Kerala High Court
R. Madhavan Assari vs Kerala State Small Industries ... on 10 April, 1990
Equivalent citations: (1992)IILLJ341KER
ORDER T.L. Viswanatha Iyer, J.
The petitioner is now working as Charge Hand in the Wood Workshop at Kollakkadavu, Mavalikkara, of the first respondent, the Kerala State Small Industries Development and Employees Corporation. He joined the Corporation as a Machine Operator on July 9, 1970. He was borne in the category of worker when he was promoted as Chargehand by the proceedings Ext. P2 dated September 11, 1978 (vide paragraph 2 of the counter affidavit filed on behalf of the first repsondent). He has been functioning as Chargehand since September 19, 1978. Respondents 2 and 3 are junior to him, as is evident from the seniority list Ext. P3. Petitioner is now borne in the revised pay scale of Rs. 330-515, drawing a basic pay of Rs. 378/-.
2. Respondents 2 and 3 were promoted as Chargehand in the years 1981 and 1982, long after the petitioner. Several other juniors of the petitioner have also been promoted as Chargehand after his promotion as such. However and despite their later promotions, these juniors are drawing higher basic pay than the petitioner. Thus while the petitioner is getting a basic pay of Rs. 378/- respondents 2 and 3, who were promoted three/four years after him, and working in the same category as Chargehand, are drawing higher basic pay of Rs. 470/- and 452/-respectively. Petitioner brought this anomaly to the notice of the first respondent by his representations Exts. P4 and P5 with prayer for redress. But his prayer stood rejected by the proceedings Ext. P9, the first repondent taking the stand that respondents 2 and 3 were promoted from the category of workers for whom variable D.A. was paid and on their promotion as Chargehand for which no variable D.A. was payable, their pay had to be protected. It was accordingly that they were given higher basic pay than the petitioner, despite their later promotion. Petitioner states that this is not sufficient reason justifying refusal of his request for parity with his juniors and that it revolts against the concept of equal pay for equal work enshrined in Article 39 (d) of the Constitution.
3. What is contained in Ext. P9 has been subsequently reiterated, and amplified, in the counter affidavit, where the first respondent points out that the amount of pay drawn by respondents 2 and 3 stood enhanced because of a wage revision which took place with effect from July 1, 1980. There was a steep ("remarkable" is the word used) raise in the total emolument of workers on account of the increase in variable D.A. after this wage revision. The emoluments payable to respondents 2 and 3 and others after July 1, 1980 had to be protected when they were promoted as Chargehand. It is accordingly that they are paid larger emoluments than the petitioner. Petitioner himself was promoted on September 11, 1978, but that was before the wage revision, and his emoluments as Chargehand were fixed accordingly.
4. It is the admitted case that the petitioner as well as respondents 2 and 3 and others all stood promoted from the category of workers, to the category of Chargehand, in the regular establishment of the first respondent. All of them are at present engaged in the same type of work as Chargehand. Petitioner was promoted on September 11, 1978 while respondents 2 and 3 and others stood promoted in 1981, 1982 and later, after a wage revision with effect from July 1, 1980 which resulted in benefits of a larger variable D.A.to the workers. Their emoluments were protected when they were promoted, and therefore respondents 2 and 3 are receiving larger besic pay in the category of Chargehand. The question is whether the petitioner should be denied the benefit of parity with his junior merely because he happened to be promoted earlier on September 11, 1978.
5. The concept of equal pay for equal work is an aspect of the doctrine of equality enshrined in Articles 14 and 16 of the Constitution and is deducible thereform. The principle of equal pay for equal work is not declared to be a fundamental right, but it is certainly a Constitutional goal. It is not an abstract doctrine but one with life and soul intended to be given effect to under Articles 14 and 16. Where all things are equal, that is, where the relevant considerations are the same, persons holding identical posts cannot be treated differentially in the matter of pay (Randhir Singh v. Union of India, (1982-I-LLJ-334). Any classification of employees in the same rank, but with differential pay, has to be founded on a rational basis, either on the basis of their functions, powers, duties or responsibilities, or otherwise. If there is a rational and intelligible differentia between the employees justifying their classification, the doctrine of equal pay for equal work will not be attracted and the court will uphold differential scales of pay. The policy of the doctrine is to prevent exploitation of labour, and eradicate irrational and unscientific methods of payment of wages or pay to employees. The necessary consequence is that if the employees are engaged in similar work and there is identity between them in all respects, the differentiation resulting in inequality in the wages will not be upheld by the court, (vide Jaipal v. State of Haryana, (AIR) 1988 SC 1504, where the Supreme Court observed that if two classes of persons do the same work under the same employer with similar responsibilities under similar working conditions, the doctrine of equal pay for equal work will apply and it will not be open to the State to discriminate one class from the other in paying salary. The State is under a Constitutional obligation to ensure that equal pay is paid for equal work).
6. There is no dispute that the petitioner and respondents 2 and 3 arc borne in the same cadre and are doing the same kind of work. The only distinction sought to be made is that the petitioner was promoted before a wage revision on July 7, 1980 which enured to the benefit of respondents 2 and 3 in the lower grade and the necessity to protect their wages. According to me, this is insufficient to warrant payment to the petitioner of a pay lower than that received by hisjuniors.
7. The question involved is a fundamental one, in that a senior in a category is made to draw basic pay less than that drawn by his junior for the simple fortuitous circumstance that he stood promoted earlier than his junior and the pay revision for the junior was effected in lower category in the interregnum. I should think that it is a fundamental principle of service law that when everything else is equal, a senior in service should receive a salary higher than, or at least equal to, that drawn by his junior. To relegate him to a lower pay is arbitrary and negation of the rule of equality enshrined in Article 14 of the Constitution. It looks obnoxious and revolting to good sense that a senior should get lower pay merely because he was promoted earlier.
8. It is true that the principle adopted by the first respondent that the pay drawn in the lower category should be protected in promotion is valid, but then it is equally incumbent on them to see that the interests of the senior who was already in a higher category are protected by appropriate revision of his pay, so that he does not stand in a worse position than his junior in relation to the pay drawn by him. The payment of lesser salary for an admitted senior, who is similarly situated, than his junior, amounts to an unequal treatment meted out to equals, thereby violating Article 14 of the Constitution. The fact that respondents 2 and 3 were promoted after the pay revision on July 1, 1980 does not put them in a separate or different category. Such a differential between persons promoted before or after July 1, 1980 has no rational basis in so far as it relates to fixation of salary.
9. Ordinarily grant of higher pay to a junior would be ex facie arbitrary, but if there are justifiable grounds for doing so, the seniors cannot invoke the equality doctrine. I agree that the pay of the juniors, respondents 2 and 3, had to be protected, but that by itself does not afford a rational basis for classifying employees when otherwise they are unclassifiablc. Such a classification based on the date of a pay revision appears to me to run counter to the fundamental principles laid down in Nakara v. Union of India, (1983-J-LLJ-104). The illustration given in State of Andhra Pradesh v. Sreenivasa Rao, (1989-II-LLJ-149) of protection of pay of a promotee from a lower cadre as an eventuality when a junior may be drawing higher pay than his seniors without violating the mandate of equal pay for equal work has to be understood as referring to any individual case where the officer in the lower cadre had, for some reason or other peculiar to himself, been the recipient of benefits of increments in the lower grade, thereby resulting in a higher pay on promotion than his seniors. A general revision of pay, as in this case, is according to me, out of the pale of the illustraton given by the Supreme Court.
10. The first respondent which is "State" as defined in Article 12 of the Constitution (about which there is no dispute) is bound to comply with the mandate of Article 14 and to accord equal and non-discriminatory treatment to its employees. Petitioner's pay has therefore to be enhanced so as to make it higher, or at least equal to, that drawn by respondents 2 and 3 or the other juniors of the petitioner. Ext. P9 in so far as it rejects this fundamental and elementary plea for justice made by the petitioner, has to be quashed.
11. The original petition is, therefore, allowed. Ext. P9 is quashed. The first respondent is directed to refix the pay of the petitioner in the light of the observations contained hereinabove, taking into account the seniority of the petitioner over respondents 2 and 3 and others. The first respondent shall pass orders in the matter and pay the monetary benefits due to the petitioner on such re-fixation, within a period of four months from the date of receipt of a copy of this judgment.