Tripura High Court
Sri Raja Saha vs The State Of Tripura & Others on 19 December, 2019
Equivalent citations: AIRONLINE 2019 TRI 252
Author: Akil Kureshi
Bench: Akil Kureshi
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HIGH COURT OF TRIPURA
AGARTALA
WP(C) No.625/2019
Sri Raja Saha, son of Sri Harinarayan Saha, resident of village-
Dhaleswar, Road No.11, PO-Dhaleswar, P.S.-East Agartala, District-
West Tripura, PIN-799007.
----Petitioner(s)
Versus
The State of Tripura & others
-----Respondent(s)
For Petitioner(s) : Mr. Somik Deb, Advocate.
For Respondent(s) : Mr. Debalay Bhattacharjee, G.A.,
Mr. Mangal Debbarma, Addl. G.A.
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
Date of hearing and judgment: 19th December, 2019.
Whether fit for reporting : YES.
JUDGMENT & ORDER(ORAL)
This petition is filed by a Programmer working under
Tripura Board of Secondary Education (TBSE, for short). He seeks
pay parity with the Programmers engaged by the State Government
in the Directorate of Treasuries on the ground that the duties and
responsibilities of both posts are identical and the Government,
therefore, cannot make artificial distinction in pay scales of two sets
of employees.
2. Brief facts are as under:
The petitioner was appointed on the said post on
25.10.2008 initially on fixed pay basis. In due course of time upon
completion of 5(five) years of service the petitioner was brought in
the regular pay scale carrying Pay Band of `5,310-24,000 with a
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Grade Pay of `2,100. Later on it was revised to the Pay Band of
`5,700-24,000 with Grade Pay of `2,800. The petitioner would point
out that a Programmer in the Department of Treasuries is placed in
the same Pay Band of `5,700-24,000 but with a higher Grade Pay
of `4,200. This is where the petitioner's grievance arises.
3. In the petition, the petitioner has contended that both
the posts are equivalent, the duties and responsibilities are
identical, their nomenclature as well as categorization as Group-C
posts is also common. Merely because two posts are created under
two different departments of the Government, the same cannot
carry different pay scales.
4. Respondents have filed replies. In an affidavit dated
27.06.2019 filed by Sri Swapan Kumar Poddar, Secretary, Tripura
Board of Secondary Education, it is contended as under:
―6. That, as per recruitment rule for the post
of Computer Programmer the essential educational &
other qualification was at least a Bachelor Degree
with minimum 1 year experience in use of computer
and holding a certificate/diploma course in computer
programming from a reputed institution. Desirable-
Bachelor of Computer Science/MCA/PGDCA with
experience in software development.
..................................................................
(i) Though, the designation of the post in reference under TBSE and under Directorate of Treasuries of the Finance Department is same, the essential qualification for entry is different. While in case of TBSE it is ‗At least a Bachelor Degree with minimum one year experience in use of computer Page 3 of 11 and holding a certificate/diploma course in Computer Programming from a reputed institution', in case of Directorate of Treasuries, it is ―At least Degree in Information Technology/Electronics & Telecommunication/Computer Science Engineering or MCA from any recognized University/Institution‖, which is higher.
(ii) Employer organization also different, not
same. Functioning of TBSE and Directorate of
Treasuries are different and functions &
responsibilities of the post in reference related to the functioning of concerned organizations and hence, not same.‖
5. On behalf of the respondents No.1 and 2 in an affidavit in reply dated 18.12.2019 filed by one Sri Atanu Dewanjee, Deputy Secretary to the Government of Tripura, it is stated that the job profile of the petitioner is different from that of a Programmer under the Directorate of Treasuries. Merely because the nomenclature is similar pay parity cannot be granted.
6. On the basis of such pleadings learned counsel for the petitioner vehemently contended that the nomenclature of both the posts is identical. There is no difference in duties and responsibilities. At any rate the respondents have not produced any material in this respect. Granting different Grade Pay is thus a discriminatory act. Counsel relied on the decision of Supreme Court in case of State of Punjab and others vs. Jagjit Singh and others reported in (2017) 1 SCC 148 in which various propositions concerning the principle of ―equal pay for equal work‖ have been culled out.
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7. On the other hand, the Government Advocate opposed the petition contending that mere commonality of the nomenclature would not justify pay parity. Principle of ―equal pay for equal work‖ would not apply in the present case, particularly since the educational qualifications, duties and responsibilities and workload in case of both posts are different.
8. It is well settled by the Supreme Court in number of cases that the principle of ―equal pay for equal work‖ cannot be applied in abstract. Basically prescription of pay scales is to be decided by the Government duly assisted by the expert bodies such as Pay Commissions. Unless and until there is strong ground of discrimination, merely because two posts carry similar nomenclature, would not be the basis for granting upgradation of pay scale.
9. In case of Jagjit Singh (supra) cited by the counsel for the petitioner, the background question was the claim of the daily rated workers for being remunerated at the scale at which a permanent Government servant would be remunerated. It was in this background the Supreme Court discussed the principle of ―equal pay for equal work‖ emanating from Articles 14 and 39(d) of the Constitution of India and culled out certain broad principles emerging from such decisions relevant being the following:
―42.2 The mere fact that the subject post
occupied by the claimant, is in a ―different
department‖ vis-a-vis the reference post, does not Page 5 of 11 have any bearing on the determination of a claim, under the principle of ‗equal pay for equal work'. Persons discharging identical duties, cannot be treated differently, in the matter of their pay, merely because they belong to different departments of Government [see -Randhir Singh case, (1982) 1 SCC 618, and the D.S. Nakara case, (1983) 1 SCC 305].
................................................ 42.7 Persons performing the same or similar functions, duties and responsibilities, can also be placed in different pay-scales. Such as--―selection grade‖, in the same post. But this difference must emerge out of a legitimate foundation, such as-- merit, or seniority, or some other relevant criteria [see - State of U.P. v. J.P. Chaurasia, (1989) 1 SCC 121].‖ (relied upon by the counsel for the petitioner)
10. In the same judgment, the Court also observed as under:
―42.8 If the qualifications for recruitment to the subject post vis-a-vis the reference post are different, it may be difficult to conclude, that the duties and responsibilities of the posts are qualitatively similar or comparable [see -Mewa Ram Kanojia case, (1989) 2 SCC 235, and Government of W.B. v.
Tarun K. Roy, (2004) 1 SCC 347]. In such a case, the principle of "equal pay for equal work", cannot be invoked.‖
11. In case of Union of India and another vs. P.V. Hariharan and another reported in (1997) 3 SCC 568 it was observed that unless a clear-cut case of hostile discrimination is Page 6 of 11 made out there should be no judicial interference with pay scales fixed by the Government on the recommendation of the Pay Commission. It was further observed that the fixation of pay scales is a function of the Government and not that of the Administrative Tribunals.
12. In case of Union of India vs. Tarit Ranjan Das reported in (2003) 11 SCC 658 it was observed that principle of ―equal pay for equal work‖ cannot be applied merely on the basis of designation or nature of work. Following observations may be noted:
―9. Strangely, the Tribunal in the review petition came to hold that the Commission had not based its conclusion on any data. It is trite law that it is not open for any Court to sit in judgment as on appeal over the conclusion of the Commission. Further the Tribunal and the High Court proceeded as if it was the employer who was to show that there was no equality in the work. On the contrary the person who asserts that there is equality has to prove it. The equality is not based on designation or the nature of work alone. There are several other factors like, responsibilities, reliabilities, experience, confidentiality involved, functional need and requirements commensurate with the position in the hierarchy, the qualification required which are equally relevant.
.................................................
11. In the case of State of U.P. vs. J.P. Chaurasia, [1989) 1 SCC 121] 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 nature of work or the Page 7 of 11 volume of work done. Primarily it requires among others, evaluation of duties and responsibilities of the respective posts by the competent authorities constituted for the purpose and courts cannot ordinately substitute themselves in the place of those authorities. 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 and the Government, 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. vs. Pramod Bhartiya, [(1993) 1 SCC 539] by a three-Judge Bench of this Court. In the case of Shyam Babu Verma vs. Union of India [(1994) 2 SCC 521] 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.‖
13. In case of Deb Narayan Shyam and others vs. State of W.B. and others reported in (2005) 2 SCC 286 it was observed that applicability of the principle of ―equal pay for equal work‖ would depend on the nature of duties and qualifications for recruitment. Finding that in the said case duties, functions and qualifications for recruitment of two posts were different the request for pay parity was turned down.
14. In case of State of Haryana and others vs. Charanjit Singh and others reported in (2006) 9 SCC 321 three Judge Bench of the Supreme Court held and observed as under: Page 8 of 11
―19. Having considered the authorities and the submissions we are of the view that the authorities in the cases of Jasmer Singh, Tilak Raj, Orissa University of Agriculture & Technology and Tarun K. Roy lay down the correct law. Undoubtedly, the doctrine of "equal pay for equal work" is not an abstract doctrine and is capable of being enforced in a Court of law. But equal pay must be for equal work of equal value. The principle of "equal pay for equal work" has no mechanical application in every case. Article 14 permits reasonable classification based on qualities or characteristics of persons recruited and grouped together, as against those who were left out. Of course, the qualities or characteristics must have a reasonable relation to the object sought to be achieved. In service matters, merit or experience can be a proper basis for classification for the purposes of pay in order to promote efficiency in administration. A higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues is also an acceptable reason for pay differentiation. The very fact that the person has not gone through the process of recruitment may itself, in certain cases, make a difference. If the educational qualifications are different, then also the doctrine may have no application. Even though persons may do the same work, their quality of work may differ. Where persons are selected by a Selection Committee on the basis of merit with due regard to seniority a higher pay scale granted to such persons who are evaluated by competent authority cannot be challenged. A classification based on difference in educational qualifications justifies a difference in pay scales. A mere nomenclature designating a person as say a carpenter or a craftsman is not enough to come to the conclusion that he is doing the same work as another carpenter or craftsman in regular service.Page 9 of 11
The quality of work which is produced may be different and even the nature of work assigned may be different. It is not just a comparison of physical activity. The application of the principle of "equal pay for equal work" requires consideration of various dimensions of a given job. The accuracy required and the dexterity that the job may entail may differ from job to job. 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 made a difference. Thus normally the applicability of this principle must be left to be evaluated and determined by an expert body. These are not matters where a writ court can lightly interfere. Normally a party claiming equal pay for equal work should be required to raise a dispute in this regards. In any event the party who claims equal pay for equal work has to make necessary averments and prove that all things are equal. Thus, before any direction can be issued by a Court, the Court must first see that there are necessary averments and there is a proof. If the High Court, is on basis of material placed before it, convinced that there was equal work of equal quality and all other relevant factors are fulfilled it may direct payment of equal pay from the date of the filing of the respective Writ Petition. In all these cases, we find that the High Court has blindly proceeded on the basis that the doctrine of equal pay for equal work applies without examining any relevant factors.‖
15. Reverting to the facts of the present case, all that the petitioner has demonstrated before the Court is that the nomenclature of the two posts is the same. This can hardly be the ground for granting pay parity. Mere assertion that the duties and Page 10 of 11 responsibilities are also similar, would not be sufficient. Primarily it is the duty of the petitioner who approaches the Court with a request of pay parity that he must establish necessary facts for applying the principle of ―equal pay for equal work‖. Not only the nomenclature, the qualifications for recruitment, nature of duties, qualitative and quantitative workload would all be relevant governing considerations. Unfortunately the reply of the respondents on majority of these aspects is silent. However, that by itself would not further the case of the petitioner. More so, when the Tripura Board of Secondary Education in its reply has pointed out that there is significant difference in the qualifications prescribed for recruitment of both the posts. In case of a Programmer in the TBSE, educational eligibility criteria is "At least a Bachelor Degree with minimum one year experience in use of computer and holding a certificate/ diploma course in Computer Programming from a reputed institution". Whereas in case of a Programmer under the Directorate of Treasuries the minimum educational qualifications prescribed for recruitment are as under:
―At least Degree in Information Technology/ Electronics & Telecommunication/ Computer Science Engineering or MCA from any recognized University/ Institution‖
16. The respondents are correct in pointing out that the educational qualifications prescribed for recruitment to the post of Programmer in Directorate of Treasuries is higher as compared to that of a Programmer in TBSE. A Programmer in TBSE must hold a Bachelor's degree with minimum one year experience in the use of Page 11 of 11 computer and a certificate or a diploma course in Computer Programming from a reputed institution. The Bachelor's degree does not have to be in the field of computer. Thus, a graduate from any subject be it Arts, Science, Commerce or Computers could apply for the said post as long as he also possesses additional requirements of minimum one year of experience in the field of computer and a certificate or a diploma course in Computer Programming from a reputed institution. As against this for recruitment to the post of the Programmer for Directorate of Treasuries the candidate must have a degree in Information Technology or Electronics & Telecommunication or Computer Science Engineering or Masters in Computer Application from any recognized University or Institution. Thus the degree insisted on for the said post is in the specialized field of Information Technology/ Electronics & Telecommunication/Computer Science Engineering which is equated with the Masters Degree in Computer Application. None of these requirements exist for an incumbent to the post of Programmer in TBSE. Only on this ground of the basic educational qualification requirement of a Programmer in Directorate of Treasuries being higher, claim of the petitioner cannot be accepted.
17. In the result, petition is dismissed.
Pending application(s), if any, also stands disposed of.
(AKIL KURESHI), CJ Pulak