Delhi High Court
Harish Chander Sharma And Ors. vs Union Of India And Ors. on 19 August, 1988
Equivalent citations: ILR1988DELHI182
JUDGMENT P.K. Bahri, J.
(1) 26 Junior Physical Education Teacher. (for short 'Jr. PTIs') employees of the New Delhi Municipal Committee have brought this petition under Article 226 of the Constitution of India praying for a writ requiring the New Delhi Municipal Committee (for short 'NDMC') to follow the principle of 'equal pay for equal work' and pay the petitioners the same pay-scale as is being paid to employees set out in annexure-II and to also regularise the services of the petitioners.
(2) These petitioners, whose particulars in detail have been given in annexure-I, were appointed by Ndmc as Jr. PTIs in the pay-scale of Rs. 330-560 in between the period 1975 to 1983. 18 Jr. PTIs whose particulars stand enumerated in annexure-II, were appointed as Jr. PTIs in the pay-scale of Rs. 440-750 in between the period 1964 to 1972. The case set up by the petitioners is simply this that the petitioners as well as the employees mentioned in annexure-II have been appointed to the same posts and they have been working in Primary Schools/Youth Centres and minimum requisite qualification for the petitioners as well as the said persons are the same although factually the petitioners are academically better qualified than the said other persons and the petitioners as well as the other employees mentioned above have some working hours and teach the classes from 1st to Vth according to the syllabus prescribed by the Education Department of Ndmc and they function under the Head Master/Head Mistress, D.O. (Physical) and their postings are inter se transferable and thus, as the petitioners and the said employees are performing same type of work the discrimination made between the petitioners and the said employees with regard to the pay-scale is arbitrary and is hit by Articles 14 & 16 of the Constitution of India.
(3) It was also pleaded that till 1978 a joint seniority list of the petitioners and the said employees was in force. So, the petitioners have placed reliance on the well-known judgment of the Supreme Court in Randhir Singh v. Union of India, for getting equal pay for equal work. They have urged that the classification made by Ndmc placing the petitioners in different category than the said employees vis-a-vis the pay-scale is irrational and is not based on any principles for achieving any particular object.
(4) In the counter filed on behalf of Ndmc by its Secretary', material facts have not been controverter regarding the minimum qualifications prescribed for the posts being held by the petitioners and the other employees and all of them working in same type of Primary Schools/Youth Centres and performing same type of work and their postings being inter se transferable.
(5) However, the plea taken is that initially the employees mentioned in Annexure-II were appointed in the scale of pay which was meant to be given for PTIs working in Higher Secondary/Middle Schools but as there was no Pti working in the Primary Schools of Ndmc, the scale of pay given to the PTIs working in Higher Secondary Middle Schools of Municipal Corporation of Delhi was adopted for the Jr. PTIs recruited for working in Primary Schools of NDMC. It is indeed, not disputed in the counter that Ndmc has created for the first time the posts of Jr. PTIs to work in the Primary Schools in the year 1961. However, in the counter the Secretary of the Ndmc had gone on to describe the employees mentioned in annexure-II as senior PTIs and has averred that the petitioners had willingly accepted the appointment to the posts carrying the pay-scale of Rs. 330-560 and have sought even selection grade posts in accordance with the recommendation of the Pay Commissions and so the petitioners are estopped from claiming the pay-scale which is being paid to the senior PTIs. It was further pleaded that Ndmc had passed some resolution by which it has been decided that the higher scale of pay enjoyed by the employees mentioned in annexure-II would be available to the PTIs working in Middle Schools/ Higher Secondary Schools and recruitments to the post of Jr. PTIs, who are to work in Primary Schools, would carry the pay-scale of Rs. 330-560 and thus, some of the employers mentioned in annexure-II have been already posted to work: in Higher Secondary/Middle Schools of NDMC.
(6) It is now almost settled law that unequal scales of pay based on no classification or irrational classification are hit by Articles 14 & 16 and 39(d) of the Constitution of India. In P. K. Ramachandra Iyer & others v. Union of India & others, the ratio of law laid down in the case of Randhir Singh (supra) is reiterated and it was observed that construing Articles 14& 16 in the light of preamble and Article 39(d), the court was of the view that the principle 'equal pay for equal work' is deducible from these Articles and may be properly applied to the cases of unequal scales of pay based on no classification or irrational classification though those drawing the different scales of pay do identical work under the same employer. In the cited case also there were different pay-scales provided for the employees recruited earlier and for the employees recruited subsequently. It was held that the classification of existing incumbents as being wishing and separate from news recruited hands with flimsy change in essential qualification would be wholly irrational and arbitrary. In the cited case the petitioners, who were occupying the posts of professors in the lower pay-scale, had come to the court for getting the higher scale of pay offered to the new recruits. It was held that the case of the petitioners to be put in the revised scale from the date on which newly created posts of professors were created and filled in, in the revised scale is unanswerable and must be conceded. The present is a converse case where the previously recruited Jr. PTIs have been given higher pay-scales while the petitioners, who are recruited to the same post subsequently, have been given lower pay-scale and the classification is sought to be justified on the basis of a Resolution passed by Ndmc subsequently that the scale of pay being enjoyed by the previous incumbents was to be given to the PTIs who are to be appointed for teaching in Higher Secondary/Middle Schools. It is evident from the counter that at the time the employees in annexure-II were recruited they were recruited to the post of Jr. PTIs meant to work in Primary Schools and similarly the petitioners have been also recruited as Jr. PTIs for functioning in Primary Schools. Any later decision of the Ndmc that employees who have been recruited initially in the higher scale of pay will be required to function in Higher Secondary/Middle Schools would not save the Ndmc from the charge of arbitrariness inasmuch as at the time the petitioners were recruited here was no such distinction between the petitioners and the other employees performing same type of job."
(7) Counsel for the petitioners has cited Savita P. & others v. Union of India & others, in which also it was reiterated by the Supreme Court that where all relevant considerations are the same, persons holding identical posts and discharging similar duties should not be treated differently. In the cited case, some of the draftsmen, who were senior were sought to be given a different pay-scale although they were performing similar type of duties as the other draftsmen who were junior. It was held that as both sets of draftsmen were doing the same work and held that as both sets of draftsmen and duties, the grouping made for the purpose of granting varying pay-scales is violative of Article 14. In Chaman Lal & others v. State of Haryana, , the higher scale of pay was being contemplated to the teachers acquiring higher educational qualifications. Such is not the case here.
(8) Lastly, reference is made to Federation of All India Customs & Central Excise Stenographers (Recognised) and others v. The Union of India & others, , in which it was laid down by the Supreme Court that equal pay must depend upon the nature of work done and it cannot be judged by the mere volume of work (functions may be the same but the responsibilities make a difference). If the different group is made on an intelligible criteria which has a rational nexus with the object of differentiation, such differentiation would not amount to discrimination. In the present case it is not the case of the Ndmc that the employees whose names appear in annexure-II were recruited to posts which were meant for Higher Secondary/Middle Schools, rather it is admitted case that they were recruited as Jr. PTIs to function in Primary Schools of Ndmc, so also the petitioners have been recruited as Jr. PTIs for functioning in Primary Schools. Thus, it cannot be argued with any sense of rationality that the employees in annexure-II constitute any separate class so that they could enjoy better pay-scale than the petitioners.
(9) Counsel for the Ndmc has made reference to a copy of Resolution No. 63 dated September 24, .1976 (Annexure 'R1'). This particular Resolution was on the question of grant of selection grade posts to Jr. PTIs. It has nothing to do with the nature of work being performed by the incumbents enjoying better pay-scales and the petitioner enjoying the lower pay-scales. Mere fact that selection grade has been granted keeping in view the number of posts functioning in pay-scale of Rs. 330-560 would not mean that the petitioners can be denied their constitutional right to obtain same pay-scale for the same work as being given to the other employees. Annexure 'R3' shows that there was joint seniority list of the petitioners as well as of the employees in annexure-II. Till October 1978 even Ndmc was treating the petitioners and the other employees in annexure-II as one group. However, later on in October 1978, a separate seniority list was framed in respect of the petitioners. However, it is evident that the posts to which the employees mentioned in Annexure-II were appointed were the posts meant for functioning in Primary Schools and Youth Centres and the petitioners also have been appointed to such posts. So, there is no difference at all between the posts of the petitioners as well as of the said employees.
(10) So, in view of the above discussion, I conclude that the petitioners are entitled to have same pay-scale as is being enjoyed by the employees mentioned in annexure-II as all these employees are performing same type of work without any difference and their posts are also inter-changeable. I allow the writ petition, make. the Rule absolute and direct the Ndmc to grant same pay-scale to the petitioners as being enjoyed by the employees mentioned in annexure-II with effect from the date the petitioners were employed respectively. The Pays of the petitioners shall, be fixed accordingly and they shall be paid arrears of pay from December 1, 1981 when they made the first representation is this connection. I also direct the Ndmc to take steps to regularise the petitioners within one year. The petitioners shall have costs from the Ndmc quantified at Rs. 1,000.