Allahabad High Court
Kailash Nath Saxena & Others vs State Of U.P. & Others on 5 February, 2018
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 25.01.2018 Delivered on 05.02.2018 Court No. - 28 Case :- WRIT - A No. - 7252 of 1996 Petitioner :- Kailash Nath Saxena & Others Respondent :- State Of U.P. & Others Counsel for Petitioner :- Saran Kumar,S.K. Gaur Counsel for Respondent :- C.S.C.,S.C. Hon'ble Siddharth,J.
Heard Sri S.K. Gaur, learned Counsel for the petitioners and learned Standing Counsel for the respondents.
The petitioners have filed above noted writ petition, praying for a direction to the respondents to grant pay scale of Rs.1400-2400 to the petitioners, since January, 1986 at par with their Counter parts working at the Government Leather Institute, Agra. Prayer has also been made to amend the staff structures/nomenclature of Leather Instructors working at Government Leather Institute, Kanpur in accordance with the provisions given in the service rules as applicable to non gazetted employees of the Government Leather Institution, Kanpur. By way of amendment, the petitioners have made further prayers for quashing of the Government Orders dated 10.09.2013 and 24.09.2013 and order dated 27.08.2014 passed by the Principal Secretary, Technical Education, Government of U.P., Lucknow. Finally the prayer for direction of payment of all consequential and revised benefits of pay scale as well as the promotional benefits, which have not been paid to the petitioners in their entire career of service, has been made.
The facts of the petition are that the Government Leather Institute Kanpur and Agra are the only Institutes in the State of Uttar Pradesh imparting Diploma in Footwear and Leather Goods Technology. The Institute at Kanpur is older one and was established in the year 1916, while the institute at Agra, known as Government Leather Institute, Agra was established in the year 1958. Initially both the Institutes imparted training for Certificate Courses in the Footwear and Leather Goods Manufacture and since 1961 Post Matriculate Course in Leather Goods Manufacture (P.M.C.), a two years Course, was introduced in both the Institutes and soon thereafter in seventies a two years Diploma Course in Footwear and Leather Goods Manufacture was introduced. Since the year 1983-84 both the Institutes started offering three years Diploma Course in Footwear and Leather Goods Technology. Both the Institutes at Kanpur and Agra now impart training in the three years Diploma Course in footwear and Leather Goods Technology. The Course is approved by the Board of Technical Education, U.P., Lucknow. At both the Institutes, the curriculum for the three years Diploma Course in Footwear and Leather Goods Technology, in all in the three years, is one and the same. The staff structure as well as the strength of the staff in both the Government Leather Institutes of Kanpur and Agra for the non- Gazetted staff has been framed in accordance with the staff structure as has been provided in Appendix-1 of the Uttar Pradesh Technical Education Department Non-Gazetted Technical Service Rules, 1988 (hereinafter referred to "Rule of 1988"). However, Instructors at Kanpur, who are teaching Diploma students of Footwear Technology and Leather Goods Manufacture, are being wrongly designated rather misquoted as Leather Instructors. Their counter parts at Government Leather Institute Agra, are fortunate having been given the correct designation as had been granted to them under the above mentioned Rules of 1988, applicable to them. In General terms Leather Technology relates to the Technology for making Leather from raw hide, while the Footwear and Leather Goods Technology relates to the preparation of footwear, other goods and articles made out of the leather. The Footwear Technology in itself is not a composite subject, at both the Government Leather Institutes either at Kanpur or at Agra, instead it is taught at these Institutes as a subject of study composing of five specific fields like Closing, Costing, Making, Drawing, Finishing, etc. The subject of "Drawing" relates to designing and pattern cutting. The subject "Closing" relates to components cutting and stitching of components. The subject "Making" relates to the upper closing of the Footwear and other Leather Goods and articles and also about making of the shoe. "Finishing" is about final touches to the articles made. The "Costing" is the subject of last stage that relates to the fixing of the value of the articles. The Departmental Rule of 1988 applicable to both the Government Leather Institutes, either at Kanpur or at Agra, while making a mention of the staff structure, describes five different Instructors in five individual disciplines of the Footwear and Leather Goods Manufacturing Technology viz, (1) Instructor Closing (2) Instructor Costing (3) Instructor Making (4) Instructor Drawing (5) Instructor Finishing The Government Leather Institute Agra, has adopted the pattern and the staff structure, in the Institute on the above mentioned lines. But the Government Leather Institute Kanpur has not adopted the nomenclature of the staff as provided in the staff structure given in the Service Rues and even though different Instructors teach the different disciplines of Closing, Costing, Making, Drawing and Finishing, which make composite Footwear and Leather Goods Manufacture Technology, they have been called by misnomer with the name of Leather Instructors Institute at Kanpur. The petitioner no.1, Kailash Nath Saxena, did his Diploma in Footwear Technology and Leather Good Manufacture in the year 1971 from the Government Leather Institute, Kanpur and was appointed in the Institute as Leather Instructor in the year 1980. The petitioner no.2, Amar Nath Sharma, did his Diploma in the same subject in the year 1971 and was appointed in the Institute in the year 1978. The petitioner no.3, Arun Kumar Srivastava, did his Diploma in the year 1975 from the Government Leather Institute Kanpur itself and was appointed in the Institute in the year 1980. The petitioner no.4, Milendra Kumar Singh, did his Diploma in the subject from above mentioned Institute in the year 1981, he worked initially as Instructor Leather Craft in Ekikrit Kshtra Vikas Abhikaran, Gazipur, but he was absorbed as Instructor Leather Technology in Government Leather Institute Kanpur, by the order of the Joint Technical Education, Western Zone Meerut. The petitioner no.5, Swami Das Srivastava, who did his Diploma from Government Footwear Institute, Rewari, was appointed in the Institution on 12.07.1989. The main grievance of the petitioners is that the Service Rules applicable to the Non- Gazetted employee of the Government Leather Institutes, published on 19th July, 1989, mentions the Pay Scale of the Instructors in the discipline of Leather Instructor or Instructors in Footwear and Leather Good Manufacturing Technology (Like Instructor in Closing, Instructor in Costing, Instructor in Making, Instructor in Drawing and Instructor in Finishing) as Rs.550-18-640-20-680 EB-20-740-25-865-EB-25-940. The pay scale has now been revised to the pay scale of Rs.1400-2400. The Instructors in the above mentioned discipline at the Government Leather Institute, Agra are getting the pay scale of Rs.1400-2400, in view of the pay commission report published in 1988, applicable since January, 1986. But the petitioner who are Governed by the same service rules, and are working in the same discipline of Footwear and Leather Goods Technology as Instructors and are performing the same work of teaching as their counter parts at the Government Leather Institute Agra, are getting a different and lesser pay scale of Rs.975-1600. This Pay Scale doesn't even finds mention in the pay structure, as provided in Article 26 of the Service Rules. All the petitioners are Diploma holders in the subject of Footwear and Leather Goods Technology, while their counter parts at Agra, who are working as Instructors in the subject and getting the much higher pay scale of Rs.1400-2400, are all holding certificates in Footwear and Leather Goods Manufacture, a much lower qualification. It must also be mentioned that both the Institutions, either at Kanpur or Agra are governed by the Uttar Pradesh Technical Education Department, as such the services of the employees are transferable and the persons/ employees are having their inter institutional transfer from Government Leather Institute, Agra and vice-versa as and when required. The Instructors at Kanpur get their salary in a lower pay scale 975-1600, in contrast to their counter parts at Agra. The Principal of the Government Leather Institute, Kanpur and the Leather Instructor at the Institution, having time and again been representing against the above mentioned anomaly in their pay structures to the respondent no.1 as well as the respondent no.2 but in vain. The petitioners are still getting their pay in lower pay scale Rs.975-1600 and are incurring loss of salary since January 1988 i.e., with the Introduction of the pay scale of Rs.1400-2400 with effect from January 1986 and hence this writ petition.
The respondents filed their Counter Affidavit stating that the Government Leather Institute, Kanpur is very old Institution, established in 1916-17, when the Government Leather Institute, Agra was established only in the year 1958-59. Previously in Government Leather Institute, Kanpur there were so many certificate level courses and occasional training and factory for leather goods products were running in which the students were being trained besides teaching of Diploma Level Course. Then the posts in Government Leather Institute, Kanpur were created keeping in view the level of courses running in the said Institute. When in Government Leather Institution, Agra, the teaching of only Diploma Level is being made since its establishment. However, the certificate level courses have been discontinued in Government Leather Institute Kanpur and only Diploma Level Classes are being run. The previously sanctioned posts in Government Leather Institute Kanpur are still running in lower pay scale of Rs.975-1660 wherein the petitioners are appointed. However it is admitted that at present both the Institutions are imparting Training of Diploma Level. It is further admitted that the posts of Leather Instructors at Government Leather Institute, Kanpur are running in pay scale of Rs.975-1660 but the posts with this name are not existing in Government Leather Institute, Agra. This difference is due to the fact that the recruitment at Agra is made through the Public Service Commission, while in Kanpur the appointment is made by the Principal, therefore, the claim of parity between the pay scales of posts in both the Institutions can not be entertained. The representations of the petitioners are under consideration of a Committee constituted for the purpose and suitable action is likely to be taken.
During the pendency of the writ petition, this Court by the order dated 18.09.2012, taking note of the fact that a Committee has already been constituted by the respondents for removing the anomaly in the pay scales of the Instructors in both the Institutions, directed the Secretary, Ministry of Technical Education, U.P., Lucknow to direct the Committee to take decision in the matter within 2 months. In compliance of the aforesaid order passed by this Court, the Committee took the decision that the Instructors working in the Government Leather Institute, Kanpur are entitled to parity in pay scale with the Leather Instructors at Agra and the recommendation of the Committee was approved by Principal Secretary, Technical Education, Lucknow by his order dated 02.02.2013. However, after the decision of the Committee dated 02.02.2012, no decision was taken by the respondents regarding the claim of the petitioners and therefore on 20.02.2013 and 23.04.2013 and 06.08.2013 this Court granted further time to the respondents to take decision on the claim of the petitioners. On failure of compliance of this Court's order, by the order dated 26.08.2013, the Chief Secretary of State of U.P. was directed to appear in person in case of failure to comply the earlier direction of this Court regarding decision on the claim of the petitioners, regarding parity in Pay Scale with their counter parts at Agra.
The respondents filed an Affidavit of Compliance dated 27.09.1993 annexing therewith the copy of the Government Orders dated 10.09.2013 and 24.09.2013, whereby they provided for equal pay scale for Instructors at Government Leather Institute, Kanpur and Government Leather Institute, Agra. However, the petitioners got no relief from the aforesaid Government Orders, because they provided the relief from the date of issuance of the Government Orders, when their claim for grant of equal pay scale for equal work related back to January, 1986. On 25.07.2014, this Court directed to the petitioners to represent their case before the respondents for relief from retrospective date. The petitioner accordingly made a representation dated 26.07.2014 before the Principal Secretary of the State of U.P., praying for granting them relief from the year 1986 along with all other consequential benefits but by the order dated 27.08.2014, the representation of the petitioners was rejected by the Principal Secretary, Ministry of Technical Education, Government of U.P., Lucknow.
The petitioners filed an amendment application challenging the Government Orders dated 10.09.2013 and 24.09.2013 and the order dated 27.08.2014 passed on their representation by the Principal Secretary aforesaid. The petitioners challenged the merits of the aforesaid orders on the ground the method of revision adopted by the respondents are not as directed by this Hon'ble Court and the decision taken by the respondents are only applicable to the newly appointed Leather Instructors and not applicable to the Leather Instructors/petitioners who are demanding the equal pay scale from 1986 has been paid to the Leather Instructors working at Government Leather Institute, Agra in Pay Scale of Rs.1400-2400 from the year 1986 while the petitioners are being paid Rs.975-1660 since the year 1986. As per the order dated 2.2.2013 filed alongwith the Affidavit of Compliance filed by the respondents in pursuance to the order dated 19.01.2013 of this Court, it has been stated and admitted that earlier when the Diploma Courses started in the Government Leather Institute, Agra, the teachers/ Leather Instructors, who were teaching the classes of Diploma Courses were only certificate holders, while in the Government Leather Institute Kanpur the Leather Instructors were qualified for the teaching of Diploma courses being Diploma holders even then the certificate holder, Leather Instructors of Government Leather Institute, Agra, were getting pay scale Rs.1400-2400 in the year 1986, while the petitioners who are Diploma holder in the year 1986, have been paid Pay scale of rs.975-1660. This attitude of the respondents amounts to step- motherly treatment with the petitioners and highly discriminatory. As such, refusal of pay scale Rs.1400-2400 to the petitioners is violative of Articles 14, 16 and 39(d) of the Constitution of India and is against the principles of equal pay for equal work. This discrimination/ disparity of pay scale has not been resolved after coming into force of the Uttar Pradesh Technical Education Department Non-Gazetted Technical Service Rules, 1988, which was came inexistence on 19.07.1989 and after coming into force of the recommendations of the Vth & VIth pay commission the petitioners are not getting benefit of the aforesaid revision of pay scale of Rs.1400-2400 which were revised in the year of 1996 and in the year 2006 and onward till date and the disparity of aforesaid pay scale Rs.1400-2400 is still existing between the Leather Instructors of the 2 Institutes at Agra & Kanpur. In earlier paragraph of the impugned order dated 27.08.2014, the Principal Secretary has clearly stated that in the both institutes the process of the selection /appointment on the post of Leather Instructors were not the same since the appointments were being made by the Selection Committee constituted by the Director of Technical Education, Kanpur in the Institute at Kanpur, while at Agra, the appointments were made by U.P. Public Service Commission. Before coming in existence of the Uttar Pradesh Technical Education Department Non-Gazetted Technical Service Rules, 1988 which came in existence on 19.07.1989, there was no service rule made for the Leather Instructors. It is wrong to state that the Leather Instructors of Government Leather Institute, Agra were appointed by the Principal of the Government Leather Institute, Kanpur. This is very much clear that after coming into existence of the Uttar Pradesh Technical Education Department Non-Gazetted Technical Service Rules, 1988, on 19.07.1989, further appointments on the post of Leather Instructor have been made in accordance with the Service Rules by the Public Service Commission. In paragraph 7 of the order dated 27.08.2014 it is incorrectly stated that as per Government Order dated 24.09.2013 the aforesaid pay scale Rs.5200-20200 shall be paid to the petitioner as equivalent to the Leather Instructor Agra, with immediate effect, which is according to the general policy. The disparity of pay scale between the Leather Instructors of Government Leather Institute, Kanpur and Government Leather Institute, Agra are in existence from 1986 till date. Hence the order dated 27.08.2014 and aforesaid Government orders dated 24.09.2013 are liable to be quashed by this Hon'ble Court. The said claim made by the petitioners, as stated in the representation dated 26/27.07.2014, is liable to be allowed by this Hon'ble Court as held in the order dated 18.09.2012.
The respondents filed their Counter Affidavit to the amended paragraphs of the writ petition stating that some syllabus/courses were being conducted pertaining to the certificate level in the Government Leather Institute, Kanpur, which have been closed subsequently and the courses pertaining to the diploma level have been started thereafter. The employees/teachers appointed earlier for the courses of certificate level have been engaged as it is to start the diploma courses and subsequently on their retirement, the employees/ teachers possessing the prescribed qualification/ eligibility for the diploma courses have been appointed on the aforesaid posts, however without there being any change in the pay scales maintaining the same as was for the employees/teachers of the certificate courses, while the eligibility has been prescribed equivalent to the eligibility of the employees/teachers of the diploma courses. At the same time the new institution namely Government Leather Institute, Agra was opened, where the diploma courses are being conducted in the institution at Agra, the post of Instructors have been created with different nomenclature, which were according to the necessary criteria for the diploma institute and their pay scale was Rs.1400-2400 and further all the appointees on such posts are the diploma holders. Accordingly the difference between the pay scales of both the aforesaid institutions at Kanpur and Agra had occurred. There is no mention in respect of the posts related to the petitioners, namely, Leather Demonstrator and Leather Finishing Instructor (under the pay scale of Rs.975-1660) of the institute in the Uttar Pradesh, Technical Education Department (Non Gazetted Employees) Service Rules, 1988. The appointment of the petitioners were made through direct recruitment after due advertisement of the vacancy. Looking into the circumstances in respect of dissimilarity in the eligibility qualification and pay scale of the Leather Demonstrator of the institute and the institute at Agra, the Government Orders dated 10.09.2013 and 24.09.2013 have been issued fixing equal pay scales under the grade pay of Rs.2800/- for the Leather Instructors of both the Institutes. The amended pay scale will now be payable w.e.f., 24.12.2009, while in the said Government Order, it has been mentioned that as a result of decision, the pay fixation of the incumbent receiving upgraded grade pay will be according to the Government Order bearing No. Ve.A-2-841/Dus 2009-59(M)/ 2008 dated 24.12.2009. The posts of Leather Instructor of both the aforesaid institutes have been renamed as Instructors under the said Government Orders dated 10.09.2013 and 24.09.2013 fixing similar eligibility and pay scale for the same and the points mentioned under the papers under reply have already decided by the office memorandum dated 27.08.2014 and this fact has already been brought into the kind notice of this Hon'ble Court at earlier occasions.
In paragraph no.57 of the amended writ petition, the petitioners made clear averment as follows:
"57. That in earlier paragraph, the Chief Secretary has clearly stated that in the both institutes the process of the selection/ appointment on the post of Leather Instructors were the same as by an appointment being made by the Selection Committee constituted by the Director of Technical Education, Kanpur who was the appointing authority. That before coming in existence of the Service Rule the UTTAR PRADESH TECHNICAL EDUCATION DEPARTMENT NON-GAZETTED TECHNICAL SERVICE RULES, 1988 which came in existence on 19.07.1989, there was no service rule made for the Leather Instructor. It is wrong to say that the Leather Instructor of Government Leather Institute Agra were appointed by the Principal of the Government Leather Institute, Kanpur. This is very much clear that after coming in to inexistence of the UTTAR PRADESH TECHNICAL EDUCATION DEPARTMENT NON-GAZETTED TECHNICAL SERVICE RULES, 1988 which came in existence on 19.07.1989 the further appointments on the post of Leather Instructor should be made when vacancy arises in accordance with Service Rules of 1988 by the Public Service Commission".
The respondents did not submitted any reply to the above paragraph no.57 of the amended writ petition and therefore, on 08.04.2016, the learned Counsel for the petitioners argued that the above statement of fact made paragraph no.57 of the impugned order dated 27.08.2014 passed by the State Government, that the Leather Instructors at Agra were appointed by the Public Service Commission, whereas Leather Instructors at Kanpur were appointed by the Principal has not been rebutted. Therefore, this Court directed the learned Standing Counsel to file a Counter Affidavit which was not filed and thereafter, further time was granted by this Court on 08.04.2016, 15.05.2017 and on 14.12.2017, the leaned Sanding Counsel was granted a month's and more time to comply the earlier orders dated 08.04.2016 and 15.05.2017 and the case was directed to be listed on 16.01.2018. On 16.01.2018, the learned Standing Counsel sought further time upto 23.01.2018 to comply the order and on his request the case was put up as unlisted case on 23.01.2018 and then on 25.01.2018 but no assistance/ Counter Affidavit came and therefore, hearing of the case was proceeded with, treating the averment in paragraph no.57 of the writ petition as correct.
After hearing the rival submissions on behalf of the parties it is clear that the claim of the petitioners is based on the principle of equal pay for equal work. The petitioners have clearly stated in the writ petition that they were appointed prior to promulgation of the Uttar Pradesh Technical Education Department Non-Gazetted Technical Service Rules, 1988, which was enforced w.e.f., 19.07.1989 and therefore, there is no question of their appointment de-hors this Rule. Further, these rules will be effective from the date of enforcement with prospective effect, therefore, the petitioners cannot be denied the benefit of their services rendered since the year 1986 because their appointment was not in accordance with the rules, which came into existence after their appointment. Considered on this account the finding of the State Government in the impugned order dated 27.08.2014 is absurd and no reasonable person would approve the same.
The next point involved in the case is that the impugned order dated 27.08.2014 states that the Committee appointed for the purpose of removing the anomaly in the pay scales of the Instructors of the two Institutions in 1997-1999 and 2008 did not made any recommendation since it did not found that the qualification for the Instructors in both the Institutions are the same and therefore, there is no justification for granting them parity in pay scale. There is no reference to the fact as to what is the difference between the qualification for the post of Instructors in the 2 Institutions in dispute, when in the Rule of 1988, there is only one qualification for the post of Leather Instructors i.e., Diploma in Footwear and Leather Technology.
In the impugned order dated 27.08.2014, it has been admitted that on account of the similar work, designation of posts, eligibility, qualification and source of recruitment regarding the post of Instructor similar pay scales should be prescribed and the Committee has rightly recommended the same. However, despite these findings the benefit of parity in pay scales, promotion, revision of pay scale, arrears of difference in pay scales, etc., of the petitioners from the year 1986 has not been granted to them.
The further finding recorded in the impugned order that since the Committee has recommended payment of revised/ higher pay scales to the employees w.e.f., 01.04.2001, therefore, these benefits are only payable since the date of issuance of the Government Order and there is no justification of payment of the same to the petitioners from 01.01.1986 is also not based on reasons. The petitioners have assailed this finding stating that the disparity in the pay scale has been found to be existing since 1986 and the justification for the same is only that the manner of appointment of the Instructors in both the Institutions was different. Now, this fact has not been found to be correct and therefore, there was no reason not to grant them the relief prayed for since the year they were deprived of the same. The finding of the State Government in this regard is absurd, since once it is found that there was no difference in the source of recruitment, qualification, duties, etc., of the Instructors working in the Government Leather Institute at Agra and Government Leather Institute at Kanpur, the petitioners were entitled to get parity in pay scale, promotion, revised pay scale, arrears of salary and other consequential benefits at par with their counter parts at Agra and their denial amounts to discrimination.
The learned Counsel for the petitioners has argued that it is now well settled that principle of equal pay for equal work is a recognized principle of law and has been reiterated time and again by the Courts that if in all other aspects, duties, responsibilities, obligations, etc., of two persons are similar and they are similarly placed and performing similar duties, they can not be denied equal pay and any otherwise treatment would amount to treating equals as un-equals and shall violate the Fundamental Right of equality, guaranteed by Article 14 of the Constitution of India.
" In Randhir Singh v. Union of India and Ors., 1982 1 SCC 618, Apex Court considering principle of equal pay for equal work held and that it is not an abstract doctrine but one of substance. Construing Articles 14 and 16 in the light of Preamble and Article 39(d) of the Constitution, Apex Court held that principle of equal pay for equal work is deducible from those Articles and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though those drawing different scales of pay do identical work under the same employer.
In R.D. Gupta and Ors. V. Lt. Governor, Delhi Administration and Ors., 1987 4 SCC 505, the Apex Court applying principle of equal pay for equal work, in para 20 of the judgment, considered correctness of defence taken by employer justifying non application of said principle, and held-
" the ministerial staff in the NDMC constitute a unified cadre. The requirement policy for the selection of the ministerial staff is a common one and he recruitment is also done by a common agency. They are governed by a common seniority list. The ministerial posts in the three wings of the BDNC viz, the general wing, the electricity wing and the waterworks wing are interchangeable posts and the postings an made from the common pool according to administrative convenience and exigencies of service and not on the basis of any distinct policy or special qualifications. Therefore, it would be futile to say that merely because a member of the ministerial staff had been given a posting in the electricity wing either due to force of circumstances or due to voluntary preferment, he stands on a better or higher footing or in a more advantageous position than his counterparts in the general wing. It is not the cast of the respondents that the ministerial staff in the electricity wing perform more onerous or more exacting duties than the ministerial staff in the general wing. It therefore follows that all sections of the ministerial staff should be alike and all of them held entitled to the same scales of pay for the work of equal nature done by them. (para 20). "
In Jaipal and Ors. V. State of Haryana and Ors., 1988 3 SCC 354, the Apex Court held;
" The doctrine of equal work equal pay would apply on the premise of similar work, but it does not mean that there should be complete identity in all respects. If the two classes of persons do same work under the same employer, with similar responsibility, under similar working conditions the doctrine of equal work equal pay would apply and it would not be open to the State to discriminate one class with the other in payment salary. The State is under a constitutional obligation to ensure that equal pay is paid for equal work." (para 6) In Grih Kalyan Kendra Workers Union v. Union of India and Ors., 1991 1 JT 60, it was observed:
"The question of parity in pay scale cannot be determined by applying mathematical formula. It depends upon several factors namely nature of work, performance of duties, qualifications, the quality of work performed by them. It is also permissible to have classification in services based on hierarchy of posts, pay scale, value of work and responsibility and experience. The classification must, however, have a reasonable relation to the object sought to be achieved. (para 7). "
In State of Orissa and Ors. v. Balaram Sahu and Ors., 2003 1 SCC 250, Court observed as under:
"Though "equal pay for equal work" is considered to be a concomitant of Article 14 as much as "equal pay for unequal work" will also be a negation of that right, equal pay would depend upon not only the nature or the volume of work, tint also on the qualitative difference as regards reliability and responsibility as well and though the functions may be the same, but the responsibilities do make a real and substantial difference.(para 11). "
In State Bank of India and Anr. V. M.R. Ganesh Babu and Ors., 2002 4 SCC 556, the Court observed in para 16:
" The principle of equal pay for equal work has been considered and applied in may reported decisions of this Court. The principle has been adequately explained and crystallized and sufficiently reiterated in a catena of decisions of this Court. It is well settled that equal pay must depend upon the nature of work done."
In Deb Narayan Shyam and others Vs. State of West Bengal and others, 2005 2 SCC 286, the Court summarized as to when doctrine of equal pay for equal work would apply in the light of exposition of law laid down in catena of its earlier decisions and said:
" Large number of decisions have been cited before us with regard to the principle of "equal pay for equal work" by both sides. We need not deal with the said decisions to overburden this judgment. Suffice it to say that the principle is settled that if the two categories of posts perform the same duties and function and carry the same qualification, then there should not be any distinction in pay scale between the two categories of posts similarly situated. But when they are different and perform different duties and qualifications for recruitment being different, then they cannot be said to be equated so as to qualify for equal pay for equal work."
In State of Madhya Pradesh and others vs. Ramesh Chandra Bajpai, 2009 11 Scale 619 the Court said that it is well settled that the doctrine of equal pay for equal work can be invoked only when the employees are similarly situated. Similarity in designation or nature or equation of work is not determinative for equality in the matter of pay scales. The Court has to consider the factors like the source and mode of recruitment / appointment, qualifications, nature of work, the value thereof, responsibility, reliability, experience, confidentiality, functional need, etc. In other words the equality clause can be invoked in the matter of pay scale only when there is a whole sale identity between the two posts.
In State of Madhya Pradesh and Ors. Vs. Ramesh Chandra Bajpai, 2009 13 SCC 635, the Court said that doctrine of equal pay for equal work can be invoked only when the employees are similarly situated and that similarity of the designation or nature or quantum of work is not determinative of equality in the matter of pay scales and that the Court has to consider several factors and only when there was wholesale identity the holders of two posts, equality clause can be invoked and not otherwise.
In A.K. Behra Vs. Union of India & Anr., 2010 5 JT 290, the Court, in paras 84 and 85 said:
"84. The principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of differences of circumstances. It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed.
85. The law can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognize even degree ofevil, but the classification should never be arbitrary, artificial or evasive."
The learned Counsel for the petitioners has further argued hat the Hon'ble Supreme Court in the case of Yogeshwar Prasad Vs. National Institute, Education Planning and Administration, JT 2010 12 278, held that the employees similarly situated are entitled to revised pay scales from the date their Counter parts in other departments got the same. Therefore, the petitioners are entitled to revised pay scale as their Counter parts in Agra which has been denied to them by the impugned orders. The learned Standing Counsel disputed the liability on the ground that the impugned order has already granted the relief to the petitioner prospectively at par with their Counter parts at Agra. However, he has failed to justify his stand as to why the petitioners, who have been discriminated regarding the payment of due salary since the year 1986 should not be allowed to get the same, on the basis of any material on record.
The learned Counsel for the petitioners has also relied upon the Judgment of the Apex Court in the case of Union of India and others Vs. Dineshan K.K,(2008) 1 SCC 586. where the Apex Court granted parity in rank and pay structure to the Radio Mechanics of Aasam Rifles with their counter parts in other central forces, like C.R.P.F. and B.S.F..
In view of the above facts and legal position emerging from the record, it is clear that the petitioners were appointed prior to enforcement of the Uttar Pradesh Technical Education Department Non-Gazetted Technical Service Rules, 1988 and therefore, their appointment cannot be in accordance with the Rule, which came into existence after their appointments and therefore the stand of the respondents that their appointment was de-hors the above rules is absurd objection. The pay anomaly committees have passed the impugned Government Orders dated 10.09.2013 and 24.09.2013 illegally depriving the petitioners of the pay scales to which they were entitled since 01.01.1986. The impugned order dated 27.08.2014 has been passed by the Government on the same ground that the appointments of the petitioners were not as per the rules aforesaid and they shall be given benefit of the revised/higher pay scale w.e.f., the Government Orders, which has been found to be factually and legally incorrect. Therefore, it is declared that the Government Orders dated 10.09.2013 and 24.09.2013 shall not have any effect over the claims of the petitioners. The impugned order dated 27.08.2014, passed by the State Government is quashed. The respondents are directed to grant the pay scale of 1400-2400 to the petitioners from 01.01.1986, which is being paid to their counter parts at Government Leather Institute, Agra. They shall also get the revised pay scales and all other consequential benefits, at par with their aforesaid counter parts within a period of 2 months from the date of production of the certified copy of this order before the Secretary, Ministry of Technical Education, Government of U.P., Lucknow. The petitioner shall be entitled to 7% simple interest on the arrears of their difference of salary, promotional salary and any other dues which were paid to their counter parts at Agra within the same period of 2 months. These benefits shall accrue to the petitioner nos.1, who has retired on 30.06.2008 and to the petitioner nos. 4 and 5 who are working. The petitioner nos. 2 and 3 have been stated to be dead in paragraph no.35 of the writ petition and the Counsel for the petitioner has made statement that he has no instructions from their legal heirs and therefore, this order will not have any effect regarding the claims of the petitioner nos. 2 and 3.
The writ petition is allowed with conservative litigation cost of litigation of Rs.20,000/- each to petitioner nos.1, 4 and 5, which shall be paid to them along with other dues.
Order Date :- 05.02.2018 Ruchi Agrahari