State of Punjab & Ors. Vs. Jagjit Singh & Ors.
[Civil Appeal No. 213 of 2013]
[Civil Appeal No. 10356 of 2016]
[Civil Appeal No. 236 of 2013 arising out of SLP (Civil).31676 Cc No. 15616 of 2011]
[Civil Appeal No.10357 of 2016]
[Civil Appeal No. 245 of 2013 arising out of SLP (Civil) 31677 CC No. 16434 of 2011]
[Civil Appeal No.10358 of 2016]
[Civil Appeal No. 246 of 2013 arising out of SLP (Civil) No. 37162 of 2012]
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[Civil Appeal No. 247 of 2013 arising out of SLP (Civil) No. 37164 of 2012]
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Jagdish Singh Khehar, J.
1. Delay in filing and refiling Special Leave Petition (Civil).... CC no. 15616 of 2011, and Special Leave Petition (Civil).... CC no. 16434 of 2011 is condoned. Leave is granted in all special leave petitions.
2. A division bench of the Punjab and Haryana High Court, in State of Punjab & Ors. v. Rajinder Singh & Ors. (LPA no. 337 of 2003, decided on 7.1.2009), set aside, in an intra-court appeal, the judgment rendered by a learned single Judge of the High Court, in Rajinder Singh & Ors. v. State of Punjab & Ors. (CWP no. 1536 of 1988, decided on 5.2.2003). In the above judgment, the learned single Judge had directed the State to pay to the writ petitioners (who were daily-wagers working as Pump Operators, Fitters, Helpers, Drivers, Plumbers, Chowkidars etc.), minimum of the pay-scale, revised from time to time, with permissible allowances, as were being paid to similarly placed regular employees; arrears payable, were limited to a period of three years, prior to the date of filing of the writ petition. In sum and substance, the above mentioned division bench held, that temporary employees were not entitled to the minimum of the pay-scale, as was being paid to similarly placed regular employees.
3. Another division bench of the same High Court, in State of Punjab & Ors. v. Rajinder Kumar (LPA no. 1024 of 2009, decided on 30.8.2010), dismissed an intra-Court appeal preferred by the State of Punjab, arising out of the judgment rendered by a learned single Judge in Rajinder Kumar v. State of Punjab & Ors. (CWP no. 14050 of 1999, decided on 20.11.2002), and affirmed the decision of the single Judge, in connected appeals preferred by employees.
The letters patent bench held, that the writ petitioners (working as daily-wage Pump Operators, Fitters, Helpers, Drivers, Plumbers, Chowkidars, Ledger Clerks, Ledger Keepers, Petrol Men, Surveyors, Fitter Coolies, Sewermen, and the like), were entitled to minimum of the pay- scale, alongwith permissible allowances (as revised from time to time), which were being given to similarly placed regular employees. Arrears payable to the concerned employees were limited to three years prior to the filing of the writ petition.
In sum and substance, the division bench in State of Punjab & Ors. v. Rajinder Kumar (LPA no. 1024 of 2009) affirmed the position adopted by the learned single Judge in Rajinder Singh & Ors. v. State of Punjab & Ors. (CWP no. 1536 of 1988). It is apparent, that the instant division bench, concluded conversely as against the judgment rendered in State of Punjab & Ors. v. Rajinder Singh (LPA no. 337 of 2003), by the earlier division bench.
4. It would be relevant to mention, that the earlier judgment rendered, in State of Punjab & Ors. v. Rajinder Singh & Ors. (LPA no. 337 of 2003) was not noticed by the later division bench - in State of Punjab & Ors. v. Rajinder Kumar (LPA no. 1024 of 2009). Noticing a conflict of views expressed in the judgments rendered by two division benches in the above matters, a learned single Judge of the High Court, referred the matter for adjudication to a larger bench, on 11.5.2011. It is, therefore, that a full bench of the High Court, took up the issue, for resolving the dispute emerging out of the differences of opinion expressed in the above two judgments, in Avtar Singh v. State of Punjab & Ors. (CWP no. 14796 of 2003), alongwith connected writ petitions. The full bench rendered its judgment on 11.11.2011. The present bunch of cases, which we have taken up for collective disposal, comprise of a challenge to the judgment rendered by the division bench of the High Court in State of Punjab & Ors. v. Rajinder Singh & Ors. (LPA no. 337 of 2003, decided on 7.1.2009); a challenge to the judgment, referred to above, in State of Punjab & Ors. v. Rajinder Kumar (LPA no. 1024 of 2009, decided on 30.8.2010); as also, a challenge to the judgment rendered by the full bench of the High Court in Avtar Singh v. State of Punjab & Ors. (CWP no. 14796 of 2003, decided on 11.11.2011). This bunch of cases, also involves challenges to judgments rendered by the High Court, by relying on the judgments referred to above.
5. The issue which arises for our consideration is, whether temporarily engaged employees (daily-wage employees, ad-hoc appointees, employees appointed on casual basis, contractual employees and the like), are entitled to minimum of the regular pay-scale, alongwith dearness allowance (as revised from time to time) on account of their performing the same duties, which are discharged by those engaged on regular basis, against sanctioned posts.
The full bench of the High Court, while adjudicating upon the above controversy had concluded, that such like temporary employees were not entitled to the minimum of the regular pay-scale, merely for reason, that the activities carried on by daily-wagers and the regular employees were similar. However, it carved out two exceptions, and extended the minimum of the regular pay to such employees. The exceptions recorded by the full bench of the High Court in the impugned judgment are extracted hereunder:-
"(1) A daily wager, ad hoc or contractual appointee against the regular sanctioned posts, if appointed after undergoing a selection process based upon fairness and equality of opportunity to all other eligible candidates, shall be entitled to minimum of the regular pay scale from the date of engagement.
(2) But if daily wagers, ad hoc or contractual appointees are not appointed against regular sanctioned posts and their services are availed continuously, with notional breaks, by the State Government or its instrumentalities for a sufficient long period i.e. for 10 years, such daily wagers, ad hoc or contractual appointees shall be entitled to minimum of the regular pay scale without any allowances on the assumption that work of perennial nature is available and having worked for such long period of time, an equitable right is created in such category of persons. Their claim for regularization, if any, may have to be considered separately in terms of legally permissible scheme.
(3) In the event, a claim is made for minimum pay scale after more than three years and two months of completion of 10 years of continuous working, a daily wager, ad hoc or contractual employee shall be entitled to arrears for a period of three years and two months."
6. The issue which has arisen for consideration in the present set of appeals, necessitates a bird's eye view on the legal position declared by this Court, on the underlying ingredients, which govern the principle of 'equal pay for equal work'. It is also necessary for resolving the controversy, to determine the manner in which this Court has extended the benefit of "minimum of the regular pay-scale" alongwith dearness allowance, as revised from time to time, to temporary employees (engaged on daily-wage basis, as ad-hoc appointees, as employees engaged on casual basis, as contract appointees, and the like).
For the aforesaid purpose, we shall, examine the above issue, in two stages. We shall first examine situations where the principle of 'equal pay for equal work' has been extended to employees engaged on regular basis. And thereafter, how the same has been applied with reference to different categories of temporary employees.
7. Randhir Singh v. Union of India[1], decided by a three-Judge bench: The petitioner in the instant case, was holding the post of Driver- Constable in the Delhi Police Force, under the Delhi Administration. The scale of pay of Driver-Constables, in case of non-matriculates was Rs.210- 270, and in case of matriculates was Rs.225-308. The scale of pay of Drivers in the Railway Protection Force, at that juncture was Rs.260-400. The pay-scale of Drivers in the non-secretariat offices in Delhi was, Rs.260-350. And that, of Drivers employed in secretariat offices in Delhi, was Rs.260-400.
The pay-scale of Drivers of heavy vehicles in the Fire Brigade Department, and in the Department of Lighthouse was Rs.330-480. The prayer of the petitioner was, that he should be placed in the scale of pay, as was extended to Drivers in other governmental organizations in Delhi. The instant prayer was based on the submission, that he was discharging the same duties as other Drivers. His contention was, that the duties of Drivers engaged by the Delhi Police Force, were more onerous than Drivers in other departments. He based his claim on the logic, that there was no reason/justification, to assign different pay-scales to Drivers, engaged in different departments of the Delhi Administration.
(ii) This Court on examining the above controversy, arrived at the conclusion, that merely the fact that the concerned employees were engaged in different departments of the Government, was not by itself sufficient to justify different pay-scales. It was acknowledged, that though persons holding the same rank/designation in different departments of the Government, may be discharging different duties. Yet it was held, that if their powers, duties and responsibilities were identical, there was no justification for extending different scales of pay to them, merely because they were engaged in different departments.
Accordingly it was declared, that where all relevant considerations were the same, persons holding identical posts ought not to be treated differently, in the matter of pay. If the officers in the same rank perform dissimilar functions and exercise different powers, duties and responsibilities, such officers could not complain, that they had been placed in a dissimilar pay-scale (even though the nomenclature and designation of the posts, was the same). It was concluded, that the principle of 'equal pay for equal work', which meant equal pay for everyone irrespective of sex, was deducible from the Preamble and Articles 14, 16 and 39(d) of the Constitution. The principle of 'equal pay for equal work', was held to be applicable to cases of unequal scales of pay, based on no classification or irrational classification, though both sets of employees (- engaged on temporary and regular basis, respectively) performed identical duties and responsibilities.
(iii) The Court arrived at the conclusion, that there could not be the slightest doubt that Driver-Constables engaged in the Delhi Police Force, performed the same functions and duties, as other Drivers in the services of the Delhi Administration and the Central Government. Even though he belonged to a different department, the petitioner was held as entitled to the pay-scale of Rs.260-400.
8. D.S. Nakara v. Union of India[2], decided by a five-Judge Constitution Bench: It is not necessary for us to narrate the factual controversy adjudicated upon in this case. In fact, the main issue which arose for consideration pertained to pension, and not to wages. Be that as it may, it is of utmost importance to highlight the following observations recorded in the above judgment:-
"32. Having succinctly focused our attention on the conspectus of elements and incidents of pension the main question may now be tackled. But, the approach of court while considering such measure is of paramount importance. Since the advent of the Constitution, the State action must be directed towards attaining the goals set out in Part IV of the Constitution which, when achieved, would permit us to claim that we have set up a welfare State.
Article 38 (1) enjoins the State to strive to promote welfare of the people by securing and protecting as effective as it may a social order in which justice - social, economic and political shall inform all institutions of the national life. In particular the State shall strive to minimise the inequalities in income and endeavour to eliminate inequalities in status, facilities and opportunities. Art. 39 (d) enjoins a duty to see that there is equal pay for equal work for both men and women and this directive should be understood and interpreted in the light of the judgment of this Court in Randhir Singh v. Union of India & Ors., (1982) 1 SCC 618. Revealing the scope and content of this facet of equality, Chinnappa Reddy, J. speaking for the Court observed as under: (SCC p.619, para 1)
"Now, thanks to the rising social and political consciousness and the expectations aroused as a consequence and the forward looking posture of this Court, the under-privileged also are clamouring for the rights and are seeking the intervention of the court with touching faith and confidence in the court. The Judges of the court have a duty to redeem their Constitutional oath and do justice no less to the pavement dweller than to the guest of the five-star hotel." Proceeding further, this Court observed that where all relevant considerations are the same, persons holding identical posts may not be treated differently in the matter of their pay merely because they belong to different departments. If that can't be done when they are in service, can that be done during their retirement?
Expanding this principle, one can confidently say that if pensioners form a class, their computation cannot be by different formula affording unequal treatment solely on the ground that some retired earlier and some retired later. Art. 39 (e) requires the State to secure that the health and strength of workers, men and women, and children of tender age are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength.
Art. 41 obligates the State within the limits of its economic capacity and development, to make effective provision for securing the right to work, to education and to provide assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. Art. 43 (3) requires the State to endeavour to secure amongst other things full enjoyment of leisure and social and cultural opportunities." It is however impossible to overlook, that the Constitution Bench noticed the Randhir Singh case1, and while affirming the principle of 'equal pay for equal work', extended it to pensionary entitlements also.
9. Federation of All India Customs and Central Excise Stenographers (Recognized) v. Union of India[3], decided by a two-Judge bench: The petitioners in the above case, were Personal Assistants and Stenographers attached to heads of departments in the Customs and Central Excise Department, of the Ministry of Finance. They were placed in the pay-scale of Rs.550-900. The petitioners claimed, that the basic qualifications, the method, manner and source of recruitment, and their grades of promotion were the same as some of their counterparts (Personal Assistants and Stenographers) attached to Joint Secretaries/Secretaries and other officers in the Central Secretariat.
The above counterparts, it was alleged, were placed in the pay-scale of Rs.650-1040. The petitioners' contention was, that their duties and responsibilities were similar to the duties and responsibilities discharged by some of their counterparts. Premised on the instant foundation, it was their contention, that the differentiation in their pay-scales, was violative of Articles 14 and 16 of the Constitution of India. The petitioners claimed 'equal pay for equal work'.
(ii) The assertions made by the petitioners were repudiated by the Union of India. Whilst acknowledging, that the duties and work performed by the petitioners were/was identical to that performed by their counterparts attached to Joint Secretaries/Secretaries and other officers in the secretariat, yet it was pointed out, that their counterparts working in the secretariat, constituted a class, which was distinguishable from them.
It was asserted, that the above counterparts discharged duties of higher responsibility, as Joint Secretaries and Directors in the Central Secretariat performed functions and duties of greater responsibility, as compared to heads of departments, with whom the petitioners were attached. It was contended, that the principle of 'equal pay for equal work' depended on the nature of the work done, and not on the mere volume and kind of work. The respondents also asserted, that people discharging duties and responsibilities which were qualitatively different, when examined on the touchstone of reliability and responsibility, could not be placed in the same pay-scale.
(iii) While adjudicating upon the controversy, this Court arrived at the conclusion, that the differentiation of the pay-scale was not sought to be justified on the basis of the functional work discharged by the petitioners and their counterparts in the secretariat, but on the dissimilarity of their responsibility, confidentiality and the relationship with the public etc. It was accordingly concluded, that the same amount of physical work, could entail different quality of work, some more sensitive, some requiring more tact, some less.
It was therefore held, that the principle of 'equal pay for equal work' could not be translated into a mathematical formula. Interference in a claim as the one projected by the petitioners at the hands of a Court, would not be possible unless it could be demonstrated, that either the differentiation in the pay-scale was irrational, or based on no basis, or arrived at mala fide, either in law or on fact. In the light of the stance adopted by the respondents, it was held that it was not possible to say, that the differentiation of pay in the present controversy, was not based on a rational nexus. In the above view of the matter, the prayer made by the petitioners was declined.
10. State of U.P. v. J.P. Chaurasia[4], decided by a two-Judge bench: Prior to 1965, Bench Secretaries in the High Court of Allahabad, were placed in a pay-scale higher than that allowed to Section Officers. Bench Secretaries were placed in the pay-scale of Rs.160-320 as against the pay- scale of Rs.100-300 extended to Section Officers. A Rationalization Committee, recommended the pay-scale of Rs.150-350 for Bench Secretaries and Rs.200-400 for Section Officers. While examining the recommendation, the State Government placed Bench Secretaries in the pay-scale of Rs.200- 400, and Section Officers in the pay-scale of Rs.515-715.
Dissatisfied with the apparent down-grading, Bench Secretaries demanded, that they should be placed at par with Section Officers, even though their principal prayer was for being placed in a higher pay-scale. The matter was examined by the Pay Commission, which also submitted its report. The Pay Commission refused to accept, that Bench Secretaries and Section Officers could be equated, for the purpose of pay-scales. The Pay Commission was of the view, that the nature of work of Section Officers was not only different, but also, more onerous than that of Bench Secretaries.
It also expressed the view, that Section Officers had to bear more responsibilities in their sections, and were required to exercise control over their subordinates. Additionally, they were required to prepare lengthy original notes, in complicated matters. The Pay Commission therefore recommended, the pay- scale of Rs.400-750 for Bench Secretaries and Rs.500-1000 for Section Officers. Thereupon, the Anomalies Committee, while rejecting the claim of Bench Secretaries for being placed on par with Section Officers, suggested that 10 posts of Bench Secretaries should be upgraded and placed in the pay- scale of Rs.500-1000 (the same as, Section Officers). Those Bench Secretaries, who were placed in the pay-scale of Rs.500-1000 were designated as Bench Secretaries Grade-I, and those placed in the pay-scale of Rs.400-750, were designated as Bench Secretaries Grade-II.
(ii) This Court while adjudicating upon the controversy, examined the matter from two different angles. Firstly, whether Bench Secretaries in the High Court of Allahabad, were entitled to the pay-scale admissible to Section Officers? Secondly, whether the creation of two grades with different pay-scales in the cadre of Bench Secretaries despite the fact that they were discharging the same duties and responsibilities, was violative of the principle of 'equal pay for equal work'?
(iii) While answering the first question this Court felt, that the issue required evaluation of duties and responsibilities of the respective posts, with which equation was sought. And it was concluded, that on the subject of equation of posts, the matter ought to be left for determination to the executive, as the same would have to be examined by expert bodies. It was however held, that whenever it was felt, that expert bodies had not evaluated the duties and responsibilities in consonance with law, the matter would be open to judicial review.
In the present case, while acknowledging that at one time Bench Secretaries were paid more emoluments than Section Officers, it was held, that since successive Pay Commissions and even Pay Rationalization Committees had found, that Section Officers performed more onerous duties, bearing greater responsibility as compared to Bench Secretaries, it was not possible for this Court to go against the said opinion. As such, this Court rejected the prayer of the Bench Secretaries as of right, to be assigned a pay-scale equivalent to or higher than that of Section Officers.
(iv) With reference to the second question, namely, whether there could be two scales of pay in the same cadre, of persons performing the same or similar work or duties, this Court expressed the view, that all Bench Secretaries in the High Court of Allahabad performed the same duties, but Bench Secretaries Grade-I were entitled to a higher pay-scale than Bench Secretaries Grade-II, on account of their selection as Bench Secretaries Grade-I, out of Bench Secretaries Grade-II, by a Selection Committee appointed under the rules, framed by the High Court.
The above selection, was based on merit with due regard to seniority. And only such Bench Secretaries Grade-II who had acquired sufficient experience, and also displayed a higher level of merit, could be appointed as Bench Secretaries Grade-I. It was therefore held, that the rules provided for a proper classification, for the grant of higher emoluments to Bench Secretaries Grade-I, as against Bench Secretaries Grade-II.
(v) In the above view of the matter, the claim raised by the Bench Secretaries for equal pay, as was extended to Section Officers, was declined by this Court.
11. Mewa Ram Kanojia v. All India Institute of Medical Sciences[5], decided by a two-Judge bench: The petitioner in this case, was appointed against the post of Hearing Therapist, at the AIIMS, with effect from 3.8.1972. At that juncture, he was placed in the pay-scale of Rs.210- 425. Based on the recommendations made by the Third Pay Commission (which were adopted by the AIIMS), the pay-scale for the post of Hearing Therapist was revised to Rs.425-700, with effect from 1.1.1973.
The petitioner accordingly came to be paid emoluments in the aforesaid revised pay-scale. The petitioner asserted, that the post of Hearing Therapist was required to discharge duties and responsibilities which were similar to those of the posts of Speech Pathologist and Audiologist. The said posts were in the pay-scale of Rs.650-1200. Since the claim of the petitioner for the aforesaid higher pay-scale (made under the principle of 'equal pay for equal work') was not acceded to by the department, he made a representation to the Third Pay Commission, which also negatived his claim for parity, as also, for a higher pay-scale. It is therefore that he sought judicial intervention.
His main grievance was, that Hearing Therapist performed similar duties and functions as the posts of Senior Speech Pathologist, Senior Physiotherapist, Senior Occupational Therapist, Audiologist, and Speech Pathologist, and further, the qualifications prescribed for the above said posts were almost similar. Since those holding the above mentioned comparable posts were also working in the AIIMS, it was asserted, that the action of the employer was discriminatory towards the petitioner. (ii) Whilst controverting the claim of the petitioner it was pointed out, that the post of Hearing Therapist was not comparable with the posts referred to by the petitioner.
It was contended, that neither the qualifications nor the duties and functions of the posts referred to by the petitioner, were similar to that of Hearing Therapist. In the absence of equality between the post of Hearing Therapist, and the other posts referred to by the petitioner, it was asserted, that the claim of the petitioner was not acceptable under the principle of 'equal pay for equal work'.
(iii) During the course of hearing, the petitioner confined his claim for parity only with the post of Audiologist. It was urged, that educational qualifications, as well as, duties and functions of the posts of Hearing Therapist and Audiologist were similar (if not the same). It was contended, that a Hearing Therapist was required to treat the deaf and other patients suffering from hearing defects. A Hearing Therapist is required to help in the rehabilitation of persons with hearing impairments. It was also pointed out, that an Audiologist's work was to coordinate the separate professional skills, which contribute to the study, treatment and rehabilitation of persons with impaired hearing. As such it was submitted, that a person holding the post of an Audiologist, was a specialist in the non-medical evaluation, habilitation and rehabilitation, of those who have language and speech disorders. On the aforesaid premise, the petitioner claimed parity with the pay-scale of Audiologists.
(iv) This Court held, that there was a qualitative difference between the two posts, on the basis of educational qualifications, and therefore, the principle of 'equal pay for equal work', could not be invoked or applied. It was further held, that the Third Pay Commission had considered the claim of Hearing Therapists, but did not accede to the grievances made by them. Since the Pay Commission was in better position to judge the volume of work, qualitative difference and the reliability and responsibility required of the two posts, this Court declined to accept the prayer made by the petitioner, under the principle of 'equal pay for equal work'.
12. Grih Kalyan Kendra Workers' Union v. Union of India[6], decided by a two-Judge bench: The workers' union in the above case, had approached this Court, in the first instance in 1984, by filing writ petition no. 13924 of 1984. In the above petition, the relief claimed was for payment of wages under the principle of 'equal pay for equal work'. The petitioners sought parity with employees of the New Delhi Municipal Committee, and employees of other departments of the Delhi Administration, and the Union of India. They approached this Court again by filing civil writ petition no. 869 of 1988, which was disposed of by the judgment cited above.
(ii) The petitioners were employees of Grih Kalyan Kendras. They desired the Union of India to pay them wages in the regular pay-scale, on par with other employees performing similar work under the New Delhi Municipal Committee, or the Delhi Administration, or the Union of India. It would be relevant to mention, that the petitioner- Workers' Union was representing employees working in various centres of the Grih Kalyan Kendras, on ad-hoc basis. Some of them were being paid a fixed salary, described as a honorarium, while others were working on piece-rate wages at the production centres, without there being any provision for any scale of pay or other benefits like gratuity, pension, provident fund etc.
(iii) In the first instance, this Court endeavoured to deal with the question, whether the employers of these workers were denying them wages as were being paid to other similarly placed employees, doing the same or similar work. The question came to be examined for the reason, that unless the petitioners could demonstrate that the employees of the Grih Kalyan Kendras, were being discriminated against on the subject of pay and other emoluments, with other similarly placed employees, the principle of 'equal pay for equal work' would not be applicable. During the course of the first adjudication in writ petition no. 13924 of 1984, this Court requested a former Chief Justice of India, to make recommendations after taking into consideration, firstly, whether other similarly situated employees (engaged in similar comparable posts, putting in comparable hours of work, in a comparable employment) were being paid higher pay, and if so, what should be the entitlement of the agitating employees, so as not to violate the principle of 'equal pay for equal work', and secondly, if there was no other similar comparable employment, whether the remuneration of the agitating employees, deserved to be revised on the ground, that their remuneration was unconscionable or unfair, and if so, to what extent. In the report filed by the former Chief Justice of India, it was concluded, that there was no employment comparable to the employment held by those engaged by the Grih Kalyan Kendras, and therefore, they could not seek parity with other employees working either with the New Delhi Municipal Committee, or the Delhi Administration, or the Union of India.
(iv) Based on the aforesaid factual conclusion, this Court held that the concept of 'equal pay for equal work' implies and requires, equal treatment for those who are similarly situated. It was held, that a comparison could not be drawn between unequals. Since the workers who had approached the Court in the present case, had failed to establish that they were situated similarly as others, it was held, that they could not be extended benefits which were being given to those, with whom they claimed parity. In this behalf this Court also opined, that the question as to whether persons were situated equally, had to be determined by the application of broad and reasonable tests, and not by way of a mathematical formula of exactitude. And therefore, since there were no other employees comparable to the employees working in the Grih Kalyan Kendras, this Court declined to entertain the prayer made by the petitioners.
13. Union of India v. Pradip Kumar Dey[7], decided by a two-Judge bench: It was the case of the respondent, that he was holding the post of Naik (Radio Operator), in which capacity he was discharging similar duties as those performed in the Directorate of Coordination Police Wireless, and other central government agencies. It was also the claim of the respondent, that the duties performed by him as Naik (Radio Operator) were more hazardous than those performed by personnel with similar qualifications and experience in State services, and other organizations. Even though a learned single Judge dismissed the writ petition, an intra- Court appeal preferred by the respondent, was allowed.
(ii) The Union of India raised three contentions, in its appeal to this Court.
Firstly, that the pay-scale claimed by the respondent, was that of the post of Assistant Sub-Inspector of Police. It was pointed out, that the respondent was holding an inferior post - of Naik (Radio Operator). It was highlighted, that the post of Assistant Sub-Inspector of Police, was a promotional post, for the post held by the respondent.
Secondly, it was asserted on behalf of the Union of India, that the respondent had not placed any material before the Court, on which the High Court could have arrived at the conclusion, that the essential qualifications of the post against which the respondent claimed parity, as also, the method of recruitment thereto, were the same as that of the post held by the respondent.
Thirdly, the post of Naik (Radio Operator) held by the respondent was extended the benefit of special pay of Rs.80/- per month, and that, there was nothing on the record of the case to show, that Radio Operators in the Central Water Commission or the Directorate of Police Wireless, were enjoying similar benefits.
(iii) This Court while accepting the contentions advanced at the hands of the Union of India held, that the pay-scale claimed by the respondent was that for the post of Assistant Sub-Inspector, which admittedly was a promotional post for Naik (Radio Operator), i.e., the post held by the respondent. And as such, the claim made by the respondent, of parity with a post superior in hierarchy (to the post held by him), was not sustainable. Furthermore, this Court arrived at the conclusion, that there was no material on the record of the case to demonstrate, that the essential qualifications and the method of recruitment for, as also, the duties and responsibilities of the post held by him, were similar to those of the post, against which the respondent was claiming parity.
14. State Bank of India v. M.R. Ganesh Babu[8], decided by a three-Judge bench: Entry into the management cadre in banking establishments, is Junior Management Grade Scale-1. The said cadre comprises of Probationary Officers, Trainee Officers and other officers who possess technical skills (specialized officers), such as Assistant Law Officers, Security Officers, Assistant Engineers, Technical Officers, Medical Officers, Rural Development Officers, and other technical posts. All the posts in the Junior Management Grade Scale-1 cadre, were divisible into two categories - generalist officers, and specialist officers.
Under the prevalent rules - the 1979 Order, the benefit of a higher starting pay, was extended only to Probationary Officers and Trainee Officers (i.e. to generalist officers), while Rural Development Officers and other specialist officers like Assistant Law Officers, Security Officers, Assistant Engineers etc., were not entitled to a higher starting pay. Rural Development Officers, agitated their claim for similar benefits, as were extended to Probationary Officers and Trainee Officers (i.e. to the generalist officers). The question of viability of the claim raised by Rural Development Officers, was referred to the Bhatnagar Committee.
The Bhatnagar Committee made its recommendation, in favour of Rural Development Officers, finding that they were required to shoulder, by and large, the same duties and responsibilities, as Probationary Officers and Trainee Officers, so far as agricultural advances were concerned. The Committee accordingly recommended, that it was a fit case for removal of the anomaly in their salary fitment. It recommended that, Rural Development Officers be allowed the same fitment of salary at the time of appointment, as was extended to Probationary Officers and Trainee Officers (i.e. to the generalist officers). The recommendation made by the Bhatnagar Committee was accepted, and accordingly, Rural Development Officers were extended the same fitment of salary, as generalist officers.
(ii) Since the benefit of additional increment was denied to other specialist officers, they also made a grievance and claimed the benefit of additional increments, as had been extended to Rural Development Officers. Since the State Bank of India did not accede to their request, they approached the Karnataka High Court. The specialist officers claimed, that in all respects, they performed similar duties and responsibilities, as Rural Development Officers, and therefore, they were entitled to the benefit of additional increments, at the time of their appointment, as had been extended to Rural Development Officers.
A learned single Judge of the High Court, on being impressed by the fact, that some of the Rural Development Officers, who had not opted for absorption in the generalist cadre (but had continued under the specialist cadre), were also extended the benefit of higher starting pay, accepted the claim of the specialist officers. Appeals preferred against the judgment rendered by the learned single Judge, were dismissed by a division bench of the High Court.
(iii) This Court while examining the challenges, narrated the parameters on which the benefit of 'equal pay for equal work' can be made applicable, as under:-
"16. The principle of equal pay for equal work has been considered and applied in many reported decisions of this Court. The principle has been adequately explained and crystalised and sufficiently reiterated in a catena of decisions of this Court. It is well settled that equal pay must depend upon the nature of work done. It cannot be judged by the mere volume of work; there may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities make a difference.
One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as such value judgment is made bona fide, reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination. The principle is not always easy to apply as there are inherent difficulties in comparing and evaluating the work done by different persons in different organizations, or even in the same organization. Differentiation in pay scales of persons holding same posts and performing similar work on the basis of difference in the degree of responsibility, reliability and confidentiality would be a valid differentiation.
The judgment of administrative authorities concerning the responsibilities which attach to the post, and the degree of reliability expected of an incumbent, would be a value judgment of the authorities concerned which, if arrived at bona fide reasonably and rationally, was not open to interference by the court." Based on the aforesaid parameters, this Court considered the acceptability of the claim of the specialist officers, for parity with the generalist officers.
This Court recorded its conclusion, as under:-
"19. We have carefully perused the order of the Bank and find that several reasons have been given for non-acceptance of the respondents' claim. It has been highlighted that the Probationary Officers/Trainee Officers are being recruited from market/promoted from clerical staff by the Bank by means of all-India written test and interview to get the best talent from the market and within, with a view to man the Bank's top management in due course. Leaned counsel for the respondents submitted that the same is also true of specialist officers. However, it is contended on behalf of the appellant Bank that the generalist officers are exposed to various assignments including mandatory rural assignments. Unlike them, the services of Assistant Law Officers are utilized as in-house advisors on legal matters in administrative offices.
The duties and responsibilities of Probationary Officers/Trainee Officers are more onerous while the specialist officers are not exposed to operational work/risk. It is, therefore, quite clear that there exists a valid distinction in the matter of work and nature of operations between the specialist officers and the general category officers. The general category officers are directly linked to the banking operations whereas the specialist officers are not so linked and they perform the specified nature of work. RDOs were given similar fitment as the generalist officers since it was found that they were required to shoulder, by and large, the same duties and responsibilities as Probationary Officers and Trainee Officers in so far as conducting Bank's agricultural advances work was concerned.
This was done on the basis of the recommendations of the Bhatnagar Committee and keeping in view the fact that the decision has been taken that there would be no future recruitment of RDOs and the existing RDOs were proposed to be absorbed in general banking cadre. The recruitment of RDOs has been discontinued since 1985. Taking into account the nature of duties and responsibilities shouldered by the respondents the Bank has concluded that the duties and responsibilities of the respondents are not comparable to the duties and responsibilities of the RDOs, the Probationary Officers or the Trainee Officers. 20. Learned counsel for the respondents submitted that specialist officers are also recruited from the open market and are confirmed after successfully completing the probation of 2 years. Before the Order of 1979 came into force, they were similarly being granted benefit of additional increments at the time of appointment in the same manner as the generalist officers.
However, after the order of 1979 they have been deprived of this benefit. Subsequently that benefit was extended to RDOs but not to the respondents and others like them. We have earlier noticed that the RDOs were given the benefit of advance increments on the basis of the report of an Expert Committee which justified their classification with the generalist officers, having regard to the nature of duties and responsibilities shouldered by them. However, on consideration of the case of the respondents, the Bank as reached a different conclusion. The Bank has found that their duties and responsibilities are not the same as those of Probationary Officers/Trainee Officers/RDOs. It is no doubt true that the specialist officers render useful service and their valuable advice in the specialised fields is of great assistance to the Bank in its banking operations.
The officers who belong to the generalist cadre, namely the officers who actually conduct the banking operations and who take decisions in regard to all banking works are advised by the specialist officers. There can be no doubt that the service rendered by the specialist officers is also valuable, but that is not to say that the degree of responsibility and reliability is the same as those of the Probationary Officers, the Trainee Officers, and the RDOs, who directly carry on the banking operations and are required to take crucial decisions based on the advice tendered by the specialist officers.
The Bank has considered the nature of duties and responsibilities of the various categories of officers and has reached bona fide decision that while generalist officers take all crucial decisions in banking operations with which they are directly linked, and are exposed to operational work and risk since the decisions that they take has significant effect on the functioning of the bank and quality of its performance, the specialist officers are not exposed to such risks nor are they required to take decisions as vital as those to be taken by the generalist officers. They at best render advice in their specialized field. The degree of reliability and responsibility is not the same.
It cannot be said that the value judgment of the Bank in this regard is either unreasonable, arbitrary or irrational. Having regard to the settled principles and the parameters of judicial interference, we are of the considered view that the decision taken by the Bank cannot be faulted on the ground of its being either unreasonable, arbitrary or discriminatory and therefore judicial interference is inappropriate." On account of the reasons recorded above, specialist officers could not substantiate their claim of parity. They were held not entitled to benefit of the principle of 'equal pay for equal work' 15. State of Haryana v. Haryana Civil Secretariat Personal Staff Association[9], decided by a two-Judge bench:
The respondent Association in the above case, filed a writ petition before the Punjab and Haryana High Court, seeking a direction to the appellant herein, to grant Personal Assistants in the Civil Secretariat, Haryana, the pay-scale of Rs.2000-3500 + Rs.150 as special pay, which had been given to Personal Assistants working in the Central Secretariat. The aforesaid prayer was made in the background of the fact, that the State of Haryana had accepted the recommendations of the Fourth Central Pay Commission, with regard to revision of pay-scales, with effect from 1.1.1986. The case of Personal Assistants before the High Court was, that prior to 1986, Personal Assistants working in the Civil Secretariat, Haryana, were enjoying a higher scale of pay, than was extended to Personal Assistants working in the Central Secretariat.
On the receipt of Fourth Central Pay Commission report, the Central Government revised the pay-scale of Personal Assistants to Rs.2000-3500 with effect from 1.1.1986. It was pointed out, that even though the Government of Haryana had accepted the recommendation of the Fourth Central Pay Commission, and had also implemented the same, in respect of certain categories of employees, it did not accept the same in the case of Personal Assistants. The pay-scale of Personal Assistants in the Civil Secretariat, Haryana, was revised to Rs.1640-2900 + 150 as special pay.
(ii) It was also the contention of Personal Assistants, that in respect of certain categories of employees of different departments of the State of Haryana, like Education, Police, Transport, Health and Engineering and Technical staff, the State Government had fully adopted the recommendations of the Fourth Central Pay Commission, by granting them the pay-scale of Rs.2000-3500. The claim of the Personal Assistants was also premised on the fact, that Personal Assistants working in the Civil Secretariat, Haryana, discharged duties which were comparable with that of Personal Assistants in the Central Secretariat. And so also, their responsibilities.
(iii) The High Court allowed the claim of the Association. It held, that Personal Assistants working in the Civil Secretariat, Haryana, were entitled to the pay-scale of Rs.2000-3500, with effect from 1.1.1986. The State of Haryana approached this Court. This Court, while recording its consideration, expressed the view, that the High Court had ignored certain settled principles of law, while determining the claim of Personal Assistants, by applying the principle of parity. This Court felt, that the High Court was persuaded to accept the claim of Personal Assistants, only because of the designation of their post. This, it was held, was a misconceived application of the principle.
In its analysis, it was recorded, that the High Court had assumed, that the assertions made at the behest of the Personal Assistants, that they were discharging similar duties and responsibilities as Personal Assistants in the Central Secretariat, had remained unrebutted. That, this Court found, was factually incorrect. The State of Haryana, in its counter affidavit before the High Court, had adopted the specific stance, that there was no comparison between the Personal Assistants working in the Civil Secretariat, Haryana, and Personal Assistants working in the Central Secretariat. It was highlighted, that the qualifications prescribed for Personal Assistants in the Central Secretariat, were different from those prescribed for Personal Assistants in Civil Secretariat, Haryana.
The High Court was also found to have erred in its determination, by not making any comparison of the nature of duties and responsibilities, or about the qualifications prescribed for recruitment. This Court accordingly set aside the order passed by the High Court, allowing parity. (iv) In order to delineate the parameters, on the basis of which the principle of 'equal pay for equal work' can be made applicable, this Court observed as under:-
"10. It is to be kept in mind that the claim of equal pay for equal work is not a fundamental right vested in any employee though it is a constitutional goal to be achieved by the Government. Fixation of pay and determination of parity in duties and responsibilities is a complex matter which is for the executive to discharge. While taking a decision in the matter several relevant factors, some of which have been noted by this Court in the decided case, are to be considered keeping in view the prevailing financial position and capacity of the State Government to bear the additional liability of a revised scale of pay. It is also to be kept in mind that the priority given to different types of posts under the prevailing policies of the State Government is also a relevant factor for consideration by the State Government.
In the context of complex nature of issues involved, the far-reaching consequences of a decision in the matter and its impact on the administration of the State Government courts have taken the view that ordinarily courts should not try to delve deep into administrative decisions pertaining to pay fixation and pay parity. That is not to say that the matter is not justiciable or that the courts cannot entertain any proceeding against such administrative decision taken by the Government. The courts should approach such matters with restraint and interfere only when they are satisfied that the decision of the Government is patently irrational, unjust and prejudicial to a section of employees and the Government while taking the decision has ignored factors which are material and relevant for a decision in the matter.
Even in a case where the court holds the order passed by the Government to be unsustainable then ordinarily a direction should be given to the State Government or the authority taking the decision to reconsider the matter and pass a proper order. The court should avoid giving a declaration granting a particular scale of pay and compelling the government to implement the same. As noted earlier, in the present case the High Court has not even made any attempt to compare the nature of duties and responsibilities of the two sections of the employees, one in the State Secretariat and the other in the Central Secretariat. It has also ignored the basic principle that there are certain rules, regulations and executive instructions issued by the employers which govern the administration of the cadre."
16. Orissa University of Agriculture & Technology v. Manoj K. Mohanty[10], decided by a two-Judge bench: The respondent in the above case, was appointed as a Typist in 1990, on a consolidated salary of Rs.530/- per month, against a vacancy of the post of Junior Assistant. It was his averment, that even though in the appointment order, he was shown to have been appointed against the post of Typist, he had actually been working as a Junior Assistant, in the Examination Section of the institute. In order to demonstrate the aforesaid factual position, the respondent placed reliance on two certificates dated 4.12.1993 and 25.3.1996, issued to him by the Dean of the institute, affirming his stance.
Despite the passage of five years since his induction into service, he was paid the same consolidated salary (referred to above), and was also not being regularized. It was also pointed out, that another individual junior to him was regularized against the post of Junior Assistant. The respondent then approached the Orissa High Court by way of a writ petition, seeking appointment on regular basis. The High Court disposed of the said writ petition, by directing, that the respondent be not disengaged from service. The High Court further directed, that the respondent be paid salary in the regular scale of pay admissible to Junior Assistants, with effect from September, 1997. A review petition filed against the High Court's order dated 11.9.1997, was dismissed. Dissatisfied with the above orders, the Orissa University of Agriculture & Technology approached this Court. While dealing with the question of 'equal pay for equal work', this Court, noticed the factual position as under:-
"10. The High Court before directing to give regular pay-scale to the respondent w.e.f. September, 1997 on the principle of "equal pay for equal work" did not examine the pleadings and facts of the case in order to appreciate whether the respondent satisfied the relevant requirements such as the nature of work done by him as compared to the nature of work done by the regularly appointed Junior Assistants, the qualifications, responsibilities etc. When the services of the respondent had not been regularized, his appointment was on temporary basis on consolidated pay and he had not undergone the process for regular recruitment, direction to give regular pay-scale could not be given that too without examining the relevant factors to apply the principle of "equal pay for equal work".
It is clear from the averments made in the writ petition extracted above, nothing is stated as regards the nature of work, responsibilities attached to the respondent without comparing them with the regularly recruited Junior Assistants. It cannot be disputed that there were neither necessary averments in the writ petition nor any material was placed before the High Court so as to consider the application of principle of "equal pay for equal work"." Based on the fact, that the respondent had not placed sufficient material on the record of the case, to demonstrate the applicability of the principle of 'equal pay for equal work', this Court set aside the order passed by the High Court, directing that the respondent be paid wages in the regular scale of pay, with effect from September, 1997.
17. Government of W.B. v. Tarun K. Roy[11], decided by a three-Judge bench: There were two technical posts, namely, Operator-cum-Mechanic and Sub-Assistant Engineer, in the Irrigation Department, of the Government of West Bengal. In 1970, the State Government revised pay-scales. During the aforesaid revision, the pay-scale of the post of Operator-cum-Mechanic, which was initially Rs.180-350, was revised to Rs.230-425, with effect from 1.4.1970. The pay-scale of the post of Sub-Assistant Engineer was simultaneously revised to Rs.350-600, with a higher initial start of Rs.330, with effect from the same date.
Some persons in the category of Operator-cum-Mechanic, possessing the qualification of diploma in engineering, claimed entitlement to the nomenclature of Sub-Assistant Engineer, as also, the scale of pay prescribed for the post of Sub- Assistant Engineer. The Government of West Bengal, during the course of hearing of the matter before this Court, adopted the position, that diploma holder engineers working as Operator-cum-Mechanics in the Irrigation Department, were not entitled to be designated as Sub-Assistant Engineers. The said plea was negatived by this Court in State of West Bengal v. Debdas Kumar, 1991 Supp. (1) SCC 138.
(ii) Another group of Operator-cum-Mechanics, who did not possess diploma in engineering, and were graduates in science, or were holding school final examination certificate, claimed parity with Operator-cum-Mechanics, possessing the qualification of diploma in engineering. This Court, while rejecting their claim, observed as under:-
"30. The respondents are merely graduates in Science. They do not have the requisite technical qualification. Only because they are graduates, they cannot, in our opinion, claim equality with the holders of diploma in Engineering. If any relief is granted by this Court to the respondents on the aforementioned ground, the same will be in contravention of the statutory rules. It is trite that this Court even in exercise of its jurisdiction under Article 142 of the Constitution of India would not ordinarily grant such a relief which would be in violation of a statutory provision."
18. S.C. Chandra v. State of Jharkhand[12], decided by a two-Judge bench: In the above matter, a number of civil appeals were disposed of, through a common order. The appellants had approached the High Court with the prayer, that directions be issued to the respondents, to fix their pay- scale at par with the pay-scale of government secondary school teachers, or at par with Grade I and II Clerks of the respondent company (Bharat Coking Coal Ltd. - BCCL).
The appellants also prayed, that facilities such as provident fund, gratuity, pension and other retiral benefits, should also be made available to them. In addition to the above prayers, the appellants also sought a direction, that the management of the school, be taken over by the State Government. Dissatisfied with the orders passed by the High Court, the employees of the school approached this Court. This Court disposed of the matter by recording the following conclusion:-
"21. Learned counsel for the appellants have relied on Article 39(d) of the Constitution. Article 39(d) does not mean that all the teachers working in the school should be equated with the clerks in BCCL or the Government of Jharkhand for application of the principle of equal pay for equal work. There should be total identity between both groups i.e. the teachers of the school on the one hand and the clerks in BCCL, and as such the teachers cannot be equated with the clerks of the State Government or of BCCL. The question of application of Article 39(d) of the Constitution has recently been interpreted by this Court in State of Haryana v. Charanjit Singh, (2006) 9 SCC 321, wherein Their Lordships have put the entire controversy to rest and held that the principle, "equal pay for equal work" must satisfy the test that the incumbents are performing equal and identical work as discharged by employees against whom the equal pay is claimed.
Their Lordships have reviewed all the cases bearing on the subject and after a detailed discussion have finally put the controversy to rest that the persons who claimed the parity should satisfy the court that the conditions are identical and equal and same duties are being discharged by them. Though a number of cases were cited for our consideration but no useful purpose will be served as in State of Haryana v. Charanjit Singh, (2006) 9 SCC 321, all these cases have been reviewed by this Court. More so, when we have already held that the appellants are not the employees of BCCL, there is no question seeking any parity of the pay with that of the clerks of BCCL."
A perusal of the determination rendered by this Court reveals, that for claiming parity under the principle of 'equal pay for equal work', there should be total identity between the post held by the claimants, and the reference post, with whom parity is claimed.
19. Official Liquidator v. Dayanand[13], decided by a three-Judge bench: Directions were issued by the Calcutta and Delhi High Courts to the appellant, in the above matter, to absorb persons employed by the Official Liquidators (attached to those High Courts) under Rule 308 of the Companies (Court) Rules, 1959, against sanctioned posts, in the Department of Company Affairs. By virtue of the above directions, the respondents who were employed/engaged by Official Liquidators, were paid salaries and allowances from the Company's funds. The question that arose for consideration before this Court was, whether the respondents were entitled to sanctioned Government posts, in the office of the Official Liquidator(s). While disposing of the above issue, this Court held as under:-
"100. As mentioned earlier, the respondents were employed/engaged by the Official Liquidators pursuant to the sanction accorded by the Court under Rule 308 of the 1959 Rules and they are paid salaries and allowances from the company fund. They were neither appointed against sanctioned posts nor were they paid out from the Consolidated Fund of India. Therefore, the mere fact that they were doing work similar to the regular employees of the Offices of the Official Liquidators cannot be treated as sufficient for applying the principle of equal pay for
