Delhi High Court
D.C.Mehta vs Union Of India & Ors. on 30 October, 2013
Author: Valmiki J. Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 2055/1999
% 30th October, 2013
D.C.MEHTA ......Petitioner
Through: Mr. K.K.Rohatagi, Advocate.
VERSUS
UNION OF INDIA & ORS. ...... Respondents
Through: Mr. Ravi Sakri, Mr. Vaibhav Kalra
and Ms. Sumedha Dang, Advocates
for R-2/AAI.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. By this writ petition, the petitioner who was appointed as Director (Administration) in the erstwhile National Airport Authority of India seeks a higher pay-scale from the first date of his appointment. A claim for higher pay-scale, for the period after National Airport Authority of India merging into Airport Authority of India, is also claimed by alleging arbitrariness in the circular dated 9.2.1998 by asserting equivalence of petitioner with an Executive Director.
WPC 2055/1999 Page 1 of 7
2. I put it to counsel for the petitioner that there can ordinarily be two basis to claim a higher pay-scale. First is that higher pay-scale is specifically provided by the service rules of the organization and the second basis is by application of doctrine of „equal pay for equal work‟.
3. On behalf of the petitioner admittedly no service rules of the respondent-organization are relied upon which provide for the higher pay- scales claimed by the petitioner, and the petitioner essentially only relies upon the promise made to him before his appointment as stated in the note dated 12.7.1990 filed at page 50 of the paper book and also the note dated 3.9.1990 filed at page 46 of the paper book. Petitioner joined subsequently on 1.10.1990. These two notes dated 12.7.1990 and 3.9.1990 are reproduced below:-
NOTE DATED 12.7.1990 "The Board met today the 12th July 1990 under the Chairmanship of Lt. Gen. T.B.Nanda out of the five candidates called for the interview, only two namely Shri P P Guha and Wg. Cdr. D C Mehta were present for the interview.
The Board considers Shri P P Guha as not acceptable for the post of Director of Administration.
Wg. Cdr. D C Mehta is considered eligible and suitable for the post of Director of Administration and he is recommended for appointment. However, the present emoluments of Wg. Crd. D C Mehta amount to Rs. 8213.00 whereas the emoluments as per the advertisement of the NAA WPC 2055/1999 Page 2 of 7 at the beginning of scale only amount to Rs.5930.00. Besides on reverting from Defence to the NAA, he would also have to forego some of the perks like free rations. In view of his suitability and in fairness to the individual, the Board recommends that he be given a higher start in the scale. This may be favourably considered by the Administration.
[LT. GEN. T.B.NANDA] CHAIRMAN"
NOTE DATED 3.9.1990 "Chairman has directed that the post of Director [Administration] in the scale of pay of Rs.4100-5300 should be created at the earliest, and immediately outlining the duties and job responsibilities attached to this post and also justification for creating this post in higher scale of pay of Rs. 4100-5300.
Simultaneously, there is also a need to create a post of Director [Finance & Accounts] in the scale of pay of Rs. 4100- 5300, a post that was in existence in NAA prior to the promotion of Mr. N.S.Parthasarathy to the post of Executive Director [F&A]. In this case also, the Chairman has directed that proposals should be put up to the Board for fresh creation of the post of Director [Finance & Accounts]. In this case also, a detailed note indicating the duties and job responsibilities of the post and also the need for creating this post/reviving the post should be brought out in this detailed note. Both these Board memos should be independent and the financial impact of these two creations may have to be ascertained from the Dy. Director [Finance] before the Board Memos are finalised.
Chairman desires that we prepare Board Memos on these two issues for being put at the next Board Meeting.
[N.C.KISHORE] Company Secretary"
4. Admittedly, the note dated 12.7.1990 only refers to the fact that the recommendation is given for higher scale of pay for being favourably WPC 2055/1999 Page 3 of 7 considered by the administration. Same is the position as per the note dated 3.9.1990. Therefore surely there is no concluded contract with the petitioner for him to get higher pay-scale because National Airport Authority of India was functioning through the Board of Directors and there is no acceptance by the board for higher pay scale to the petitioner. Recommendations by anyone, unless accepted by the Board of Directors, cannot result in a higher pay-scale merely and simply because some people in the organization deem it fit that the Director (Administration) should get a higher pay-scale. The same logic even applies to the note dated 3.9.1990 and the views of the Chairman because Chairman of the National Airport Authority of India is subservient to the Board and it is only the board which is the final authority to decide the pay-scale. Counsel for the petitioner in spite of repeated queries could not point out any resolution of the Board of Directors of the National Airport Authority of India giving the specific higher pay-scale to the petitioner as is being prayed for by him. Accordingly in absence of any service rules of National Airport Authority of India or of any contractual promise made out through the resolution of the Board of Directors of the National Airport Authority of India, petitioner cannot get increased pay- scale as is prayed for by him.
5. I may note that petitioner subsequently has got the higher pay-scale WPC 2055/1999 Page 4 of 7 w.e.f 20.5.1994, and petitioner is only claiming by this writ petition higher pay-scale from 1.10.1990 to 20.5.1994.
6. So far as the issue of claim of higher pay-scale by invoking and seeking to apply the doctrine of „equal pay for equal work‟ is concerned, it was necessary for the petitioner to specifically plead and prove the following four factors.
(i) Specifying that equivalence is being claimed with which post with the post of Director (Administration) at which petitioner was working.
(ii) What are the qualifications of the two posts and that they are being identical or more or less similar for the benefit of the pay-scale of other post to be given to the petitioner.
(iii) What is the scope and nature of duties of a Director (Administration) as compared with the Director (Pay and Accounts) or other directors of the National Airport Authority of India with whom equivalence is claimed.
(iv) What is the hierarchy of promotion for the two posts to be considered similar for application of the doctrine of „equal pay for equal work‟.
7. A reading of the writ petition shows that no averments have been made as to qualifications of the posts of the Director (Administration) being identical to that of Director (Pay and Accounts). Once qualifications are not the same merely because certain duties in the two posts may be similar will WPC 2055/1999 Page 5 of 7 not help the petitioner to invoke and seek application for doctrine of „equal pay for equal work‟. Being identical in qualifications is a major/vital ingredient required to be established before seeking application of the doctrine of „equal pay for equal work‟.
8. Finally, on behalf of the petitioner, it was argued for claiming of higher pay-scale, that the circular of respondent no.2 dated 9.2.1998 was arbitrary and illegal and equality is claimed of the petitioner to an Executive Director. Once again, the necessary ingredients for application of the doctrine of „equal pay for equal work‟ is not stated in the writ petition for identity of an Executive Director with the Director(Administration) such as the petitioner. Therefore, in the absence of pleadings, and much less of proof in support thereof, petitioner cannot get a pay equivalent to an Executive Director. I may note that there are various directors of various subjects in every company, however, it cannot be and it is not the law that all the directors merely because they are directors, should get the same pay- scales.
9. In view of the above, though petitioner may have got a lesser pay- scale than he had with his erstwhile employer at the time of his joining with the respondent- National Airport Authority of India, however, in law petitioner could have only got a higher pay-scale if there were service rules WPC 2055/1999 Page 6 of 7 of the employer entitling the higher pay-scales claimed or a Board of Director‟s resolution existing entitling granting of a higher pay-scale, and both of which aspects are missing in the facts of the present case.
10. In view of the above, the reliefs claimed in the writ petition cannot be granted, and the same is therefore dismissed, leaving the parties to bear their own costs.
OCTOBER 30, 2013 VALMIKI J. MEHTA, J.
ib
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