Gujarat High Court
Patel Rakeshbhai Prabhubhai vs State Of Gujarat on 18 February, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/9823/2020 CAV JUDGMENT DATED: 18/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9823 of 2020
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R/SPECIAL CIVIL APPLICATION NO. 4707 of 2021
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R/SPECIAL CIVIL APPLICATION NO. 9867 of 2020
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R/SPECIAL CIVIL APPLICATION NO. 9883 of 2020
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R/SPECIAL CIVIL APPLICATION NO. 9825 of 2020
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R/SPECIAL CIVIL APPLICATION NO. 9830 of 2020
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R/SPECIAL CIVIL APPLICATION NO. 9888 of 2020
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R/SPECIAL CIVIL APPLICATION NO. 9887 of 2020
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R/SPECIAL CIVIL APPLICATION NO. 9886 of 2020
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R/SPECIAL CIVIL APPLICATION NO. 9885 of 2020
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R/SPECIAL CIVIL APPLICATION NO. 9875 of 2020
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R/SPECIAL CIVIL APPLICATION NO. 9882 of 2020
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R/SPECIAL CIVIL APPLICATION NO. 9865 of 2020
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R/SPECIAL CIVIL APPLICATION NO. 9864 of 2020
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R/SPECIAL CIVIL APPLICATION NO. 9890 of 2020
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R/SPECIAL CIVIL APPLICATION NO. 9891 of 2020
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R/SPECIAL CIVIL APPLICATION NO. 9871 of 2020
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R/SPECIAL CIVIL APPLICATION NO. 9874 of 2020
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R/SPECIAL CIVIL APPLICATION NO. 9881 of 2020
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R/SPECIAL CIVIL APPLICATION NO. 9880 of 2020
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R/SPECIAL CIVIL APPLICATION NO. 9828 of 2020
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R/SPECIAL CIVIL APPLICATION NO. 9889 of 2020
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R/SPECIAL CIVIL APPLICATION NO. 9873 of 2020
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R/SPECIAL CIVIL APPLICATION NO. 12109 of 2020
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R/SPECIAL CIVIL APPLICATION NO. 12470 of 2020
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R/SPECIAL CIVIL APPLICATION NO. 12708 of 2020
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R/SPECIAL CIVIL APPLICATION NO. 12748 of 2020
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R/SPECIAL CIVIL APPLICATION NO. 12529 of 2020
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R/SPECIAL CIVIL APPLICATION NO. 12610 of 2020
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CIVIL APPLICATION (FIXING DATE OF EARLY HEARING) NO. 1 of 2021
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R/SPECIAL CIVIL APPLICATION NO. 14147 of 2020
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R/SPECIAL CIVIL APPLICATION NO. 11531 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 13036 of 2020
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R/SPECIAL CIVIL APPLICATION NO. 13088 of 2020
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R/SPECIAL CIVIL APPLICATION NO. 15701 of 2016
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R/SPECIAL CIVIL APPLICATION NO. 15702 of 2016
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R/SPECIAL CIVIL APPLICATION NO. 13797 of 2020
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R/SPECIAL CIVIL APPLICATION NO. 12798 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 16899 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 17884 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 18369 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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PATEL RAKESHBHAI PRABHUBHAI
Versus
STATE OF GUJARAT
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Appearance:
MR YATIN OZA, SENIOR ADVOCATE WITH MS SRUSHTI A THULA(5014)
for the Petitioner(s) No. 1 AND MR HJ DHOLAKIA(5862) for the Petitioner(s)
No. 1
MR MEET THAKKAR, ASST GOVERNMENT PLEADER for the
Respondent(s) No. 1,2,3,4
NOTICE SERVED for the Respondent(s) No. 5
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 18/02/2022
CAV JUDGMENT
1. Some of these Special Civil Applications have been filed by the petitioners for a prayer that the petitioners therein are entitled to the benefit of 'Equal Pay for Equal Work'. It is their case that they are being paid salaries in the pay-scale of Rs.5200-20200 whereas they are entitled to be paid salaries in the pay-scale of Rs.9300-34800 (Grade Pay Rs.4200), at par with other secondary teachers of equivalent grade and doing the same and similar nature of duties.
2. This prayer is based on the following facts: (For the purposes of deciding these petitions, facts of Special Civil Application No. 9867 of 2020 are considered).
2.1 It is the case of the petitioner that he successfully passed the S.S.C Examination. He then undertook Diploma of five years in Applied Arts and Arts Teacher Diploma Course. On an advertisement being published inviting applications for the post of Assistant Teachers, where the qualifications were S.S.C, Art Teacher Diploma (Drawing), the petitioner Page 5 of 42 Downloaded on : Mon Feb 21 20:59:20 IST 2022 C/SCA/9823/2020 CAV JUDGMENT DATED: 18/02/2022 applied for the post. He was taken on a fixed salary of Rs.4000/- by an appointment order dated 10.06.2002. Thereafter his services were regularized and he was placed as a permanent employee in the pay-scale of Rs.4500-7000.
2.2 Pursuant to the Revision of Pay Rules, 2009, his pay was further revised and the petitioner was placed in the pay-band of Rs.5200-20200 with a grade pay of Rs.2800/-. It is the case of the petitioner that the teachers who impart education like the petitioner in the arts subject are not being paid the same salary like the teachers in the subject of Maths, Science and English etc. which violates the principle of 'Equal Pay for Equal Work'. It is also the case of the petitioner that not only is the discrimination made subject wise but also amongst teachers of the arts subject inasmuch as those who have S.S.C and Diploma in Arts for five years were paid the scale of Rs.4500-7000 and the revised scale of Rs.5200-20200 whereas the degree holders are being given scale of Rs.9300-34800. Accordingly, the prayer is to quash that part of the notification which notifies the pay of the petitioners at Rs.5200-20200.
3. In context of the arguments made by learned Senior Advocate Mr. Oza for the petitioners, extensive reliance was placed on an interim order dated 07.06.2017 passed in a batch of petitions with the same prayer. Mr. Oza would extensively read the order and submit that the submissions recorded in that order be treated as his submissions. Since, a request was so made it will be relevant to reproduce the submissions made by learned Senior Counsel therein when the order dated 07.06.2017 was passed:
"5. Learned senior counsel Mr. Oza has submitted that :-Page 6 of 42 Downloaded on : Mon Feb 21 20:59:20 IST 2022
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(a). All teachers of all subjects are selected as per law and when there is no difference in selection process or eligibility criteria, whereby basic qualification of given subject is required for appointment as such, there cannot be discrimination with regard to their salary;
(b). Unfortunately, in some schools, there is difference of pay-scale for different subjects;
(c). It cannot be said that Fine Arts is a different subject than other subjects, thereby, even Fine Arts is an equal subject for the students to learn and, therefore, teachers have to perform same duty and same labour to teach Fine Arts in school;
(d). None of the subject can be considered either a superior or inferior to each other and, thereby, all the subjects to be learned by the students and those to be taught by the teachers stand at equal footing and, therefore, it cannot be said that teachers of Fine Arts have to do less labour or his/her duties are different from that of teachers of other subjects so as to fix less salary of such teachers than the teachers of other subjects;
(e). The qualification of the Fine Arts teachers is prescribed by the statute and statute nowhere differentiates the designation and difference in salary i.e. 'X' salary for teachers of other subjects and 'Y' salary for teachers of Fine Arts;
(f). Though less salary is being paid to the present petitioners, in advertisement for new recruitment of teachers, now, when 367 posts of Drawing Teachers are vacant, the salary declared for such post/s is Rs. 9,300 - 34,800/- even with qualification of Diploma in Drawing/ Painting/ Sculpture/ Graphics Art Courses or Diploma in Fine Arts and Craft from Vishwa Bharti Shantiniketan or from Government School of Arts and Craft, Patna or M.A. In Drawing and Painting from Agra University or qualification/ degree of B.Ed. with Diploma in Fine Arts.
(g). Therefore, if new teachers with any of the above qualification is eligible to get salary in the scale of Rs. 9,300
- 34,800/-, then, there is no reason to differentiate and Page 7 of 42 Downloaded on : Mon Feb 21 20:59:20 IST 2022 C/SCA/9823/2020 CAV JUDGMENT DATED: 18/02/2022 discriminate the salary of teachers who are already in service since long and appointed after following due process of law;
(h). It has been pointed out, referring Annexure-C that at the time of recruitment itself, respondents have acted selectively by not disclosing proper salary for the teachers like the present petitioners. It is stated that it would be as per Government Rules and Regulations, though for five years fixed salary of Rs. 4,000/- is to be paid and though such fact is disclosed for other teachers in the same advertisement.
(i). It is also submitted that similarly situated teachers serving in Navodaya Vidyalaya Samiti, are getting salary in the scale of Rs. 9,300 - 34,800/- and, therefore, there is clear discrimination in pay-scale of present petitioners due to bureaucratic sabotage;
(j). It is also submitted that P.T. Teachers are given pay-
scale of Rs. 9,300 - 34,800/- though they are not teachers any subject like Science, Maths or English. Some orders regarding revision of pay-scale for such P.T. Teachers are produced on record at page Nos. 103 - 116;
(k). The petitioners are relying upon G.R. Dated 27.4.2011, copy of which is produced at page 131, which confirms that though there is different eligibility criteria for teachers of each subject, it is mainly with reference to the subjects, which are to be taught by such teachers, but there is no different provision of salary for the teachers who have to teach Fine Arts or physical training etc. inasmuch as there is no such discrimination or difference in paragraphs 12 and 14, which is on page 141.
(l). It is submitted that all the teachers are equally situated and, therefore, there cannot be discrimination in their salary and, thereby, qualification of teachers based upon the subject they have to teach, is unconstitutional;
(m). Petitioners are also relying upon the office memorandum dated 13.7.2012 by Kendriya Vidyalaya Sangathan, wherein though there is list of posts, including post-graduate teachers, trained graduate teachers, primary teachers, head master, primary teachers (music), trained Page 8 of 42 Downloaded on : Mon Feb 21 20:59:20 IST 2022 C/SCA/9823/2020 CAV JUDGMENT DATED: 18/02/2022 graduate teachers (P & H.E.), Librarian, trained graduate teachers (W.E.), same scale of Rs. 9,300 - 34,800/- is prescribed.
(n). In support of his submissions, learned senior counsel Mr. Oza is relying upon decisions in the case of :-
(i). (2017)1 SCC 148 between State of Punjab and others V/s Jagjit Singh;
(ii). (1986)1 SCC 637 between K. Sulaiman vs State Of U.P.;
(iii). (2016)1 SCC 1 between Sanjiv Rajendra Bhatt v. Union of India;
(iv). (2009) 13 SCC 635 between State of Madhya Pradesh and others v. Ramesh Chandra Bajpai;"
3.1 In addition thereto, Mr. Oza would submit that as per the teachers and headmasters of registered private secondary and higher secondary schools, the qualification of Diploma in Fine Arts is given equal weightage as Graduate in Fine Arts. Hence, both these qualifications being equal, their pay-scales also should be the same. Mr. Oza would further submit that in Kendriya Vidyalayas as well as Navodaya Vidyalayas, teachers who have undergone a diploma course are paid the pay-scale of Rs.9300-34800 and therefore not giving the same pay-scale to the diploma holders as the petitioners violates Article 14 of the Constitution of India. He has produced relevant documents with regard to the pay-scale of the teachers of Navodaya Vidyalaya.
3.2 Mr. Oza would further submit that a similarly situated teacher was granted the pay-scale of Rs.9300-34800 and when RTI applications were made seeking information they were not given such information. Mr. Oza would thus submit that if the qualification of Diploma in Fine Arts and degree are treated to be equivalent there is no reason by merely a graduation or a degree that the incumbents therein will be entitled to Page 9 of 42 Downloaded on : Mon Feb 21 20:59:20 IST 2022 C/SCA/9823/2020 CAV JUDGMENT DATED: 18/02/2022 higher pay scale than that which the petitioners are getting only by virtue of being diploma holders.
4. Mr. Meet Thakkar, learned AGP appeared for the State and made the following submissions:
4.1 The relief of the petitioners to seek parity of pay is barred by delay and latches. When the petitioners were appointed in the year 2002, on the pay scales of Arts Teachers having educational qualification of S.S.C/ATD was less than the other secondary teachers and also arts teachers having B.A Fine Arts. Therefore, right from the beginning the pay fixation of the petitioners was done based on the educational qualifications. In fact, Mr. Thakkar would submit that this has been prevalent right from the year 1973. For this purpose, he would invite the attention of the Court to a circular at Annexure R2 to the affidavit-in- reply dated 21.08.1986 which would indicate that art teachers with S.S.C and diploma were given a pay-scale of Rs.440-640 whereas those who had degree were given pay-scale of Rs.440-750. Mr. Thakkar would, therefore, submit that apart from being a case where there is no merit even on delay the petitioners are not entitled to the benefits of 'Equal Pay for Equal Work'.
4.2 Relying on the decisions of the Apex Court, Mr. Thakkar would submit that pay fixation can always be made subject to a reasonable classification, which could be experience, educational qualifications, nature of work, responsibilities etc. and as long as there is some valid legal classification, there is no reason why the State can be held to be denying the benefit of 'Equal Pay for Equal Work'.
Page 10 of 42 Downloaded on : Mon Feb 21 20:59:20 IST 2022C/SCA/9823/2020 CAV JUDGMENT DATED: 18/02/2022 4.3 Mr. Thakkar would further submit that diploma holders and degree holders cannot be equated with each other in respective disciplines. Moreover, even the petitioners' case like other subject teachers of Maths and Science who are getting pay-scale of Rs.9300-34800 the petitioners cannot claim such benefits. A secondary teacher imparting education in Science could be a Bachelor in Science with a Bachelor in Education whereas the petitioners are diploma holders. He would submit that for numerous subjects, there is a difference in pay-scale and a teacher of subject of science has to attend classes and take lectures everyday whereas a teacher of arts with is expected to take lectures once in a week and therefore the parity of subject classification which the petitioners press into service cannot be applied. In fact the petitioners are misapplying the formula on numerous counts including the work load, responsibilities, duties cast and the number of periods to be taken. It is well settled that a degree holder and a diploma holder cannot be compared with each other.
4.4 Several decisions of the Apex Court have been cited by the learned AGP in his reply which read as under:
(a) State of Maharashtra vs. Digambar reported in AIR 1995 SC 1991;
(b) State of Punjab and others vs. Jagjit Singh and Others reported in (2017) 1 SCC 148;
(c) State of U.P and others vs. J.P. Chaurasia and Others reported in (1989) 1 SCC 121;
(d) Government of W.B. vs. Tarun K. Roy and Others reported in (2004) 1 SCC 347;
(e) Steel Authority of India and Others vs. Dibyendu Bhattacharya Page 11 of 42 Downloaded on : Mon Feb 21 20:59:20 IST 2022 C/SCA/9823/2020 CAV JUDGMENT DATED: 18/02/2022 reported in (2011) 11 SCC 122.
4.5 Reliance is also placed on a notification of 1987 which submits that even within the same subject such as that of P.T teachers there is a classification on the basis of a degree and diploma. He would invite the attention of Court to page 139 wherein a P.T teacher with a degree certificate and DPED got a pay-scale of Rs.1400-1600-2300 whereas an S.S.C passed teacher who was teaching PT got a pay-scale of Rs.1200- 2040 and a person who has undergone a certificate course in P.T got a pay-scale of Rs.950-1400. He would therefore submit that it is not something novel that a particular pay-scale of a lower grade is awarded to incumbents who have less qualification in a particular branch compared to a teacher who has a degree qualification and teaches the same subject in the case on hand.
4.6 Mr. Thakkar submits that even otherwise no support can be held from interim orders dated 07.06.2017 because all these interim orders were challenged before the Division Bench and the Division Bench remanded the orders for fresh decision and the interim orders were set aside. On merits, therefore, it is the submission of Mr. Thakkar that it is well settled that this is not a case where the benefit of 'Equal Pay for Equal Work' can be awarded to the petitioners as admittedly they were diploma holders carrying out less onerous tasks than the degree holders who were more qualified and the classification based on different subjects being taught like Maths or Science also was not the one which would invite discrimination at the hands of the department. It was a valid classification and therefore this court in exercise of powers under Article 226 of the Constitution of India should not get into parity and qualification and assessment of work loads in order to come to a decision Page 12 of 42 Downloaded on : Mon Feb 21 20:59:20 IST 2022 C/SCA/9823/2020 CAV JUDGMENT DATED: 18/02/2022 of granting of 'Equal Pay for Equal Work' which cannot be done. On all these counts therefore Mr. Thakkar would submit that the petitions deserve to be dismissed.
5. Having considered the submissions made by the learned counsels for the parties, insofar as in petitions wherein the prayer is made that the petitioners are entitled to 'Equal Pay for Equal Work' as other teachers in the secondary section, the reasonings are as under:
5.1 What is evident from the various appointment orders that have been produced along with the petition is that the petitioners came to be appointed in the year 2002 on probation basis and were confirmed in the year 2007. It is not for the first time in the year 2002 or at the time of their confirmation, that there was a valid differentiation of scales of the petitioners, art teachers who are holding ATD and teachers of other secondary sections. As is evident from the notifications produced in the respondent government's affidavit-in-reply, the initial pay-scale of those who were appointed as art teachers with a qualification of a degree had their pay-scale fixed in Rs.440-750 which was subsequently revised to Rs.1400-2600 whereas in the case of incumbents who are lower qualified, having qualification less than a degree had their pay-scales fixed at Rs.440-640 which was revised to Rs.1400-2300 and then the subsequent revisions in their pay-scales respectively for the purposes of graduates was from Rs.1400-2600 to Rs.5000-8000 and those with a diploma had their pay-scales fixed at Rs.4500-7000. It, therefore, clearly indicates that it is not a case when a sudden disparity and pay-scales appeared post the petitioners appointment. The classification of pay-scales based on qualification existed right from 1973 and was reflected in consequential and subsequent pay revisions. From the notification dated 14.08.1978 Page 13 of 42 Downloaded on : Mon Feb 21 20:59:20 IST 2022 C/SCA/9823/2020 CAV JUDGMENT DATED: 18/02/2022 produced alongwith the reply, what is also evident is that this inter-se differentiation in pay-scales not only existed amongst the art teachers holding degree or diploma but also was the case in the other faculties, such as Music teachers, P.T teachers etc. For instance, in the case of teachers of music, those who had a degree of Visharad were given a higher pay-scale of Rs.440-750 which was then revised to Rs.1400-2600 whereas those who did not have a Visharad but had a lower qualification in Music were given Rs.440-640 revised to Rs.1400-2300 and corresponding revision of 6th pay inasmuch as the pay-scales of the certificate holders was Rs.5000-8000 and revised to Rs.9300-34800 but those with a lower qualification than a degree qualification were placed in the scale of Rs. 5200-20200, which the petitioners at present are drawing. 5.2 The case of the petitioners therefore to approach this court after having been appointed in 2002, regularized in 2007, filing petitions claiming 'Equal Pay for Equal Work' after so many years is clearly an afterthought. Albeit, it will be the case of the petitioners to contend that disparity in pay-scales is a continuous cause of action, one cannot lose sight of the fact that in the year 2002 the petitioners accepted the appointment, on regularization in 2007 they accepted the pay-scales and sat over the issue without challenging it and therefore it is clearly a case of the petitions barred by delay, latches and acquiescence.
5.3 It is also settled by several decisions of this court and Apex court that in order to claim benefit of 'Equal Pay for Equal Work' an incumbent has to bring out evidence or proof to indicate that there is any similarity in the nature of work, quantum of work, quality of work similarity in qualification and nature of duties. In judgements of the Apex Court, the Apex Court has held that the onus of proof of parity lies on the person who claims it. The petitions so filed and the pleadings Page 14 of 42 Downloaded on : Mon Feb 21 20:59:20 IST 2022 C/SCA/9823/2020 CAV JUDGMENT DATED: 18/02/2022 when referred to, the pleadings are bereft of suggesting any ground on which parity can be claimed. Nothing has been shown in comparison to show that the parity of work, the quality of work, the quantum of work and the nature of duties are similar. On this ground too the petitions do not deserve to be entertained. Nothing has been placed on record to show that the petitioners are performing the work functionally, qualitative or otherwise equal to the art teachers holding a degree or same quality of work of teachers taking other subjects.
5.4 What is made out from the petitions is that the petitioners at the relevant time pursuant to the advertisement issued were appointed as art teachers holding diploma. Parity is sought viz-a-viz graduates in the respective disciplines of Science, Maths etc to suggest that they must be given the pay-scale that has been given to teachers teaching Science, Maths or other subjects inasmuch as arts or drawing is also a subject and based on such artificial classification, the petitioners cannot be entitled to pay-scale as is given to graduate teachers in other subjects. What is evident from the contents of the affidavit-in-reply is that the classification of pay of a secondary teacher based on the subject is largely based upon qualifications. Two different types of pay-scales were prescribed for art teachers holding diploma and/or a degree. A teacher holding a diploma in Arts and Drawing would not be able to compete shoulder to shoulder with a degree holder in language or Science. What is also made out is that the work load of teachers holding a diploma in arts as compared to other subject teachers holding a graduation degree is different. A table of the allotment of work annexed to the affidavit-in-reply would suggest that as far as a diploma holder in art subject and teacher of drawing is concerned, an incumbent has to take at the most two to three classes a week which is not the case in context of subject teachers whose workload Page 15 of 42 Downloaded on : Mon Feb 21 20:59:20 IST 2022 C/SCA/9823/2020 CAV JUDGMENT DATED: 18/02/2022 is far more higher than that of an art teacher. These aspects would indicate that the classification of pay between an art teacher and other secondary teacher is reasonable and based upon intelligible differentia.
The classification is done while taking into consideration the qualifications to be taken into consideration at the time of recruitment and the content of work.
6. The claim of the petitioners that even the teachers of the Kendriya Vidyalaya get the same pay-scales of Rs.9300-34800 (Grade pay Rs.4200) and therefore the petitioners can also be so appointed and granted the pay-scale is a misconceived argument. The Kendriya Vidyalayas are institutions which are governed by the Central Civil Services School whereas the present petitioners are governed by the state rules and the regulations of 1974. It is a settled proposition of law that a comparison between the subject post and a reference post under the principles of 'Equal Pay for Equal Work' cannot be made where the subject post and reference post are in different establishments having a different management. The case of the petitioners to compare their cases with the teachers of Kendriya Vidyalaya and Navodaya Vidyalaya is therefore misplaced.
7. Reliance placed by the petitioners on the decision in the case of Union of India vs. Dineshan K. K [(2008) 1 SCC 586] is also misplaced. The facts of the case therein were materially different and what the Apex Court found in the facts of the said case was that the radio mechanics had a different pay-scale when they were working in the Assam Rifles viz-a-viz the radio mechanics of other paramilitary forces. Relevant portion of the decision in the case of K.K. Dineshan (supra) are reproduced hereunder:
Page 16 of 42 Downloaded on : Mon Feb 21 20:59:20 IST 2022C/SCA/9823/2020 CAV JUDGMENT DATED: 18/02/2022 "6. Taking note of the admission on the part of the Union of India that there was disparity between the pay scales of the members of the Assam Rifles and similarly ranked personnel of other paramilitary forces, the High Court felt that it would be unreasonable and discriminatory if the pay scales given to Radio Mechanics in CRPF and BSF were denied to the Radio Mechanics in Assam Rifles, when the qualifications and service requirements in all the three organizations were identical. Consequently, the High Court issued the aforenoted directions, which are questioned in this appeal.
...
18. From the afore-extracted paragraphs of the counter affidavit and the resume of correspondence referred to above, it clearly stands admitted by the petitioners herein that: (i) all the paramilitary forces, including Assam Rifles are at par with each other and (ii) there was apparent disparity in the pay scales of the personnel of Assam Rifles with their counterparts in other central paramilitary forces. In order to rectify this disparity, Director General Assam Rifles, petitioner No.2 herein, vide his letter dated 18th February, 1998 had, in fact, taken up the grievance of the respondent with the Ministry of Home Affairs, inter alia recommending re-designation of Havildar (RM) Gd.-I and II of Assam Rifles as Warrant Officer and for replacement of pay scale of Rs.4000-100-6000 to bring them at par with their counterparts in other central police organization. However, the Ministry of Home Affairs vide letter dated 3rd March, 1998 while accepting the said proposal had recommended re-designation of HAV/RM as Warrant Officer but subject to the condition that the pre-revised and revised pay scales of HAV/RM in other paramilitary forces were identical to the pay scales of Head Constable (RM) in CRFP and BSF. Manifestly, in the instant case, the differentiation in the pay scales of the two paramilitary forces is sought to be achieved not on the ground of dissimilarity of academic qualification or the nature of duties and responsibilities but only on the ground that there was initial anomaly in the Fourth Central Pay Commission Report. The counter affidavit does not even attempt to explain how the case of the HAV/RM in Assam Rifles is different from that of Radio Mechanics in other central Page 17 of 42 Downloaded on : Mon Feb 21 20:59:20 IST 2022 C/SCA/9823/2020 CAV JUDGMENT DATED: 18/02/2022 paramilitary forces.
19. In the present case, therefore, in the light of the admitted factual position, the question of examination of external comparisons, internal relativities and other factors, to be kept in view for job evaluation, considered to be a complex issue to be studied only by expert bodies, does not arise. As a necessary corollary, the issue as to whether there is a complete or wholesale identity between the said paramilitary forces, does not survive for consideration.
20. Thus, the short question requiring our consideration is whether having admitted in their affidavit referred to hereinabove, the apparent disparity and anomaly in the pay scales of Radio Mechanics, the administrative authorities, the petitioners herein, could be permitted to perpetuate apparent discriminatory differentiation in the pay scales because of the disparity in pre-revised and revised scales of the personnel of Assam Rifles prior to the recommendations of the Fourth Pay Commission, irrespective of the identity of their powers, duties and responsibilities with other paramilitary forces. In our considered opinion, in view of the total absence of any plea on the part of the Union of India that Radio Mechanics in other paramilitary forces were performing different or more onerous duties as compared to the Radio Mechanics in Assam Rifles, the impugned decision of the Government was clearly irrational and arbitrary and thus, violative of Article 14 of the Constitution.
21. On a conspectus of the factual scenario noted above, we do not find any infirmity in the impugned directions given by the High Court, warranting interference. There is no merit in this appeal and it is dismissed accordingly with costs."
7.1 It is therefore clear from reading the aforesaid excerpts of the judgement that it was a decision rendered in the facts of that case.
8. Even otherwise, a concept of 'Equal Pay for Equal Work' for the aforesaid reasons cannot be a matter of fundamental right or a legal right Page 18 of 42 Downloaded on : Mon Feb 21 20:59:20 IST 2022 C/SCA/9823/2020 CAV JUDGMENT DATED: 18/02/2022 and therefore if there is a reasonable classification based on educational qualifications as is the present case, the petitioners have no case for claiming the benefit of 'Equal Pay for Equal Work'.
9. Before parting with the judgement, an oversight of the case laws on the question of 'Equal Pay for Equal Work' need to be referred to and reproduced as under:
(I) State of U.P and others vs. J.P. Chaurasia and Others reported in (1989) 1 SCC 121, paras 18 to 23 which read as under:
"18. The first question regarding entitlement to the pay scale admissible to Section Officers should not detain us longer. The answer to the question depends upon several factors. It does not just depend upon either the nature of work or volume of work done by Bench Secretaries. Primarily it requires among others. evaluation of duties and responsibilities of the respective posts. More often functions of two posts may appear to be the same or similar, but there may be difference in degrees in the performance. The quantity of work may be the same, but quality may be different that cannot be determined by relying upon averments in affidavits of interested parties. The equation of posts or equation of pay must be left to the Executive Government. It must be determined by expert bodies like Pay Commission. They would be the best judge to evaluate the nature of duties and responsibilities of posts. If there is any such determination by a Commission or Committee, the court should normally accept it. The court should not try to tinker with such equivalence unless it is shown that it was made with extraneous consideration.
19. In the present case, it is true that at one time, Bench Secretaries were paid more emoluments than Section Officers. But it is not known on what basis they were paid in the higher pay scale and treated as a superior class to Section Officers. The Successive Pay Commissions and even Pay Page 19 of 42 Downloaded on : Mon Feb 21 20:59:20 IST 2022 C/SCA/9823/2020 CAV JUDGMENT DATED: 18/02/2022 Rationalisation Committee, however, found no support to their superior claim. The Commissions and Committee have evaluated the respective duties and responsibilities of the two posts. It was found that the Section Officers perform onerous duties and bear greater responsibilities than Bench Secretaries. We cannot go against that opinion and indeed, we must accept that opinion. The Bench Secretaries, therefore, cannot claim as of right the pay scale admissible to Section Officers.
20. The second question formulated earlier needs careful examination. The question is not particular to the present case. It is pertinent to all such cases. It is a matter affecting the civil services in general. The question is whether there could be two scales of pay in the same cadre of persons performing the same or similar work or duties. All Bench Secretaries in the High Court of Allahabad are undisputedly having same duties. But they have been bifurcated into two grades with different pay scale. The Bench Secretaries Grade 1 are in a higher pay scale than Bench Secretaries Grade II. The entitlement to higher pay scale depends upon selection based on merit cum seniority. Can it be said that it would be violative of the right to equality guaranteed under the Constitution?
21. It was argued for the respondents that it offends the constitutional principle of "equal pay for equal work".
Several decisions of this Court were relied upon in support of the proposition.
22. "Equal pay for equal work for both men and women"
has been accepted as a "constitutional goal" capable of being achieved through constitutional remedies. In Randhir Singh v. Union of India & Others [I982] 3 SCR 298 Chinnappa Reddy, J. said:
"It is true that the principle of `equal pay for equal work' is not expressly declared by our Constitution to be a fundamental right. But it certainly is a constitutional goal. Art.39(d) of the Constitution proclaims `equal pay for equal work for both men and women' as a Directive Principle of State Policy. `Equal pay for equal work for both men and women' Page 20 of 42 Downloaded on : Mon Feb 21 20:59:20 IST 2022 C/SCA/9823/2020 CAV JUDGMENT DATED: 18/02/2022 means equal pay for equal work for every one and as between the sexes.Directive Principles,as has been pointed out in some of the judgments of this Court have to be read into the fundamental rights as a matter of interpretation. Art. 14 of the Constitution enjoins the State not to deny any person equality before the law or the equal protection of the laws and Art. 16 declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointments to any office under the State. These equality clauses of the Constitution must mean something to every one. To the vast majority of the people the equality clauses of the Constitution would mean nothing if they are unconcerned with the work they do and the pay they get. To them the equality clauses will have some substance if equal work means equal pay."
23. The learned Judge however, observed that a differential treatment in appropriate cases can be justified when there are two grades based on reasonable grounds:
"It is well known that there can be and there are different grades in a service, with varying qualification for entry into a particular grade, the higher grade often being a promotional avenue for officers of the lower grade. The higher qualifications for the higher grade, which may be either academic qualifications or experience based on length of service reasonably sustain the classification of the officers into two grades with different scales of pay. The principle of equal pay for equal work would be an abstract doctrine not attracting Art. 14 if sought to be applied to them."
(II) Government of W.B. vs. Tarun K. Roy and Others reported in (2004) 1 SCC 347, paras 14 to 25 which read as under:
"Equal pay for equal work Page 21 of 42 Downloaded on : Mon Feb 21 20:59:20 IST 2022 C/SCA/9823/2020 CAV JUDGMENT DATED: 18/02/2022
14. Article 14 read with Article 39 (d) of the Constitution of India envisages the doctrine of equal pay for equal work. The said doctrine, however, does not contemplate that only because the nature of the work is same, irrespective of an educational qualification or irrespective of their source of recruitment or other relevant considerations the said doctrine would be automatically applied. The holders of a higher educational qualification can be treated as a separate class. Such classification, it is trite, is reasonable. Employees performing the similar job but having different educational qualification can, thus, be treated differently.
15. In State of Jammu & Kashmir v. Triloki Nath Khosa and Ors., AIR (1974) SC 1, this Court held:
"35. Educational qualifications have been recognized by this Court as a safe criterion for determining the validity of classification."
16. The Post of Operator-cum-Mechanic and Sub- Assistant Engineers are technical posts. As noticed hereinbefore, whereas for the posts of Operator-cum- Mechanic the qualification of school final examination and a certificate obtained from the Industrial Training Institute would be sufficient; for the posts of Sub-Assistant Engineer the person must have a diploma from a polytechnic apart from being a matriculate.
17. It is also not in dispute that such qualification was prescribed as far back as in the year 1971 and the respondents herein were appointed thereafter.
18. The Court, in exercise of its power of judicial review cannot hold that matriculates with a certificate from ITIs or simply graduates in science would be entitled to hold the posts of Sub-Assistant Engineers. It is for the executive to lay down the qualification required for holding a post and not for the courts.
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19. In Debdas Kumar the issue which fell for determination by this Court was as to whether those Operators-cum-Mechanic who were diploma holders, having regard to the aforementioned notification dated 19th November, 1974 were entitled to be designated as Sub- Assistant Engineers. This Court noticed that the post of Sub- Assistant Engineer is direct recruitment post and not a promotional post and, thus, they are entitled to be designated as Sub-Assistant Engineers, particularly, when such a status had been conferred upon 17 persons similarly situated. This Court granted relief to Debdas Kumar (supra) only on the ground that they had been discriminated against.
20. Question of violation of Article 14 of the Constitution of India on the part of the State would arise only if the persons are similarly placed. Equality clause contained in Article 14, in other words, will have no application where the persons are not similarly situated or when there is a valid classification based on a reasonable differentia. Doctrine of equal pay for equal work, therefore, is not attracted in the instant case.
21. There is nothing on record to show that the duties and functions of two categories of employment are at par, and, thus, parity in pay-scales is not permissible.
22. The very fact that from the very beginning two different pay scales were being maintained is itself suggestive of the fact that the duties and functions are also different. In fact it is not disputed that the two post of Sub- Assistant Engineer is a higher post.
23. In Chairman-cum-Managing Director, National Textiles Corporation Ltd. and Ors. v. N.T.C. (WBAB & O) Ltd. Employees Union and Ors., (2003) 8 SCALE 613 this Court held:
"In view of the fact that the nature of duties of the staff in the two categories has been found to be not at part, parity in pay scales may not be possible.Page 23 of 42 Downloaded on : Mon Feb 21 20:59:20 IST 2022
C/SCA/9823/2020 CAV JUDGMENT DATED: 18/02/2022
24. In Orissa University of Agriculture & Technology and Anr. v. Manoj K. Mohanty, JT (2003) 4 SC 104 this Court noticed:
"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 to the regularly recruited Junior Assistants. It cannot be disputed that there was 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'."
This Court further noticed:
"11. ...In the absence of material relating to other comparable employees as to the qualifications, method of recruitment, degree of skill, experience involved in performance of job, training required, responsibilities undertaken and other facilities in addition to pay scales, the learned Single Judge was right when he stated in the order that in the absence of such material it was not possible to grant relief to the respondent. ..."
12. Before giving such direction, the High Court also did not keep in mind as to what would be its implications and impact on the other employees working in the appellant-University. From the averments made in the writ petition extracted above, it is clear that no details were given and no material was placed before the High Court for comparison in order to apply the principle of 'equal pay for equal work'. The Court in State of Haryana and Ors. v. Jasmer Singh and Ors., [1996] 11 SCC 77 observed that the principle of 'equal pay for equal work' is not always easy to apply. There are inherent difficulties in comparing and evaluating work done by different persons in different organizations or even in the same the organization.
13. Yet, in mother decision in State Bank of India and Anr. v. M.R. Ganesh Babu and Ors., [2002] 4 SCC 556, a Bench of three learned Judges of this court, Page 24 of 42 Downloaded on : Mon Feb 21 20:59:20 IST 2022 C/SCA/9823/2020 CAV JUDGMENT DATED: 18/02/2022 while dealing with the same principle, in para 16 has expressed that:-
"...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 made a difference..."
25. In a case of this nature, the courts are required to determine the issue having regard to larger public interest. It is one thing to say that in a given case the High Court or this Court may not exercise an equitable jurisdiction under Article 226 or Article 136 of the Constitution of India, but it is another thing to say that the courts shall grant a relief to a party only on the ground that a contention which is otherwise valid would not be raised on the ground that the same was not done in an earlier proceedings."
(III) S.C. Chandra and Others vs. State of Jharkhand and Others reported in (2007) 8 SCC 279, paras 24 to 33 of which read as under:
"24. . The principle of equal pay for equal work was propounded by this Court in certain decisions in the 1980s, e.g. Dhirendra Chamoli and another vs. State of U.P., Surinder Singh vs. Engineer-in-Chief, C.P.W.D., Randhir Singh vs. Union of India etc. This was done by applying Articles 14 and 39(d) of the Constitution. Thus, in Dhirendra Chamoli's case (supra) this Court granted to the casual, daily rated employees the same pay scale as regular employees.
25. It appears that subsequently it was realized that the application of the principle of equal pay for equal work was creating havoc. All over India different groups were claiming parity in pay with other groups e.g. Government employees of one State were claiming parity with Government employees of another State.
26. Fixation of pay scale is a delicate mechanism which Page 25 of 42 Downloaded on : Mon Feb 21 20:59:20 IST 2022 C/SCA/9823/2020 CAV JUDGMENT DATED: 18/02/2022 requires various considerations including financial capacity, responsibility, educational qualification, mode of appointment, etc. and it has a cascading effect. Hence, in subsequent decisions of this Court the principle of equal pay for equal work has been considerably watered down, and it has hardly ever been applied by this Court in recent years.
27. Thus, in State of Haryana vs. Tilak Raj, it was held that the principle can only apply if there is complete and wholesale identity between the two groups. Even if the employees in the two groups are doing identical work they cannot be granted equal pay if there is no complete and wholesale identity, e.g., a daily rated employee may be doing the same work as a regular employee, yet he cannot be granted the same pay scale. Similarly, two groups of employees may be doing the same work, yet they may be given different pay scales if the educational qualifications are different. Also, pay scale can be different if the nature of jobs, responsibilities, experience, method of recruitment, etc. are different.
28. In State of Haryana and others vs. Charanjit Singh, discussing a large number of earlier decisions it was held by a three-Judge Bench of this Court that the principle of equal pay for equal work cannot apply unless there is complete and wholesale identity between the two groups. Moreover, even for finding out whether there is complete and wholesale identity, the proper forum is an expert body and not the writ court, as this requires extensive evidence. A mechanical interpretation of the principle of equal pay for equal work creates great practical difficulties. Hence in recent decisions the Supreme Court has considerably watered down the principle of equal pay for equal work and this principle has hardly been ever applied in recent decisions.
29. In State of Haryana & another vs. Tilak Raj & others, the Supreme Court considered the doctrine of equal pay for equal work in the context of daily wagers of the Haryana Roadways. After taking note of a series of earlier decisions the Supreme Court observed:
"11. A scale of pay is attached to a definite post and in case of a daily wager, he holds no post. The respondent workers cannot be held to hold any Page 26 of 42 Downloaded on : Mon Feb 21 20:59:20 IST 2022 C/SCA/9823/2020 CAV JUDGMENT DATED: 18/02/2022 posts to claim even any comparison with the regular and permanent staff for any or all purposes including a claim for equal pay and allowances. To claim a relief on the basis of equality, it is for the claimants to substantiate a clear cut basis of equivalence and a resultant hostile discrimination before becoming eligible to claim rights on a par with the other group vis-a-vis an alleged discrimination. No material was placed before the High Court as to the nature of duties of either categories and it is not possible to hold that the principle of 'equal pay for equal work' is an abstract one.
12. 'Equal pay for equal work' is a concept which requires for its applicability complete and wholesale identity between a group of employees claiming identical pay scales and the other group of employees who have already earned such pay scales. The problem about equal pay cannot always be translated into a mathematical formula".
(Emphasis supplied)
30. In State of U.P. and others vs. Ministerial Karamchari Sangh, the Supreme Court observed that even if persons holding the same post are performing similar work but if the mode of recruitment, qualification, promotion etc. are different it would be sufficient for fixing different pay scale. Where the mode of recruitment, qualification and promotion are totally different in the two categories of posts, there cannot be any application of the principle of equal pay for equal work.
31. In State of Haryana vs. Jasmer Singh and others, the Supreme Court observed that the principle of equal pay for equal work is not always easy to apply. There are inherent difficulties in comparing and evaluating the work of different persons in different organizations. Persons doing the same work may have different degrees of responsibilities, reliabilities and confidentialities, and this would be sufficient for a valid differentiation. The judgment of the administrative authorities concerning the responsibilities, which attach to the post, and the Page 27 of 42 Downloaded on : Mon Feb 21 20:59:20 IST 2022 C/SCA/9823/2020 CAV JUDGMENT DATED: 18/02/2022 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.
32. In Federation of All India Customs and Excise Stenographers (Recognized) and others vs. Union of India and others AIR 1988 SC 1291, this Court observed :
"11. In this case the differentiation has been sought to be justified in view of the nature and the types of the work done, that is, on intelligible basis. The same amount of physical work may entail different quality of work, some more sensitive, some requiring more tact, some less, it varies from nature and culture of employment. The problem about equal pay cannot always be translated into a mathematical formula".
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 & Pharmacheuticals Ltd. vs. Workmen, Indian Drugs and Pharmaceuticals Ltd."
(IV) Steel Authority of India and Others vs. Dibyendu Bhattacharya reported in (2011) 11 SCC 122, paras 18 to 30 of which read as under:
"18. In State of Haryana v. Jasmer Singh & Ors., AIR 1997 SC 1788, this Court considered the provisions of Articles 39
(d), 14 and 16 of the Constitution and held that the principle of `equal pay for equal work' is not always easy to apply.
There are inherent difficulties in comparing and evaluating the work done by different persons in different organisations, or even in the same organisation. There may Page 28 of 42 Downloaded on : Mon Feb 21 20:59:20 IST 2022 C/SCA/9823/2020 CAV JUDGMENT DATED: 18/02/2022 be differences in educational or technical qualifications, which may have a bearing on the skills which the holders bring to their job although the designation of the job may be the same. There may also be other considerations which have relevance to efficiency in service, which may justify differences in pay scales on the basis of criteria such as experience and seniority, or a need to prevent stagnation in the cadre, so that good performances can be elicited from persons who have reached the top of the pay scale. There may be various other similar considerations which may have a bearing on efficient performance in a job.
19. In State of Haryana & Anr. v. Tilak Raj & Ors., AIR 2003 SC 2658, this Court held as under:-
"11. ... To claim a relief on the basis of equality, it is for the claimants to substantiate a clear-cut basis of equivalence and a resultant hostile discrimination before becoming eligible to claim rights on a par with other group vis-a-vis an alleged discrimination. ...
12. 'Equal pay for equal work' is a concept which requires for its applicability com- plete and wholesome identity between a group of employees claiming identical pay scales and the other group of employees who have already earned such pay scales. The problem about equal pay cannot always be translated into a mathematical formula."
20. In Harbans Lal & Ors. v. State of Himachal Pradesh & Ors., (1989) 4 SCC 459, this Court considered a similar issue and ob- served that while determining the issue of parity in pay, large number of considerations and various dimensions of the job are required to be taken up by the courts. The accuracy required by the job and the dexterity it entails may differ from job to job. It cannot be evaluated by the mere averments in the self - serving affidavits or counter affidavits of the parties. It must be left to be evaluated and determined by ex- pert body. The Court further held as under:
"11. ... The discrimination complained of must be within the same establishment owned by the same management. A comparison cannot be made with Page 29 of 42 Downloaded on : Mon Feb 21 20:59:20 IST 2022 C/SCA/9823/2020 CAV JUDGMENT DATED: 18/02/2022 counterparts in other establishments with different management, or even in establishments in different geographical locations though owned by the same master. Unless it is shown that there is a discrimination amongst the same set of employees by the same master in the same establishment, the principle of "equal pay for equal work" cannot be enforced...."
(Emphasis added)
21. In Mewa Ram Kanojia v. All India Institute of Medical Sciences and Ors., (1989) 2 SCC 235, this Court dealt with an issue of pay parity between Speech Therapists and Audiologists and held that merely because Speech Therapists perform similar duties and functions in other institutions, are paid higher pay-scales is no good ground to accept the petitioner's claim for equal pay. There may be difference in educational qualifications, quality and volume of work required to be performed by the hearing therapists in other institu- tions. The person claiming parity must sufficiently produce material before the Court to adjudicate upon such a complicated issue of factual determination. More so, if the employer is not the same, the prin- ciple of equal pay for equal work would not be applicable.
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 vacu- um. 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 Page 30 of 42 Downloaded on : Mon Feb 21 20:59:20 IST 2022 C/SCA/9823/2020 CAV JUDGMENT DATED: 18/02/2022 right and parity in employment is only on person claiming such right. (Vide U.P. State Sugar Corporation Ltd. & Anr. v. Sant Raj Singh & Ors., AIR 2006 SC 2296; Union of India & Anr. v. Mahajabeen Akhtar, AIR 2008 SC 435; Union of India & Ors. v. Dineshan K.K., AIR 2008 SC 1026; Union of India & Ors. v. Hiranmoy Sen & Ors., (2008) 1 SCC 630; Official Liquidator v. Dayanand and Ors., (2008) 10 SCC 1; Uttar Pradesh State Electricity Board & Anr. v. Aziz Ahmad, (2009) 2 SCC 606; and State of Madhya Pradesh & Ors. v. Ramesh Chandra Bajpai).
23. This Court while deciding a similar issue in State of West Bengal & Anr. v. West Bengal Minimum Wages Inspectors Association & Ors., (2010) 5 SCC 225, held as under:
"18. ... The evaluation of duties and responsibilities of different posts and determination of the pay scales applicable to such posts and determination of parity in duties and responsibilities are complex executive functions, to be carried out by expert bodies. Granting parity in pay scale depends upon comparative job evaluation and equation of posts.
19. The principle `equal pay for equal work' is not a fundamental right but a constitutional goal. It is dependent on various factors such as educational qualifications, nature of the jobs, duties to be performed, responsibilities to be discharged, experience, method of recruitment, etc. Comparison merely based on designation of posts is misconceived. Courts should approach such matters with restraint and interfere only if they are satisfied that the decision of the Government is patently irrational, unjust and prejudicial to any particular section of employees.
20. The burden to prove disparity is on the employees claiming parity."
(emphasis added) Page 31 of 42 Downloaded on : Mon Feb 21 20:59:20 IST 2022 C/SCA/9823/2020 CAV JUDGMENT DATED: 18/02/2022
24. In Union of India & Anr. v. P.K. Roy, AIR 1968 SC 850, this Court accepted the factors laid down by the Committee of Chief Sec- retaries which was constituted for settling the disputes regarding equa- tion of posts arising out of the States Reorganisation Act, 1956, wherein the following four factors had been held to be determinative of the issue of equivalence of posts:-
1. The nature and duties of a post;
2. The responsibilities and powers exercised by the officer holding a post, the extent of territorial or other charge held or responsibilities discharged;
3. The minimum qualifications, if any, prescribed for recruitment to the post; and
4.The salary of the post.
25. In The State of Maharashtra & Anr. v. Chandrakant Anant Kulkarni & Ors., AIR 1981 SC 1990; and Vice Chancellor, Lalit Narain Mithila University v. Dayanand Jha, AIR 1986 SC 1200, a similar view has been reiterated observing that equal status and nature and responsibilities of the duties attached to the two posts have to be taken into consideration for equivalence of the post. Similar view has been reiterated in E.P. Royappa v. State of Tamil Nadu & Anr., AIR 1974 SC 555; and Sub-Inspector Rooplal & Anr. v. Lt. Governor through Chief Secretary, Delhi & Ors., (2000) 1 SCC 644, wherein this Court following the earlier judgment in P.K. Roy (Supra) held that the salary of the post alone may not be a determining factor, the other three criterion should also be fulfilled.
26. In Union of India & Ors. v. S.L. Dutta & Anr., (1991) 1 SCC 505; Union of India & Ors. v. N.Y. Apte & Ors., (1998) 6 SCC 741; State of U.P. & Ors. v. J.P. Chaurasia & Ors., AIR 1989 SC 19; and Kshetriya Kisan Gramin Bank v. D.B. Sharma & Ors., AIR 2001 SC 168, this Court held that whether the determination of two posts are equal or not, is a job of the Expert Committee and the court should not interfere with it unless the decision of the Committee is found to be unreasonable or arbitrary or made on extraneous Page 32 of 42 Downloaded on : Mon Feb 21 20:59:20 IST 2022 C/SCA/9823/2020 CAV JUDGMENT DATED: 18/02/2022 con- siderations. More so, it is an executive function to fix the service con- ditions etc. and lies within the exclusive domain of the rule making authority. (See also T. Venkateswarulu v. Executive Officer, Tirumala Tirupathi Devasthanams & Ors.,).
27. In S.C. Chandra & Ors. v. State of Jharkhand & Ors, (2007) 8 SCC 279, this Court held:
"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 separa- tion 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 whole- sale identity between the two groups........"
28. In S.P. Shivprasad Pipal v. Union of India & Ors., (1998) 4 SCC 598, this Court held as under:
".5 ... it is not open to the court to consider whether the equation of posts made by the Central Government is right or wrong. This was a matter exclusively within the province of the Central Gov- ernment. Perhaps the only question the court can enquire into is whether the four principles cited above had been properly taken into account. This is the narrow and limited field within which the su- pervisory jurisdiction of the court can operate".
29. It is a settled legal proposition that it is not always impermissible to provide two different pay-scales in the same cadre on the basis of selection based on merit with due regard to experience and seniority. (Vide J.P. Chaurasia (Supra) and Meva Ram Kanojia (Supra). "Non-uniformities would not in all events violate Article 14." Thus, a mere difference does not always amount to discrimination. (Vide Madhu Kishwar & Ors. v. State of Bihar & Ors., (1996) 5 SCC 125; Associate Banks Officers' Association v. State Bank of India & Ors., AIR 1998 SC 32; and Official Liquidator (Supra)).
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30. In view of the above, 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 concerned posts. Such a complex issue cannot be adjudicated by evaluating the affidavits filed by the parties."
(V) State of Punjab and others vs. Jagjit Singh and Others reported in (2017) 1 SCC 148, wherein the following is observed:
"42.1 The 'onus of proof', of parity in the duties and responsibilities of the subject post with the reference post, under the principle of 'equal pay for equal work', lies on the person who claims it. He who approaches the Court has to establish, that the subject post occupied by him, requires him to discharge equal work of equal value, as the reference post (see - the Orissa University of Agriculture & Technology, Union Territory Administration, Chandigarh v. Manju Mathur15, the Steel Authority of India Limited, and the National Aluminum Company Limited).
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 have any bearing on the determination of a claim, under the principle of 'equal pay for equal work'. Persons discharging identical duties, cannot be treated differently, in the matter of their pay, merely because they belong to different departments of Government (see - the Randhir Singh case1, and the D.S. Nakara case). 42.3 The principle of 'equal pay for equal work', applies to cases of unequal scales of pay, based on no classification or irrational classification (see - the Randhir Singh case1). For Page 34 of 42 Downloaded on : Mon Feb 21 20:59:20 IST 2022 C/SCA/9823/2020 CAV JUDGMENT DATED: 18/02/2022 equal pay, the concerned employees with whom equation is sought, should be performing work, which besides being functionally equal, should be of the same quality and sensitivity (see - the Federation of All India Customs and Central Excise Stenographers (Recognized) case, the Mewa Ram Kanojia case, the Grih Kalyan Kendra Workers' Union case6 and the S.C. Chandra case).
42.4 Persons holding the same rank/designation (in different departments), but having dissimilar powers, duties and responsibilities, can be placed in different scales of pay, and cannot claim the benefit of the principle of 'equal pay for equal work' (see - the Randhir Singh case State of Haryana v. Haryana Civil Secretariat Personal Staff Association9, and the Hukum Chand Gupta case). Therefore, the principle would not be automatically invoked, merely because the subject and reference posts have the same nomenclature.
42.5 In determining equality of functions and responsibilities, under the principle of 'equal pay for equal work', it is necessary to keep in mind, that the duties of the two posts should be of equal sensitivity, and also, qualitatively similar. Differentiation of pay-scales for posts with difference in degree of responsibility, reliability and confidentiality, would fall within the realm of valid classification, and therefore, pay differentiation would be legitimate and permissible (see - the Federation of All India Customs and Central Excise Stenographers (Recognized) case and the State Bank of India case). The nature of work of the subject post should be the same and not less onerous than the reference post. Even the volume of work should be the same. And so also, the level of responsibility. If these parameters are not met, parity cannot be claimed under the principle of 'equal pay for equal work' (see - State of U.P. v. J.P. Chaurasia, and the Grih Kalyan Kendra Workers' Union case).
42.6 For placement in a regular pay-scale, the claimant has to be a regular appointee. The claimant should have been selected, on the basis of a regular process of recruitment. An employee appointed on a temporary basis, cannot claim to be placed in the regular pay-scale (see - the Orissa University of Agriculture & Technology case).
Page 35 of 42 Downloaded on : Mon Feb 21 20:59:20 IST 2022C/SCA/9823/2020 CAV JUDGMENT DATED: 18/02/2022 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).
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 - the Mewa Ram Kanojia case, and Government of W.B. v. Tarun K. Roy). In such a cause, the principle of 'equal pay for equal work', cannot be invoked.
42.9 The reference post, with which parity is claimed, under the principle of 'equal pay for equal work', has to be at the same hierarchy in the service, as the subject post. Pay- scales of posts may be different, if the hierarchy of the posts in question, and their channels of promotion, are different. Even if the duties and responsibilities are same, parity would not be permissible, as against a superior post, such as a promotional post (see - Union of India v. Pradip Kumar Dey, and the Hukum Chand Gupta case).
42.10 A comparison between the subject post and the reference post, under the principle of 'equal pay for equal work', cannot be made, where the subject post and the reference post are in different establishments, having a different management. Or even, where the establishments are in different geographical locations, though owned by the same master (see - the Harbans Lal case). Persons engaged differently, and being paid out of different funds, would not be entitled to pay parity (see - Official Liquidator v. Dayanand).
42.11 Different pay-scales, in certain eventualities, would be permissible even for posts clubbed together at the same hierarchy in the cadre. As for instance, if the duties and responsibilities of one of the posts are more onerous, or are exposed to higher nature of operational work/risk, the principle of 'equal pay for equal work' would not be applicable. And also when, the reference post includes the Page 36 of 42 Downloaded on : Mon Feb 21 20:59:20 IST 2022 C/SCA/9823/2020 CAV JUDGMENT DATED: 18/02/2022 responsibility to take crucial decisions, and that is not so for the subject post (see - the State Bank of India case).
42.12 The priority given to different types of posts, under the prevailing policies of the Government, can also be a relevant factor for placing different posts under different pay-scales. Herein also, the principle of 'equal pay for equal work' would not be applicable (see - State of Haryana v. Haryana Civil Secretariat Personal Staff Association).
42.13 The parity in pay, under the principle of 'equal pay for equal work', cannot be claimed, merely on the ground, that at an earlier point of time, the subject post and the reference post, were placed in the same pay- scale. The principle of 'equal pay for equal work' is applicable only when it is shown, that the incumbents of the subject post and the reference post, discharge similar duties and responsibilities (see - State of West Bengal v. West Bengal Minimum Wages Inspectors Association).
42.14 For parity in pay-scales, under the principle of 'equal pay for equal work', equation in the nature of duties, is of paramount importance. If the principal nature of duties of one post is teaching, whereas that of the other is non- teaching, the principle would not be applicable. If the dominant nature of duties of one post is of control and management, whereas the subject post has no such duties, the principle would not be applicable. Likewise, if the central nature of duties of one post is of quality control, whereas the subject post has minimal duties of quality control, the principle would not be applicable (see - Union Territory Administration, Chandigarh v. Manju Mathur).
42.15 There can be a valid classification in the matter of pay-scales, between employees even holding posts with the same nomenclature i.e., between those discharging duties at the headquarters, and others working at the institutional/sub- office level (see - the Hukum Chand Gupta case), when the duties are qualitatively dissimilar.
Page 37 of 42 Downloaded on : Mon Feb 21 20:59:20 IST 2022C/SCA/9823/2020 CAV JUDGMENT DATED: 18/02/2022 42.16 The principle of 'equal pay for equal work' would not be applicable, where a differential higher pay-scale is extended to persons discharging the same duties and holding the same designation, with the objective of ameliorating stagnation, or on account of lack of promotional avenues (see - the Hukum Chand Gupta case).
42.17 Where there is no comparison between one set of employees of one organization, and another set of employees of a different organization, there can be no question of equation of pay-scales, under the principle of 'equal pay for equal work', even if two organizations have a common employer. Likewise, if the management and control of two organizations, is with different entities, which are independent of one another, the principle of 'equal pay for equal work' would not apply (see - the S.C. Chandra case, and the National Aluminum Company Limited case)."
(VI) In a recent decision in the case of State of Madhya Pradesh vs. R.D. Sharma and Another rendered in Civil Appeal Nos. 474-475 of 2022, the Apex Court has held as under on 27.01.2022:
"14. The High Court in the impugned orders passed in Writ Petition as well as in the Review Petition had thoroughly misdirected itself by applying the principle of "equal pay for equal work" placing reliance on the decision of this court in case of State of Punjab and Ors. Vs. Jagjit Singh and Ors. 2017 SCC 148, which had no application to the facts of the present case. It may be noted that this court has consistently held that the equation of post and determination of pay scales is the primary function of the executive and not the judiciary and therefore ordinarily courts will not enter upon the task of job evaluation which is generally left to the expert bodies like the Pay Commissions. This is because such job evaluation exercise may include various factors including the relevant data and scales for evaluating performances of different groups of employees, and such evaluation would be both difficult and time consuming, apart from carrying financial implications. Therefore, it has Page 38 of 42 Downloaded on : Mon Feb 21 20:59:20 IST 2022 C/SCA/9823/2020 CAV JUDGMENT DATED: 18/02/2022 always been held to be more prudent to leave such task of equation of post and determination of pay scales to be best left to an expert body. Unless there is cogent material on record to come to a firm conclusion that a grave error had crept in while fixing the pay scale for a given post, and that the court's interference was absolutely necessary to undo the injustice, the courts would not interfere with such complex issues. A beneficial reference of the observations made in this regard in case of Secretary, Finance Department Vs. West Bengal Registration Service Associations and Ors. 1993 Supl. 1 SCC 153 be made. As held in State of Haryana and Anr. Vs. Haryana Civil Secretariat Personal Staff Association 2002 (06) SCC 72 "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."
9.1 In view of the aforesaid legal positions also, this court is of the opinion that the set of petitions seeking benefit of 'Equal Pay for Equal Work' is required to be dismissed and is accordingly dismissed. Rule is discharged. Interim relief, if any, shall stand vacated in those petitions.
10. The other batch of petitions have been filed by the petitioners who are art teachers and are faced by the impugned orders of reduction in pay from the scale Rs.5000-8000 to Rs. 4500-7000. In other words, their pre- revised pay-scale which was granted to them as Rs.5000-8000 which would have translated into granting them the 6 th Pay benefits in the scale of Rs.9300-34800 (Grade Pay Rs. 4200) which the petitioners of petitions claiming 'Equal Pay for Equal Work' had demanded was withdrawn by the impugned orders in the petitions wherein these withdrawal orders were challenged.
11. In the petitions claiming 'Equal Pay for Equal Work', the support for an entitlement of 'Equal Pay for Equal Work' was hinged on the Page 39 of 42 Downloaded on : Mon Feb 21 20:59:20 IST 2022 C/SCA/9823/2020 CAV JUDGMENT DATED: 18/02/2022 petitioners submission that one Smt. Ashaben Kantilal Patel who was similarly situated as the petitioners, who wanted 'Equal Pay for Equal Work', was extended the benefits of pay-scale of Rs.5000-8000 pre- revised, now Rs.9300-34800 (Grade Pay Rs.4200). Based on this assertion, when the State Government realized that it was a mistake in granting the pay-scale to the petitioner of Special Civil Application No. 11531 of 2018 and other similarly situated teachers, by orders impugned in the separate group of petitions, these orders of granting the benefits of the pay-scale of Rs.5000-8000 was withdrawn and recovery was sought and pay of incumbents was reduced from Rs.4500 to Rs. 7000/-. These orders are a subject matter of challenge in this group of petitions.
12. In the petitions, where the petitioners are faced by the impugned orders of reduction in pay from the scale Rs.5000-8000 to Rs. 4500-7000 and recovery thereof, Mr. Sudhanshu Jha and Mr. Murli Devnani essentially led the arguments. It is the case of the petitioners that the order of reducing the pay-scale on the ground they have been wrongly given was nothing but an attempt on the part of the respondent authorities to see that the justification of granting a lower pay-scale to diploma teachers of the group in which their claim was 'Equal Pay for Equal Work' is justified. The State in order to support its stand withdrew the orders of pay-scale of Rs.5000-8000 in case of petitioners of this group.
13. Learned counsels for the petitioners would argue that merely because the petitioners are diploma holders cannot be a ground on which the pay-scales be withdrawn and on the ground that since the petitioners do not hold a degree therefore the higher pay-scale of Rs.5000-8000 was granted by mistake. A specific ground is also raised that the same was reduced in violation of principles of natural justice. No show-cause Page 40 of 42 Downloaded on : Mon Feb 21 20:59:20 IST 2022 C/SCA/9823/2020 CAV JUDGMENT DATED: 18/02/2022 notice was given and the impugned order reflects no reasonings except stating that the pay-scale of the petitioners was wrongly fixed. The case of the petitioners is that if excess amount is sought to be recovered it is settled principle that recovery cannot be affected when it has not been made at the fault of the employee teachers because it is not the case of the respondents that the teachers had misrepresented their case for grant of higher pay-scales. In other words, the case of the petitioners is that not only they are entitled to the pay-scale of Rs.9300-34800 (Grade Pay Rs. 4200) but also that the orders of reduction of pay and their withdrawal and recoveries are contrary to law.
14. As far as the claim of these petitioners inasmuch as claiming pay- scale of Rs.9300-34800 with Grade Pay of Rs.4200, admittedly the case of the petitioners will be governed by the group of petitions wherein the claim of the petitioners for 'Equal Pay for Equal Work' has been rejected on the ground of the differentiation being valid based on educational qualifications.
15. As far as orders impugned in this group of petitions where orders have been passed reducing the pay-scale of the petitioners from Rs.5000- 8000 to Rs.4500-7000, for the reasons stated in the matters where the petitioners have claimed 'Equal Pay for Equal Work', the orders of reduction are not interfered with, inasmuch as admittedly the petitioners were not entitled to the higher pay-scale of Rs.5000-8000, they being diploma holders and parity could not have been claimed by them for the pay-scales of degree holders.
16. As far as the orders of reduction having consequentially caused financial recovery from the petitioners' pay is concerned, it is well Page 41 of 42 Downloaded on : Mon Feb 21 20:59:20 IST 2022 C/SCA/9823/2020 CAV JUDGMENT DATED: 18/02/2022 established position of law especially in the case of State of Punjab & Ors. vs. Rafiq Masih (White Washer) reported in (2015) 4 SCC 334, that if the pay-scale is recovered on the ground that there is no misconduct based on which the incumbents were granted higher pay- scale and that the recovery would cause undue hardship to the petitioners especially when in some cases they were about to retire and that such recovery causes financial stress, the orders of recovery need to be set aside.
17. In these petitions where the orders under challenge are of reduction in pay and recovery, as far as reduction in pay-scale is concerned, the decision of the respondents is upheld. Interim relief qua reduction of pay-scale is vacated. Consequential recovery on reduction is set aside. The petitions are partly allowed.
18. In view of the disposal of the writ petitions, the civil application shall not survive and is accordingly disposed of.
FURTHER ORDER After the above judgement was pronounced, learned advocates for the petitioners have requested to extend the interim relief which was granted by this court on 07.06.2017. Request is accepted. Interim relief dated 07.06.2017 granted in such petitions where the beneficiaries are being paid such pay scales shall continue till 11.03.2022.
(BIREN VAISHNAV, J) DIVYA Page 42 of 42 Downloaded on : Mon Feb 21 20:59:20 IST 2022