Draftsmen in the
respondent-Corporation, with the case of Draftsmen in the CPWD or
other departments of the Central Government. In the absence of any
such case having been pleaded, far less proved, by the petitioner, blind
reliance, on the decision in Debashis Kar (supra), would clearly be
inappropriate.
57. Neither can the judgment of the Supreme Court, in D.T.C.
Workers Union (supra), advance the claim of the petitioner. The said
decision dealt with the general question of extension, to the employees
of the respondent-Corporation, of the benefits of the 4th CPC. The
Supreme Court was, in that case, not concerned with any issue even
remotely similar to the claim ventilated by the petitioner in the present
case, as is apparent from paras 13 and 14 ibid.
58. Resultantly, this court is constrained to hold that the petitioner
has not been able to make out any case, on facts or in law, for grant of
the reliefs claimed by him, or his fellow-workmen, before the learned
Tribunal. Consequently, no infirmity can be said to exist, in the
impugned Award dated 27th June 2003, passed by the learned
Tribunal, as would merit interference, by this Court, in exercise of its
jurisdiction under Article 226 or 227 of the Constitution of India.
59. As the petitioner‟s claim has, even otherwise, no legs to stand
on, I refrain from making any observation regarding the contention, of
the respondent, that, administrative control over the respondent -
Corporation having been transferred to the Hon‟ble Lt. Governor, the
OM dated 13th March, 1984 does not apply. In any case, to the
Hon‟ble Lt. Governor, the OM dated 13th March, 1984 does not apply.
In any case, this too, is a defence raised before this Court for the first
time.
60. Before parting with this judgment, I may note that the present
writ petition, as filed by the petitioner, is liable to be dismissed even
on the sole ground that it seeks to make out an entirely new case,
neither pleaded not proved, by the petitioner, before the learned
Tribunal. What is worse, the writ petition pleads that the petitioner,
and his fellow workmen had, before the learned Tribunal, prayed for
grant, to them, of the pay scale of Draftsman Grade II in the CPWD,
which is obviously incorrect and, in fact, misleading. Worse still, it
has been so pleaded without annexing, with the writ petition, the
Statement of Claim filed by the petitioner and his fellow-workmen,
before the learned Tribunal, which would have clearly revealed the
total disconsonance, in the case set up before this court, as compared
to the case that had been pleaded before the learned Tribunal. I have,
however, not chosen to take any adverse notice of these facts, given
the fact that the petitioner is only a workman with the respondent-
Corporation.
61. The writ petition is, therefore, dismissed, without any order as
to costs.
C. HARI SHANKAR
(JUDGE)
DECEMBER 1, 2017
neelam/gayatri
