Delhi High Court
Non-Medical Scientist Forum ... vs The Secretary Ministry Of Health ... on 4 January, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 10393/2015
Reserved on: 9th November, 2016
Date of decision: 04th January, 2017
NON-MEDICAL SCIENTIST FORUM (GROUP B & C) FORUM
NCDC ..... Petitioner
Through: Mr. J.S. Mann, Advocate.
Versus
THE SECRETARY MINISTRY OF HEALTH AND FAMILY
WELFARE AND ORS. .... Respondents
Through: Mr. Anil Panwar, CGSC and Ms.
Mani Chaudhary, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. CHANDER SHEKHAR
SANJIV KHANNA, J.
The Non-Medical Scientists Forum (Group B & C) Forum NCDC in
the present writ petition impugns order dated 23 rd July, 2015, whereby the
Principal Bench of the Central Administrative Tribunal has dismissed OA No.
3054/2013.
2. The petitioner is a forum of Group B and C employees of the National
Centre for Disease Control, which was earlier known as National Institute of
Communicable Diseases. The National Centre for Disease Control (NCDC,
for short) is a scientific and technological institute in the field of research,
teaching, and training which is also engaged in the execution of work and
planning. The dispute raised by the petitioner forum relates to the pay scale
of Laboratory Assistants (Group C) who, vide letter dated 22nd February, 2000
were granted the pay-scale of Rs.4000-6000 with effect from 1st January,
1996. With effect from 22nd February, 2000, 20 posts of Laboratory
Assistants (Group C) were upgraded to the pay-scale of Rs.4500-7000. The
case set up by the petitioner is that the laboratory assistants have wrongly
been placed in the aforesaid pay-scale of Rs.4000-6000/4500-7000 and as per
the recommendations of the 5th Pay Commission, were entitled to pay in the
scale of Rs.5000-8000 with effect from 1st January, 1996. On this premise, it
is submitted that upon implementation of Sixth Pay Commission‟s
recommendations, Laboratory Assistants are entitled to Grade Pay of Rs.4200
in Pay Band-2 (Rs.9300-34800) instead of grade pay of Rs. 2400 and Rs.
2800 respectively, as the earlier scale of Rs.5000-8000 was merged in the
scale of Rs.6500-10500.
3. It is obvious that the impugned order dated 22nd July, 2015 has rejected
the said prayer made by the petitioner forum, inter alia, holding that the
principle of "equal pay for equal work" as pleaded was not established, for the
petitioner forum had failed to establish parity by referring to the method of
recruitment, the level at which the recruitment was made, hierarchy in the
service in the given cadre, the minimum educational/technical qualification
required, avenues of promotion, nature of duties and responsibilities,
horizontal and vertical relativities with similar jobs, public dealings,
satisfaction level, the employer‟s capacity to pay etc. Reliance was placed on
the decisions of the Supreme Court in State of Haryana & Anr. Vs. Haryana
Civil Secretariat Personal Staff Association, 2002 (Suppl.) 1 SCR 118 and
Union of India & Anr. Vs. P.V. Hariharan and Anr., (1997) 3 SCC 568.
4. The contention of the petitioner forum is that they were/are not
claiming or predicating their case on the dictum "equal pay for equal work",
but premise their prayer on wrong fitment in the replacement scale, i.e. the
failure of the respondents to correctly apply the recommendations of the Fifth
and Sixth Pay Commission, as per which they should have been granted the
replacement pay-scale of Rs.5000-8000 with effect from 1st January, 1996 and
the grade pay of Rs. 4200 in Pay Band II with effect from 1st January, 2006.
5. As the petitioners have placed reliance upon paragraphs 55.142 to
55.151 of the Fifth Pay Commission‟s report which pertain to laboratory staff,
the same have been reproduced below:-
"55.142 Alongside the scientific staff there is a category of
employees working in various laboratories of the Central Government
which assists in the conduct of experiments, analysis of samples and
tests, and other matters connected with pure and applied research,
experimental development or products, quality testing and control,
etc., Personnel in this category have a science background at
matriculation/Higher Secondary level, and in addition have to possess
a Laboratory Technicians Certificate/diploma including Diplomae in
Medical Laboratory Technology (DMLT).
55.144 Laboratory Boys, Helpers, Attendants, Bearers, etc. are
placed in scales of pay ranging from Rs.750-940 to Rs.825-1200 and
are classified as Group D. These are about 1856 in number, with the
largest concentration in the scale of pay of Rs.800-1150, where the
majority enter with middle/VIII Std./High School/Matric with one
year Lab Attendant Course or experience of laboratory work. The
level above this is that of Laboratory Assistants. They are placed in
pay scales ranging from 950-1500 to Rs.1200-2040, with
qualifications of Matric with Physics, Chemistry or Maths or 10+2
with Science or even B. Sc. Degrees and a Trade Certificate/Diploma
relevant to the subject, including DMLT. This group covers another
1469 employees. The majority of these are recruited in the scale of
Rs.975-1540, though a substantial number also enter in the grade of
950-1400/950-1540. Third rung in this category is the Laboratory
Technician, the highest of the three, recruited with qualifications of
10+2 with science, B. Sc. or Diploma in Engineering and/or other
subject matter diplomae (including DMLT). The bulk of these
personnel enter at the scale of Rs.1320-2040, though a fairly large
number are also observed to enter at the level of Rs.1400-2300. This
group has a strength of about 1432. A summary grade-wise position
of the total strength of laboratory staff is given in Annexe 55.4.
Intervening scales between those described above, are usually
promotional scales. The above major three entry grades account for
4282 (or 89.45%) of the total Laboratory personnel in the Central
Government.
55.145 Among the major employers of Laboratory personnel and
Defence Research & Development Organisation (426), Directorate of
Marketing and Inspection (346), Geological Survey of India (330),
Indian Railways (265), Department of Space (203), Central Water and
Power Research Station (194), Central Research Institute (192),
Safdarjang Hospital (183), Central Revenue Control Laboratories
(155) and Indian Meteorological (152). These 10
laboratories/organisations together account for 2446 (or 51.45) of the
total establishment of laboratory personnel.
55.146 Upto the Third CPC, Laboratory staff were not dealt with
as a separate category, but were included as a part of Scientific staff.
The Fourth CPC covered laboratory staff under a separate common
category and the pay scales recommended by it followed the pattern
given below:-
S No. Qualifications Pay-scale attached by Fourth CPC
1. Matriculation with science Rs.950-1400
2. Higher Secondary/Intermediate Rs.1200-2040
With science with some experience
3. Degree with Chemistry Rs.1400-2300
______________________________________________________
XXXXX
55.149 The laboratory staff are presently distributed over 17 pay-
scales. As per the general scheme in Chapter 49 on the rationalisation
of pay-scales, the existing scales of 950-1400, 975-1540, 1150-1500,
1350-2200 and 1400-2600 will be merged with other scales. The
existing staff in these scales will be placed in the corresponding
replacement scales. The following scales of pay may be retained for
the category as a whole:-
SNo. Designation Pay-scales Minimum Remarks
Qualifications
1. Lab Attdt. III Rs.750-940 VIII Standard 100% Direct Recruitment
Lab Attdt. II Rs.775-1025 " 1st ACP
Lab Attdt. I Rs.800-1150 " 2nd ACP
2. Lab Asstt. III Rs.975-1500 Matric (with science) 85% Direct Recruitment
+ Cert/Dipl. In Lab 15% promotion
Tech. Including
(DMLT)
10 + 2 with science
Lab Asstt. II Rs.1200-2040 " 1st ACP
Lab Asstt. I Rs.1400-2300 " 2nd ACP
3. Lab Tech III Rs.1600-2660 B.Sc. with Dip/Cert 50% direct recruitment
Lab Tech II Rs.1640-2900 1st ACP 50% promotion
Lab Tech I Rs.2000-3500 2nd ACP
NOTE. Those Laboratory Technicians presently in the grade of
Rs.1320-2040 will be placed in the pay-scale of Rs.1400-2300.
55.150 On the demand of promotional avenues, while the two
assure career progressions as per general scheme will bring relief,
most Laboratories have very few post to provide substantive vacancy
based promotions. We recommend that the promotion from Auxiliary
to Support staff may be retained upto 15% without insisting on
certificate requirements, provided the incumbents are at least
matriculates. Within the support staff categories promotions from the
level of Laboratory Assistant to Laboratory Technicians may be about
50% without linking it to qualifications. We have given our
recommendations regarding Flexible Complementing Scheme in
Chapter 23. As indicated therein the scheme will apply to R&D
professionals in the Executive category. For others the provisions of
ACP scheme will be applicable. This will take care of the problem of
stagnation among the laboratory staff."
6. Paragraph 55.142 records that laboratory staff within the Central
Government conducts experiments, analysis of samples and tests, and other
matters connected with pure and applied research. The employees in this
category have a Science background at matric/higher secondary level and also
possess Laboratory Technicians Certificate/diploma including a diploma in
Medical Laboratory Technology (DMLT). At the lowest rung, there were
Laboratory Boys, Helpers, Attendants, etc., who were earlier in the pay-scale
of Rs.800-1150. Above them in the hierarchy were Laboratory Assistants in
the pay-scales ranging from Rs.950-1500 to Rs.1200-2040 with qualification
of matric with Physics, Chemistry or Maths or 10+2 with Science or even
B.Sc. degree and a trade certificate/diploma relevant to the subject including
DMLT. The third rung in the hierarchy was of Laboratory Technicians in the
pay-scale between Rs.1320-2040 to Rs.1400-2300. Laboratory Technicians
are recruited with qualifications of 10+2 with Science, B.Sc. or diploma in
engineering and/or other subject matter diploma including DMLT.
7. Paragraph 55.145 gives break-up of laboratory personnel in different
organisations and research centres. Paragraph 55.146 refers to the Fourth Pay
Commission and different categories of laboratory staff and the pay-scales
pattern. As per the 4th Pay Commission, employees possessing the
qualification of :(a) matriculation with Science were accorded pay-scale of
Rs.950-1400; (b) Higher Secondary/Intermediate with Science and some
experience were granted pay in the scale of Rs.1200-2040; and (c) those with
a degree with Chemistry that of Rs.1400-2300.
8. Paragraph 55.149 is the important and relevant paragraph. It states that
then 17 different pay-scales were applicable to laboratory staff. As per the
general scheme, existing pay-scales of Rs. 950-1400, 975-1540, 1150-1500,
1350-2200 and 1400-2600 had been merged with other pay-scales and
accordingly, the existing staff in these scales would be placed in the
corresponding pay-scales. Thereafter, in a tabular form, it is stated that the
stipulated pay-scales could be retained for the category as a whole. As per the
table, at the lowest rung were Laboratory Attendant III in the pay scale of
Rs.750-940 with minimum educational qualification of VIIIth standard.
They were to be recruited entirely by way of direct recruitment and entitled to
two financial upgradation under the Assured Career Progression (ACP)
Scheme to the scale of Laboratory Attendant II (Rs.775-1025) and Laboratory
Attendant I (Rs.800-1150).
9. The second in the hierarchy were Laboratory Assistants III in the pay
scale of Rs. 975-1500 with minimum educational qualification of
Matriculation with science and Certificate Diploma in Laboratory
Technology, including DMLT or 10+2 with science. 85% of the posts were to
be filled by direct recruitment and the remaining 15% by way of promotion. It
was stipulated that first ACP would be as Laboratory Assistant II in the pay-
scale of Rs.1200-2010 and second as Laboratory Assistant I in the pay-scale
of Rs.1400-2300.
10. The third pay-scale post in the hierarchy was that of Laboratory
Technicians with a minimum qualification of B.Sc with diploma/certificate.
They were allocated the pay-scale of Rs.1600-2660. It was recommended that
the first ACP would be as Laboratory Technician II in the pay-scale of
Rs.1640-2900 and second ACP as Laboratory Technician I in the pay-scale of
Rs.2000-3500. Appointment as Laboratory Technician III would be 50% by
direct recruitment and 50% by promotion. Laboratory Technicians already in
the pay-scale of Rs.1320-2040 would be given pay-scale of Rs. 1400-2300.
11. Paragraph 55.150 had stipulated that promotion to the extent of 50% of
the posts from the level of Laboratory Assistants to Laboratory Technicians
could be without linking it to the qualifications. Reference was also made to
the recommendations regarding the Flexible Complementing Scheme as this
would take care of the problem of stagnation.
12. The petitioners have placed reliance on paragraph 51.34 of the Fifth
Pay Commission recommendation to urge that those with B.Sc
degree/diploma in engineering were entitled to minimum pay-scale of
Rs.1600-2660. The petitioners have not enclosed/filed paragraph 51.34 of the
Fifth Pay Commission recommendation. We have, however, downloaded the
same from the internet. Paragraphs 51.30 to 51.34 read as under:-
51.30 Scientific staff man about 15,112 posts.
Nearly one-third of them are part of a common category of
laboratory technicians and staff, who have been covered
elsewhere in this report. The remaining personnel are usually
placed at Group B and C levels between scales ranging from
Rs.2375-3500 to Rs.1200-2040. They are also promotion
posts for Laboratory staff and technicians and feeder grades
to posts of Scientists and R&D professionals. A large number
of designations and job titles exist under this category of staff
in different organisations, the most usual ones being
Scientific/Technical/Research Assistants (both Senior as well
as Junior) and Officers.
51.31 The Second CPC observed that Class II posts
are generally filled by direct recruitment though a small
percentage is set aside for promotion. The incumbents are
required to possess at least a Master‟s degree; Class II posts
generally require a Master‟s degree or any Honours degree.
That C.P.C. justified a qualitative distinction between class II
and lower posts on the basis of qualification and duties. It
also pointed out a difference in the work in National
Laboratories, pertaining to long range problems of
fundamental research. It recommended one scale as
sufficient at the level of Senior Scientific Assistants and
reduction in the number of scales for lower posts. That CPC
also recommended relaxation in age to enable scientific staff
to compete for higher level posts and standardization of
designations. The Third CPC also recommended along
similar lines, but attempted no direct distinction between
laboratory and other S&T staff. It advise that 4 scales below
the Group B Gazetted level were sufficient for this category
of staff. Both CPCs pointed out lack of promotion avenues in
these grades on account of small cadres and isolated posts.
The Fourth CPC did not make any observations on S&T staff
except granting replacement scales under various Ministries.
51.32 A large number of demands made in
memoranda received by us, concentrate on the issues of
anomalies in pay-scales, isolation of posts, small cadres and
multiple levels of direction recruitment, stagnation problems,
organising the Scientific Staff into a common service has
been demanded along with extension of the Flexible
Complementing Scheme, permitting private consultancy and
grant of Non-practice allowance. Special Allowances have
been sought for higher qualifications, difficult postings, risk,
conveyance, purchase of special journals and membership of
profession bodies. Enhancement of the age of
superannuation has also been demanded on account of higher
achievements of scientific staff and a general increase in
longevity.
51.33 To analyse the demands made in memoranda,
the implications thereof, and for examination of pay-scales,
qualifications and designations, we constituted an inter-
Ministrial Working Group on Scientific staff with
representatives of Ministries/Departments which have a
substantial components of such personnel in their
establishments. We have kept in view the Working Groups‟
suggested, in making our recommendations.
51.34 Direction recruitment among the scientific
staff exists at almost every level of pay-scales and without
any uniform linkage with qualification. We observe that
some post-graduate and engineering degree entrants are
placed in the scale of pay Rs.1400-2300, while some are
placed in higher scales. The entry level of graduates in
Science also varies from the scale of pay or Rs.1200-1800 to
Rs.1640-2900. Scientific staff have demanded that Ph. D
degree holders must uniformly be placed in Group A and
Engineers in Group B Gazetted levels, irrespective of the post
in which initial recruitment has taken place. The Second
CPC favoured elements of direct recruitment at Class II and
Senior non-gazetted positions based on a uniform application
of qualifications. The 3rd CPC also based its
recommendations on qualification. We have been informed
that direct entry at too many levels creates problem of
stagnation. We have not noticed Ph. D as an essential
minimum qualification at any of the Group B or C levels.
Taking into account various aspects, we recommend that for
direct recruitment qualification should be prescribed
uniformly as follows, as far as possible:-
PAY-SCALE SUGGESTED
M QUALIFICATIONS
1. i Rs.950- Matric + one-
1500 year
n certificate
2. i Rs.1320- Matric with
s 2040 Science +two-
t year diploma
3. r Rs.1600- B.Sc.
i 2660 Graduates/Dip
in Engg.
e
4. Rs.2000- Engineering
s 3500 degree/Post-
graduation
s
hould avoid prescribing very high or specialized
qualification against these posts as "essential". Posts at Sr.
No.1 and 2 above usually exists in laboratory and in the field
forming feeder grades to the other scientific posts. In view of
the above recommendations, combined with rationalization of
certain scales of pay, we also recommend that direct
recruitment should usually not be made in the scales of
pay of Rs.1350-2200, Rs.1350-1800, Rs. 1400-2300,
Rs.1640-2900, and Rs.2000-3200 except where functional
requirements specially demand direct recruitment.
Direct recruitment at the level of Rs.2000-3500 should be
reduced wherever justified, taking into account direct
recruitment and stagnation at the immediately next lower
levels. Direct recruitment at this level should not
generally exceed 60%, and educational qualifications laid
down for direct recruitment should apply to promotions
also."
Paragraph 51.30 specifically states that scientific staff, who were part of a
common category of laboratory technicians and staff, have been covered
elsewhere in the report. This obviously has reference to paragraphs 55.142 to
55.150, which have been quoted above. Paragraph 51.30 deals with the
remaining personnel of scientific staff placed at Group B and C levels and
was noticed that they had been given different designations. Paragraph 51.34
observed that direct recruitment of the scientific staff exists at almost every
level without any uniform linkage with qualification. It was recommended
that for direct recruitment, qualification should be prescribed uniformly. In
this context, the pay-scale and suggested qualifications were stipulated with
the observation that the Ministry should avoid prescribing very high or
specialized qualifications against these posts. Further, the posts at Sr. Nos.1
and 2 in the pay-scales of Rs.950-1500 and 1320-2040 were feeder grades to
other scientific posts. It was accordingly recommended that direct
recruitment should not be made in the higher pay-scales, except when
functional requirements demand direct recruitment. Lastly, direct recruitment
at the level of pay-scale of Rs.2000-3500 should be reduced and should not
generally exceed 60%, and educational qualifications laid down for direct
recruitment should apply to promotions also.
13. We now turn to the Recruitment Rules in NCDC and the hierarchy of
posts as they exist. Reference, in fact, was made by the petitioner to the
Gazette of India Notification published on 22nd October, 1980, by which the
National Institute of Communicable Diseases (Group C posts) Recruitment
Rules, 1980 were published under the proviso to Article 309 of the
Constitution. As per the said Rules, the post of Senior Laboratory
Assistant/Laboratory Assistant (Pay Scale of Rs. 975-1540) is to be filled up
50% by direct recruitment and 50% by promotion from Insect Collectors with
three years of regular services in the grade. The essential qualification
prescribed is B.Sc. and the desirable qualification is one year‟s experience in
medical/biological laboratory. The post of Insect Collector was in the scale of
Rs.950-1500 and the essential qualification as prescribed was Higher
Secondary with Science and desirable qualification was one year‟s experience
in medical/biological laboratory. Laboratory Assistants/Junior Technicians
are eligible for promotion as Technicians/Senior Technicians in the scale of
Rs. 1320-2040 against 50% promotion quota, failing which, these posts are to
be filed up by direct recruitment. The essential qualification prescribed is
Science graduate in Biology/Biochemistry/Microbiology and desirable
qualification is one year‟s practical experience in the medical/biological
laboratory. The requirement of Diploma/Certificate like DMLT is not
stipulated or mandated for any of the aforestated posts.
14. Pursuant to the Fifth Pay Commission recommendation, the pay-scale
of technical posts including Laboratory Assistants in NCDC was revised in
the following manner:-
"
Sr. Name of post Pay Scale before Pay Scale Revised
No. 5th CPC i.e. 1-1- by 5th CPC w.e.f.
1996 1.1.96
1. Lab Assistant 975-1540 3200-4900
2. Technician 1320-2040 4000-6000
3. Research Assistant 1400-2300 4500-7000
4. Sr. Research Asstt.. 1640-2900 5500-9000
5. Asstt. Research Officer 2000-3500 6500-10500
"
This revision was by way of grant of replacement pay scales. However, it
appears that representations were made for enhancement and grant of better
pay-scales rather than the replacement pay-scale. The Director General,
Health Services vide his letter dated 22nd February, 2000 agreed to
upgradation of pay-scales of the above mentioned posts including Laboratory
Assistants in the following manner:-
"
Sr. Name of post Pre Revise Pay Revised pay Upgraded pay
No. Scale as per 4th scale as per 5th scale
CPC before 1-1- CPC on 1.1.96
1. Lab Assistant 975-1540 3200-4900 4000-6000
4500-7000
2. Technician 1320-2040 4000-6000 5000-8000
3. Research Assistant 1400-2300 4500-7000 5500-9000
4. Sr. Research Asstt. 1640-2900 5500-9000 6500-10500
5. Asstt. Research Officer 2000-3500 6500-10500 6500-10500
"
It was directed that the post of Senior Research Assistant would be merged
with the post of Assistant Research Officer subsequent to upgradation. There
would be restructuring in the cadre of Laboratory Assistants and 20% posts
would be upgraded prospectively to the scale of Rs.4500-7000. However,
those holding the post of Laboratory Assistants would be placed in the pay-
scale of Rs.4000-6000 with effect from 1st January, 1996.
15. In the light of the aforesaid, we have no hesitation in holding that the
respondents had granted replacement pay-scale and in fact, had upgraded the
pay-scale of those holding the post of Laboratory Assistants after the Fifth
Pay Commission recommendation. The contention of the petitioner that
Laboratory Assistants were not given the replacement pay-scales or the
upgraded pay-scales on the basis of the Fifth Pay Commission
recommendation is factually incorrect and wrong. The hierarchical pattern as
per the National Institute of Communicable Diseases (Group C posts)
Recruitment Rules, 1980 is different and distinct from the pattern in other
services. The qualifications prescribed are distinct in the absence of the
requirement of Diploma/Certificate like DMLT. Any change or alteration
made in the pay-scales of Laboratory Assistants would have necessary
cascading affect on the other posts both below and above the hierarchy. The
case setup by the petitioner relying upon paragraph 51.34 of the Fifth Pay
Commission recommendation, as noticed above, is weak and is unacceptable.
It relates to post for which there was direct recruitment. In the present case,
as noticed above, 50% posts of Laboratory Assistants are filled by way of
promotion and 50% by way of direct recruitment. The claim of the petitioner
for the grant of corresponding pay-scale pursuant to the Sixth Pay
Commission recommendation of Grade Pay of either Rs.4200 would
accordingly falter and has to be rejected. We would for the sake of clarity
refer to the following table which gives the pay scales pursuant to the
recommendation of the Fourth, Fifth and Sixth Pay Commission applicable to
group S-6 to S14. The same is as under:-
"
SL. 4th CPC Pay scale w.e.f 5th CPC Post/Grade and Pay 6th Central Pay Commission w.e.f.
No. 1.1.1986 scale w.e.f. 1.1.1996 1.1.2006 Corresponding
GRADE SCALE Name of Pay Pay Grade Pay
Band/Scale Bands/Scale
7 975-25-1150-30-1540/ S-6 3200-85-4900 PB-1 5200-20200 2000
975-25-1150-30-1660
8 1200-30-1440-30-1800/ S-7 4000-100-6000 PB-1 5200-20200 2400
1200-30-1560-40-2040/
1320-30-1560-40-2040
9 1350-30-1440-40-1800- S-8 4500-125-7000 PB-1 5200-20200 2800
50-2200/1400-40-1800-
50-2300
10 1400-40-1600-50-2300- S-9 5000-150-8000 PB-2 9300-34800 4200
60-2600/1600-50-2300-
60-2660
11 1640-60-2600-75-2900 S-10 5500-175-9000 PB-2 9300-34800 4200
12 2000-60-2120 S-11 6500-200-6900 PB-2 9300-34800 4200
13 2000-60-2300-75- S-12 6500-200-10500 PB-2 9300-34800 4200
3200/2000-60-2300-75-
3200-3500
14 2375-75-3200-100- S-13 7450-225-11500 PB-2 9300-34800 4600
3500/2375-75-3200-100-
3500-125-3750
15 2500-4000 S-14 7500-250-12000 PB-2 9300-34800 4800
"
The Government of India vide their letter dated 25th March, 2016 had stated
that prior to implementation of the Fifth Pay Commission recommendation,
there were 74 posts of Lab Assistant/Junior Technicians (4 Lab Assistants and
70 Junior Technicians) in NCDC, which were in the pay-scale of Rs.975-
1540. 50% of the said posts were to be filled by promotion from Insect
Collectors and remaining 50% by direct recruitment with B.Sc. qualification.
These two posts were divided into two categories i.e. Laboratory Assistant,
Grade I (34 posts) in the pay-scale of Rs.4500-7000 and Laboratory Assistant,
Grade II (40 posts) in the pay-scale of Rs.4000-6000. The posts of
Laboratory Assistant, Grade I were to be filled 50% by promotion from
Laboratory Assistant, Grade II and 50% by way of direct recruitment. Posts
of Laboratory Assistant, Grade II were to be filled 50% by promotion from
Insect Collectors and 50% by way of direct recruitment. The corresponding
pay-scale pursuant to the Sixth Pay Commission recommendation for the
scale of Rs.4000-6000 is Rs.5200-20200 plus Grade Pay of Rs.2400 and of
Rs.4500-7000 is Rs.5200-20200 plus Grade Pay of Rs.2800.
16. The Supreme Court recently had the occasion to examine the principle
of „equal pay for equal work‟ in State of Punjab and Others versus Jagjit
Singh and Others, (2016) SCC Online SC 1200. This judgment takes notice
of several earlier judgments wherein the question of upgradation of pay scale
or pay parity was considered. Upon consideration of earlier judgments or
parameters, deductions have been delineated when principle of „equal pay for
equal work‟ should or should not be invoked and applied. The question
raised by the petitioner forum is that they have been wrongly denied benefit
of the Fifth Pay Commission recommendation, which has been given to
others and in this context some deductions or precepts laid down in Jagjit
Singh (supra) would be relevant. For the purpose of the present decision, we
would only refer to deductions (i), (ii), (iii), (iv), (v), (viii) and (ix), which
read as under:-
"(i) 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 - the Orissa University of
Agriculture & Technology case, Union Territory
Administration, Chandigarh v. Manju Mathur, the Steel
Authority of India Limited case, and the National
Aluminum Company Limited case).
(ii) The mere fact that the subject post occupied by the
claimant, is in a "different department" vis-a-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
Government (see - the Randhir Singh case1, and the D.S.
Nakara case).
(iii) The principle of „equal pay for equal work‟, applies to
cases of unequal scales of pay, based on no classification
or irrational classification (see - the Randhir Singh case).
For equal pay, the concerned employees with whom
equation is sought, should be performing work, which
besides being functionally equal, should be of the same
quality and sensitivity (see - the Federation of All India
Customs and Central Excise Stenographers (Recognized)
case, the Mewa Ram Kanojia case, the Grih Kalyan
Kendra Workers' Union case and the S.C. Chandra case).
(iv) 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 - the Randhir Singh case, State
of Haryana v. Haryana Civil Secretariat Personal Staff
Association, and the Hukum Chand Gupta case).
Therefore, the principle would not be automatically
invoked, merely because the subject and reference posts
have the same nomenclature.
(v) 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 - the Federation of All
India Customs and Central Excise Stenographers
(Recognized) case and the State Bank of India case). 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,
and the Grih Kalyan Kendra Workers' Union case).
(vi) XXXXX
(viii) XXXXX
(viii) If the qualifications for recruitment to the subject post
vis-a-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 -
the Mewa Ram Kanojia case, and Government of
W.B. v. Tarun K. Roy). In such a cause, the principle of
„equal pay for equal work‟, cannot be invoked.
(ix) 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 - Union of
India v. Pradip Kumar Dey, and the Hukum Chand
Gupta case)."
Precept (i) states that onus of proof of parity in the duties and
responsibilities is on the person who claims discrimination and approaches
the Court. Precept (ii) stipulates that mere fact that the subject posts is in a
different department would not have any bearing on the claim for the
employee discharging identical duties cannot be treated differently because
the others belong to different departments of the Government. Precept (iii)
stipulates that unequal pays cannot be justified on the basis of no
classification or irrational classification. However, there would not be
irrational classification if persons holding the same rank/designation have
dissimilar power, duties and responsibilities. In this context, mere
nomenclature is not sufficient and "parity" has to be proved and established
by the claimant. The Court must keep in mind the duties of the two posts, the
sensitivity and qualitative obligations and responsibilities, reliability and
confidentiality, even when the volume of the work would be the same. As
per precept (viii), qualifications for recruitment when different it would be
difficult to conclude that the duties and responsibilities are quantitatively
similar or comparable. Similarly, precept (ix) states that the Court/Tribunal
must take notice of the hierarchy in service of the subject posts. Pay scales of
posts may be different if the hierarchy of posts in question and the channels
of promotion are different. Even if duties and responsibilities are same, a
person cannot claim parity in respect of the promotional post. In the present
context, having elucidated the differences, we do not think the claim for
parity relying upon the Fifth Pay Commission Recommendation has been
made out by the petitioner forum.
17. The petitioner along with the writ petition have also filed certain
papers to show the pay-scales of Technical Supervisors, Assistants, etc. in
different ministries/organizations. As noticed above, this plea or contention
has not been factually elucidated and elaborated. Indeed, the petitioner
during the course of arguments did not make any attempt or assert that on the
basis of parity i.e. "equal pay for equal work", they would be entitled to the
same pay-scale.
18. In view of the aforesaid discussion, we do not find any merit in the
present writ petition and the same is dismissed. There will be no order as to
costs.
(SANJIV KHANNA)
JUDGE
(CHANDER SHEKHAR)
JUDGE
JANUARY 04, 2017
NA /ssn
