Gujarat High Court
Gujarat Pwd Drawing Branch Association vs Secretary & 4 on 13 October, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/1213/1997 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1213 of 1997
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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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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GUJARAT PWD DRAWING BRANCH ASSOCIATION....Petitioner(s)
Versus
SECRETARY & 4....Respondent(s)
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Appearance:
MR YN OZA, ADVOCATE for the Petitioner(s) No. 1.1
MS SRUSHTI A THULA, ADVOCATE for the Petitioner(s) No. 1
MR. P.K. JANI ADDL. ADV. GENERAL, with MR. SWAPNESHWAR GAUTAM,
ASST. GOVERNMENT PLEADER for the Respondent(s) No. 1 - 5
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : / /2017
CAV JUDGMENT
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1. By this writ application under Article 226 of the Constitution of India, the writ applicant, an Association of the Gujarat PWD Drawing Branch, through its General Secretary, Saurashtra Zone, has prayed for the following reliefs;
"(A) This Hon'ble Court may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondents to give the members, who are working as Ferro Machine Operators/Ferro Printer Tracers, Assistant Draftsman, Draftsman and Head Draftsman, of the petitioner-Association, the pay scale on par with the respective and corresponding pay scale of Superintendent of Maps, Draftsman Grade-I, Draftsman Grade II, Draftsman Grade III of the Central Public Woks Department in the Central Government, with the arrears and with all incidental and consequential benefits.
(B) Pending the hearing and final disposal of the petition, this Honourable Court may be pleased to direct the respondents to give the members, who are working as Ferro Machine Operators/Ferro Printer, Tracers, Assistant Draftsman, Draftsman and Head Draftsman of the petitioner-Association, the pay scale on par with the respective and corresponding pay scale of Superintendent of Maps, Draftsman Grade I, Draftsman Grade II, Draftsman Grade III of the Central Public Works Department in the Central Government, with the arrears and with all incidental and consequential benefits.
(C ) An ex parte ad-interim relief in terms of prayer (B) may kindly be granted.
(D) And to pass such other and further orders as may be deemed just and proper."
2. The case, as pleaded by the writ applicants, in their own words, is as under;
2.1 The present writ petition under Article 226 of the Page 2 of 32 HC-NIC Page 2 of 32 Created On Sat Oct 14 00:09:26 IST 2017 C/SCA/1213/1997 CAV JUDGMENT Constitution of India is directed against the discriminatory action on behalf of the respondents of not giving the members of the Petitioners-Association "equal pay for equal work". although educational qualification, nature and responsibility of work of the cadres of Ferro Machine Operators/Ferro Printer, Tracers, Assistant Draftsman, Draftsman and Head Draftsman are equivalent to the cadres of the Central Public Works Department under the Central Government. It is submitted that as far as the Central Public works Department is concerned, in the said department, the posts of Ferro Machine Operators/Ferro Printer are described as the post of Tracer and the post of Tracer is re-designated as post of Draftsman Grade- II. Thus, there are Four different posts in the Central Public Works Department, i.e. Superintendent of Maps. Draftsman Grader-I, Draftsman Grade-II and Draftsman Grade-III. It is submitted that, though educational qualification for recruitment to these posts in the Central Public Works Department and the similar posts in the Gujarat State Government is the same and the nature of work is also identical, the employees working under the Central Public Works Department are getting much much higher pay than the employees working in the Gujarat State Government. It is respectfully submitted that though the State Government has accepted the recommendations of the Fourth Pay Commission and implemented the same in the State of Gujarat, and when the Central Government has revised the pay scale of its employees working in these cadres, the State Government has not chosen to revise the pay scale of the employees working in the similar cadres in the State Government and, therefore, the petitioner-Association is constrained to file the present writ petition before this Honourable Court with a Page 3 of 32 HC-NIC Page 3 of 32 Created On Sat Oct 14 00:09:26 IST 2017 C/SCA/1213/1997 CAV JUDGMENT prayer. inter alia, to direct the respondents to remove the anomaly in their pay scales.
2.2 It is submitted that. at present. the pay-scale of the employees working in different cadres is as follows:
Ferro Machine Operators/Ferro Printer Rs-800-1150 Tracer Rs.1150-1500 Assistant Draftsman Rs.1320-2040 Draftsman Rs.1400-2600 Head Draftsman Rs.1640-2900 2.3 It is submitted that as far as the post of Ferro Machine Operators/Ferro Printer is Concerned. the said post is re-
designated as Draftsman by the Central Government Moreover the Honourable Central Administrative Tribunal New Delhi, by its Judgment and Order dated May 18, 1994, has declared that the post of Ferro Machine Operators / Ferro Printer is required to be re-designated as Draftsman Grade III along with erstwhile Tracers and, according to the ruling of the Central Administrative Tribunal, on June 5, 1995, the Government of India, in the Central Water Commission, has issued an Office Memorandum re-designating the post of Ferro Machine Operators/Ferro Printer as Draftsman Grade III. A copy of the Office Memorandum issued by the Central Water Commission is annexed hereto and marked as Annexure -A 2.4 It is submitted that, the said Draftsman Grade-III is getting pay in the pay scale of Rs. 1200-2040 in the Central Government while Tracers working in the State Government are getting pay in the pay scale of Rs.1150-1500 and Ferro Page 4 of 32 HC-NIC Page 4 of 32 Created On Sat Oct 14 00:09:26 IST 2017 C/SCA/1213/1997 CAV JUDGMENT Machine Operators/Ferro Printer are getting pay in the pay scale of Rs.800-1150. It is submitted that the recruitment rules for Draftsman Grade-III in the Central Government and Draftsman in the State Government are the same. Moreover, the nature of work of both the paste are also the same. Despite this fact, the Draftsmen in the State Government are not getting equivalent pay scale as Draftsman Grade III of Central Government It is submitted that there is other post also in the same department having requirement of similar educational qualification and almost similar nature of work and getting the pay scale of Rs.1200-2040. It is submitted that these posts are Work Assistants Class III. These Technical Assistants and surveyors are getting the pay in the pay scale of Rs.1200-2040. It is submitted that, though the recruitment rules are almost similar and the work responsibility is also the same, the Draftsman in the State Government are given step- motherly treatment and they are getting the pay scale of Rs.1150-1500, while Ferro Machine Operators/ferro Printer are getting only pay scale of Rs.800-1150.
2.5 It is submitted that similarly, as far as Assistant Draftsman, Draftsman and Head Draftsman are concerned, in the Central Public Works Department, these posts are Draftsman Grade II, Draftsman Grade I and Superintendent of Maps. Copies of the recruitment rules of Ferro Machine Operators/Ferro Printer, Tracers, Assistant Draftsman, Draftsman and Head Draftsman are annexed hereto and marked as Annexure-B collectively.
2.6 It is submitted that, in the year 1986, the Central Water Page 5 of 32 HC-NIC Page 5 of 32 Created On Sat Oct 14 00:09:26 IST 2017 C/SCA/1213/1997 CAV JUDGMENT Commission has designated the posts of Sr. Draftsman, Jr. Draftsman and Tracers as Draftsman Grade-I, Draftsman Grade II and Draftsman Grade III respectively, and, thereafter, in the year 1995, on the basis of award of the Board of Arbitration in the case of the Central Public Works Department, the pay scale of Draftsman Grade I was revised to Rs.1600-2600, Draftsman Grade II was revised to Rs.1400-2300, Draftsman Grade-III wee revised to Rs.1200-2040. Copies of the letters dated June 6, 1995 and September 26, 1986 issued by the Central Water Commission are annexed hereto and marked as Annexure C collectively.
2.7 It is submitted that, as per the recommendations of the Fourth Pay Commission, the pay scale in the grade of Tracers and Draftsmen in the State Government and the Central Government is the same and the State Government has accepted the recommendations of the Fourth Pay Commission and given the pay scale to the employees working in the State Government including the members of the petitioner- Association. But, thereafter, when the Central Government has revised the pay-scale of different grades of Draftsmen, despite number of representations, the State Government has not changed the pay scale of the poet of Draftsmen in the State Government. It is submitted that, the surveyors, i.e., Supervisors, who were also. as per the Desai Pay Commission, getting the pay scales like Draftsmen, have been re- designated as additional Assistant Engineers by Government Resolution dated August 5., 1991 and, thereafter they were put in the pay scale of Rs.1640-2900. It is submitted that, though educational qualification of Draftsman and A.A.E is the Page 6 of 32 HC-NIC Page 6 of 32 Created On Sat Oct 14 00:09:26 IST 2017 C/SCA/1213/1997 CAV JUDGMENT same, the surveyors are getting much much higher pay, while Draftsman are getting very low pay scale. It is respectfully submitted that the action of the respondents is, therefore, violative of Articles 14, 16 and 390 of the Constitution of India and, therefore, this Honourable Court, in exercise of its prerogative discretionary powers, may be pleased to direct the respondents to remove the anomaly and equalize the pay scale of the petitioner-Association on par with the pay scale of Draftsman in the Central Public Works Department under the Central Government. The pay scale of the Draftsman in the Central Public Works Department is as under;
Sr. Designation Existing Scale Revised Scale No. 1 Draftsman Grade I Rs.425-700 Rs.1600-2660 Equivalent to pre-
revised scale of Rs.550-750.
2 Draftsman Grade II Rs.330-560 Rs.1400-2300 Equivalent to pre-
revised scale of Rs.425-700 3 Draftsman Grade III Rs.260-430 Rs.1200-2040 Equivalent to pre-
revised scale of Rs.330-500.
2.8 It is submitted that, as far as the work of Ferro Machine Operators/Ferro Printer is concerned, their work is more dangerous, because, in their work, they have to use ammonia for printing and developing. The said ammonia is injurious to health, It is submitted that in the Central Government, the said post of Ferro Machine Operator/Ferro Printer was re-designated as Tracers and re-designated as Page 7 of 32 HC-NIC Page 7 of 32 Created On Sat Oct 14 00:09:26 IST 2017 C/SCA/1213/1997 CAV JUDGMENT Draftsman Grade III and, at present, they are getting the pay in the pay-scale of Rs.1200-2040, while in the State Government the Ferro Machine Operators/Ferro Printer are getting the pay in the pay scale of Rs.80-1150. It is submitted that, similarly, other posts of Assistant Draftsman, Draftsman and Head Draftsman are also having the similar nature of work like Draftsman Grade II, Draftsman Grade I and Superintendent of Maps. In the Central Public Works Department in the Central Government. It is submitted that even the educational qualification for recruitment to these posts is also same and, therefore, the State Government ought to have considered the representation made by the petitioner-Association and ought to have granted them the pay scale equivalent to the pay scale given in the Central Public Works Department. Copies of the representations made by the petitioner-Association are annexed hereto and marked as Annexure D collectively.
2.9 It is respectfully submitted that, as per the recommendation of the Fourth Pay Commission and, thereafter, as per the Settlement in the arbitration proceedings, the Central Government has revised the pay- scale of Draftsmen Grade l, Draftsman Grade II, and Draftsman Grade III. Moreover the pay scale of Superintendent of Maps and Head Draftsman is also different in Center and in State. Despite this fact, the State government has not thought it fit to revise the pay scale of the employees working in different cadres in different cadres. It is submitted that the employees of the Central Public Works Department under the Central Government have got revised pay scale because they have approached the court, while the members of the petitioner-
Page 8 of 32HC-NIC Page 8 of 32 Created On Sat Oct 14 00:09:26 IST 2017 C/SCA/1213/1997 CAV JUDGMENT Association herein thought it fit to make representation to the State Government to redress their grievances peacefully, But, despite this fact, the State Government has treated the equals as unequal and created anomaly and discrimination which has not been removed despite representations made by the petitioner-Association and, therefore, the petitioner Association is constrained to approach this Honourable Court.
2.10 It is respectfully submitted that once the employees of similar cadres have got their pay scale revised, reasonableness, fairness and the mandate of Article 14 of the Constitution of India requires that similar treatment of revision of pay scale ought to have been extended to the employees working in different cadres in the Design Section of the State Government. It is respectfully submitted that, as far as the revision of pay of Supervisor (now Additional Assistant Engineer) is concerned, since they have resorted to violent strike, their pay scale was got revised, but the members of the petitioner Association, who have thought it fit to redress their grievances peacefully, are not extended the benefit of revision in the pay scale and, therefore, the action of the respondents is arbitrary, illegal, discriminatory, based on extraneous and irrelevant considerations and violative of Articles 14, 16 and 390 of the Constitution of India, and, this Honourable Court, in exercise of its prerogative jurisdiction under Article 226 of the Constitution of India, may be pleased to direct the respondents to remove the anomaly and equalize the pay scale of the petitioner-Association on par with the pay scale of Draftsman in the Central Public Works Department under the Central Government.
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3. It appears that the issue raised in this writ application came to be considered by the Pay Anomaly Committee, constituted by the State Government. The Pay Anomaly Committee, in its report dated 10th May, 2000, recommended the following so far as the tracer is concerned;
"The pay scale of this cadre was Rs. 1150 - 1500 from 1/1/86. Representation was made to make this pay scale equivalent to the Central Government i.e. Rs. 1200 - 2040. Moreover, such argument was made that as per the Gujarat State Service (Revision of Pay) Rules, 1998 pay scale of Rs. 3200 - 4900 has been fixed against pay scale of Rs. 975-1660, whereas pay scale of Rs. 3050- 4590 has been fixed against pay scale of Rs. 1150-1500; which is a anomaly. Moreover, the pay scale of this cadre was compared with the pay scale of Work Assistant cadre. Along with it, representation was also made that pay scale of Rs. 1200-2040 is given to the employees of other department who possess ITI certificate. The minimum education qualification of this cadre is SSC and Civil Draftsman Certificate and Estimating.
The Committee does not accept the argument that pay scale equivalent to the cadres of the Central Government should be given. The Committee also does not accept the argument that two pay scales have become one due to clubbing and therefore, higher pay scale should be given in the other cadre. However, while comparing with the cadre of Work Assistant, the Committee has found that considering the educational qualification, recruitment rules, work, responsibilities etc relevant aspects, if Tracer cadre is not given the pay scale of Work Assistant, it will be a anomaly of pay scale. Therefore, the Committee recommends to grant pay scale of Rs. 1200-1800 to the Tracer cadre from 1/1/86."
4. However, the recommendation of the Pay Anomaly Committee has not been accepted by the Cabinet Sub-
Page 10 of 32HC-NIC Page 10 of 32 Created On Sat Oct 14 00:09:26 IST 2017 C/SCA/1213/1997 CAV JUDGMENT Committee constituted by the Government to look into the report of the Pay Anomaly Committee. The Cabinet Sub- Committee, in its report dated 24th May, 2005 observed as under so far as the tracer is concerned' "This cadre has a pay scale of Rs. 1150-1500 w.e.f. 01/01/1986 and Rs.3050-4590 w.e.f 01/01/1996. The cadre has demanded to grant pay scale of Rs. 1200-1800 w.e.f. 01/01/1986 and Rs. 4000-6000 w.e.f. 01/01/1996 as equal to the cadre of the Central Government, cadre of work assistant in the State Government and other cadre possessing the certificate of I.T.I. Apart from this, the pay scale of Rs. 3200 - 4900 has been granted w.e.f. 01/01/1996 against the pre-revised scale of Rs.975-1660. Whereas, the pay scale of Rs.3050-4590 was granted w.e.f. 01/01/1996 against the pre-revised scale of Rs.1150-1500. Here, it has been produced as an anomaly. The pay anomaly committee has recommended to grant the pay-scale of Rs. 1200-1800 w.e.f 01/01/1986 and Rs. 4000-6000 w.e.f. 01/01/1996 to this cadre.
The said recommendation cannot be accepted as per the principles decided by the sub-committee of the Ministry. Further, the expert committee made recommendation which came to be admitted by the State Government. Accordingly, this cadre has been granted higher pay- scale of Rs.1150-1500 instead of Rs.950-1500 against the pre-revised pay scale of Rs.260-400. Looking to the same, this cadre cannot be granted more higher pay scale of Rs. 1200-1800. Hence, the recommendation cannot be accepted. "
5. On behalf of the State Government, an affidavit-in-reply has been filed, inter alia, stating as under;
"4. At the outset, I say and submit that without prejudice to the rights and contentions that the case of the tracer, Assistant Draftsman and Head Draftsman were examined by the State Government in Finance Page 11 of 32 HC-NIC Page 11 of 32 Created On Sat Oct 14 00:09:26 IST 2017 C/SCA/1213/1997 CAV JUDGMENT Department, under the set up of a high level committee which deals with the representation of the pay anomaly and higher level committee did not make any recommendation of further revision in any manner. It is submitted that even comparing to pay structure of the Central Scale of the comparable post the pay structure of the respective post in State Government are in better footing and in that view of the matter also present petition is not maintainable. It is submitted that the expert committee headed by Justice S..A.Shah had suggested scale to scale pay revision instead of post to post pay revision. accordingly; the decision was taken by accepting the recommendation of the expert body and accordingly the Gujarat Civil Services (Revision of Pay) Rules, 1987 were framed which are statutory rules and same are in force. It is further submitted that law is settled by this Hon 'ble High Court in LPA Nos..226 & 227 of 1993 and also by the Apex Court in the case of Umeshchandra Gupta and others Vs. O.N.G.C. reported in A.I.R.1989 S.C.P.29 1203 and in the case of Secretary Finance Department vs. West Bengal Registration Services Association and others reported in A.I.R.1992 S.C. P..1203 and in that view of the matter and further more fact that the fifth pay commission recommendations are now available and the decision will be taken by the State of Gujarat .
5. At the outset I say and submit that the State Govt. decided to accept the recommendations of Fourth Central Pay Commission in principle and thereafter Govt. decided to set up an Expert committee to suggest suitable pay scales as in number there Were Fifty Four pay scales were in existence while Fourth Central Pay Commission had recommended only twenty nine pay scales for pay revision. It is submitted that an Expert Committee headed by Shri S.A. Shah, Hon'ble Justice of Gujarat High Court suggested scale to scale pay revision instead of post to post pay revision. It is further submitted that State Govt. accepted the recommendations of an Expert Committee. Accordingly, among with other State Govt. Employees the pay scales of members of petitioner association were revised with effect from 1st January, 1986 as under:-
Designation Existing w.e.f Page 12 of 32 HC-NIC Page 12 of 32 Created On Sat Oct 14 00:09:26 IST 2017 C/SCA/1213/1997 CAV JUDGMENT 1.1.1986 (I)Tracer 260-400 1150-1500 (II)Assistant Draftsman 350-550 1320-2040 (III)Draftsman 425-800 1400-2600 (IV)Head Draftsman 550-900 1640-2900
Thereafter, State Govt. in Finance Department set up a high level committee to deal with the representations of pay anomaly submitted by various associations of State employees, Head Draftsman, Draftsman, Assistant Draftsman, Tracer had represented their cases to revise the pay scale before the higher level committee, the higher level committee did not make any recommendation any revision in the pay scale of Tracer/Draftsman as the State scales compare favourably with central scales which is given below:-
State Scale w.e.f. 1st Jan. 1986 Central Scale scales (I)Tracer Rs.1150-1500 (i)Tracer Rs.975-1540 (II)Assistant Rs.1320-2040 (IIDrafts-Rs.1200-2040 Draftsman
(iii)Draftsman Rs.1400-2600 (iii)Draftsman Grade II 1400-2300
(iv)Head Draftsman Rs.1640-2900 (iv)Draftsman Grade I 1600-2660 It is seen from the Office Memorandum dated 6th June, 1995 (Annexure C to the petition) memo that Govt. of India has revised the pay scale of Tracer Draftsman and decided to give notional benefit from 13.5.82 notionally and actually with effect from 1.11.83. The pay scales in existence prior to 1.1.86 were recommended by Desai Page 13 of 32 HC-NIC Page 13 of 32 Created On Sat Oct 14 00:09:26 IST 2017 C/SCA/1213/1997 CAV JUDGMENT Pay Commission set up by State Govt. State Government has not sanctioned higher pay scale to any cadre then the pay scale recommended by Desai Pay Commission.
There is a higher level decision that, in no case higher pay scale should be given beyond the recommendation of Desai Pay Commission and State Government has to stick to this decision very strictly. "
6. One further affidavit has been filed dated 29th April, 2016, duly affirmed by the Superintendent Engineer, R & B, Circle-I, Ahmedabad, inter alia, stating as under;
"4. I say and submit that, the Anomaly Committee has undertaken the exercise of considering the various representations as per the terms of reference as stated in Resolution dated 20.05.1998. A copy of Resolution dated 20.05.1998 is annexed herewith and marked as Annexure-Al to this Affidavit.
5) I say and submit that, thereafter, the Anomaly Committee has prepared report which was submitted to the State Government on 15th May, 2000. A copy of report submitted by the Anomaly Committee in respect of the Cadres is annexed herewith and marked as Annexure -A2 to this Affidavit.
6) I say and submit that, thereafter, vide Resolution.
dated. 11th January, 2001 the Sub-Committee was appointed for further Consideration and recommendation to the State Government regarding report submitted by the Anomaly Committee and thereafter, vide Resolution dated 27th November, 2001 Sub-Committee was reconstituted. A copy of Resolution dated 11th January, 2001 and 27th November, 2001 is annexed herewith and marked as Annexure-A3 (Colly) to this affidavit.
7) I say and submit that, thereafter, vide Resolution dated 23rd November, 2011 the State Government through Finance Department decided not to implement the recommendation of Anomaly Committee and recommendation of Sub-Committee. A copy of Resolution dated 23rd November, 2011 is annexed herewith and marked as Annexure-A4 to this affidavit.
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7. In the case of M.P. Rural Agriculture Extension Officers Association vs. State of M.P. & Anr., 2004(4) SCC 646, the Hon'ble Apex Court, in paras-10,13,17,18,25 and 26 held as under;
"13. The Pay Commissions are constituted for evaluating the duties and functions of the employees and the nature thereof vis-`-vis the educational qualifications required therefor. Although the Pay Commission is considered to be an expert body, the State in its wisdom and in furtherance of a valid policy decision may or may not accept its recommendations. The State in exercise of its jurisdiction conferred upon it by the proviso appended to Article 309 of the Constitution of India can unilaterally make or amend the conditions of service of its employees by framing appropriate rules. The State in terms of the said provision is also entitled to give a retrospective effect thereto. A policy decision had been adopted by the State that the post of Extension Officers shall be filled up only by graduates. Such a policy decision ex facie cannot be termed to be arbitrary or irrational attracting the wrath of Article 14 of the Constitution of India. A dying scale was provided by the State for the non- graduates. Fresh recruitments were to be made only from amongst the persons who held the requisite educational qualification. With a view to avoid any discrimination between the new recruits and the serving employees who possessed the same qualification, the State cannot be said to have acted illegally in granting a higher scale of pay also for the existing degree holders.
17 The said dicta was applied by this Court in Mewa Ram Kanojia (supra), stating :
"5. While considering the question of application of principle of 'Equal pay for equal work' it has to be Page 15 of 32 HC-NIC Page 15 of 32 Created On Sat Oct 14 00:09:26 IST 2017 C/SCA/1213/1997 CAV JUDGMENT borne in mind that it is open to the State to classify employees on the basis of qualifications, duties and responsibilities of the posts concerned. If the classification has reasonable nexus with the objective sought to be achieved, efficiency in the administration, the State would be justified in prescribing different pay scale but if the classification does not stand the test of reasonable nexus and the classification is founded on unreal, and unreasonable basis it would be violative of Articles 14 and 16 of the Constitution. Equality must be among the equals. Unequal cannot claim equality."
18. The principle was reiterated in V. Markendeya (supra), observing:
"13. In view of the above discussion we are of the opinion that where two classes of employees perform identical or similar duties and carrying out the same functions with the same measure of responsibility having same academic qualification, they would be entitled to equal pay. If the State denies them equality in pay, its action would be violative of Articles 14 and 16 of the Constitution, and the court will strike down the discrimination and grant relief to the aggrieved employees. But before such relief is granted the court must consider and analyse the rationale behind the State action in prescribing two different scale of pay. If on an analysis of the relevant rules, orders, nature of duties, functions, measure of responsibility, and educational qualifications required for the relevant posts, the court finds that the classification made by the State in giving different treatment to the two classes of employees is founded on rational basis having nexus with the objects sought to be achieved, the classification must be upheld. Principle of equal pay for equal work is applicable among equals, it cannot be applied to unequals. Relief to an aggrieved person seeking to enforce the principles of equal pay for equal work can be granted only after it is demonstrated before the court that invidious discrimination is practised by the State in prescribing two different scales for the two classes of employees without there being any Page 16 of 32 HC-NIC Page 16 of 32 Created On Sat Oct 14 00:09:26 IST 2017 C/SCA/1213/1997 CAV JUDGMENT reasonable classification for the same. If the aggrieved employees fail to demonstrate discrimination, the principle of equal pay for equal work cannot be enforced by court in abstract. The question what scale should be provided to a particular class of service must be left to the executive and only when discrimination is practised amongst the equals, the court should intervene to undo the wrong, and to ensure equality among the similarly placed employees. The court however cannot prescribe equal scales of pay for different class of employees."
25. Yet again in Shyam Babu Verma (supra), N.P. Singh, J. speaking for a three-Judge Bench observed :
"...The nature of work may be more or less the same but scale of pay may vary based on academic qualification or experience which justifies classification. The principle of 'equal pay for equal work' should not be applied in a mechanical or casual manner. Classification made by a body of experts after full study and analysis of the work should not be disturbed except for strong reasons which indicate the classification made to be unreasonable. Inequality of the men in different groups excludes applicability of the principle of 'equal pay for equal work' to them..."
26. True it may be that when recommendations are made by a Pay Commission, evaluation of job must be held to have been made but the same by itself may not be a ground to enforce the recommendations by issuing a writ of or in the nature of mandamus although the State did not accept the same in toto and made rules to the contrary by evolving a policy decision which cannot be said to arbitrary or discriminatory. "
8. In the case of State of U.P. & Ors. vs. U.P. Sales Tax Officers Grade II Association, 2003(6) SCC 250, the Hon'ble Supreme Court, in paras-11 and 13 observed Page 17 of 32 HC-NIC Page 17 of 32 Created On Sat Oct 14 00:09:26 IST 2017 C/SCA/1213/1997 CAV JUDGMENT as under;
"11. There can be no denial of the legal position that decision of expert bodies like the Pay Commission is not ordinarily subject to judicial review obviously because pay fixation is an exercise requiring going into various aspects of the posts held in various services and nature of the duties of the employees.
9. In the case of Asif Hameed vs. State of Jammu & Kashmir & ors., AIR 1989 SC 1899, the Supreme Court, in para-19, held as under;
"19.When a State action is challenged, the function of the court is to examine the action in accordance with Law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the Constitu- tion and if not, the court must strike down the action. While doing so the court must remain within its self- imposed limits. The court sits in judgment on the action of a coor- dinate branch of the Government. While exercising power of judicial review of administrative action, the court is not an appellate authority. The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature of executive, provided these authorities do not transgress their constitutional limits or statutory powers. "
10. In the case of Collector of Central Excise, Calcutta vs. Berger Paints India Ltd., AIR 1990 SC 1277, the Supreme Court, in paras-57 and 58, held as under;
Page 18 of 32HC-NIC Page 18 of 32 Created On Sat Oct 14 00:09:26 IST 2017 C/SCA/1213/1997 CAV JUDGMENT "57 Judicial review is not concerned with matters of economic policy. The Court does not substitute its Judgement for that of the legislature or its agents as to matters within the province of either. The Court does not supplant the "feel of the expert" by its own views. When the legislature acts Within the sphere of its authority and delegates power to an agent, it may empower the agent to make findings of fact which are conclusive provided such findings satisfy the test of reasonableness. In all such cases, judicial inquiry is confined to the question Whether the findings of fact are reasonably based on evidence and whether such findings are consistent with the laws of the land. As stated by Jagannatha Shetty, J . in Gupta Sugar Works :
"the court does not act like a chartered accountant nor acts like an income tax officer. The court is not concerned with any individual case or any particular problem. The court only examines Whether the price determined was with due regard to considerations provided by the statute. And whether extraneous matters have been excluded from determination."
58 Price fixation is not within the province of the courts. Judicial function in respect of such matters is exhausted when there is found to be a rational basis for the conclusions reached by the concerned authority. As stated by Justice Cardozo in Mississippi Valley Barge Line Company V/s. United States of America (1933) 292 US 282-: 78 Law ed 1260, :
"The structure of a rate schedule calls in peculiar measure for the use of that enlightened Judgement which the Commission by training and experience is qualified to form ..... It is not the province of a court to absorb this function to itself... The judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body".
11. In Government of West Bengal v. Tarun Kumar Roy, (2004)1 SCC 347, a three-Judge Bench of the Page 19 of 32 HC-NIC Page 19 of 32 Created On Sat Oct 14 00:09:26 IST 2017 C/SCA/1213/1997 CAV JUDGMENT Supreme Court held as under :
"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."
The Court further opined that in a case where the employees do not hold the essential educational qualifications, they cannot claim parity in the scale of pay on the ground of equality stating :
"30. The respondents are merely graduates in Science. They do not have the requisite technical qualification. Only because they are graduates, they cannot, in our opinion, claim equality with the holders of diploma in Engineering. If any relief is granted by this court to the respondents on the aforementioned, ground, the same will be in contravention of the statutory rules. It is trite that this court even in exercise of its jurisdiction under Article 142 of the Constitution of India would not ordinarily grant such a relief which would be in violation of a statutory provision."
12. In Government of West Bengal (supra), the Court, upon noticing a large number of decisions, observed thus :
"25. In a case of this nature, the courts are required Page 20 of 32 HC-NIC Page 20 of 32 Created On Sat Oct 14 00:09:26 IST 2017 C/SCA/1213/1997 CAV JUDGMENT 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 earlier proceedings.
28. In the aforementioned situation, the Division Bench of the Calcutta High Court manifestly erred in refusing to consider the contentions of the appellants on their own merit, particularly, when the question as regards difference in the grant of scale of pay on the ground of different educational qualification stands concluded by a judgment of this Court in Debdas Kumar (1991 AIR SCW 704). If the judgment of Debdas Kumar is to be followed a finding of fact was required to be arrived at that they are similarly situated to the case of Debdas Kumar which in turn would mean that they are also holders of diploma in Engineering. They admittedly being not, the contention of the appellants could not be rejected. Non-filing of an appeal, in any event, would not be a ground for refusing to consider a matter on its own merits. (See State of Maharashtra v. Digambar) (1995 AIR SCW 3116)
13. In State of Haryana v. Jasmer Singh, (1996)11 SCC 77, the Supreme 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 be differences in educational or technical qualifications, which may have a bearing on the skills Page 21 of 32 HC-NIC Page 21 of 32 Created On Sat Oct 14 00:09:26 IST 2017 C/SCA/1213/1997 CAV JUDGMENT 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.
14. In State of Haryana and Anr. v. Tilak Raj and Ors., AIR 2003 SC 2658, the Supreme 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 complete 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 ."
15. In Harbans Lal and Ors. v. State of Himachal Pradesh and Ors., (1989) 4 SCC 459, the Supreme Court considered a similar issue and observed that while determining the issue of parity in pay, large number of considerations and various dimensions of the job are Page 22 of 32 HC-NIC Page 22 of 32 Created On Sat Oct 14 00:09:26 IST 2017 C/SCA/1213/1997 CAV JUDGMENT 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 expert body. The Supreme Court further held as under :
"The discrimination complained of must be within the same establishment owned by the same management. A comparison cannot be made with 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...."
16. In Mewa Ram Kanojia v. All India Institute of Medical Sciences and Ors., AIR 1989 SC 1256, the Supreme 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 institutions. 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 principle of equal pay for Page 23 of 32 HC-NIC Page 23 of 32 Created On Sat Oct 14 00:09:26 IST 2017 C/SCA/1213/1997 CAV JUDGMENT equal work would not be applicable.
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 vacuum. 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 right and parity in employment is only on person claiming such right. (Vide U.P. State Sugar Corporation Ltd. and Anr. v. Sant Raj Singh and Ors., AIR 2006 SC 2296 : (2006 AIR SCW 3013); Union of India and Anr. v. Mahajabeen Akhtar, AIR 2008 SC 435 : (2007 AIR SCW 7204); Union of India and Ors. v. Dineshan K.K., AIR 2008 SC 1026 : (2008 AIR SCW 591); Union of India and Ors. v. Hiranmoy Sen and Ors., (2008) 1 SCC 630 : (AIR 2007 SC (Supp) 1395 : 2007 AIR SCW 7025); Official Liquidator v. Dayanand and Ors., (2008) 10 SCC 1 : (AIR 2008 SC (Supp) 1177); Uttar Pradesh State Electricity Board and Anr. v. Aziz Ahmad, (2009) 2 SCC 606; and State of Madhya Pradesh and Ors.
Page 24 of 32HC-NIC Page 24 of 32 Created On Sat Oct 14 00:09:26 IST 2017 C/SCA/1213/1997 CAV JUDGMENT v. Ramesh Chandra Bajpai, (2009) 13 SCC 635) : (2010 AIR SCW 2748).
17. The Supreme Court while deciding a similar issue in State of West Bengal and Anr. v. West Bengal Minimum Wages Inspectors Association and 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 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." (See also State of Kerala v. B. Renjith Kumar and Ors., (2008) 12 SCC 219 :
(AIR 2009 SC (Supp) 465 : 2008 AIR SCW 4279)).
18. In Union of India and Anr. v. P.K. Roy, AIR 1968 SC 850, the Supreme Court accepted the factors laid down by the Committee of Chief Secretaries which was constituted for settling the disputes regarding equation of Page 25 of 32 HC-NIC Page 25 of 32 Created On Sat Oct 14 00:09:26 IST 2017 C/SCA/1213/1997 CAV JUDGMENT 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.
19. In The State of Maharashtra and Anr. v.
Chandrakant Anant Kulkarni and 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.
20. Similar view has been reiterated in E.P. Royappa v. State of Tamil Nadu and Anr., AIR 1974 SC 555; and Sub-Inspector Rooplal and Anr. v. Lt. Governor through Chief Secretary, Delhi and Ors., AIR 2000 SC 594, wherein the Supreme Court following the earlier judgment in P.K. Roy, AIR 1968 SC 850, held that the salary of the post alone may not be a determining factor, the other three criterion should also be fulfilled.
21. In Union of India and Ors. v. S.L. Dutta and Page 26 of 32 HC-NIC Page 26 of 32 Created On Sat Oct 14 00:09:26 IST 2017 C/SCA/1213/1997 CAV JUDGMENT Anr., AIR 1991 SC 363; Union of India and Ors. v. N.Y. Apte and Ors., AIR 1998 SC 2651; State of U.P. and Ors. v. J.P. Chaurasia and Ors., AIR 1989 SC 19; and Kshetriya Kisan Gramin Bank v. D.B. Sharma and Ors., AIR 2001 SC 168, the Supreme 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 be interfered with it unless the decision of the Committee is found to be unreasonable or arbitrary or made on extraneous considerations. More so, it is an executive function to fix the service conditions etc. and lies within the exclusive domain of the rule making authority. (See also T. Venkateswarulu v. Executive Officer, Tirumala Tirupathi Devasthanams and Ors., AIR 2009 SC 763)
22. In S.C. Chandra and Ors. v. State of Jharkhand and Ors., AIR 2007 SC 3021, the Supreme Court held :
"In our opinion fixing pay scales by courts by applying the principle of equal pay for equal work upsets the high constitutional principle of separation 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 wholesale identity between the two groups......"
23. In S.P. Shivprasad Pipal v. Union of India and Ors., AIR 1998 SC 1882, the Supreme Court held as under :
"......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 Page 27 of 32 HC-NIC Page 27 of 32 Created On Sat Oct 14 00:09:26 IST 2017 C/SCA/1213/1997 CAV JUDGMENT exclusively within the province of the Central Government. 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 supervisory jurisdiction of the court can operate".
24. 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 (AIR 1989 SC 19) (Supra) and Meva Ram Kanojia (AIR 1989 SC 1256). "Non-uniformities would not in all events violate Article 14." Thus, a mere difference does not always amount to discrimination. (Vide Madhu Kishwar and Ors. v. State of Bihar and Ors., AIR 1996 SC 1864; Associate Banks Officers' Association v. State Bank of India and Ors., AIR 1998 SC 32; and Official Liquidator, AIR 2008 SC (Supp) 1177.
25. In Steel Authority of India Limited and others v. Dibyendu Bhattacharya, (2011)11 SCC 122, the Supreme Court held as under :
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 Page 28 of 32 HC-NIC Page 28 of 32 Created On Sat Oct 14 00:09:26 IST 2017 C/SCA/1213/1997 CAV JUDGMENT 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.
The onus to establish the discrimination by the employer lies on the person claiming the parity of pay. The expert committee has to decide such issues, as the fixation of pay scales etc. falls within the exclusive domain of the executive. So long as the value judgment of those who are responsible for administration i.e. service conditions etc., is found to be bona fide, reasonable, and on intelligible criteria which has a rational nexus of objective of differentiation, such differentiation will not amount to discrimination. It is not prohibited in law to have two grades of posts in the same cadre. Thus, the nomenclature of a post may not be the sole determinative factor. The courts in exercise of their limited power of judicial review can only examine whether the decision of the State authorities is rational and just or prejudicial to a particular set of employees. The court has to keep in mind that a mere difference in service conditions does not amount to discrimination. Unless there is complete and wholesale/wholesome identity between the two posts they should not be treated as equivalent and the Court should avoid applying the principle of equal pay for equal work.
26. This Court fairly concedes to the fact that it is not equipped with the expertise to decide as to whether the post of the writ applicant, in all respect, is comparable with the cadre of the Superintendent of Maps, Draftsman Grade-I, Draftsman Grade-II and Draftsman Grade- III of the Central Public Works Department in the Central Government. However, on overall consideration of the matter, a prima facie Page 29 of 32 HC-NIC Page 29 of 32 Created On Sat Oct 14 00:09:26 IST 2017 C/SCA/1213/1997 CAV JUDGMENT case could be said to have been made out by the writ applicant, but I am of the view that it would be appropriate to ask the State Government to reexamine the entire case in light of the relevant details, facts, data and the documents elaborated by the writ applicant.
27. It is now well settled that the Court, in exercise of power under Article 226 of the Constitution of India, should not interfere with the pay-scales without proper reasons and should be conscious of the fact that fixation of pay is not the function of the Court, it is the function of the Government which normally acts on the recommendations of a Pay Commission. Change of pay- scale of a category has a cascading effect. Several other categories similarly situated, as well as those situated above and below, would put forward their claims on the basis of such a change. Interfering with the prescribed pay-scales is a serious matter. However, the question is, whether the Government was justified in not accepting the recommendations of the Pay Anomaly Committee, and to what extent such recommendations are binding to the State Government.
28. The pay commissions are constituted for evaluating the duties and functions of the employees and the nature thereof vis-a-vis the educational qualifications required therefor. Although the pay commission is considered to be an expert body, yet, the State, in its wisdom and in furtherance of a valid policy decision may, or may not Page 30 of 32 HC-NIC Page 30 of 32 Created On Sat Oct 14 00:09:26 IST 2017 C/SCA/1213/1997 CAV JUDGMENT accept its recommendations. However, the State Government is not expected to brush aside the recommendations lightly and without assigning any reasons for the same. The recommendations of an expert body do carry some weight and sanctity. The decision of the State Government in not accepting the recommendations of the pay commission should not be an eyewash. It should appear from the materials on record that a proper application of mind was there by the Committee constituted by the Government to look into the recommendations and after thorough examination, the Committee has taken the decision. In the case on hand, I am not satisfied or rather convinced with the reasons assigned for not accepting the recommendations of the pay commission. In such circumstances, I have thought fit to ask the State Government to re-look into the matter having regard to the materials on record, which is quite voluminous.
29. This writ application is disposed of with the following directions;
29.1 The State-respondents are directed to take up the case of the writ applicants for reconsideration as regards the pay scale.
29.2 The State-respondents shall reexamine the case of the writ applicants and the claim in details by taking into consideration their posts, duties and the functions. It shall Page 31 of 32 HC-NIC Page 31 of 32 Created On Sat Oct 14 00:09:26 IST 2017 C/SCA/1213/1997 CAV JUDGMENT be open for the State Government to seek the opinion of the experts, once again, if necessary, in this regard. Having regard to the fact that this petition is of the year 1992, and more than two decades have passed, the competent authority shall take up the issue as expeditiously as possible and see to it that an appropriate fresh decision is taken within a period of six months from the date of the receipt of the writ of this order. If the writ applicants want to supply any other material in addition to what has been noted in this judgment, then they may do so within a period of one month from today. Such additional material, if any, shall be adduced before the State Government.
(J.B.PARDIWALA, J.) Vahid Page 32 of 32 HC-NIC Page 32 of 32 Created On Sat Oct 14 00:09:26 IST 2017