Delhi High Court
Dr. Varsha Sharma vs Ministry Of Human Resources ... on 21 October, 2019
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C) 8584/2015
DR. VARSHA SHARMA ..... Petitioner
Through: Mr. Shanker Raju and Mr. Nilansh
Gaur, Advs.
versus
MINISTRY OF HUMAN RESOURCES DEVELOPMENT
& ORS ..... Respondents
Through: Mr. Kamal Kant Jha, Sr. Panel
Counsel/UOI with Mr. Krishna
Kumar, Mr. Siddharth Jha and Mr.
Prabhakar Thakur, Advs.
Mr. Mohinder J.S. Rupal, Mr. Prang
Newmai and Ms. Slomita Rai,
Advs. for R-JNU.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
% JUDGMENT
21.10.2019
1. The petitioner, who is working as Technical Officer in the
University Science Instrumentation Centre (USIC), seeks, by means of
this writ petition, the benefit of Academic Grade Pay (AGP) and the
Career Advancement Scheme (CAS), as is granted to teaching staff in
universities, under the University Grants Commission (Minimum
Qualifications for Appointment of Teachers and other Academic Staff in
Universities and Colleges and Measures for the Maintenance of Standards
W.P. (C) 8584/2015 Page 1 of 44
in Higher Education) Regulations, 2010 (hereinafter referred to as "the
2010 UGC Regulations").
Facts
2. USICs were the brainchild of the UGC, and were governed by a
programme formulated by the UGC in that regard. The need for USICs
was felt in view of the requirement of highly reliable sophisticated
instruments, for teaching and advanced research, in departments and
colleges of various universities. This, it was felt, would entail, in turn,
the need for regular and proper maintenance of such instruments, so that
optimum utility could be made thereof. In this regard, the reality that
advanced instruments, in colleges and universities, often remain
underutilised and, at times, even unutilised, for want of maintenance
facilities and trained technicians to look after them, was also kept in
mind. Side by side, the fact that modern instruments were more
sophisticated and expensive, and liberal purchase thereof was not,
therefore, economically viable, was also treated as a valid consideration,
to justify the creation for USICs. Under the programme, (which would be
referred to hereinafter, for the sake of convenience, as "the USIC
programme"), the UGC assists universities to create essential support
facilities, where all major instruments in the university could be
centralised for their maximum utilisation, with workshops supported by
well-qualified personnel for fabrication, repairs and maintenance of all
types of instruments.
3. The above recital is to be found in the preambular comments to the
Guidelines governing the USICs, as issued by the UGC in 1993
(hereinafter referred to as "the 1993 Guidelines") which have been placed
on record by the petitioner. These Guidelines also set out the overall
objectives of the USIC programme. The very first objective of the said
programme is "to encourage Universities to establish and develop USICs
with a view to strengthen their technological infrastructure if required
through collaborative efforts of the academic community of the
University."
4. As per the 1993 guidelines, the USICs were envisaged as existing
at three levels namely Level I, Level II and Level III. USICs Level I
would normally be created in universities wishing to start a first level
activity in instrumentation. USICs Level II were to be started in
universities which had already shown appreciable activity in
instrumentation and, therefore, such USICs were required to be equipped
with more facilities, so that they could undertake developmental activity
in instrumentation particularly suitable for teaching and fabrication.
USICs Level III were essentially upgraded USICs Level II, which had
shown sustained and vigorous activity in instrumentation. USICs Level
III were to undertake organised training programmes to generate suitably
trained manpower and to inculcate the culture of instrumentation in the
university and the state.
5. The 1993 Guidelines further designated USICs as "non-vacation
academic departments". The functions of the USICs, which are set out in
Clause 3 in Part I of the 1993 Guidelines, merit reproduction, in extenso,
thus :
"USIC LEVEL I
1. The USIC shall act as an agency of the University in the
matters of repairs and maintenance of instruments and fabrication
of instruments and teaching aids, done either in-house or with the
help of other agencies.
2. It shall execute work orders/jobs submitted by the
university departments and/or colleges, with the help of facilities
available.
3. It shall prepare and maintain an up-to-date inventory of
major instruments costing Rs. 2 lakhs or more, available in the
departments of the university, giving essential details. (Annexure
II)
4. It shall provide necessary analytical services on the
specialized instruments assigned to USIC.
5. The USIC shall maintain or assist the different
departments to maintain suitable log-books of use of instruments
showing details such as the period for which it was used for
research, training and maintenance, down time, etc. (Annexure
III).
USIC LEVEL II
In addition to the functions given above for USIC level I, the
other functions of USIC level II shall be as follows :
1. To conduct short-term courses in repairs and maintenance
and in use of instruments for researchers, laboratory technicians,
attendants, etc., with a view to upgrade their skills and knowledge
in instrumentation.
2. To undertake design and development of teaching aids and
instruments.
3. To design and fabricate instruments and/or accessories
suitable for research, if necessary, in collaboration with the
academic staff of the departments.
USIC LEVEL III
In addition to the functions of USIC Level I & II, the other
functions of USIC Level III shall be as follows :
1. To conduct special courses in instrumentation designed
specially to up-grade the knowledge of technical and scientific
staff of the USICs and of other institutions in maintenance of
instruments.
2. To conduct short-term courses on various aspects of
instrumentation and training programmes on proper use of
instruments for students, teachers of university departments as
well as colleges in the State.
3. To conduct courses leading to post-B.Sc.Diploma in
instrumentation if necessary in collaboration with the other
departments of the university.
4. To prepare annual report on the performance of all USICs
in the State/region where it is located as per the format provided
by the Commission and submit it to the Standing Committee for
its assessment."
6. Clause 6 in Part I of the 1993 Guidelines deals with the
organisation of USICs. Sub-clause (C) thereunder, which is relevant for
the purposes of the controversy in this writ petition, separately deals with
"teaching staff", "technical staff" and "administrative staff". Inasmuch as
the present writ petition deals with a claim for parity by a Technical
Officer (hereinafter referred to as "TO") with teaching staff, the relevant
part of sub-clause (c) may be reproduced thus :
"(C) USIC Staff
The staff of the USICs shall consist of teaching, technical
and administrative personnel, with qualifications as given
below:
(a) Teaching Staff and their status:
The USICs may have a teaching staff consisting of
Professors, Readers and Lecturers. They shall be
treated on par with the other teaching staff of the
university in every respect. However, they will not
be entitled to vacations normally available to the
teaching staff of the university, in view of their
different time table of work.
(b) Teaching staff and their status:
The technical staff of the USIC consist of Technical
Officers (Technical Officers) and technicians in the
grades as specified in these guidelines. They will
have the status of non-vaction academic/non-
teaching staff of the university.
The pay scales and the corresponding allowances
for the technical staff appointed in the USIC shall
be as per the scales given here under :
(i) Technical officers
The Technical Officers in the Centre will be
in the following categories :
Technical Officer (III), Technical
Officer (II), Technical Officer (I-
Selection grade), Technical Officer
(I-Senior scale) and Technical Officer
(I).
(ii) Technicians
The technicians of the Centre be categorized
in five levels with distinct essential
qualifications and experience in view of the
technological nature of the Centre.
While fixing the grades of the existing
technicians in the USICs in the prevailing
university scales, care should be taken to
match experience and to protect his/her
present emoluments.
The university may appoint the technicians
sanctioned by the UGC in suitable university
scales after taking due care to match
qualifications and experience with respect to
the grades given in these guidelines."
7. Clause 7 in Part I of the 1993 Guidelines deals with the procedure
for selection of teaching and non-teaching staff. It stipulates, inter alia,
that the procedure for selection of Technical Officers, and teaching staff,
in USICs, would be identical.
8. Clause 12 in Part I of the 1993 guidelines stipulates that teaching
staff and Technical Officers may be sent for conferences or meetings in
the country or abroad, and that they should be treated on par with teachers
for these purposes.
9. Apart from the 1993 guidelines, the petitioner has placed, on
record, the Ninth Plan Guidelines for USICs, as published by the UGC in
2000. To a large extent, these guidelines are similar to the 1993
Guidelines and also designate the USICs as "non-vacation academic
departments". The functions of USICs, as set out in clause 3 of the Ninth
Plan Guidelines, are as under :
"3. Functions of USICs
In order to achieve the above objectives, the USICs of various
levels will have the following functions :
USIC Level I
1. The USIC shall act as an agency of the University
in the matters of repairs and maintenance of instruments
and fabrication of instruments and teaching aids, done
either in-house or with the help of other agencies.
2. It shall execute work orders/jobs submitted by the
university departments and/or colleges, with the help of
facilities available.
3. It shall prepare and maintain an up-do-date
inventory of major instruments costing Rs.5.00 lakhs or
more, available in the departments of the university,
giving essential details. (Annexure II)
4. It shall provide necessary analytical services on the
specialized instruments assigned to USIC.
5. The USIC shall assist the different departments to
maintain suitable log-books of use of instruments showing
details such as the period for which it was used for
research, training and maintenance, down time,
etc.(Annexure III)
USIC Level II
In addition to the functions given for USIC level I, the other
functions of USIC level II shall be as follows :
1. To conduct short-term courses in repairs and
maintenance in use of instruments for researchers,
laboratory technicians, etc., with a view to upgrade their
skills and knowledge in instrumentation.
2. To undertake design and development of teaching
aids and instruments.
3. To design and fabricate instruments and/or
accessories suitable for research, if necessary, in
collaboration with the academic staff of the departments.
USIC Level III
In addition to the functions of USIC Level I & II, the other
functions of USIC Level III shall be as follows :
1. To conduct special courses in instrumentation
designed specially to up-grade the knowledge of technical
and scientific staff of the USICs and of other institutions
in maintenance of instruments.
2. To conduct short-term courses on various aspects of
instrumentation and training programmes on proper use of
instruments for students, teachers of university
departments as well as colleges in the State.
3. To conduct courses leading to post-B.Sc.Diploma
or equivalent in instrumentation in collaboration with the
other departments of the university.
4. To prepare annual report on the performance of all
USICs in the State/region where it is located, as per the
format provided by the Commission and submit it to the
Standing Committee for its assessment."
10. Clause 6(A) of the Ninth Plan Guidelines for USICs, deals with the
organisation of USICs. Sub-clauses (a) and (b) deal with teaching staff,
and technical staff, and their respective status, and read as under :
"a) Teaching Staff and their Status :
The "USICs may have teaching staff consisting of
Professors, Readers and Lecturers or their equivalent.
They shall be treated on par with the other teaching staff
of the university in every respect. However, they will not
be entitled to vacations normally available to he teaching
staff of the university, in view of their different nature of
work. The age of retirement for these posts will be the
same as for the teachers of the Universities.
b) Technical staff and their status:
The technical staff of the USIC will consist of Technical
Officers (Technical Officers) and technicians in the grades
as specified in these guidelines. Technical Officers will
have the status of non-vacation academic staff and the
technicians will be non-teaching staff of the University.
The pay scales and the corresponding allowances for the
technical staff appointed in the USIC shall be as per the
scales given hereunder :
i) Technical Officers
The Technical Officers in the Centre will be
in the following categories :
Technical Officer (III), Technical
Officer (II), Technical Officer (I-
Selection grade), Technical Officer
(I-Senior scale), and Technical
Officer (I)."
11. As in the case of the 1993 Guidelines, the Ninth Plan Guidelines,
too, stipulated that the procedure for selection of Technical Officers
would be the same as that for teaching staff.
12. In the matter of pay scales and allowances of the staff of USICs,
the Ninth Plan Guidelines stipulated, in respect of teaching staff and
technical staff, thus :
"8. Pay scales and allowances of staff
The pay scales and the allowances of the staff of the
USICs shall be governed by these guidelines and shall be
as under :
i) Teaching Staff
The pay scales and the corresponding allowances
for the teaching staff appointed in the USIC shall be
as per the scales applicable to the other teachers of
the university.
The teaching staff of the USICs shall be entitled to
the same benefits including Provident fund,
Gratuity, pension, housing, medical benefits, leave
travel concession, age of superannuation,
superannuation benefits, facility to attend
conferences, etc. and periodic pay revision, made
available to the other teaching staff of the
university.
ii) Technical Staff
The pay scales and the corresponding allowances
for the technical staff appointed in the USIC shall
be as per the scales given hereunder :
Technical Officers
The Technical Officers of the USIC shall be
entitled to the same benefits including Provident
Fund, Gratuity, Pension, Medical benefits, Leave
Travel Concession, age of superannuation,
superannuation benefits, facility to attend
conferences, etc. and periodic revision of pay scales
made available to the teaching staff of the
university. Their pay-scales shall be as follows :
Designation Revised pay scales
1. Prof./Technical 4500-150-5700-200-7300
Officer (III)
2. Reader/Technical 3700-125-4950-150-5700
Officer (II)
3. Lecturer/Technical 3700-125-4950-150-5700
Officer(I)
(Selection Grade)
4. Lecturer/Technical 3000-100-3500-125-5000
Officer (I) (Senior
Scale)
5. Lecturer/Technical 2200-75-2800-100-4000"
Officer (I)
13. Clause 9(b) of the Ninth Plan Guidelines permits incumbents in the
cadre of Technical Officers, to opt, for redesignation to the corresponding
teaching post, in writing to the university authorities.
14. Clause 12 of the Ninth Plan Guidelines deals with career
advancement. The said clause merits reproduction, in extenso, thus :
"12. Career Advancement
The career advancement of the staff of the USIC will be
governed by the UGC norms and/or the rules of the
University in this regard.
1. Teaching Staff of USICs
The modalities of career advancement for teaching staff of
the USICs would be the same as those available to the
university teachers.
2. Technical Officer I to Technical Officer I
(Senior Scale)
Every Technical Officer I will be eligible for placement
in the Technical Officer I (senior grade) subject to the
following conditions :
1. Completed eight years of satisfactory
service,
2. Attended two refresher courses/summer
institutes,
3. Consistently satisfactory performance
appraisal.
3. Technical Officer I (Senior Scale) to Technical
Officer I (Selection Grade)
1. Completed eight years of service as
Technical Officer (Senior Scale) or sixteen years
service as Technical Officer I,
2. Attended two refresher courses/summer
institutes.
3. Satisfactory evidence of research or
design and development of instruments after
placement in the Senior Scale,
4. Consistently satisfactory appraisal
reports.
4. Technical and Administrative Staff
The policy regarding the promotions for these categories
of staff shall be governed by the university rules."
15. Certain Technical Officers, employed in the USIC, approached this
Court by way of CWP 7384/2002, and connected cases (V. P. Arya v.
Union of India), which was disposed of, on 8th August, 2003. A reading
of the said order discloses that this Court (speaking through a learned
Single Judge) merely noted, therein, that, vide communication, dated 3rd
July, 2003, the UGC had granted approval to the proposal, mooted by the
JNU, for enhancement, in the age of superannuation of the petitioners in
the said writ petitions, up to the age of 62 years, as per USIC guidelines,
with all consequential benefits and, in view thereof, held that, as, despite
the said benefit having been extended by the UGC, the JNU had not
allowed the petitioners to continue in service beyond the age of 60 years,
the period from 1st January, 2003 to 6th July, 2003, was required to be
treated as on duty, without break in service.
16. The petitioner, who was the holder of a PhD qualification, had
been working, since 19th March, 2008, as TO in the Jawaharlal Nehru
University (JNU). Prior thereto, she was employed in the University of
Lucknow, and had also worked for eight years, till 2000, as Research
Associate and Woman Scientist in the JNU. The petitioner has, in the writ
petition, set out, in lucid details, her achievements; however, as they are
entirely irrelevant for adjudicating the controversy in issue, no reference
is required to be made thereto. Suffice it to state that, vide Office Order
dated 27th March, 2008, the petitioner was appointed TO in the pay scale
of ₹ 8000-13,500 and was, on 24th February, 2009, transferred, along with
her post of TO, to the School of Life Sciences, on 24th February, 2009.
17. In the interregnum, and consequent to the recommendations of the
6th Central Pay Commission, a Committee was set up by the UGC, to
review the scale of pay of teachers of universities and colleges, vide
Office Memorandum dated 6th September, 2007. The terms of reference,
of the said Committee, as enumerated in the said Office Memorandum,
read thus:
"(a) To review the implementation of the previous decision of
the Government/UGC under the Scheme of Revision of Pay
Scales approved for University and College Teachers, Librarians,
Physical Education Personnel and other academic staff in
Universities and Colleges, and in the process, to evaluate the
extent to which the earlier recommendations in relation to
qualifications, service conditions and pay-scales etc. have been
implemented.
(b) To examine the present structure of emoluments and
conditions of service of University and College Teachers,
Librarians, Physical Education Personnel and other academic
staff in Universities and Colleges and to suggest revision in the
structure, taking into account the minimum qualifications, career
advancement opportunities, and total package of benefits
available to them (such as superannuation benefits, medical,
housing facilities, etc.).
(c) To make recommendations on the basin means of
attracting and retaining talented persons in the teaching
profession, as well as for the furtherance of research in the
University System and also for their career advancement
teaching and equivalent positions in order to improve the quality
of higher education.
(d) To look into the cases of anomalies, if any, in the matter
of pay structure and/or career advancement opportunities for any
categories of academic staff, consequent on revision of pay
scales based on the recommendations of the preceding Pay
Review Committee and to suggest remedial measures."
The Office Memorandum went on to clarify, unequivocally, that "the pay
structure and service conditions of the non-academic staff who will be
governed by the Central Pay Commission's recommendations, including
those of the officers and staff working in the University Grants
Commission shall be outside the purview of the Pay Review Committee."
Revision of pay of Technical Officers, quite clearly, was outside the
scope of reference of the said Committee.
18. The recommendations of the aforesaid Pay Review Committee
were accepted, by the MHRD, vide communication, dated 31st December,
2008, addressed to the UGC, and revision of pay scales of teachers and
Central Universities, in accordance with the said recommendations, was
approved. The petitioner has chosen to file only the first, fourteenth and
fifteenth pages of the said communication and, ordinarily, this Court
would be loath to even advert to the communication. Be that as it may,
the said communication also set out certain categories of officers, to
whom the Scheme, approved by the MHRD, would not apply. The
petitioner seeks to capitalise on this specification, by pointing out that
Technical Officers did not fall within the said "excluded" categories of
officers.
19. Any ambiguity, in the above regard, was set at rest by the UGC,
vide its communication, dated 22nd May, 2012, addressed to the JNU,
which clarified that "as per Notification issued by MHRD dated
31.12.2008 and UGC pay scale Regulations only Assistant Professor,
Professor and Librarian, Dy. Librarian, Assistant Librarian, Physical
Education Cadres are eligible to get the Academic Grade Pay." This
response was communicated, onward, by the JNU, to the petitioner, vide
letter dated 26th June, 2012.
20. At the request of the MHRD, the UGC constituted, further, a Joint
Cadre Review Committee (JCRC), to recommend uniform staffing
pattern, service conditions, etc., for non-teaching staff of Central
Universities and Deemed Universities maintained by the UGC, as well as
colleges affiliated to the Delhi University. The JCRC drew a report,
containing its recommendations in respect of 24 non-teaching cadres,
which was submitted to the MHRD vide letters dated 18th January, 2008,
12th June, 2009 and 23rd September, 2010. Among these
recommendations was the suggestion that the benefit of the Career
Advancement Scheme (CAS) be extended to Technical Officers. These
recommendations were conveyed, for approval, to the Department of
Higher Education, MHRD, by the UGC, vide its letters dated 12th
January, 2009 and 23rd September, 2009.
21. In response thereto, on 7th May, 2014, the Central University &
Language Bureau, Department of Higher Education in the MHRD wrote
to the UGC, enumerating the proposals, in the report of the JCRC, which
had been examined and approved, or not approved, by the competent
authority. Paras XVII and XVIII of the said communication may be
reproduced thus:
"XVII. Extension of Career Advancement Scheme (CAS) to the
posts of Scientific Officers/Technical Officers is not agreed to.
Instead, Modify Assured Career Scheme (MACP) will govern
their career progression.
XVIII. The following recommendations of JCRC in respect of
University Science Instrumentation Centre (USIC) professionals
are accepted with the stipulation that utilising their services in
teaching in absence of the specified work would not entail
extension of the academic grade pay and applicability of CAS to
them:
(a) Continuing with services of USIC personal until
they vacate their positions.
(b) Once the posts are vacated, the Universities will
follow the XIth Plan guidelines to engage persons on
contractual basis as per provisions under the Scheme, and
(c) Expertise of Scientific and Technical Officers may
be utilised for teaching in addition to the research and
handling of sophisticated equipment assigned to them."
(Emphasis supplied)
The writ petition impugns the communication, dated 7 th May, 2014, from
the Department of Higher Education to the UGC, to the extent of this
stipulation.
22. The UGC wrote, in turn, to all Central Universities and Deemed
Universities, on 1st October, 2014, conveying, inter alia, the disapproval,
of the MHRD, to the proposal to extend, to Technical Officers in the
USIC, the benefit of AGP and CAS. This decision of the UGC was, in
turn, communicated, to the petitioner, by the University, on 19th June,
2015.
23. It is necessary to note, at this juncture, that, on 7th March, 2013, in
response to an application made by some other person under the RTI Act,
the UGC, to a query as to the career advancement scheme for USIC
Technical Staff (I), responded that the CAS, for teaching staff, was also
applicable to Technical Officers as per UGC Regulations issued from
time to time and subject to fulfilment of terms and conditions laid down
in the applicable Guidelines. This, however, does not appear to have been
the correct position, as is reflected from the above recital. I am unable,
therefore, to agree with Mr. Shanker Raju that this communication, under
the RTI Act, could clothe the petitioner with any legally enforceable right
to the benefit of the CAS.
24. Having thus adumbrated the factual arena, within which the present
petition peregrinates, the prayer clause, in the writ petition may be
reproduced, at this point, thus:
"In view of the submissions made above, it is most respectfully
prayed that this Hon'ble Court may graciously be pleased to issue
appropriate writ/direction to;
a) Set aside the impugned orders at Annexure P-1 to
Annexure P-3 to the extent it deny extension of Academic
Grade Pay and Career Advancement Scheme to the
petitioner (TO) by excluding the post of TO from the
category of teaching staff (Teacher);
b) Direct the respondents to treat the petitioner as
equivalent to a teaching staff for all attendant benefits at
par with a Teacher to extend the benefits of AGP and CAS
contained in UGC Regulations of 2010 with all
consequential benefits including arrears, retirement age
etc; and
c) Any order or further relief which this Hon'ble Court
deems fit, just and proper in the peculiar circumstance of
the case in the interest of justice may also please be
awarded."
Rival Submissions
25. I have heard Mr. Shanker Raju, learned counsel for the petitioner,
and Mr. Kamal Kant Jha, learned counsel for the respondent, at length,
and perused the material on record.
26. The petitioner premises her case, essentially, on the following
averments/submissions:
(i) In the 1993 Guidelines, the USIC was designated as a non-
vacation academic department.
(ii) In the 1993 Guidelines at Level III of the staffing pattern of
the UISC, Technical Officers were equated with lecturers.
(iii) In the Ninth Plan Guidelines,
(a) the only non-teaching staff at USIC were technicians,
(b) the procedure for selection of TO was the same as that
for teaching staff,
(c) qualifications of TO were at par in equivalent levels
with teaching staff,
(d) all service conditions of Technical Officers, including
pay scales, were at par with the teaching staff at different
levels,
(e) TO-I was equated with lecturer, and was also entitled
to senior scale, and selection grade, as was available to
lecturers,
(f) TO-II was made equivalent to reader,
(g) TO-III was equivalent to professor, and
(h) till 2007, an incumbent in the cadre of TO could opt
for redesignation to the corresponding teaching posts, by
applying to the universities therefor.
(iv) The recommendations of the 6th Central Pay Commission
(hereinafter referred to as "the 6th CPC") had been adopted by the
UGC, which drafted a scheme for revision of pay of teachers and
equivalent cadres vide letter dated 31st December, 2008 supra.
This scheme was extended to teachers and equivalent positions.
The said order did not exclude, specifically, the benefit thereof to
TO.
(v) Mr. A.C. Alexander, a TO in SLS JNU had been
redesignated as STO by converting a post of Associate Professor.
This indicated that the post of TO was equivalent, functionally, to
post of teacher.
(vi) The UGC had confirmed, in response to an application under
the Right to Information Act, 2005 (hereinafter referred to as "the
RTI Act") that the Career Advancement Scheme for teaching staff
was also applicable to Technical Officers.
(vii) As late as on 7th March, 2013, the UGC had acknowledged
that the grade pay of Technical Officers, as per the guidelines
framed in 1998 governing USICs was the same as that of teaching
staff. As such, the UGC had accepted the equivalence of Technical
Officers with academic staff.
(viii) It was also accepted, by the UGC, that the procedure for
selection of Technical Officers was the same as that of teaching
staff.
(ix) Among the duties and functions of Technical Officers in the
USIC, were included conducting of short courses and workshops,
which included teaching. As such, well qualified Technical
Officers were equivalent to teachers, at all levels.
(x) Consequent to the 6th CPC recommendations, Technical
Officers were placed in the same pay band as teaching staff.
However, the benefit of AGP was not extended to Technical
Officers. As a result, the designation of teacher had been
arbitrarily denied to Technical Officers.
(xi) The Recruitment Rules (RRs) for the post of TO prescribed
the same qualifications as were prescribed for teaching staff, as per
UGC norms.
(xii) Technical Officers were recorded the status of non-vacation
academic department, by the 1993 Guidelines as well as by the
Ninth Plan Guidelines.
(xiii) The issue was covered by the judgment, dated 8th August,
2003, of this Court in V. P. Arya v. Union of India (CWP
7384/2002), which upheld the application, to Technical Officers in
the USIC, the age of superannuation which applied to other
teaching staff, i.e. 62. the extension, to the petitioner, of the benefit
of AGP and the CAS ought to have followed as a logical sequitur
to extension, to the petitioner, of the benefit of superannuation at
the age of 62.
(xiv) Despite possessing the qualifications prescribed for Assistant
Professor, including a PhD, and having been selected, as TO by the
same procedure as applied to the selection of teaching staff, and
despite the fact that she was performing teaching work, the
petitioner had unjustly been denied the benefit of Academic Grade
Pay (DCP) and Career Advancement Scheme (CAS).
(xv) In fact, there is no specific exclusion, of the post of TO, from
the scheme of revision of pay of teachers and equivalent orders, the
benefit whereof was extended to Assistant Professors, as well as
library personnel and physical education personnel.
(xvi) In the light of the admission, by the UGC, that Technical
Officers were entitled to be treated as non-vacation academic staff,
they were also eligible to be regarded as teachers, performing
teaching work.
(xvii) Apparently, therefore, the UGC had "inadvertently missed
out" including Technical Officers in the UGC Regulations.
(xviii) Technical Officers in the USICs were being employed for
teaching work, which indicated that they were equivalent to
teaching staff and were covered in the expression
"teaching/academic staff". Non-extension, to Technical Officers, in
the USIC, the benefit of AGP and CAS, as was granted to teaching
staff, thereby, infracted the "equal pay for equal work" principle,
enshrined in Article 14 of the Constitution of India.
(xix) The Department of Higher Education, MHRD, in its letter
dated 31st December, 2008, addressed to the UGC, with reference
to the scheme of revision of pay of teachers and equivalent orders
in universities and colleges following revision of pay scales of
Central Government employees, consequent on the
recommendations of the 6th CPC, observed, in the context of
applicability of the said Scheme, that the Scheme did not "extend
to the posts of professionals like System Analysts, Senior Analyst,
Research Officers etc. shall be treated at par with similarly
qualified personnel in the search/scientific organisations of the
Central Government". Technical Officers were not, consequently,
excepted from the applicability of the pay revision Scheme.
(xx) To a query, under the RTI Act, as to whether the status of
TO (I) in USICs, the UGC had responded, vide communication
dated 7th March, 2013, that, as per the Ninth Plan Guidelines, the
status of TO (I) in the USIC would consist of Technical Officers
and technicians, in the rates specified in the guidelines, and that
Technical Officers would have the status of non-vacation academic
staff, whereas technicians would be non-teaching staff of the
University.
(xxi) Further, in response to another query, under the RTI Act, as
to whether teachers of USICs were non-vacation academic staff,
the UGC had, while directing reference to sub-clause (a) of Clause
6(C) at page 6 of the USIC Guidelines, 1998, further clarified thus:
"Teaching staff consisting of professors, Readers and
lecturers or their equivalent shall be treated on par with
the teaching staff of the University in every respect.
Technical officers will have the status of non-vacation
academic staff and the technicians with the non-teaching
staff of the University."
(xxii) The Jawaharlal Nehru University (JNU) act, vide
Notification dated 20th July, 2017, resolved to approve the
implementation of pay parity to Documentation Officers, at par
with Assistant Librarian's, along with parity of superannuation,
AGP and CAS w.e.f. 1st July, 2006, as per the classification
received from the UGC vide letters dated 24th June, 2015 and 16th
December, 2016.
27. The above factors, Mr. Shanker Raju would endeavour to submit,
make out a clear case for extension, to his client, of AGP and the benefit
of the CAS, and denial thereof, in his submission, would infract Articles
14 and 16 of the Constitution of India.
Analysis
28. Having considered the submissions of Mr. Shanker Raju, I am of
the opinion that, even cumulatively seen, they do not make out a case for
grant, to the petitioner, of the reliefs claimed in the petition.
29. The prayer, of the petitioner, for being extended AGP, at par with
teachers, is founded on the principle of "equal pay for equal work". The
prerequisites, which are required to be fulfilled, for such a claim to be
countenanced, stand well established, in the law, that has developed over
a period of years. It is not necessary to cite multiple decisions on the
point, and adverting to a few authorities would be sufficient.
30. In Delhi Veterinary Association v. Union Of India1, the factors,
required to be borne in mind while fixing pay scales, were set out, in para
5 of the report, thus:
"In addition to the principle of "equal pay for equal work", the
pay structure of the employees of the Government should reflect
many other social values. Apart from being the dominant
employer, the Government is also expected to be a model
employer. It has, therefore, to follow certain basic principles in
fixing the pay scales of various posts and cadres in the
Government service. The degree of skill, strain of work,
experience involved, training required, responsibility undertaken,
mental and physical requirements, disagreeableness of the task,
hazard attendant on work and fatigue involved are, according to
the Third Pay Commission, some of the relevant factors which
should be taken into consideration in fixing pay scales. The
method of recruitment, the level at which the initial recruitment is
made in the hierarchy of service or cadre, minimum educational
and technical qualifications prescribed for the post, the nature of
dealings with the public, avenues of promotion available and
horizontal and vertical relativity with other jobs in the same
service or outside are also relevant factors."
(Emphasis supplied)
31. Reliance was placed, on the above passage, from Delhi Veterinary
Association1, in para 10 of the report in State of W.B. v. Hari Narayan
Bhowal2, which went on to hold thus:
"In the case of State of U.P. v. J.P. Chaurasia3 it was pointed out
that whether two posts are equal or should carry the equal pay,
depends on several factors. It does not depend just upon either the
(1984) 3 SCC 1
(1994) 4 SCC 78
(1989) 1 SCC 121
nature of work or the volume of work done. Primarily it requires
among others, evaluation of duties and responsibilities of the
respective posts. The quantity of work may be the same but the
quality may be different. That cannot be determined by relying
upon averments in affidavits of interested parties. It must be
determined by expert bodies like Pay Commission, who would be
the best judges, to evaluate the nature of duty, responsibility and
all relevant factors. The same view was reiterated in the case
of State of M.P. v. Pramod Bhartiya4 by a three-Judge Bench of
this Court. Recently, in the case of Shyam Babu Verma v. Union
of India5 a claim for equal pay by a group of Pharmacists was
rejected saying that the classification made by a body of experts
after full study and analysis of the work, should not be disturbed
except for strong reasons which indicate that the classification
made was unreasonable."
(Emphasis supplied)
32. Hari Narayan Bhowal2 was, in turn, approvingly cited, by the
Supreme Court, in U.O.I. v Tarit Ranjan Das6.
33. Myriad factors, therefore, govern fixation of pay and, to allow a
claim for interference with the pay, statutorily fixed, or recommended by
expert bodies, a finding of absolute equivalence on all the factors noticed
in the above extracted passages from the judgment of the Supreme Court
is, therefore, the sine qua non. Viewed thus, the factual material, cited by
the petitioner in support of her claim for being extended the AGP granted
to teachers, in my opinion, falls woefully short. Significantly, the
petitioner does not even claim to be doing the same work as is being done
by teaching staff, in Universities or even in the USICs. Her only claim is
that Technical Officers are also, at times, assigned teaching duties.
Whether such duties are similar to the duties performed by regular
(1993) 1 SCC 539
(1994) 2 SCC 521
(2003) 11 SCC 658
teaching staff in the USICs, who are designated as Lecturers, Associate
Professors, Professors, etc., is anybody's guess. Suffice it to state that
there is no material, cited by the petitioner, which would enable this
Court to arrive at any definitive finding that the work done by Technical
Officers is even similar, far less equal, to that done by teaching staff in
the USICs. Rather, a reading of the 1993 Guidelines, as well as of the
Ninth Plan Guidelines of the UGC, governing the USIC, reveals that the
objectives and duties of the USIC, at all levels, i.e. Levels I, II and III,
are distinct, and clearly distinguishable from teaching duties, which
would ordinarily be performed by Lecturers, Readers, all Professors The
most fundamental requirement, to maintain a claim for equal pay for
equal work, i.e., equality of work, is, therefore, itself wanting in the
present case.
34. The petitioner predicates her case on
(i) the designation, of the USIC, as a non-vacation academic
department,
(ii) the equation of Technical Officers Level III, with Lecturers,
in the 1993 Guidelines,
(iii) the fact that the procedure for selection of Technical
Officers was the same as that of teaching staff,
(iv) the past parity of pay, between teaching staff and Technical
Officers, at various levels,
(v) the entitlement, of Technical Officers, to apply for
redesignation to the corresponding teaching posts,
(vi) the non-exclusion, from the scheme for revision of pay of
teachers and equivalent garters, as postulated vide letter dated 31st
December, 2008, of Technical Officers,
(vii) the redesignation of A. C. Alexander as STO by converting
a post of Associate Professor,
(viii) the placement of Technical Officers, consequent to the 6th
CPC recommendations, in the same pay band as teaching staff,
while denying, to them, the AGP granted to teaching staff, and
(ix) similarity in the qualifications prescribed for teaching staff
and Technical Officers.
35. Mr. Raju would seek to contend that, in view of these facts,
Technical Officers could not be denied the AGP which was granted to
teaching staff.
36. On its face, the claim cannot be granted. The Guidelines governing
the USICs, and the officers working therein, clearly differentiate between
teaching staff and non-teaching staff, as well as Technical officers. They
clearly observe that the teaching staff of the USICs are "Professors,
Readers and Lecturers", who would be entitled to be treated at par with
other teaching staff of the universities in every respect. As against this,
Technical Officers are specifically designated as "technical staff", who
would have the status of "non-vacation academic/non-teaching staff". No
parity, of such technical staff, with teaching staff, is contemplated by the
Guidelines governing the USICs. The mere fact that the procedure for
selection of Technical Officers may be the same as that of teaching staff,
cannot constitute a legitimate basis to claim pay parity, as, in an
organisation, the selection procedure, for posts in various grades, may
often be identical. The pay scale, attached to a post, has little, if anything,
to do with the procedure for selection thereto. Nor, in my opinion, can
any benefit enure, to the petitioner, by the fact that, in respect of one
employee, the post of STO may have been converted, or that the
petitioner may have, at times, been assigned teaching duties. Complete
congruence is the definitive test. Insofar as pay scales were concerned,
the Ninth Plan Guidelines stipulated that, while the pay scales and
corresponding allowances, for teaching staff appointed in the USICs
would be as per the scales applicable to other teachers of the University,
separate, and distinct pay scales were prescribed for technical staff in the
USICs, including Technical Officers. While it is true that the
corresponding post/grade, in the teaching cadre, was also specified along
with the pay scales attached to the various staff in the technical posts,
this, by itself, would not clothe the technical staff of the USICs with the
right, in perpetuity, to claim parity in pay with the teaching staff.
37. In fact, a reading of the Ninth Plan Guidelines reveals that there is
a clear distinction, drawn therein, between Technical staff and teaching
staff in the USICs. Clause 6 of Part I of the Guidelines, which deals with
Organisation of USICs, clearly demarcates between teaching staff, which
are stated to consist of Professors, Readers and Lecturers or their
equivalent, and are required to be treated at par with other teaching staff
of the University, vis-à-vis technical staff, i.e. Technical Officers and
technicians. Technical Officers are given the status of non-vacation and
academic staff, while no such status is conferred on teachers. Pay scales
and allowances of teaching staff and technical staff are also separately
identified, in Clause 8. Insofar as the option, for redesignation to the
corresponding teaching post, available to Technical Officers is
concerned, Clause 9 b) postulates that this option would be subject to
various conditions, which would include selection, by an appropriate
selection committee of the University for University teachers. Even in the
matter of pay revision, Clause 10 stipulates that, for staff of the USICs,
other than teaching staff, the pay revision would be considered effective
immediately on the revision being made for the other staff of the
University. Clause 12, which deals with Career Advancement, clearly
stipulates different modalities of career advancement, for teaching staff,
and Technical Officers, in the USICs.
38. No equivalence, in the matter of conferment of AGP can,
therefore, be said to have been contemplated by the UGC, while framing
Guidelines governing the USICs. Where the UGC, the progenitor of the
USICs, did not contemplate such equivalence, no mandamus can be
issued, by a writ court, to grant, to Technical Officers, the AGP which is
available to teaching staff.
39. The prayer, of the petitioner, for technical staff, in the USICs, to be
extended the benefit of the CAS, which was available to teaching staff, is
equally bereft of merit. Clause 12 of the Ninth Plan Guidelines,
governing the USICs, clearly states that the modalities for career
advancement of teaching staff of the USICs would be the same as those,
which apply to University teachers. As against this, for the posts of
Technical Officers, at various levels, specific stipulations were required
to be fulfilled in order to enable, or entitle, the Technical Officers for
advancement. To move up from TO I to TO I (Senior Scale), the officer
was required to have completed 8 years of satisfactory service, attended
to refresher courses/summer institutes and had consistently satisfactory
performance appraisal, whereas, for advancement from TO I (Senior
Scale) to TO I (Selection Grade), the officer was required to have
completed 8 years of service as TO (Senior Scale) or 16 years as TO I,
attended two refresher courses/summer institutes, had satisfactory
evidence of research design and development of instruments after
placement in the Senior Scale, and consistently satisfactory appraisal
reports. It is not, therefore, as though Technical Officers were stagnating,
or did not have any avenues for career advancement in their cadre.
40. The issue of the posts, to which the CAS was required to be
extended, is, at all times, a matter of policy. Neither is the CAS in the
nature of a vested right, inhering in any post, or grade, nor could Mr.
Raju, learned counsel appearing for the petitioner, bring, to my notice,
any material which would indicate that his client had a right to the benefit
of the CAS. So long as there is no stagnation, in any post or grade, it
cannot lie in the mouth of the holder of any post, or grade, to claim that
she, or he, must be extended the benefit of a career advancement scheme
which is available to holders of other posts or grades. Pay parity, subject,
of course, to satisfaction of the rigourous tests, postulated by the
Supreme Court in Delhi Veterinary Association1, Hari Narayan
Bhowal2 and Tarit Ranjan Das6, remains a constitutional imperative; the
right to the benefit of a particular career advancement scheme, however,
does not. Expressed otherwise, there is no requirement, in law, for an
authority to extend, to employees who may otherwise be identically
situated, the benefits of the same career advancement scheme. All that is
required to be ensured, at the level of the administration, is that there is
no stagnation in any particular grade, or post. So long as this is ensured,
the issue of the manner in which career advancement, for any particular
post, or grade, should be ensured, is essentially a matter of administrative
discretion and, ordinarily, would fall outside the pale of judicial review.
41. The decision, not to extend the benefit of the CAS, to Technical
Officers in the USICs, was consciously taken by the MHRD, which
chose to extend, instead, to Technical Officers, the benefits of the MACP
scheme. This was a deliberate and well considered decision, and this
Court is ill-equipped to interfere therewith, in the absence of any cogent
material to indicate that the decision was not taken after due application
of mind, or suffered from malice, in fact or in law. Neither does the
petitioner pitch her case that high, nor as she had used any evidence or
material, which could so indicate. I am unable to convince myself that,
on the material on record, a case is made out, for me to substitute the
conscious decision, of the MHRD, to extend, to Technical Officers in the
USICs, the benefit of the MACP Scheme, instead of the CAS Scheme,
with any other proposal whatsoever. It is trite that a writ court is not
empowered to subjectively examine the merits of a scheme for career
advancement, and is completely proscribed from substituting the decision
of the administrative authority, in that regard, with its own, even if, on a
dispassionate analysis, the writ court is of the view that the latter scheme
would be better, or more beneficial, or even more conducive to the
legitimate interests of the employee/employees concerned.
42. The reach and sweep of Article 226 of the Constitution of India,
vis-à-vis a claim such as the present, is required to be understood.
Arbitrariness, in any and every form, is susceptible to annihilation, in
exercise of writ jurisdiction. If, therefore, an employee of an organisation
is arbitrarily denied his legitimate and lawful entitlement, there can be no
law which restraints a writ court from interfering. What is required to be
borne in mind, in all such cases, is, however, the scope of examination,
by the writ court, of the question as to whether, in the facts of the case,
the action of the administration is arbitrary. To take a simple example, in
the context of the present controversy, if certain Technical Officers were
to be extended the benefit of the CAS Scheme, and others were not, and
there was no way of distinguishing one set of Technical Officers from the
other, with respect to any indicia which would have a rational nexus with
the applicability, or otherwise, of the CAS Scheme, a writ court would be
entitled to interfere, for the simple reason that it would be arbitrary to
pick and choose, from one homogeneous set of officers, some, to whom a
beneficial dispensation was to be extended, while excluding others
therefrom. The present case does not, however, fall in that select
category. The contention of the petitioner is that the benefit of the CAS
scheme, having been extended to teaching staff, would, ipso facto, be
liable to be extended to Technical Officers as well. This would require an
intricate qualitative analysis of whether Technical Officers and teaching
staff are identically situated, for the purposes of extension of the benefit
of the CAS scheme. This, however, is an exercise which a writ court
should forbear from undertaking. The various factors which might
operate, in deciding whether Technical Officers - or any other category
of technical staff - should be extended the benefit of the scheme of career
advancement to which teaching staff are entitled, are best known to the
administration, and a writ court is a poor judge thereof.
43. Here, too, however, one must enter a caveat. It is certainly open to
a writ court to examine whether, in arriving at the decision that technical
staff were not entitled to be extended the benefit of the career
advancement scheme, to which teachers were entitled, the executive
administration had acted arbitrarily. In doing so, however, a writ court
cannot enter into a roving and fishing inquiry, merely on the basis of an
allegation, or apprehension, that the executive administration had not
exercised proper judgment in its decision, not to extend, to the Technical
Officers, the career advancement benefit which was available to teachers.
To make out a case for a writ court to inquire into the matter, the initial
onus would be on the employee seeking parity, to establish, on the basis
of cogent, credible and convincing material, that, ex facie, the
administration could not have distinguished between Technical Officers
and teaching staff, on the point of the career advancement scheme to
which each was entitled. The credibility of the material, required to be
cited in such a case, would be of a very high degree, as it would
practically require a writ court to perform the function of the executive
administration. Ordinarily, it may be reiterated, such an exercise is to be
scrupulously avoided. Even if the writ court does so - in rare and
exceptional cases - it would strike down the decision of the
administration only if the decision is found, on the face of it, to be
arbitrary, and so unreasonable as could not legally be tolerated, and not
because, in its own estimation, the decision ought to have been otherwise.
The judiciary and the executive are co-equal players in our federal
system, and the exercise of discretion, by the judiciary, can never be
placed at a higher pedestal that the exercise of discretion by the
executive. The exercise of discretion, by the executive, would be
amenable to judicial interference, only where the exercise is patently and
unconscionably arbitrary, and not otherwise.
44. In the present case, it cannot be said that the petitioner has adduced
cogent and credible material, as would be sufficient to convince this
Court to forage into the discretionary thicket, and hold that Technical
Officers were entitled to the benefit of the CAS scheme, only because
teaching staff, of the USIC, were extended the said benefit. Any such
decision, on the part of this Court, would be an affront to the exercise of
conscious discretion by the MHRD, without any adequate justification.
45. The petitioner has not, therefore, been able to make out a case for
grant of the reliefs sought in the writ petition.
46. Before parting with this judgement, reference may profitably be
made to certain relevant passages from a recent decision of the Supreme
Court in Punjab State Power Corporation Limited v. Rajesh Kumar
Jindal7, which are self-speaking:
"14. Ordinarily, the courts will not enter upon the task of job
evaluation which is generally left to expert bodies like the Pay
Commission, etc. The aggrieved employees claiming parity must
(2019) 3 SCC 547
establish that they are unjustly treated by arbitrary action or
discriminated. In Kshetriya Kisan Gramin Bank v. D.B.
Sharma8 , this Court held as under: (SCC p. 363, para 7)
"7. The next question that arises for consideration is, as
to what extent the High Court would be justified in
exercise of its extraordinary jurisdiction under Article 226
to interfere with the findings of an expert body like the
Equation Committee. In State of U.P. v. J.P. Chaurasia3,
this Court unequivocally held that in the matter of
equation of posts or equation of pay, the same should be
left to the Executive Government, who can get it
determined by expert bodies like the Pay Commission,
and such expert body would be the best judge to evaluate
the nature of duties and responsibilities of the posts and
when such determination by a commission or committee
is made, the court should normally accept it and should
not try to tinker with such equivalence unless it is shown
that it was made with extraneous consideration."
15. In S.C. Chandra v. State of Jharkhand9, this Court held
as under: (SCC pp. 292-94, paras 33 & 35-36)
"33. It may be mentioned that granting pay scales is a
purely executive function and hence the court should not
interfere with the same. It may have a cascading effect
creating all kinds of problems for the Government and
authorities. Hence, the court should exercise judicial
restraint and not interfere in such executive function
vide Indian Drugs & Pharmaceuticals
Ltd. v. Workmen .
***
35. In our opinion fixing pay scales by courts by
applying the principle of equal pay for equal work upsets
the high constitutional principle of separation of powers
between the three organs of the State. Realising this, this
Court has in recent years avoided applying the principle of
equal pay for equal work, unless there is complete and
wholesale identity between the two groups (and there too
(2001) 1 SCC 353
(2007) 8 SCC 279
(2007) 1 SCC 408
the matter should be sent for examination by an Expert
Committee appointed by the Government instead of the
court itself granting higher pay).
36. It is well settled by the Supreme Court that only
because the nature of work is the same, irrespective of
educational qualification, mode of appointment,
experience and other relevant factors, the principle of
equal pay for equal work cannot apply vide State of
W.B. v. Tarun K. Roy11 ."
(emphasis in original)
The same view was reiterated in State (UT of
Chandigarh) v. Manju Mathur ; State of Haryana v. Charanjit
Singh13 and in Hukum Chand Gupta v. ICAR14.
16. Observing that granting parity in pay scales depends upon
the comparative evaluation of job and equation of posts,
in SAIL v. Dibyendu Bhattacharya15, this Court held as under:
(SCC pp. 133-34, para 30)
"30. ... the law on the issue can be summarised to the
effect that parity of pay can be claimed by invoking the
provisions of Articles 14 and 39(d) of the Constitution of
India by establishing that the eligibility, mode of
selection/recruitment, nature and quality of work and
duties and effort, reliability, confidentiality, dexterity,
functional need and responsibilities and status of both the
posts are identical. The functions may be the same but the
skills and responsibilities may be really and substantially
different. The other post may not require any higher
qualification, seniority or other like factors. Granting
parity in pay scales depends upon the comparative
evaluation of job and equation of posts. The person
claiming parity, must plead necessary averments and
prove that all things are equal between the posts
concerned. Such a complex issue cannot be adjudicated by
evaluating the affidavits filed by the parties."
(2004) 1 SCC 347
(2011) 2 SCC 452
13 (2006) 9 SCC 321
(2012) 12 SCC 666
(2011) 11 SCC 122
*****
Burden of proof on the person claiming parity of pay scale
20. Ordinarily, the scale of pay is fixed keeping in view the
several factors i.e.
(i) method of recruitment;
(ii) level at which recruitment is made;
(iii) the hierarchy of service in a given cadre;
(iv) minimum educational/technical qualifications
required;
(v) avenues of promotion;
(vi) the nature of duties and responsibilities; and
(vii) employer's capacity to pay, etc.
21. It is well settled that for considering the equation of posts
and the issue of equivalence of posts, the following factors had
been held to be determinative:
(i) The nature and duties of a post;
(ii) The responsibilities and powers exercised by the
officer holding a post, the extent of territorial or other
charge held or responsibilities discharged;
(iii) The minimum qualifications, if any, prescribed for
recruitment to the post; and
(iv) The salary of the post (vide Union of India v. P.K.
Roy16).
*****
23. The burden of proof in establishing parity in pay scales
and the nature of duties and responsibilities is on the person
claiming such right. The person claiming parity must produce
material before the court to prove that the nature of duties and
functions are similar and that they are entitled to parity of pay
scales. After referring to number of judgments and observing that
it is the duty of an employee seeking parity of pay to prove and
establish that he had been discriminated against, this Court,
in SAIL14, held as under: (SCC p. 131, para 22)
AIR 1968 SC 850
"22. It is the duty of an employee seeking parity of pay
under Article 39(d) of the Constitution of India to prove
and establish that he had been discriminated against, as
the question of parity has to be decided on consideration
of various facts and statutory rules, etc. The doctrine of
"equal pay for equal work" as enshrined under Article
39(d) of the Constitution read with Article 14 thereof,
cannot be applied in a vacuum. The constitutional scheme
postulates equal pay for equal work for those who are
equally placed in all respects. The court must consider the
factors like the source and mode of
recruitment/appointment, the qualifications, the nature of
work, the value thereof, responsibilities, reliability,
experience, confidentiality, functional need, etc. In other
words, the equality clause can be invoked in the matter of
pay scales only when there is wholesome/wholesale
identity between the holders of two posts. The burden of
establishing right and parity in employment is only on the
person claiming such right. (Vide U.P. State Sugar
Corpn. Ltd. v. Sant Raj Singh17, Union of
India v. Mahajabeen Akhtar , Union of
India v. Dineshan K.K. , Union of India v. Hiranmoy
Sen20, Official Liquidator v. Dayanand21, U.P.
SEB v. Aziz Ahmad22 and State of M.P. v. Ramesh
Chandra Bajpai23."
(emphasis in original)
*****
25. It is thus well settled that it is the duty of an employee
seeking parity of scale of pay to prove that the educational
qualifications required for both the posts, mode of recruitment
and the nature of work performed by them are one and the same.
There are neither pleadings nor any material produced by the
respondents to prove that the nature of work performed by the
Internal Auditors is similar with that of the Head Clerks. In the
writ petition, the respondents have claimed parity of pay scale
(2006) 9 SCC 82
(2008) 1 SCC 368
(2008) 1 SCC 586
(2008) 1 SCC 630
(2008) 10 SCC 1
(2009) 2 SCC 606
(2009) 13 SCC 635
only on the ground that they were categorised in Group XII
along with the Head Clerks. Merely on the ground that the cadre
of Internal Auditors are placed in Group XII along with the Head
Clerks, cannot be a ground for seeking parity of pay scale.
26. Considering the differences in the nature of duties and
responsibilities performed by the Head Clerks and Internal
Auditors, the Pay Anomaly Committee decided to allow the
revised scale for Internal Auditor at Rs 1800-3200 with benefit of
promotional increments and Rs 2000-3500 for Head Clerks.
Merely because Internal Auditors are categorised in Group XII
along with Head Clerks, the Internal Auditors cannot claim
parity as the nature of duties and responsibilities of Internal
Auditors are different from Head Clerks.
*****
39. The only ground urged by the respondent Internal
Auditors is that parity of pay scale between the Head Clerks and
the Internal Auditors was maintained by the appellant Board for
more than two decades and while so, disturbing the parity is
arbitrary and illegal. The Court has to keep in mind that a mere
difference in service conditions, does not amount to
discrimination. Unless there is complete identity between the two
posts, they should not be treated as equivalent to claim parity of
pay scale. No doubt, Internal Auditors were earlier placed in the
same group, namely, Group XII; but educational qualifications
for the post of Head Clerk and mode of recruitment are different.
As submitted by the learned Senior Counsel for the appellant
Board, that in the year 1980, there were only four posts in Group
XII but subsequently some posts were added to Group XII and
the total fourteen posts which were added to Group XII are:
Punjabi Teacher, Drawing Teacher, Hindi Teacher, DPEd
Teacher, Master/Mistress, Science Teacher, Security Inspector,
Modeller Divisional Head Draftsman, Prosecuting Inspector
(now Law Officer), Law Officer Grade II, Medical Assistant,
Librarian and Fire Officer, etc. For all these posts, source and
mode of recruitment, qualifications and nature of work are
entirely different. If the contention of the Internal Auditors for
claiming parity of pay scale with that of Head Clerks merely on
the ground that the post of Internal Auditor was placed in Group
XII, then if such parity of pay scale may have to be extended to
all other posts, it would have huge financial implication on the
finance of the Board which is a service-oriented institution owing
to the consumers. As held in Union of India v. Manik Lal
Banerjee24: (SCC p. 649, para 26)
"26. It is now a well-settled principle of law that
financial implication is a relevant factor for accepting
revision of pay."
(emphasis supplied)
*****
41. As discussed earlier, merely because various different
posts have been categorised under Group XII, they cannot claim
parity of pay scale as that of the Head Clerk. All the more so,
when the Internal Auditors are appointed 55% by direct
recruitment and 45% by promotion from Circle
Assistant/Assistant Revenue Accountant. The High Court did not
keep in view that the duties, nature of work and promotion
channel of Head Clerks and Internal Auditors are entirely
different and that option to seek promotion apparently as Internal
Auditors was the "conscious exercise of option", the impugned
judgment cannot be sustained and is liable to be set aside."
(Emphasis supplied)
47. Equally, it is trite that parity in pay, which may have existed at
some point in the past, or which may have continued for long periods of
time, cannot be cited as a justification for continuing such parity. (Refer
State of W.B. v. Minimum Wages Inspectors Assn.25, which has been
cited and followed in the well-known decision in State of Punjab v.
Jagjit Singh26.)
48. In this context, it is relevant to note that the CAS was the creation
of the 2010 UGC Regulations. These regulations are a complete answer
to both the claims ventilated by the petitioner in the instant case. The
(2006) 9 SCC 643
(2010) 5 SCC 225
(2017) 1 SCC 148
CAS, as a consolidated scheme, came into existence by virtue of these
Regulations, and the AGP was an inalienable component of the CAS.
Though the petitioner has not annexed these Regulations, they are
available in the public domain. The opening passage of these Regulations
reads thus:
"These Regulations are issued for minimum qualifications for
appointment and other service conditions of University and
College Teachers, Librarians, Directors of Physical Education
and Sports for the maintenance of standards in higher education
and revision of pay scales."
(Emphasis supplied)
The petitioner does not even profess to fall within any of the categories
of posts/positions, italicised in the above extracted opening passage of
the 2010 UGC Regulations. Without elaborating, further, on the content
of the said Regulations, suffice it to state that a reading thereof indicates,
unequivocally, that the 2010 UGC Regulations cater to teaching staff, is
classically understood, apart from librarians and Directors of physical
education and sports. The decision, of the MHRD, not to extend, to the
petitioner and other such similarly situated Technical Officers in the
USICs, the benefit of the CAS and the AGP is, therefore, only in
consonance with the 2010 UGC Regulations, and is, consequently,
impervious to challenge on merits, as well.
49. The impugned decision, not to extend, to Technical Officers in the
USICs, the AGP granted to teaching staff, and to guarantee their career
advancement via the MACP, rather than the CAS, are administrative
decisions, taken in exercise of executive discretion. The fact that the
MHRD has, in taking the said decision, departed from the
recommendations of the UGC, itself indicates that the decision was taken
consciously, with due application of mind. In my opinion, it cannot be
said that the petitioner has made out a case, which would warrant
interference, by this Court, exercising jurisdiction under Article 226 of
the Constitution of India, with the exercise of such discretion.
Conclusion
50. Resultantly, the writ petition is dismissed, with no order as to
costs.
C. HARI SHANKAR, J.
OCTOBER 21, 2019/kr
