Karnataka High Court
Steel Authority Of India And Ors. vs Visl Employees Association, Rep. By Its ... on 3 June, 2004
Equivalent citations: ILR2004KAR3005, 2004(4)KARLJ531, 2004 LAB IC 2862, 2004 AIR - KANT. H. C. R. 2307, (2004) 103 FACLR 60, (2004) 3 KCCR 2071, (2004) 107 FJR 812, (2004) 4 LAB LN 337, (2005) 1 SERVLR 171
Author: K. Ramanna
Bench: K. Ramanna
JUDGMENT S.R. Nayak, J.
1. These writ appeals filed by the Management of Vishveswaraiah Iron and Steel Ltd., for short, VISL, Bhadravathi and VISL Employees Association and its member-employees are directed against the same Judgment and Order of a learned Single Judge of this Court dated 17.08.1999 passed in W.P.30142-30158 of 1992 and W.P. 4716-4725 of 1997. W.A.N6s.7617 to 7638 of 1999 and W.A. Nos. 7643 of 1999 are by the Management of VISL whereas W.A.Nos. 7948-7969 of 1999 are by the employees. Hence, all these appeals were clubbed, heard together and they are being disposed of by this common Judgment.
2. During the pendency of these writ appeals, respondents 6,7,8 and 9 in W.A.Nos. 7617 to 7643 of 1999 who are the petitioners in W.P.Nos. 4721 to 4724 of 1997 filed a joint memo dated 12.09.2000 signed by them as well as their counsel seeking permission of the Court to withdraw those Writ Petitions filed by them on the ground that the posts held by them were admitted to grant-in-aid and, therefore, they are entitled to pension. This Court by its Order dated 01.07.2003 ordered that memo and set- aside the order of the learned Single Judge dated 17.08.1999 made in W.P.Nos. 4721 to 4724 of 1997 and dismissed those Writ Petitions as withdrawn with no order as to costs. Consequently, the Court also dismissed the corresponding W.A.Nos. 7639 to 7642 of 1999 as infructuous with no order as to costs.
3. Respondents 6,7,8 and 9 in W.A.Nos. 7617 to 7643 of 1999 are appellants in W.A.Nos. 7965 to 7968 of 1999 respectively. Since we have dismissed the Writ Petitions, filed by respondents 6,7,8 and 9 as withdrawn and W.A.Nos. 7639 to 7642 of 1999 as infructuous by our order dated 01.07.2003, W.A.Nos. 7965 to 7968 of 1999 filed by them would also stand dismissed as withdrawn by necessary implication, and we accordingly dispose off W.A.Nos. 7965 to 7968 of 1999, however, with no order as to costs. As a consequence, only W.A.Nos. 7617-7638 of 1999, 7643 of 1999 filed by the Management of VISL and W.A.Nos. 7948 to 7964 of 1999 and 7969 of 1999 filed by the employees and their Association remain for adjudication and decision.
4. The background facts leading to the filing of these Writ Appeals be noted briefly first and they are as follows:
The VISL Employees Association is a registered trade union functioning amongst the employees employed in VISL establishment at Bhadravathi owned by the Steel Authority of India Limited. The employees concerned in these appeals were all employed as teachers in various Welfare Primary Schools run by the Management of VISL, which is a public sector undertaking engaged in the manufacture of steel and other products. The service conditions of the employees in VISL are governed by the Settlements entered into between the Management and the Association of the employees from time to time.
5. The employees concerned in these appeals joined the services of the VISL as teachers in the various Welfare Primary Schools run by VISL in various States and all of them are members of VISL employees Association. The pay scales, terms and conditions of the teachers employed in Welfare Primary Schools are governed by Settlements entered into between the Management of VISL and the VISL Employees Association. In respect of the teachers employed in Welfare Primary Schools, the scales of pay, terms and conditions of service etc. are as laid down in the settlements dated 07.01.1971 and 27.08.1975 produced as Annexure H1 and Annexure H2 in the Writ Petitions. In the Settlement dated 07.01.1971, the scale of pay of teachers is Rs. 220-6-224-8-284. Under the Settlement dated 27.08.1975, a common scale of pay was fixed for different types of teachers in primary schools and the scale of pay so fixed is Rs. 320-8-352-12-412-16-476.
6. All the teachers in all the Welfare Primary Schools perform the same duties and functions. According to the employees, though all the teachers in the Welfare Primary Schools render the same work, quality as well as quantity wise, the Management had made an illusory distinction and granted different scales of pay imposing different conditions of service on the teachers appointed after 01.01.1975. Being aggrieved by the above action of the Management, on behalf of the employees concerned, the VSIL Employees Association made representations dated 24.09.1990, 06.08.1991, 20.09.1991, 12.09.1991. 14.09.1991, 19.09.1991, 18.09.1991, 03.10.1991, 5.10.1992 and 8.10.1992 to the Management seeking parity of pay-scales and other attendant financial benefits. The copies of those representations were produced and marked as Annexures B 1 to B 11 to the Writ Petitions. The Management did not accede to the demands of the employees and their Association. According to the employees, the Management has given the scales of pay and other benefits as per the Settlements to 48 teachers whose details are given in Annexure E appointed prior to 01.01.1975 and whose appointments were approved by the Education Department of the State extending grant-in-aid. Further, the scales of Pay admissible under the Settlements were given to 10 teachers appointed prior to 01.01.1975 but whose appointments were not approved sanctioned by the Education Department of the State. The details of those 10 persons are set-out in the documents marked as Annexure F to the Writ Petitions. The above documents show that the teachers who were appointed prior to 01.01.1975 are all governed by the terms of Settlements irrespective of the fact whether the approval of the State Education Department was obtained or not to their appointments whereas the teachers who were appointed after 01.01.1975 are given only the Government pay scales. Between the pay scales in terms of Settlements and the Government pay scales, it is stated that the pay scales under the Settlement are more beneficial to the teachers. The Petitioner teachers making a grievance that the treatment meted out to them by the Management is invidious and discriminatory, violative of Article 14 postulates and the doctrine of 'equal pay for equal work', raised the issue in conciliation, but the same was withdrawn due to the inability of the Conciliation Officer to conciliate and settle the dispute.
7. Since the Management refused to accede to the request of the petitioner-teachers for parity of pay scales, they filed Writ Petitions Nos. 30142-30158 of 1991 and 4716 to 4725 of 1997 under Article 226 of the Constitution for quashing the Memo dated 18.01.1975 marked as Annexure L which is the basis for the alleged discrimination bearing No. PL(A)4650 and also Annexures C and D which are the endorsements issued by the Management declining to accede to the request of the Employees Association contained in its representations. The employees also sought for a mandamus to the Management to revise the scales of pay and all other benefits admissible to the Writ Petitioners in accordance with the terms of Settlements entered into between the Management and the Association from time to time as has been done in the case of those teachers whose details are set out in Annexure E and F, with effect from the date of their initial appointment in the service of VISL.
8. The Writ Petitions were opposed by the Management by filing statement of objections. In the statement of objections, the differential treatment meted out to the Writ Petitioners was defended on the basis of the Memo Annexure-L dated 18.01.1975 by contending that since the Writ Petitioners with their eyes wide open accepted the appointments in terms of Annexure-L without any protest or demur, they are not entitled to challenge the validity of Annexure-L. It was also contended on behalf of the Management that the Writ Petitions were liable to be dismissed in limine on grounds of delay and laches because they have approached the Court after a lapse of 16-17 years from the date of Annexure L. The Management also contended that Writ Petitions should be dismissed for non-exhaustion of alternative statutory remedy available to the Writ Petitioners before the Educational Tribunal.
9. Learned Single Judge on appreciation of the rival contentions and the materials laid before the Court has opined that different pay scales to the teachers appointed prior to 01.01.1975 and the teachers appointment after 01.01.1975 is discriminatory and violative of the doctrine of 'equal pay for equal work'. However, learned Judge did not grant the reliefs in full as prayed for by the employees on the ground that they have approached the Court with delay and also on the ground that the financial position of the Company is not quite sound. Learned Judge has allowed the Writ Petitions partially and extended the benefit of pay scales to the Writ Petitioners as per the Settlement and subsequent revisions of the pay scales under which all the teachers appointed prior to 01.01.1975 was fixed. Learned Judge has, however, directed that the Writ Petitioners are not entitled to arrears of salary on fixation of their pay as per the direction. In other words, the revision of pay scales has been made effective only from the date ,of the order i.e., 17.08.1999.
10. The Management has filed writ appeals by contending that learned Single Judge is not justified in applying the doctrine of 'equal pay for equal work' and granting the relief to the Writ Petitioners whereas the employee-teachers and their Association have filed writ appeals by contending that learned Single Judge is not justified in denying arrears of salary on fixation of their pay scales in terms of the Settlement.
11. We have heard Sri M. Ravi Prakash, learned Counsel for the Management and Sri M.C. Narasimhan, learned Senior Counsel for the employee-teachers and their Association. Sri Ravi Prakash would contend that the teachers appointed prior to 01.01.1975 and the teachers appointed after 01.01.1975 constitute two different and distinct classes and all of them cannot be treated as persons belonging to a well defined class for the purpose of Article 14 of the Constitution and, therefore, there was no justification for learned Single Judge to apply the doctrine of 'equal pay for equal work'. Sri Ravi Prakash would contend that the petitioner-teachers without exhausting alternative statutory remedy available to them before the Educational Tribunal have approached this Court straightaway and, therefore, the Writ Petitions are liable to be dismissed on the ground of non-exhaustion of alternative statutory remedies. Sri Ravi Prakash would also contend that the petitioner-teachers have approached this Court with a delay of nearly 20 years without offering any valid and satisfactory explanation and, therefore, the Writ Petitions are also liable to be dismissed in limine on the ground of delay and laches. Sri Ravi Prakash would lastly contend that learned Single Judge was not justified in directing the Management to give terminal benefits to all the petitioners who have retired from service by refixing their pay scales and that that direction runs contrary to the order giving effect to the benefits of the order only from the date of the order.
12. Sri M.C. Narasimhan, learned Counsel for the petitioner teachers and their Association, per contra, would contend that though learned Single Judge has rightly held that the Management in not extending the scale of pay admissible under the Settlement to the petitioner-teachers on the ground that they were all appointed after 01.01.1975 and in terms of the conditions specified in Annexure-L dated 18.01.1975 tantamounts to invidious discrimination, wrongly and without any justification denied arrears of revision on the alleged ground of delay in approaching the Court and also taking into account the financial difficulties of the Company. Sri M.C. Narasimhan while arguing in support of the finding recorded by learned Single Judge that teachers appointed prior to and after 01.01.1975 perform same duties and functions and therefore they cannot be discriminated, would point out that the Management has not disputed the correctness of that finding recorded by learned Single Judge in Para 3 of the judgment even in the appeal memo and therefore it is not permissible for the Management to assail the validity of the directions issued by the learned Single Judge.
13. Having heard learned Counsel for the parties, the following points arise for decision:
I. Whether Writ Petitions are liable to be dismissed on grounds of delay and laches?
II. Whether Writ Petitions are liable to be dismissed for non-exhaustion of alternative statutory remedy?
III. Whether the Writ-Petitioners are entitled to scale of pay and other attendant benefits in accordance with the terms of the Settlements entered into between the Management of VISL and the VISL Employees Association from time to time as is being given to the teachers whose details are given in Annexures E and F documents with effect from the date of their initial appointment in the service of the Company?
14. POINT NO.1:
It is the contention of the Management that the validity of Annexure L dated 18.01.1975, for the first time, was assailed by the employees and their Association only in the year 1992 after a lapse of 17 years without offering any satisfactory explanation for the inordinate delay; therefore, the Writ Petitions sought to have been dismissed by learned Single Judge on the ground of delay and laches.
15. It is true that the Court helps the vigilant and not the indolent. Though there is no specific period of limitation for invoking the jurisdiction of the High Court under Articles 226 and 227 of the Constitution, the High Court may refuse to exercise its extraordinary power/power of superintendence where the petitioner is guilty of laches or undue delay, for which there is no satisfactory explanation. In other words, the petitioner should be diligent in pursuing his remedy, and file his Writ Petition within a reasonable time from the date of the order challenged, and an undue delay on Ms part will debar him from getting the relief. It is now well settled that the principle of laches applies even to Writ Petitions complaining violation of Fundamental Rights, Unless the facts and circumstances of the case clearly justify the laches or undue delay, the petitioners, the citizens or otherwise, would not be entitled to relief. All that the High Court has to see is whether the laches on the part of the petitioner are such as to disentitle him to relief claimed by him. However delay, by itself, is not a ground to reject Writ Petition. In an appropriate case, the Court may condone the delay because of the reason that the Court may not enquire into belated and stale claims" is not a rule of law, but a rule of practice based on sound and proper exercise of discretion to be exercised by the High Court under Article 226, and there is no any inviolable rule that whenever there is delay, the Court must necessarily refuse to entertain the Writ Petitions.
16. The Supreme Court in DURGA PRASAD v. CHIEF CONTROLLER OF IMPORTS, , dealing with the question what is the measure of delay held thus:
"No hard and fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. That is a matter which must be left to the discretion of the High Court and like all matters left to the discretion of the Court, in this matter too discretion must be exercised judiciously and reasonably"
Generally speaking, the Court would be justified in refusing the relief on the ground of delay and laches only in a case where the conduct of the petitioner, in keeping quite, created an equity in favour of the respondent or where interest of third party is allowed to come into life or for such other similar reasons where the Court is satisfied that granting of relief to the petitioner would result in undue hardship to the respondent or third parties or affect public interest and not otherwise. Delay as such can never be an absolute bar for the Court to entertain the petition if it finds that the complaint made in the petition is a continued violation of Fundamental Rights or other rights of the petitioner. In other words, simply because the petitioner suffered the legal injury caused to him in violation of Fundamental Rights or other rights for a considerable time, that circumstance would not come in the way of the petitioner approaching the Constitutional Court at a later stage and seeking the aid of the Court that the continuing infraction of his rights should be stopped and the respondent should be prohibited from violating his right and in such a case, it should not lie in the mouth of the respondent authorities that though infraction of his rights took place long back, he suffered the injury without any protest or demur for considerable time and therefore he should not invoke the extraordinary jurisdiction of the High Court under Article 226 at a later stage. The issue brought before the Court by the Writ Petitioners in this case would clearly show that though in terms of Settlement entered into between the Employees Association and the Management of VISL, they are entitled to claim wages and other attendant financial benefits, on par with the teachers appointed prior to 01.01.1975, those benefits have been denied to them on the basis of Annexure L dated 18.01.1975 to which neither the Association nor its members are parties. Simply because the employees did not protest against the discriminatory treatment meted out to them at the earliest point of time, this Court would not be justified in refusing the relief on the ground of delay and laches because the right accrued to the Writ Petitioners under the Settlement entered into between the parties under Section 18(1) of the Industrial Disputes Act, 1947 (for short, The Act) has been denied to them violating their right to equality guaranteed under Article 14 of the Constitution and since that denial was subsisting even on the date of institution of the Writ Petitions. It is trite that the right acquired by the Writ Petitioners in terms of the Settlement cannot be denied to them on the specious ground that the Writ Petitioners came to be appointed in terms of guidelines and conditions incorporated in Annexure L dated 18.01.1975. Added to this, it is not that the petitioner employees slept over their rights without protest and demur before they filed Writ Petitions in the year 1992. Preceding the filing of the Writ Petitions, admittedly, the Association of the Employees made representations on 24.09.1990, 06.08.1991, 20.09.1991, 12.09.1991, 14.09.1991, 19.09.1991, 18.09.1991, 03.10.1991, 5.10.1992 and 8.10.1992 to the Management. The Management did not respond to those representations promptly. The endorsements were issued by the Management only on 29.01.1991 and 11.10.1991 refusing to accede to the request of the Association of the Employees. There afterwards, the employees and the Association without any further loss of time promptly filed the Writ Petitions in this Court. Looking from any angle, we do not find any justification to entertain the Writ Petitions or to refuse relief to the Writ Petitioners solely on the ground of delay and laches. It is a fit case where the complaint brought before the Court should be dealt with on merit on the touchstone of Articles, 14, 16 and 39(d) of the Constitution.
17. POINT-No. II It is true that the remedy provided under Article 226 of the Constitution is a discretionary remedy and the High Court has always the discretion to refuse to grant relief to an applicant in certain circumstances even though his legal right might have been infringed. Availability of an alternative remedy is one of such considerations which the High Court may take into account to refuse to exercise its jurisdiction, but this principle is not applicable to the enforcement of Fundamental Rights either under Article 32 or Article 226 of the Constitution.
18. In this case, it is true, that the Writ Petitioners could have sought the relief sought by them in these Writ Petitions by instituting appropriate legal proceedings before the Educational Tribunal. It is also true that if the Court is satisfied that there exists an alternative, efficacious and adequate remedy before a statutory tribunal or a Court, it may decline to entertain the application. Whether an alternative remedy is efficacious or adequate is always a question of fact to be decided in each case having regard to the facts and circumstances of such case. Where the petitioner may get adequate relief by an ordinary action at law i.e., a Civil or a Criminal proceeding or a proceeding under a statute before a statutory authority, relief under Article 226 may be refused. When a statute creates a right or a liability and it itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before seeking the discretionary remedy under Article 226. The High Court may, in exercise of its discretion, decline to interfere with the impugned order until all statutory remedies are exhausted, including administrative representations, particularly when the decision on the question of jurisdiction depends upon the appreciation of the evidence or the resolution of disputed facts. But, it needs to be noticed that the existence of alternative remedy is not a bar to the relief under Article 226. It is a circumstance, which the High Court has to take into consideration, in exercising its discretionary powers under Article 226. It does not take away the jurisdiction of the High Court to grant relief in exceptional circumstances. The rule of exhaustion of alternative remedy before a writ will be granted is a rule of policy, convenience and discretion rather than a rule of Law as held by the Supreme Court in ABRAHAM v. INCOME TAX OFFICER , and in VENKATESHWARAN v. RAMCHAND, and several other pronouncements to follow those decisions. Thus, the Court may, in exceptional circumstances, issue discretionary writ, notwithstanding the fact that the alternative or statutory remedies have not been exhausted. The rule of exhaustion of alternative remedy does not bar the jurisdiction of the High Court under Article 226, as held by the Supreme Court in UNION OF INDIA v. VERMA, (1958) SCR 499, What these exceptional circumstances are cannot be exhaustively enumerated because the matter is prominently one for the discretion of the Court issuing the writ, which is to be exercised according to the facts and circumstances" of each case.
19. In P.V. SURENDER BABU v. PROHIBITION AND EXCISE SUPERINTENDENT, CHITOOR, (1998) 5 ALT 640 one of us (S.R. Nayak, J) speaking for the High Court of Judicature, Andhra Pradesh observed thus:
"It is well established that the remedy provided for in Article 226 of the Constitution is a discretionary remedy and the High Court has always the discretion to refuse to grant such a relief in certain circumstances even though a legal right might have been infringed. Availability of an alternative remedy is one of such considerations which the High Court may take into account to refuse to exercise its jurisdiction, but this principle does not apply to the enforcement of Fundamental Rights either under Article 32 or under 226 of the Constitution. The Supreme Court in Mohd. Yasin v. Town Area Committee and the cases to follow that case held that an alternative remedy is not a bar to move a Writ Petitions in the High Court to enforce a fundamental right. This is the only exception. In all other cases where no fundamental Right is involved, it has been ruled that the High Court would not exercise its jurisdiction under Article 226 when an alternative, adequate and efficacious legal remedy is available and the petitioner has not availed of the same before coming to the High Court. Of course, Article 226 is silent on this point; it does not say in so many words anything about this matter, but the Courts have themselves, evolved this rule as a kind of self-imposed restriction on their jurisdiction under Article 226. The rule of exhaustion of a remedy before invoking jurisdiction under Article 226 has been characterized as a rule of policy, convenience and discretion rather than a rule of law, per decision of the Supreme Court in STATE OF UTTAR PRADESH v. MD.NOOH (AIR 1958 SC 86) AND BABU RAM v. ZILLA PARISHAD . The rule has been justified on the ground that persons should not be encouraged to circumvent the provisions made by a statute providing for a mechanism and procedure to challenge administrative or quasi-judicial actions taken thereunder".
20. In this case, we find that the Management of VISL is guilty of practicing invidious discrimination in not extending the pay scales and attendant pecuniary Benefits to the petitioners in terms of Settlement entered into between the Management and the Employees Association from time to time. Right to equality flows from Article 14 of the Constitution and since that fundamental right of the petitioner-employees is breached and that breach continues to exist even today, it will not be appropriate for the Court to throw away the Writ Petitions on the ground that the petitioner employees had alternative legal remedy before the Educational Tribunal and that they have approached this Court under Article 226 without exhausting such alternative remedy. Of course, the question whether petitioner- employees are appointed as teachers after 01.01.1975 and whether they are performing the same duties and functions performed by the teachers appointed prior to 01.01.1975 is undeniably an incidence of fact. If there were to be any dispute on facts, the Court could have been justified in refusing to entertain the Writ Petitions on the ground of non-exhaustion of alternative statutory remedy. But, in this case, the Management has not disputed the above plea asserted by the Writ Petitioners. Even in the Memorandum of writ appeal, the finding recorded by the learned Single Judge in Para 3 of the Judgment that the teachers appointed prior to and after 01.01.1975 are all performing the same duties and functions is not questioned. In other words, we can take that the petitioner- teachers perform the same duties and functions as their other colleagues appointed prior to 01.01.1975 perform.
21. 'Equals should be treated alike' is a Constitutional creed flowing from Article 14 of the Constitution and if the Court finds that that Constitutional creed has been infractured by the State's action, it becomes the duty of the Constitutional Court to step in and correct the wrong done to the applicant for writ. In that view of the matter, we are of the considered opinion that learned Judge was justified in entertaining the Writ Petitions notwithstanding the fact that the Writ Petitioners approached this Court without exhausting alternative statutory remedy available to them before the Educational Tribunal.
22. POINT No. III The contention of the Writ Petitioners is that they are entitled to scale of pay and other attendant benefits in accordance with the terms of Settlement entered into between the Management of VISL and the Employees Association from time to time as is being given to the teachers whose details are given in Annexures E and F, with effect from the date of their initial appointment in the service of the Company. It is the case of the petitioners that the teachers appointed prior to and after 01.01.1975 in the Welfare Primary Schools are performing the same duties and functions in every aspect and therefore, they should be treated alike in the matter of extending pay scales and other attendant benefits.
23. Article 39(d) of the Constitution contained in Part IV of the Constitution ordains the State to direct its policy towards securing 'Equal Pay for Equal Work' for both men and women. It is a Constitutional goal capable of attainment through Constitutional remedies, by the enforcement of Constitutional rights. In STATE OF ANDHRA PRADESH v. G. SREENIVASA RAO, 1989-II- LLJ 149, the Supreme Court observed:
"Doctrine of 'equal pay for equal work' cannot be put in a straight) acket. Although the doctrine finds its place in the Directive Principles but this Court, in various judgments has authoritatively pronounced that right to 'equal pay for equal work' is an accompaniment of equality Clause enshrined in Articles 14 and 16 of the Constitution of India. Nevertheless the abstract doctrine of 'equal pay for equal work' cannot be read in Article 14. Reasonable classification, based on intelligible criteria having nexus with the object sought to be achieved, is permissible.
24. The principle of 'equal pay for equal work' is accentuated and has assumed the status of a fundamental right in service jurisprudence having regard to the Constitutional mandate of equality enshrined in Articles 14 and 16 of the Constitution. It is well settled that directive principles have to be read into the fundamental rights as a matter of interpretation. Article 14 of the Constitution enjoins on the State not to deny any person 'equality before the law' and the 'equal protection of the laws' and Article 16 declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Hence, on the construction of Articles 14 and 16, in the light of Article 39(d) and the preamble to the Constitution, the principle of 'equal pay for equal work' partakes the character of a fundamental right and has to be applied to cases of unequal scales of pay based on no classification or irrational classification though drawing different scales of pay, doing identical work under the same employer. Elaborating the concept of 'equal pay for equal work' and its application, in RANDHIR SINGH v. UNION OF INDIA, 1982 -I-LLJ-344, the Supreme Court observed that where all things are equal that is, where all relevant considerations are the same, persons holding identical posts cannot be treated differently in the matter of their pay. The doctrine of "Equal pay for equal work' as ceased to be a Judge- made law as it is a part of the constitutional philosophy which ensures a welfare socialistic pattern of the State providing equal opportunity for all and 'equal pay for equal work' for similarly placed employees of the State. The principle not only applies to the State as such but to State Instrumentalities as well. The principle applies to VISL, the same being an instrumentality of the State and therefore a "State" within the meaning of Article 12 of the Constitution. The right flowing from the doctrine of 'equal pay for equal work' has been zealously protected and enforced, as a Fundamental Right, in effectuating the constitutional goal of equality and social justice, by the Constitutional Courts.
25. In STATE OF WEST BENGAL v. HARI NARAYAN BHOWAL, 1995, II LLJ, 328 (332) (S.C) the Supreme Court held that the Principle of 'equal pay for equal work' can only be enforced if the claiming persons satisfy the Court that not only the nature of the work is identical but in all other respects they belong to the same class and there is no apparent reason to treat equals as unequals;
26. In SUPREME COURT EMPLOYEES WELFARE ASSOCIATION v. UNION OF INDIA, 1989 (2) LLJ 506(519) (S.C.) the Supreme Court on a review of its earlier dicta, observed that although the doctrine of 'equal pay for equal work' does not come within Article 14 of the Constitution as an abstract doctrine, if, however, any classification is made relating to the pay-scales and such classification is unreasonable or if unequal pay is based on no classification, then Article 14 will at once be attracted and such classification is liable to be struck down and 'equal pay for equal work' must be directed.
27. In FEDERATION OF ALL INDIA CUSTOMS AND CENTRAL EXCISE STENOGRAPHERS v. UNION OF INDIA, 1989 Lab.I.C. 1157 (1163) (S.C.) the Supreme Court in unequivocal terms declared that 'equal pay for equal work is a fundamental right' because it is a concomitant of Article 14 of the Constitution. Therefore, unequal pay for equal work will be a negation of the right guaranteed under Article 14.
28. In this case, as noticed above, all the teachers serving in the Welfare Primary Schools, irrespective of the fact whether they were appointed prior to or after 01.01.1975 and whether they were appointed in terms of the settlements entered into between the Management and the Employees Association under Section 18(1) of the Industrial Disputes Act or in terms of Annexure 'L' dated 18.01 1975, are performing same duties and functions. There are no differences at all between them as regards the services rendered in the schools. In that view of the matter, there is no justification for the Management to treat them differently in the matter of extending payscales and other attendant benefits, pecuniary or otherwise. In other words, all the teachers whether appointed in terms of the settlements or in terms of the conditions incorporated in Annexure 'L' should be regarded as persons belonging to a well defined class for the purpose of Article 14 of the Constitution. Since the guarantee of equal protection enshrined in Article 14 of the Constitution embraces the entire realm of 'State action' it would extend not only when an individual is discriminated against in the matter of exercise of its right or in the matter of imposing liabilities upon him, but also in the matter of prescribing terms and conditions of services, granting privileges etc. In BHAGWAN DASS AND ORS. v. STATE OF HARYANA AND ORS., when the duties and functions discharged and work done by the supervisors appointed on regular basis and those appointed on temporary basis in the education department are similar, the fact that the scheme under which temporary appointments are made was a temporary scheme and the posts were sanctioned on a year to year basis having regard to the temporary nature of the scheme, the Supreme Court held that that factor cannot be invoked for violating 'equal pay for equal work" doctrine. The Supreme Court held that whether appointments are for temporary periods and the Schemes are temporary in nature is irrelevant and once it is shown that the nature of the duties and functions discharged and the work done is similar, the doctrine of "equal pay for equal work" is attracted.
29. In the same judgment the Supreme Court dealing with the contention that since the mode of recruitment of the petitioners was different from the mode of recruitment of respondents 2 to 6 with whom parity in the pay was sought, the Writ Petitioners were not entitled to parity of pay, the Supreme Court in paragraph-II of the judgment held thus:
"Be that as it may, so long as the petitioners are doing work which is similar to the work performed by respondents 2 to 6 from the standpoint of 'equal work for equal pay' doctrine, the petitioners cannot be discriminated against in regard to pay scales, Whether equal work is put in by a candidate selected by a process where at candidates from all parts of the country could have competed or whether they are selected by a process where candidates from only a cluster of a few villages could have completed (competed) is altogether irrelevant and immaterial, for the purposes of the applicability of 'equal work for equal pay' doctrine. A typist doing similar work as another typist cannot be denied equal pay on the ground that the process of selection was different inasmuch as ultimately the work done is similar and there is no rational ground to refuse equal pay for equal work. It is quite possible that if he had to compete with candidates from all over the country, he might or might not have been selected. It would be easier for him to be selected when the selection is limited to a cluster of a few villages. That however is altogether a different matter. It is possible that he might not have been selected at all if he had to compete against candidates from all over the country. But once he is selected, whether he is selected by one process or the other, he cannot be denied equal pay for equal work without violating the said doctrine. This plea raised by the respondent-State must also fail."
30. The ratio of the judgment of the Supreme Court in P. SAVITHA AND ORS. v. UNION OF INDIA AND ORS., is quite apposite to the facts of this case. In that case, where Third Pay Commission classified the Senior Draughtsman in the Ministry of Defence Production in two groups and recommended higher pay scale for one group not on any merit-cum-seniority basis, but only on seniority-cum-fitness basis and there was no denial anywhere that both these types of Draughtsman did the same work and discharged the same functions and duties, the Supreme Court having referred to the judgment of the Supreme Court in RANDIR SINGH v. UNION OF INDIA (supra7) in paragraph 15 held thus:
"15. The case on hand is much stronger than the facts of the Randhir Singh's case . In that case, the drivers belonged to two different departments. In this case, the Senior Draughtsman, divided into two groups are in the same department doing identical and same work. It is not a case of different grades created on the ground of higher qualification either academic or otherwise or an entitlement by any other criteria laid down. The justification for this classification is by the mere accident of an earlier entry into service. This cannot be justified."
31. We could also derive support from the judgment of the Supreme Court in JAIPAL AND ORS. v. STATE OF HARYANA AND ORS., . In that case parity of pay was sought by the instructors employed under the Adult and Non-formal Education Scheme of the Haryana State by contending that the duties and functions discharged by them are similar to those performed by Squad teachers working under the Social Education Department of that State. The claim was opposed among other grounds on the ground that the mode of recruitment of instructors employed under the Adult and Non-formal Education Scheme is different from the mode of recruitment of Squad teachers and, therefore, they are not entitled to invoke the doctrine of 'equal pay for equal work'. The Supreme Court placing reliance on its earlier judgment in BHAGWAN DASS AND ORS. v. STATE OF HARYANA (supra) negatived the above contention and in paragraph-8 held thus:
"8. The respondents' contention that the mode of recruitment of petitioners is different from the mode of recruitment of squad teachers inasmuch as the petitioners are appointed locally while squad teachers were selected by the subordinate Service Selection Board after competing with candidates from any part of the -country. Emphasis was laid during argument that if a regular selection was held many of the petitioners may not have been appointed, they got the employment because outsiders did not compete. In our opinion, this submission has no merit. Admittedly the petitioners were appointed on the recommendation of a Selection Committee appointed by the Adult Education Department. It is true that the petitioners belong to the locality where they have been posted, but they were appointed only after selection true that they have not been appointed after selection made by the Subordinate Service Selection Board but that is hardly relevant for the purposes of application of doctrine of 'equal pay for equal work'. The difference in mode of selection will not affect the application of the doctrine of 'equal pay for equal work' if both the classes of persons perform similar functions and duties under the same employer. Similar plea raised by the State of Haryana in opposing Dass (supra) was rejected, where it was observed that if the State deliberately chose to limit the selection of candidates from a cluster of a few villages it will not absolve the State for treating such candidates in a discriminatory manner to the disadvantage of the selectees once they are appointed provided the work done by the candidates so selected is similar in nature. The recruitment from the cluster of villages for the purposes of implementing the Adult Education Scheme because the instructors appointed from that area would know the people of that area more intimately and would be in a better position to persuade them to take advantage of the Adult Education Scheme in order to make it a success."
32. The Supreme Court in Y.K. MEHTA AND ORS. v. UNION OF INDIA AND ANOTHER, where two posts under two different wings of the same Ministry were not only identical, but also involved the performance of the same nature of duties held that it would be unreasonable and unjust to discriminate between the two in the matter of pay.
33. The binding case-law noticed above and the facts proved in this case leave us with no option but to grant the relief to the Writ Petitioners by applying the doctrine of 'equal pay for equal work' in accordance with the mandate of Article 14 and 16 read with Article 39(d) of the Constitution.
34. This takes us to the question whether the effect of revision of payscales should be given to the Writ Petitioners from the date of their initial appointment as teachers or the relief should be granted only from the date of the order of the learned Single Judge. Learned Judge has given two reasons to confine the benefit of the revision of pay scales only with effect from the date of the order, viz. (i) that there was a delay on the part of the Writ Petitioners in approaching the High Court seeking remedy and (ii) that the financial position of the VISL is not sound.
35. The second reason stated by learned Judge, even if true, with respect, cannot be a tenable ground to deny the arrears of revision of pay scale. We say this because it is well-settled that where an applicant for writs makes out a case of invidious discrimination in the matter of fixation of pay scales and other attendant financial benefits, the Management cannot plead financial difficulties to comply with the writ that may be issued by the Court. However, it is within the domain of the discretion of the Court to grant the relief either from the date of initial appointment of the petitioners or from any specified date taking into account all relevant and attendant factors and circumstances. Annexure-L in terms of which the Writ Petitioners were appointed as teachers in the Welfare Primary Schools managed by the Company was issued on 18.01.1975. Admittedly all the petitioners were appointed in terms of and subject to conditions incorporated in Annexure-L circular. While dealing with Point No. 1 we have pointed out that the Employees Association did not sleep over the matter and it, on behalf of its members, made several representations to the management seeking parity in the pay scales. Furthermore, we have noticed above that the management of the VISL is guilty of practicing invidious discrimination and thereby making unlawful gains. It needs to be noticed that the legitimate monies due to the petitioner employees have been withheld by the management of VISL. The State and instrumentalities of the State can never be allowed to make unlawful gains out of their own wrong. This Constitutional injunction flows from out of the postulates of Article 14 of the Constitution, viz., fairness, reasonableness and non-arbitrariness. This is one such case. Therefore, it is unfair for the management of the VISL to plead the ground of delay and laches to sustain the unlawful gains made by them by practicing invidious discrimination prohibited by the equality Clause enshrined in Article 14 of the Constitution of India. The Writ Petitioners are teachers who have been appointed to serve in the Welfare Primary Schools. Maintenance of educational standard and excellence of the educational institutions, it is trite, would depend directly on the excellence of the teaching staff, and in turn, that would depend on the quality and contentment of the teachers. If the teachers, particularly at the primary level, are frustrated, such teachers could not do justice either to their pupils or to themselves. The Supreme Court in FRANK ANTHONY PUBLIC SCHOOL EMPLOYEES ASSOCIATION v. UNION OF INDIA AND ORS., has observed that conditions of service pertaining to minimum qualifications of teachers, their salary, allowances and other conditions of service which ensure security, contentment and decent living standards to teachers and which will consequently enable them to render better service to the institution and the pupils cannot be said to be violative of Article 30(1). In other words, conditions of service of teachers, whether such teachers are employed by the management of minority educational institutions or others to impart secular education to pupils, should conform to the mandates of Articles, 14 and 16 read with Article 39(d) of the Constitution. In that view of the matter, even assuming for argument sake that there was some delay on the part of the employees and their Association in approaching this Court under Article 226, that circumstance itself could not be a justification for the management of VISL to withhold the legitimate monies due to the teacher-employees on the specious plea that the economic health of the company is not sound. Looking from any angle, we are of the considered opinion that the learned Single Judge is not justified in denying arrears of salary on refixation of the salaries of the petitioner-employees.
36. In the result and for the foregoing reasons, we dismiss Writ Appeal Nos. 7617 to 7638 of 1999 and 7643 of 1999 filed by the management of VISL and allow Writ Appeal Nos. 7948 to 7964 of 1999 and 7969 of 1999 filed by the employees and their Association and set aside the order of the learned Single Judge dated 17.08.1999 passed in the Writ Petitions and allow the corresponding Writ Petitions as prayed for. The management of VISL is directed to comply with the above writ positively within a period of six weeks from the date of receipt of the copy of this order. In the facts and circumstances of the case, the parties are directed to bear their respective costs in the Writ Petitions as well as in the writ appeals.