Gujarat High Court
V V Barve & 53 vs Govt Of Gujarat & 4 on 13 October, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/1768/1992 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1768 of 1992
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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V V BARVE & 53....Petitioner(s)
Versus
GOVT OF GUJARAT & 4....Respondent(s)
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Appearance:
MR BP TANNA, ADVOCATE for the Petitioner(s) No. 1 - 19 , 21 - 54
MR NIGAM R SHUKLA, ADVOCATE for the Petitioner(s) No. 20
MR. SWAPNESHWAR GAUTAM, ASST. GOVERNMENT PLEADER with MR.
P.K. JANI, ADDL. ADV. GENERAL for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : / /2017
CAV JUDGMENT
1. By this writ application under Article 226 of the Constitution of India, the writ applicants have prayed for Page 1 of 68 HC-NIC Page 1 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT the following reliefs;
"(a) Declaring that the petitioners are entitled to the pay scale of Rs.1350-2200 with retrospective effect from 1.1.1976 and further directing the respondents-
authorities to pay arrears of wages based on the above;
(a1) Be pleased to direct the respondent authorities to comply with the recommendations made by the Pay Anomaly Committee dated 10.05.2000 vis-a-vis affirming the request of the petitioners and be pleased to quash and set aside the report of the Cabinet Sub-Committee dated 24.05.2005 above the report of the Pay Anomaly Committee, declining the recommendations made by the Pay Anomaly Committee.
(a2) Be pleased to declare that report of the Cabinet Sub-Committee dated 24.05.2005 alongwith the resolution passed by the respondent no.4 dated 23.11.2011 are contra to the principle of natural justice, perplexing & bad in law.
(b) directing the respondent-authorities to give to the petitioners the pay sale of Rs.1350-2200 with retrospective effect from 1.1.1976 and further directing the respondents-authorities to pay arrears of wages based on the above.
(c ) Directing the respondents-authorities to pay 15 per cent interest per annum on the arrears mentioned in prayer A and B within a period of one month from the date of the judgments;
(cc) directing that the impugned order dated 24.11.98 is bad and therefore the same deserves to be set aside. Quashing and setting aside the order dated 24.11.1998.
(d) directing such other and further reliefs and passing such other and further orders as the Page 2 of 68 HC-NIC Page 2 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT circumstances of the case may require;
14. During the pendency and final disposal of this Special Civil Application, Your Lordships may be pleased to make an order;
(a) directing the respondent-authorities to start paying wages to the petitioners in the pay scale of Rs.1350-2200 with prospective effect."
2. The case of the writ applicants may be summarized as under;
2.1 The writ applicants are serving as the Mono Operators in the different Government Printing Presses, situated at the places like Rajkot, Bhavnagar, Baroda, Gandhinagar etc. The grievance voiced in this writ application is that there is a serious disparity in the pay scale. The writ applicants herein are claiming pay scale on par with the Lino Operators. It is the case of the writ applicants that as the Mono Operators, they are performing the very same duties and functions performed by the Lino Operators, yet their pay scale is lower than what is being paid to the Lino Operators. To put it in other words, this is a petition, in which, the doctrine of equal pay for equal work has been invoked.
2.2 As regards their duties and responsibilities as the Mono Operators, the following has been averred in the petition;
"(1) 80% of the work regarding budget, priority work of Legislative Assembly , Election Work, Gazette Page 3 of 68 HC-NIC Page 3 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT Work, Audit Report and Annual Developments Report work is done by the Mono Operators.
(2) Most of the fast and speedy work are done by the Mono Operators and the costs of work is cheaper, if it is done by Mono Operators. The Mono Operators have to prepare tabular forms. The Mono Operators are required to put in an output of 7000 ENS in English, 5000 ENS in Devanagari Script.
(3) The Mono Operators are required to use 326 buttons with such languages such as English, Gujarati, Hindi, Sanskrit, and Marathi. Sometimes, work is required to be done by them from the copies, which are not legible and handwritten. The machine works by the pressure of air compressor to the tune of 15 pound and, therefore, one has to use force and operate the keys. After applying pressure on key, the punch is reflected on Mono spool, which can not be read directly and, therefore, operating has to be done with full concentration of mind. Thus this operation gives tremendous mental stress to the Mono Operators. In particular the Budget work, Report of Accountant General, Annual Audit Report, Annual Development Report are items where operator has to use his brain, concentrate fully and apply memory and after applying full mind, has to apply his body with full force having regard the pressure of Air of 15 pounds. There were instances where due to this type of work, Mono Operators suffer sickness or, eyes and spines.
(4) 80% of the work and in particular complicated work is required to be done by Mono Operators and they do not get any adjustment for correcting the mistake."
2.3 The writ applicants have also given a comparison of the duties and responsibilities performed by the Mono Operators and the Lino Operators as under;
Page 4 of 68HC-NIC Page 4 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT "(1) The Lino Operators compared to Mono Operators are required to do running work and as a mater of fact they do not have to do any work of preparing charts, giving figures, or using another languages in the said draft, whereas the Mono Operators have a Key Board which is larger as 396 number of words in 5 scripts and 4 languages. The key board which is required to be handled by Mono Operator and the scripts, chart, figures required to be given in a draft to be prepared by the Mono Operator is any day higher in caliber as compared to the Lino Operator.
(2) The fact that the work of preparing budget, preparing annual development program,preparing stared question in Assembly, preparing important booklets are done in all the 4 Government Presses by the Mono Operators is known to all whereas the only work done by the Lino Operators is to prepare any report or book where there are no figures or chart and the subject matter is running.
(3) The Mono Operators have to prepare by their own intelligence tabular form whereas the Lino Operators have to do plain running work and that also unlimited measures.
(4) The Lino Operator has to use only one language at a time with approximately 90 buttons and has to apply less pressure and has to type running material, which he could read directly and, therefore, such person has not to apply physical pressure and has not to arrange the chart as required for Mono Operators. The matrics is also shifted by automatic machine. For composing such works, there are three Assistants who are available (1) Lino Bar, Attendant, (2) Lino Reservier, and (3) Compositers. A Mono Operator has to do his work alone. Thus Lino Operators have to do less work than the Mono Operators."
2.4 In paras-6,7 and 8 of the writ application, the Page 5 of 68 HC-NIC Page 5 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT following has been averred;
"6. There is a classic case where inequal treatment has been given to Mono Operators working under the Government. For the reasons stated hereinabove and hereinafter, it would be quite clear to this Hon'ble Court that the petitioners ought to have been treated equally on par with other persons and should have been awarded salary of Rs.1350-2200, which b any reckoning is meager. As a matter of fact, the petitioners have made a detailed representation to Shri C.N. Shah, one man committee appointed after Justice S.A. Shah submitted report. Copy of such detailed representation dated 13.10.1987 is annexed herewith and marked as Annexure-C to this petition. With the appointment of the new Technical Committee hope was generated in the minds of persons like the present petitioners that there would be justice done to their case. Unfortunately, when the Report was issued by the State Government and based on which the Government published in the Gujarat Government Gazette dated 18.4.1991 the Gujarat Civil Services (Revision of Pay) (second amendment) Rules, 1991, the entry of Mono Operators was not found at all. Not only that there is no answer to the representation made by the petitioners. The petitioners pressure that the grievance of the petitioners is not accepted. Petitioners are, therefore, constrained to file this petition under Articles 14, 16 and 226 of the Constitution of India to see that the injustice caused to them is cured.
7. It is pertinent to note that at present the scale of Lino Operators is Rs.1350-2200 in the Central Government. The petitioners would like to bring to the notice of this Hon'ble Court , a circular of the Home Department, which gives persons in the cadre of P.I and persons below officers, pay scale of the same level as that of the Delhi Police. This shows that whenever it is brought to the notice of the State Page 6 of 68 HC-NIC Page 6 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT Government that the pay scales should be put up at par with the Central Government employees, the State Government has come out with necessary notifications. Copy of the above said Circular of the Home Department, treating the police employees at par with the Delhi Police, dated 7.8.1987 is annexed herewith and marked as Annexure D to this petition.
8. It is pertinent to note that at present the scale of Mono Operators is Rs.1350-2200 in the Central Government. It is submitted that in view of various representations made by the petitioners and the justice S.A. Shah Commission report, proper pay scale should have been entered in the Gujarat Civil Services (Revision of Pay) (Second Amendment) Rules, 1991. But unfortunately, in the Gujarat Government Gazette published on 18.4.91 under the caption "Director of Printing and Stationery" there is no entry of Mono Operator. Such an omission is unbelievable. In the said Gazette the entry of Mono Operators should have been made immediately after the caption "36 senior examiner. 380-640 1350-2200 1400-2300 and it should have been as under;
"37 Mono Operator 350-560 1200-2040 1350-2200"
Copy of the aforesaid Gazette, so far as it pertains to Director or Printing and Stationery (found in page Nos.124, 125, 126 and 127) is annexed herewith and marked as Annexure E to this petition."
2.5 It appears from the materials on record that during the pendency of this writ application, the State Government thought fit to constitute an Anomaly Committee by issuing a Government Resolution dated 20th November, 1997, which reads as under;
"Resolution In pursuance of the recommendations of the High Page 7 of 68 HC-NIC Page 7 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT Power Committee appointed by Government, the Governor has decided to constitute a pay anomalies committee to examine the representation of pay anomalies and allied matters of employees of State- Government.
2. The Government is pleased to appoint the committee consisting of the following;
(1) Hon. Justice Shri N.B. Patel (Retired High Court Judge.
Chairman (2) Shri Vinay Sharma (Retired Additional Chief Secretary) Member (3) Shri Rajesh Kishore I.A.S. Secretary (Economy Affairs) Finance Department Part-time Member.
(4) Shri A.B. Pathan
Officer on Special Duty Member
Secretary
3. The terms of reference of the Committee are as under:-
(1) The anomalies rising out of the Gujarat Civil Services (Revision of Pay) Rules, 1987.
(2) The anomalies arising out of the Gujarat Civil Services (Revision of Pay) Rules, 1998.
(3) Existing Special Pay with a view to limiting the number of special pay posts and to consider new demands if any.
(4) Review of existing Rent Free Accommodation facilities.Page 8 of 68
HC-NIC Page 8 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT (5) Project Allowance, free electricity etc. on various projects.
(6) Allowance for Police Staff.
(7) Review of Higher Pay Scales Scheme with reference to Government of India's such scheme/s.
*The above sub para (7) is substituted vide G.R. No.PGR- 1098-45-M, dtd. 1.9.1998 as under:-
"Review of Higher Pay Scales Schemes with reference to Government of India's such scheme/s OR/AND any amendment in the present Higher Pay Sales Scheme".
(8) To decide State Government's responsibility in respect of Grant-in-aid institutions for pay and allowances.
(9) To examine the feasibility of introducing the cadre of Senior Clerk in Sachivalaya, Collectorate under Revenue Department and Bureau of Economics and Statistics under General Administration Department.
*Above sub-para (9) is substituted vide G.R. No.PGR-1098- 37-M, dtd., 16.7.1998 as under:-
"To examine the issue of posts of Senior Clerks in Government Institutions."
(10) To finalize the following six provisional scales, recommended by Cowlagi Committee and accepted by Government.
Existing Scales Recommended and accepted
scales
2200-4200 8000-14050
2500-4200 8500-14000
3500-5000 12000-16500
4100-5700 14300-18300
5300-6200 16000-20050
5700(fixed) 18300 (fixed)
*(11)Overtime Allowance to Driver. (Added vide G.R. Page 9 of 68 HC-NIC Page 9 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT No.PGR-1098-54-M, dtd. 17.12.1998.
4. The Committee will also give its recommendations on the representation from the following categories of employees:-
(1) Panchayat Employees.
(2) Teachers in Primary, Secondary and Higher Secondary non-Government Schools.
(3) Non-teaching staff of Primary, Secondary and Higher Secondary non-Government schools.
(4) Workcharged staff paid from consolidated Fund of the State Government.
(5) Non-teaching staff of Universities.
(6) Non-teaching staff of non-Government Colleges in so far it relate to approved scales of pay for approved staff for the purpose of grant-in-aid.
(7) High Court staff (Added vide G.R. No.PGR-1098-50-
M,dtd., 30.9.1998.
(8) Gujarat Legislature Secretariat Staff. (Added vide G.R. No.PGR-1098-55-M, DTD. 4.1.1999.
5. The committee is empowered to evolve and recommend a new pay scale if it finds it necessary.
6. All issues relating to revision of pay scales of any cadre may be referred to this committee. Till the recommendations of this Committee received, no department shall entertain such issues.
7. The Committee will start functioning from 1st June, 1998 and submit its report within one year.
*The above period is lastly extended upto 31.3.2000 vide G.R. No.PGR-1099-65-M, dtd 30.11.1999.
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8. The Head Quarter of the Committee will be at Gandhinagar in Finance Department.
9. Government trust that employees' Associations/Federations and all other concerned will extend their fullest co-operation and assistance to the committee.
10. Ordered that the Resolution be published in the Gujarat Government Gazette. "
2.6 It appears from the materials on record that the Pay Anomaly Committee, in its report at page No.141, recommended that the Mono Operators should be paid on par with the Lino Operators. The pay scale of Rs.1350- 2200 was recommended by the Committee. The recommendation of the Committee reads as under;
"This cadre had a pay scale of Rs. 1200-2040 since 01/01/1986 and such is submitted by the applicant that this cadre should be given the pay scale of the cadre of Line operator whose pay scale is Rs. 1350 - 2200 since 01/01/1986. On examining the recruitment rules of Compose Foremen, it appears that (1) Assistant Foremen (2) Line Operator and (3) Mono operator are the feeder cadre posts for the cadre of Compose Foremen. In this regard, the ratio of 3:1 has been maintained among Assistant Foremen and Line / Mono operator. In this regard, the Director has clarified in written that seniority list is prepared on the basis of the date of substantive appointment of Line operator and Mono operator.
Considering all these facts, the committee does not find it appropriate to create an anomaly in the pay scale between Mono operator and Line operator. Hence, the committee recommends that the cadre of Mono operator should be given the pay scale of the cadre of Line operator i.e. Rs. 1350 - 2200, w.e.f. 01/01/1986."
2.7 It also appears from the materials on record that a Cabinet Sub-Committee was constituted to look into the Page 11 of 68 HC-NIC Page 11 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT recommendations of the Pay Anomaly Commission and take a final decision whether to accept the recommendations or not.
2.8 The Cabinet Sub-Committee, in its report at page- 54, declined to accept the recommendations of the Pay Anomaly Commission assigning the following reasons;
"The Pay scale of this cadre is Rs.1200-2040 from 01/01/1986 and Rs. 4000-6000 from 01/01/1996. The reason for demanding the pay scale of this cadre at Rs. 1350-2200 from 01/01/1986 and Rs. 4500-7000 from 01/01/1996 is that, the pay scale of Line Operator is Rs. 1350-2200 from 01/01/1986 and Rs. 4500-7000 from 01/01/1996. The Pay Scale Anomaly Inquiry Committee has recommended the pay scale of Rs.1350-2200 from 01/01/1968 and Rs. 4500-7000 from 01/01/1996 to this cadre.
As per the principles prescribed by the Cabinet Ministers' sub-committee, this recommendation can not be accepted. As per the order of Hon'ble Gujarat High Court, Gujarat State, Ahmedabad in S.C.A. No.2025/1976 and L.P.A. No.1/1981, the pay scale of the cadre of Line Operator has been revised by the Department of Industries and Mine Resolution No.PST-1077-3512-PSD, dated: 03/10/1981. According to this, the cadre of Mono Operator can not be compared with the cadre of Line Operator. Therefore, this recommendation can not be accepted. "
2.9 It appears that in the wake of the report of the Pay Anomaly Commission, the petition came to be amended. In Para-10(S), the following has been averred;
"10(S) It is submitted by the petitioners that , during the pendency of this matter, the petitioners were served with the report of the Pay Anomaly Page 12 of 68 HC-NIC Page 12 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT Committee alongwith the report of the Cabinet Sub- Committee way back on 14.03.2013. It is further submitted that relevant portion from the report of the Pay Anomaly Committee published on 10.05.2000, regarding the question involved in this petition is produced herein below for kind perusal of the Hon'ble Court.
*This cadre is in receipt of pay scale of Rs.1200-2400 on 1.1.1986 and their representation is that they ought to have been given the same pay scale of the cadre of Lino Operator whose pay scale is Rs.1350- 2200 from 1.1.1986. On a perusal of recruitment rules of Compose Foreman, it reveals that the feeder cadre of this post is (1) Assistant Foreman, (2) Lino Operator and (3) Mono Operator. The ratio of their promotion is 3:1 respectively of Lino Mono Operator or Assistant Foreman. In view of this issue the Controller explained it in writing that the entire seniority list is prepared on the basis of the original date of appointment of Lino Operator and Mono Operator. In view of aforesaid discussion the committee does not find any reason that there is any discrimination in pay scale of Mono Operator and Lino Operator. Therefore, this committee is recommending to grant pay scale of Rs.1350-2200 to Mono Operator at par with Lino Operator w.e.f 1.1.1986.
On bare perusal of this finding of the Pay Anomaly Committee, it would be crystal clear that even feeder post and promotional post of Mono Operators and Lino Operators are identical and their seniority list are prepared on the basis of their original appointment dates. It is stated that their educational qualification and recruitment rules are also identical. Hence, the Committee accepted and recommended the pay scale of Rs.1350-2200 to Mono Operator at par with Lino Operator w.e.f 1.1.1986. Copy of the extracts from the report of the Pay Anomaly Committee, relating to the petitioner dated 10.05.2000 is annexed herewith and marked as Page 13 of 68 HC-NIC Page 13 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT Annexure-G to this petition.
The petitioner further submits that the decision of the Cabinet Sub-Committee over the recommendation of the Pay Anomaly Committee is also required to be looked into. Therefore, relevant portion from the report of the Cabinet Sub- Committee above the recommendations of the Pay Anomaly Committee published on 24.05.2005, is produced herein below for the kind perusal of this Hon'ble Court.
*The pay scale of this cadre is Rs.1200-2040 w.e.f 1.1.1986 and Rs.4000-6000 w.e.f 1.1.1996. The demand of this cadre is that they should be given pay scale of Rs.1350-2200 w.e.f. 1.1.1986 and Rs.4500-7000 w.e.f. 1.1.1996 which is given to cadre of Lino Operator. Pay Anomaly Committee has recommended the pay scale of Rs.1350-2200 w.e.f 1.1.1986 and Rs.4500-7000 w.e.f. 1.1.1996.
As per the principles decided by the Cabinet Sub Committee the recommendation cannot be accepted. The pay scale of cadre of Lino Operator was revised by the circular No.PST-1077-3512-PSD of Industries & Mines Department dated 3.10.1981 in view of the order passed by the Hon'ble High Court, Gujarat, Ahmedabad in S.C.A. No.2025/1976 and L.P.A. No.1/1981. In view of this cadre of Mono Operator cannot be treated at par with Lino Operator. Hence, this recommendation cannot be accepted.
It is stated that the decision of the Cabinet Sub- Committee is vague and unsubstantiated, wherein the recommendation of the Pay Anomaly Committee was rejected only on the ground of the order passed in S.C.A. No.2025/1976 and L.P.A. No.1/1981 by the Hon'ble High Court. In the humble submission of the present petitioners the reference with regards to the S.C.A. No.2025/1976 is misleading and without any foundation or whatsoever. It is humbly submitted Page 14 of 68 HC-NIC Page 14 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT that S.C.A. No.2025/1976 was originally preferred by the Lino Operators for retification of some anomalies in the pay scale which does not have any bearing on the facts of the present petition. It is submitted that the Cabinet Sub-Committee should have consider the principle of "Equal pay for Equal Work". In a given case, if the two classes of person do some work under the same employer, on similar post, with similar responsibility, under similar working condition, the ratio of equal pay for equal work should be applied. It would not be open for the State to discriminate one class with the other in paying salary. Thus, the petitioners' grievance is still exacerbated, and thus interference of this Hon'ble Court is warranted.
The petitioner humbly submits that the recommendation of Pay Anomaly Committee was issued way back in 2000 and report of the Cabinet Sub-Committee was issued in 2005. The petitioners humbly submit that after a long period of 20 years the discrimination is still going on between the same cadres' employee belong to the different Department with the same State Govt. it is important to note that pay scale of Mono Operators in the Central Govt. is equivalent to the Lino Operators, also educational qualifications are same, recruitment rules are same, but still this discrimination is iterating against the petitioners by the respondent Govt. It is also submitted that the report of the Cabinet Sub-Committee is paradoxical, non- application of mind and no valid legal grounds are forthcoming. Copy of the extracts from the report of the Cabinet Sub-Committee dated 24.05.2005, is annexed herewith and marked as Annexure-H to this petition.
The petitioners crave leave to bring to the notice of this Hon'ble Court a very disturbing stratagem in the whole issue after the report of the Cabinet Sub- Committee, the respondent no.4 had issued a resolution on 23.11.2011, in which the respondent Page 15 of 68 HC-NIC Page 15 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT No.4 the Finance Department had summarily rejected the recommendation of the Pay Anomaly Committee and report of the Cabinet Sub-Committee . It is also evidently clear on bare perusal of the resolution dated 23.11.2011, that it is in no manner an attempt made by the respondent authorities to state anything on merits or no reasons are forthcoming in rejecting the prayers of the petitioners. It is humbly stated that this resolution itself is ultra-vires of principle of natural justice and contrary to the principle of "Equal Pay for Equal Work" and unconstitutional. It is very abominable situation for the petitioners that even after waiting for long period, the respondent authorities are engaged in erratic practice and abruply and unambiguously rejected the prayers of the petitioners. It is submitted that the issue involved in this petition is still unrepressed by the respondent authorities, thus the intervention of this Hon'ble Court is warranted and respondent authority's arbitrary, capricious, unconstitutional and discriminatory action required to be deprecated by this Hon'ble Court. Copy of the resolution passed by the respondent no.2 dated 23.11.2011, is annexed herewith and marked as ANNEXURE-I to this petition.
In view of this, the petitioners submit that the discrimination which is being practiced against the petitioners is violative of Article 14 & 16 of the Constitution of India."
3. Mr. Tanna, the learned senior counsel appearing for the writ applicants submitted that the writ applicants, although performing the very same duties and functions like those of the Lino Operators, yet, their pay scale is less than the Lino Operators. The learned counsel submits that even the Pay Anomaly Committee has recommended that the pay scale of the Mono Operators should be on par with Page 16 of 68 HC-NIC Page 16 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT the Lino Operators. He would submit that the Lino Operator, as compared to the Mono Operator, are required to do running work and as a matter of fact they do not have to do the work of preparing charts, giving figures, or using another language in the said draft, whereas the Mono Operators have a key board which is larger as 396 number of words in 3 scripts and 4 languages. More comparison of the Key Board meant for the Mono Operators and the Lino Operators would show that the method of working is same but the key board which is required to be handled by the Mono Operators, the work requires to be done by the Mono Operators languages and scripts, chart and figures required to be given in a draft to be prepared by the Mono Operators is any day tougher and higher in caliber as compared to the Lino Operators.
4. He would submit that the entire heavy work of preparing budget, preparing annual development program, preparing stared question in the Assembly, preparing important booklets are done in all the four Government presses by the Mono Operators in the different scripts including Gujarati, English, Hindi and Sanskrit, whereas the only work done by the Lino Operators is to prepare any report or book where there are no figures or chart and the subject matter is running. The fact that the Mono Operators are no different than the Lino Operators is reflected also in the pay scales accorded by the Government of Gujarat to the Mono Operators as Page 17 of 68 HC-NIC Page 17 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT compared to the Lino Operators in the Government of India. As a matter of fact, all throughout, in so far as the pay scales are concerned, the Government of India has treated the Mono Operators at par with the Lino Operators.
5. He would submit that the Lino machines and the Mono machines used either by the Government of India or by the Government of Gujarat or in any other private presses are of the same make, and the work required to be given by the Mono Operators or the Lino Operators is the same everywhere in the Country. Therefore, any attempt on the part of anyone to suggest that the work done by the Mono Operators in the Government Printing Presses of the State of Gujarat is different or inferior, to that of the Mono Operators in other establishments cannot be accepted. On the principles enunciated by the Supreme Court starting from Ranbirsingh's case and ending with Nehru Yuvak cases except on basic principle of equal pay for equal work. It is difficult to under stand how the present applicants can be treated differently when the work done by the Mono Operators allover the Country is the same. Somehow or the other, earlier Pay Commissioner and in particularly Desai Pay Commission true facts are not produced to the attention of the Commission and hence this injustice is caused to the persons like the present applicants.
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6. He would submit that the Mono Operators are required to use 326 buttons with such languages such as English, Gujarati, Hindi, Sanskrit, and Marathi and sometimes from the copies which are not legible and handwritten copies work is required to be done. It is a matter of common knowledge that the machine works by the pressure of air compressor to the tune of 15 pound and, therefore, one has to use force and operate the keys. After applying pressure on key the punch is reflected on Mono spoll which cannot be read directly and, therefore, operating has to be done with full concentration of mind. In operating the work there are works like tabular forms, chart and big column works. When an Operator has to apply his mind to the best of his capacity and caliber and it requires tremendous application of mind and it gives tremendous mental stress to such operators. In particular, the Budget Work, Report of the Accountant General, Annual Audit Report, Annual Development Report are the items where operator has to use his brain, concentrate fully and apply memory and after applying full mind has to apply his body with full force having regard to the pressure of Air of 15 pounds. There were instances where due to this type of work, the Mono Operators suffer sickness of eyes and spines.
7. He submitted that the Lino Operator has to use only one language at a time with approximately 90 button and has to apply less pressure and has to type running Page 19 of 68 HC-NIC Page 19 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT material which he could read directly and, therefore, such person has not to apply physical pressure and has not to arrange the chart as required for the Mono Operators, has not to concentrate as it is required for the work of the Mono Operator. The matrix is also shifted by automatic machine. For composing such works, there are three Assistants who are available, (1) Lino Bar, Attendant (2) Lino Reserver and (3) Compositors. The work which is plained required to be done 4500 ENS in an hour without chart or figures and in the running material which can be read cross table without difficulty. It is submitted that any man of prudence would immediately agree that the Lino Operators have to do less work than the Mono Operators.
8. The Pay Commissions are constituted for evaluating the duties and the functions of the employees and the nature thereof vis-a-vis the Educational Qualifications required thereof. The Pay Commission is considered to be an Expert Body and the State Government, having constituted such Committee for seeking its expert opinion, is obliged to accept the same.
9. On the other hand, this writ application has been vehemently opposed by Mr. P.K. Jani, the learned Additional Advocate General appearing for the State. Mr. Jani would submit that although the pay commission is considered to be an Expert Body, yet the State, in its wisdom and in furtherance of the valid policy decision, Page 20 of 68 HC-NIC Page 20 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT may or may not accept its recommendations. Mr. Jani submitted that assuming for the moment without admitting that the Mono Operators are performing the very same duties and functions that of the Lino Operators, yet a valid classification can be made on the basis of the various other considerations like the educational qualification etc. Mr. Jani, the learned Additional Advocate General relied on the following averments made in the affidavit-in-reply filed on behalf of the State opposing this writ application;
"5. With reference to Para 2 of the petition, I say and submit that the duties and functions of Mono Operator and Lino Operator are not equal. The mechanism and working of Mono and Lino machines are quite different. Therefore, the work of Mono Operators and Lino Operators cannot be compared. In fact, right from the beginning the pay scales of Mono Oerators and Lino Operators were different. However, on the recommendation of the Sarela Pay Commission, the Government had revised the pay scales and issued the Gujarat Civil Services Revision of Pay Rules, 1969 (hereinafter referred to as the G.C.S.R.O.P. rules. 1969 for the sake of brevity and convenience) according to which the pay scales of Mono Operators and Lino Operators were made equal, i.e. Rs.175-275. Prior to revision of the pay scales in 1969, the pay scales of Lino Operators was Rs.145-5-205 and that of Mono Operator was Rs.125- 5-165-EB-5-190. Since the pay scales for both these posts were revised to Rs.175-275 as per the recommendation of Sarela Pay Commission in the G.C.S.R.O.P Rules, 1969, the Lino Operators had filed Special Civil Application No.2025/1976- Shri. M.S.Menon and others v/s. The State of Gujarat and in the judgment delivered by the Honourable High Court of Gujarat on 17.1.1980 in the said Special Civil Page 21 of 68 HC-NIC Page 21 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT Application the Hon'ble High Court of Gujarat has ordered to fix the pay of Lino Operators in the scale of Rs.200-340 with effect from the date from which the recommendation of the Sarela Pay Commission had been made effective and then to fix them in the revised pay scale of Rs.380- 600 as recommended by the Desai Pay Commission. The Government had filed Letters Patent Appeal No.1/'981. But, the same was rejected by the Hon'ble High Court of Gujarat in the judgment delivered on 24.4.1981.
In view of the above, the Government in Industries, Mines and Power Department vide Resolution No.PST/1077/3512/PSD dated 3.10.1981, have issued orders revising the Pay Scales of Lino Operator from Rs.175 - 275 t0 Rs.200 -340 with retrospective effect from the date by which the G.C.S.R.O.P. Rules, 1969 came into force.
It can be seen from the above that the Hon'ble High Court of Gujarat after examining the duties and functions of both the categories of posts have ordered to sanction the higher pay scale to Lino Operator than Mono Operator. It may also be mentioned that according to the recommendation of Desai Pay Commission also the pay scale sanctioned to Lino operator is Rs.380-600 and to the Mono Operator is Rs.350-560 i.e. Lino Operators were sanctioned higher pay scales than Mono Operators.
7. With reference to para.4.1 of the petition I say and submit that the Mono Operators of all the Government Presses are performing all the duties as mentioned by the petitioners. The work is entrusted to the Mono Operators by the Managers of the concerned Government Presses taking into consideration the type of work to be done by the different composing sections namely Lino, Mono and Hand Composing. It is bounden duty of the Mono Operators to perform the work entrusted to them by the Manager of the Government Press.Page 22 of 68
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8. With reference to para.4.2 of the petition, I say and submit that Mono Operating the composing work is done with the help of 2 machines namely Mono Operating and Mono Casting. The Mono Operators have to do only the operating part i.e. to operate the Mono keyboard machine and the casting work is done on the Mono casting machine by the Mono Casters whereas in the Lino machines Operating and casting both the operations are done on the same machine (namely Lino Machine) by the Limo Operators.
9. With reference to para 4.3 of the petition, I say and submit that the Mono Operators have to operate the Mono keyboard machine only by typing the keys which punches the Mono Spools and thereafter these spools fixed on Mono Casting Machines by Mono Casters and the casting work is done by them. The corrections are carried out subsequently. The Mono Operator have not to do any correction work whereas on Lino machines the Lino Operators have to do the operating, casting, corrections, additions and alterations simultaneously.
10. With reference to para.4.5 of the petition, I say and submit that the Mono Operators have to do whatever the work entrusted by the Manager. The Desai Pay Commission in the Report. Volume-2 at page-228 in pare-39 has recorded its findings as under which has also been reproduced in the judgment of the Hon'ble High Court of Gujarat delivered on 17.1.1980 in Special Civil Application No.2025/1976:-
"39. The post of Lino/Mono Operator exists in the Mechanical Compose Section of the Letter Press. Appointment to the post is made by direct selection of the Lino Operator reservists in the press or by nomination. In either case, the qualification is S.S.C Pass. The Lino Operator should be able to Operate Page 23 of 68 HC-NIC Page 23 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT the keyboard with a minimum speed of 4500 corrected ens p.h. In English and 3000 corrected ens p.h. In Devnagari, while the Mono Operator should be able to operate the machine with a Speed of 6000 corrected ens p.h. in English and 4000 corrected ens p.h in Devnagari.
During the course of discussion some of the representatives of the Lino Operators explained the functions which they perform. The duties involve operating machine, casting the types and carry out Corrections The job combines the duties of an operator, caster and the compositor. The operation of the machine is fraught with constant danger as a slight lack of vigilance or presence of mind may involve accident with machinery or the melting lead. The Mono Operator has to operate the Mono machine with the help of a Caster Attendant and the Compositor. The Lino Operators, therefore, claim that their duties are of arduous nature.
They have further contended that the basis adopted by the Sarela Pay Commission was factually incorrect. The existing pay scale had been taken as Rs.145-185 instead of Rs.145-205. Had this not happened, it was probable that revised scale would have been Rs.200-340 instead of Rs.175-275. They had filed a special Civil Application in the High Court to seek redress of the grievances but these had been persuaded to withdraw the case on the understanding that the question of pay revision would be examined do novo. According to the information furnished by them, some 75% of the Lino Operators are stagnating and their chances of promotion are bleak. They have, therefore, demanded a pay scale which the Commission would evolve for the post of the Senior Clerk. The Gujarat State Government Press Employees' Federation during the oral evidence demanded the scales of Rs.250-480 for the post of Lino Operator and Rs.225- 450 for Mono Operators.
40. The Commission during its visit to the Page 24 of 68 HC-NIC Page 24 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT Gandhinagar Press took an opportunity to collect first-hand knowledge on the spot of the functions of both these categories of posts and it was realized that the Lino Operator deserved to be slightly pushed up but beyond this nothing could be done as otherwise the structure could be distorted. Incidentally, in Central Government Press, these two and several other categories are maintained on a common plans. The Commission accordingly recommended a scale of Rs.380-600 for the post of Lino Operators, while the post of Mono Operators should be placed on the scale of Rs.350-560.
11. With reference to para.6 of the petition, I say and submit that the Lino Operators were given higher pay scale than Mono Operators in view of the recommendation of the Desai Pay Commission and also in view of the Hon'ble High Court's judgment in Special Civil Application No.2025/76. It can, therefore, be seen that no in-equal treatment has been given to the Mono Operators.
12. With reference to para.7 of the petition, I say and submit that the Government have sanctioned the difference pay scales for Mono Operators and Lino Operators taking into consideration the nature of work performed by them as mentioned in foregoing paras. The case of Police Inspector referred to by the petitioners in this para has no bearing in the present case of the petitioners.
14. With reference to para.9 (A) to (N) of the petition, I submit that (the duties of Lino Operator is more and, Mono Operator as the Lino Operators have to do casting, corrections, additions and alterations at the same whereas the Mono Operators have to do the work on operating the Mono key board machines. The work of Mono Operators and Lino Operators has been examined by the Desai Pay Commission during its visit to the Government Central Press, Page 25 of 68 HC-NIC Page 25 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT Gandhinagar (Gujarat) and after examining the duties performed by both the Lino Operators and Mono Operators, the Commission had recommended higher pay scale to the Lino Operators. This fact has also been confirmed by the Hon'ble High Court in judgment in Special Civil Application No.2025/1976."
10. Mr. Jani further placed reliance on the following averments made in the affidavit-in-rejoinder dated 1st March, 2004;
"3.1 With reference to para 1 of the affidavit-in- rejoinder, I have no comments to offer thereon 3.2 With reference to para 2 of the affidavit-in- rejoinder, I deny that the affidavit in reply filed on behalf of the respondent No.2 is totally misleading as alleged. I deny that the contention that the work of Lino operator is arduous in nature is false and misleading as alleged. I reiterate what has been stated in the said affidavit in reply and submit that the reasons for different pay scales for the post of Mono Operator and Lino operator as provided in detail in the said affidavit in reply is true and correct. I further submit that a Lino operator discharges the functions of operating, casting and correction, whereas a Mono operator has to only do operating work. Thus, the duties of Mono operators and Lino operators in Government presses are of different nature. The Mono operator has to do only operating work, whereas the Lino operator, besides operating Lino machines have to perform casting and correcting work also. It is submitted that considering the aforesaid factor a higher pay scale has been sanctioned in case of Lino Operators. A statement showing the nature of duties/function of Mono operators and Lino Operators is annexed herewith and marked as ANNEXURE-Rl.
I further submit that the Sarela Pay Commission had Page 26 of 68 HC-NIC Page 26 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT recommended pay scale of Rs.175-275 for the post of Mono Operator and Lino Operator, However, subsequently by an order dated 3.10.1981, the Government of Gujarat has revised the pay scale of Lino Operator from Rs.175~275 to Rs.200-340. A copy of the said order dated 3.10.81 is annexed herewith and marked as Annexure-R2. Thus, the pay scale for the post of Lino Operator is higher than that of Mono operators from the very beginning. Moreover, the recruitment rules for the said posts are also different, which prescribe different eligibility criteria including experience. A copy of the said rules are annexed herewith and marked as ANNEXURE-RS3 I deny that the judgement of the Hon'ble Court, a part of which is reproduced in the affidavit in reply clearly shows that the work of Mono operator is arduous than that of Lino operator. It is submitted that the paragraph reproduced by the petitioner only shows the minimum speed with which the keyboard is to be operated, the same does not clearly show on a plain reading that the work of Mono Operator is more arduous than that of Lino Operator. It is further submitted that the Mono Operators have to operate the Mono Key Board machine only by typing the keys which punches the Mono Spools. It is submitted that these spools are thereafter fixed on Mono casting machines by Mono Casters, who do the casting work. The corrections are carried out subsequently. The Mono Operators do not have to do any correction Work whereas on the Lino Machine, the Lino Operators have to do the operating, casting, corrections, additions and alteration work simultaneously. Thus, in case of Mono operators, they have only to operate the Mono Key Board Machine and thereafter, the casting and Corrections are to be done by different persons. Thus the said work involves three persons at different stages to complete the job, whereas in case of Lino Operators, the entire work of operating, casting, corrections, additions and alterations are done simultaneously by the one and the same person. Moreover, the functions of Lino Operators involve a higher risk Page 27 of 68 HC-NIC Page 27 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT factor in the discharge of their duties as compared. to Mono Operators, as the Lino Operators have to cast with Lead metal, and therefore, are also required to take a lot of care. Thus, there is a wide difference in the nature of the duties in respect of both the aforesaid cadres.
It may be pertinent to note that the channel of promotion to the posts of the Lino Operators and Mono operators are as follows:
LINO SECTION MONO SECTION
(i) Lino Bar Attendant (i) Mono Reservist
(ii) Lino Reservist (ii) Mono Operator
(iii)Lino Operator
Thus, the Recruitment Rules as well as nature of duties for both the posts are different, hence, the pay-scales in respect of both the said posts are also different, which is just, legal and proper and does not call for any intervention on the part of this Hon'ble Court.
3.3 With reference to para 3 of the affidavit-in- rejoinder, I say and submit that the Technical Expert Committee appointed to study anomalies in the Pay- scale of employees of the Gujarat State Government Presses. The Technical Expert Committee had in para 2.23 and 2.39 recommended equal pay-scales for both the posts. However, the recommendations of the Technical Expert Committee has not been accepted by the Government as stated in the order dated 21.3.91 of the Finance Department. A copy of the said order dated 21.3.91 is annexed herewith and marked as ANNEXURE-R4.
3.4 With reference to para 4 of the affidavit-in0- rejoinder, I deny that the respondent authorities are in fact committing contempt of this order of this Hon'ble Court dated 25.5.1998 as alleged. I say and submit that the representation dated 25.9.1998, made by the petitioners Shri V.A. Dodia and other 53 Mono Operators was duly considered by the State Page 28 of 68 HC-NIC Page 28 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT Government and the same has been rejected. The aforesaid decision has been communicated to the petitioner vide Industries and Mines Department letter dated 24th November 1998 about their representation dated 25.9.1998. A copy of the said letter dated 24.11.1998 is annexed herewith and marked as ANNEXURE-R5.
Thus, the request of the petitioner was taken into consideration at the Government level. However, considering the difference in the Recruitment Rules, nature of duties etc. the pay scale of Mono Operators and Lino Operators have remained different from time to time and almost every time when revision of pay scales has been implemented by the Government the pay scales of both the cadres has been different. A statement showing the pay scales of Mono Operators and Lino Operators from time to time is annexed herewith and marked as ANNEXURE- R6.
3.5 With reference to para 5 of the affidavit-in- rejoinder, I deny that the respondents are trying to mislead this Hon'ble Court by trying to project that the work of Lino Operators is more arduous in nature and therefore they are entitled for higher pay scale than Mono operator as alleged. I say that in fact the work of the Lino Operators is more arduous in nature as is clearly demonstrated in the affidavit in reply as well as in the preceding paragraphs. I submit that there is a clear distinction in the nature of duties in respect of the cadres in question. It is submitted that it is a settled legal position that while applying the principle of equal pay for equal work the court or tribunal should be very circumspect and until and unless it is established that the two posts are almost similar in all aspects, the court or tribunal should not venture to grant the relief sought for. In the facts of the present case the petitioners have not been able to establish that the two posts of Lino operators and Mono operators are almost similar in all aspects, and neither have they been able to establish that their duties are more arduous in nature, hence, the petitioners are not entitled to the relief prayed for Page 29 of 68 HC-NIC Page 29 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT and the petitioner deserves to be dismissed. Moreover, the petitioners are claiming higher pay scales retrospective equalisation of pay scale with effect from the 1.1.1976, hence, the same suffers from laches and deserves to be dismissed on that count also.
11. Mr. Jani, thereafter, tried to explain the difference in the duties and functions of both the operators in the form of a chart;
Sr. Object Mono Operator Lino Operator
No.
1 Number of 50+ speed bar 90+ bar
buttons in (same as
each typewriter)
language
2 Languages English, Gujarati, English, Gujarati
Hindi
3 Scripts As above As above
4 M.S.S Typed and Typed and
(handwritte handwritten handwritten
n typed)
5 Compressor Compressor Nil-Graphite+Lead
(pressure in
pound)
6 Number of
Machineries
7 Tabular Solid and tabular Solid and tabular of 3
work to 4 columns.
8 Norms in Eng-7000-GUJ- ENG-4500, GUJ-3800
ENS 6000 P.H. P.H9.
9 Points 8, 10 8, 10 and 12 8, 10 and 12.
and 12
10 Remarks in Only Operating Operating,
any correcting, casting
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11 Working of
the
machinery
12 Responsibili Only operating Operating, casting,
ties corrections,
additions and
alterations.
12. Mr. Jani, thereafter, placed reliance on the following averments made in the affidavit filed by Shri M.M. Shrivastav, Principal Secretary, Finance Department dated 22nd August, 2006;
"1. I have gone through the memo of the petition and the annexures supplied therewith. I have also perused all the relevant documents and official records pertaining to the present case. I am conversant with the facts of the present case, I am competent as well as duly authorized to file the present affidavit pursuant to the order dated 18-7- 2006, passed by this Hon'ble Court in the captioned matters for the limited purpose of putting on record the stand of the State Government as regards implementation of the recommendation of the Anomaly committee. However, I reserve my right to file a detailed reply affidavit as and when it becomes so necessary.
2. At the outset, I deny all the averments made and contentions raised in the present petition, save and except those, which are specifically admitted by me hereinafter. Non-denial of any of the allegations may not be construed as an admission on the part/off the answering deponent.
3. I respectfully say that the pay-scale of Mono Operator cadre working in the Director of Page 31 of 68 HC-NIC Page 31 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT Government Printing & Stationery under the Industries & Mines Department of the State Government from 1-1-1986 is Rs. 1200-2040 and from 1-1-1996, the pay scale is Rs. 4000-6000. It is further respectfully stated that the demand of the said Mono Operator cadre is to grant them pay-scale from 1.1.986 on par with the Leno Operator cadre in the pay-scale of Rs.1350-2200 and from 1-1-1996 in the pay scale of Rs. 4500-7000. It is further respectfully stated that the Pay Anomaly Committee had recommended the pay-scale for the cadre of Mono Operators from 1.1.1986 at Rs. 1350-2200 and from 1-1-1996 at Rs. 4500- 7000.
4. It is further respectfully stated that the Cabinet Sub- Committee did not accept the recommendation of the Pay Anomaly Committee and kept intact the pay-scale from 1-1- 1986 at Rs. 1200- 2040 and from 1-1-1996 at Rs. 4000-6000 for Mono Operators.
5. It is respectfully stated that the State Government has decided to accept the recommendation of the Cabinet Sub Committee in this particular matter. The decision of Government has already been conveyed to the petitioner.
13. Mr. Jani, in the last, relied on the following averments made in a very recent affidavit filed by a Senior Manager of the Government Central Press, Gandhinagar;
"5. I respectfully say and submit that, at the outset, as a first desideratum, it is very much crucial to give a foundation to the two cadres namely Mono Operators and Lino Operators. As per the Printing and Stationary Manual, 1969, it gives logical and cogent classification to these two cadres. I say that it is provided under the Printing and Stationary Manual of Volume -II, General rules and procedure on Page 32 of 68 HC-NIC Page 32 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT internal working in the Printing and Stationery Department'. At this juncture, prior to explaining the Mono Section and Lino Section, it is noteworthy that, the Mono and Lino carder falls in 'Mechanical Composing' Section'. As per the Manual above referred, under Clause 469, the said explanation is provided for the ready reference and complete understanding of the nature of work, the aforesaid provision is quoted herein below:
"Mechanical Composing "
"469. Mechanical Composing section is divided in two subsections viz. (i) Mono and (ii) Lino.
470. Mono Sectional:- The Mono section should be generally in charge of atleast an Assistant Compose Foreman or Assistant Compose Supervisor. The working of mono section can be divided in two parts viz. (i) Operating and (ii) Casting.
(i) Operating:- Immediately on receipt of work from the Compose Overseer or the Compose Foreman, the Assistant Compose Foreman or the Assistant Compose Supervisor in charge of the Mono section, should examine the MSS copy thoroughly and see whether details regarding style, type, indentation etc. are indicated on the same by the Head Examiner or by the Head Reader who has edited the copy. If necessary, he should get other required information from the Compose Overseer or Compose Foreman and then enter the Work in his register of work received and hand over the copy to an operator for operating on Mono Key board. The Assistant Compose Foreman or the Assistant Compose Supervisor should give all the necessary instructions to the operator in order to enable him to ensure uniformity and correctness. The Assistant Compose Foreman or the Assistant Compose Supervisor has to make necessary entries regarding the date and time of completion of composition of the matter and also time required for earring out necessary corrections and the date when the work is sent for approval or for printing.
471. Mono Key board Operator:- The Mono Key board Page 33 of 68 HC-NIC Page 33 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT operator operates the matter to be composed on Mono paper spools on the Mono Key board. By operating on the key board, the matter to be composed is perforated on the Mono paper spools and when the spools are cast on Mono casting machines, the required matter is obtained in composed pages.
472. Duties of Mono Key board 0perator:-- The duties of Mono Key board operator are as under:-
(1) The Mono Key Board operator is held personally responsible for the proper maintenance of his key board.
(2) He should maintain the key board clean and in good working condition.
(3) He should execute all operating work correctly speedily in the correct measure and the lines correctly justify.
(4) Every operator should maintain his daily work- Docket in the prescribed form.
(5) He should report to the Assistant Compose Foreman or, Assistant compose Supervisor, all breakages, stoppages etc. as and when they occur. (6) Every operator must know the correct measure and justification, proper spacing, good punctuation, correct spelling and how to set up tabular and column work and double justification work (7) He must also know the different styles of work, and must be able to carry out minor adjustments of machines, change of keyboards, key barframes, stop~bars etc.
473. Rated Task.- The Rated task of a Mono Keyboard operator is as under:-
(1) 6000 corrected ens per hour in English and (2) 4000 corrected ens per hour in Gujarati or Devnagari.Page 34 of 68
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474. Besides giving the prescribed standard of outturn, an operator must know for earning of annual increments, the correctness of measures and justification, correct spacing, good punctuation, correct spelling and must be able to set up tabular and column work and double justification work correctly. For crossing the efficiency bar and for subsequent annual increments, his outturn for the previous 12 months and thereafter should be:--
(1) 7000 corrected ens per hour in English and (2) 5000 corrected ens per hour in Gujarati or Devnagari.
475. Mono Operator Reservists- A Mono Operator Reservists has to assist the Mono Key-Board operator and to acquire a speed of 3,500 corrected ens per hour for earning his annual increments. For promotion as Mono Keyboard operator, his outturn should be 6000 corrected ens per hour.
Costing- The operator Mono paper spools are cast on Mono Casters by Mono Caster attendants.
476. Duties of Mono Caster Attendant - (1) The Mono Caster Attendant will be held personally responsible for the casting machine, on which he is working.
(2) He should maintain the machine clean and in good working condition.
(3) He should execute all casting work properly and without damage to the machine.
(4) He should maintain his daily Docket of work in the prescribed form.
(5) He should report any stoppage or breakage of the machine to the Mono-mechanic and to the Assistant Page 35 of 68 HC-NIC Page 35 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT Compose Foreman or the Assistant Compose Supervisor as the case may be.
(6) He must also be able to carry out minor adjustments of the machine and must have good knowledge of casting including adjustments, changing of moulds, matrices, micrometer;calculating of type body-ise and point- wise, and alignment and temperature of metal used on Mono Casting machines.
477. Rated task of Mono Caster Attendant- The rated task of a Mono Caster attendant is as follows:-
(1 ) 7000 pica ens per hour before efficiency bar and for earning annual increments, and (2 ) 8000 pica ens per hour for crossing the efficiency bar and thereafter for earning subsequent increments. .
478. Mono Caster Reservist.- The Mono Caster Reservist has to attend to the Mono Casters and to help the Mono caster attendant in his maintenance work. For promotion, his outturn showed to 7000 pica ens per hour.
Lino Composing
479. Duties of Lino Operators- The duties of Lino Operator are as under-
(1) As Lino machines are very intricate and delicate, the Lino Operator should not disturb the adjustment of the machine but report the defects or stoppages to the Lino Mechanic who will set the machine in good working condition.
(2) Before starting the work, he should get all necessary details of work from the Compose Foreman such as style, indentation etc. in order to ensure uniformity and correctness in setting.
Page 36 of 68HC-NIC Page 36 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT (3) He will be properly responsible for the working of the Lino machine on which he working and he will be liable for disciplinary action for any unauthorised adjustment or damages to the machine.
(4) The Lino Operator should maintain his daily work Docket in the prescribed form.
(5) He must know minor adjustments of Lino machines, change of ejector blades distribution box working, etc. and he should be able to compose correctly according to the required style.
480. Rated task- The rated task of a Lino Operator is as under-
(1) A lino operator should have a minimum speed of 4500 corrected ens per hour in Engilish and 3000 corrected ens in Devnagari or Gujarati.
(2) For crossing the efficiency bar, then after his outturn should be 6000 corrected ens per hour in English and 4000 corrected ens in Gujarat or Devnagari.
481. Lino bar attendants or Lino reservists- They have to assist the Lino operators in proper maintenance of the machines and to acquire minimum speed of 4500 corrected ens per hour for their promotion as Lino Operators. On no account they should change or disturb the adjustments of the Lino machine. They will be liable for disciplinary action for negligence etc.
482. The specimens of forms used in the Mono and Lino sections are as under:-
(1) Register of work received, (2) Daily Docket of Mono or Lino operators and Mono Caster Attendants.Page 37 of 68
HC-NIC Page 37 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT (3 ) . Time Docket for compositor's corrections, (4) Stoppage report.
As it is very perceptible, from the bare reading of the afore-quoted explanation that the duties of the Mono Operators and duties of the Lino Operators working, duties, and object is piercingly distinct. However, to highlight the difference in the duties and for easy understanding these two type of duties are quoted herein below in a tabular form:
Duties of Mono Operators Duties of Lino Operators.
The Mono Key Board As Lino Machines are very
operator is held personally intricate and delicate, the
responsible for the proper Lino Operator has not to
maintenance of his key disturb the adjustment of the
board. machine but report the
defects or stoppages to the
Lino Mechanic who will set
the machine in good working
condition.
He has to maintain the key Before starting the work, he board clean and in good must get all necessary working condition. details of work from the Compose Foreman such as style, identification etc. in order to ensure uniformity and correctness in setting.
He has to execute all He will be properly operating work correctly responsible for the working of speedily in the correct the Lino Machine on which he measure and the lines works and he will be liable for correctly justified. disciplinary action for any unauthorized adjustment or damage to the machine.
Every operator has to The Lino Operator has to
maintain his daily work maintain his daily work
docket in the prescribed docket in the prescribed
form. form.
He has to report to the He must know minor
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Assistant Compose adjustments of Lino
Foreman or Assistant machines, change of ejector
Compose Supervisor, all blades distribution box
breakages, stoppages etc. working etc. and he should
as and when they occur. be able to compose correctly
according to the required
style.
Every operator must know -
the correct measure and
justification, proper
spacing, good punctuation
correct spelling and how to
set up tabular and column
work and double
justification work.
He must also know the -
different styles of work,
and must be able to carry
out minor adjustments of
machines, change of
keyboards, key barframes,
stop-bars etc.
6. I say that in order to highlight the distinction between the nature and duties of Mono Operators and Lino Operator carders the recruitment rules of each carder are referred and emphasized. The Government vide notification dated 24.04.1984 framed recruitment rules for Mono Operator, and, in the year 1977, the Government had framed the rules for Lino Operator. Copies of the recruitment rules of each individual carder are annexed herewith and marked as Annexure-I colly.
7. I respectfully say and submit that, the Mono Operators and Lino Operators are feeder cadres of 'Compose Foreman'. The same is classified in the recruitment rules issued by the Industries and Mines Department Notification dated 04.11.1976. The copy of the aforesaid rule for Compose Foreman is Page 39 of 68 HC-NIC Page 39 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT annexed herewith and marked as ANNEXURE--II. As it is clearly noticeable through the Recruitment Rules of Compose Foreman, specifically under the Clause-Ill of the Notification of the Industries and Mines Department dated 04.11.1976 that, in order to eligible for appointment by the promotion to the post of Compose Foreman, a person shall be appointed from Lino Operator or Mono Operator. This point is taken to establish that Mono Operator and Lino Operator are feeder cadre to Compose Foreman in the ratio as specified in the recruitment rules.
8. I respectfully submit that it is imperative to mention that, the Compose Foreman is classified into 3 feeder cadres;
9. Assistant Compose Foreman having Pay Scale of R5200- 20200/- and Grade Pay of Rs.2400/-.
10. Mono Operator having Pay Scale of Rs.5200-
20200/~ and Grade Pay of Rs.2400/-.
11. Lino Operators having Pay-Scale of Rs.5200- 20200 and Grade Pay of Rs.2800.
It is also clarified that, the Assistant Compose Foreman has also a further feeder cadre i.e. Compositor having Pay-Scale of Rs.5200-20200/- and Grade Pay of Rs.24OOI-. Similarly, Mono Operator has a feeder cadre of Mono Reservist having Pay. Scale of Rs.5200-20200/~ and Grade Pay of Rs.1900. And lastly, Lino Operator which has further sub cadre of Lino Reservist having Pay-Scale of Rs.5200.20200 and Grade Pay of Rs. 1900/-. For the ready reference and easy understanding a graphical chart supported along-with the Recruitment Rules of sub feeder cadre is annexed herewith and marked as ANNEXURE--III.
Page 40 of 68HC-NIC Page 40 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT
12. I respectfully say and submit that, as second desideratum, it is pertinent to refer to the working of the Mono Operator and Lino Operator, in specific, which is explained in tabular chart, herein below;
Sr. Work of Mono Operator Work of Lino Operator No. 1 Mono Operator has to The Lino Operator operate only mono key undertakes the working board and he has to do operating, casting and them by typing only; correction of line by himself and on the same lino machine;
2 The working of the mono The Lino Operator has to
casting is undertaken by keep an electric lamp to
the Mono Caster read the line by line in
Attendant and correction the matter,
is made by the
Compositor. Thus, three
different working
activities are undertaken
by the three person;
3 The Mono Operator has The Lino Operator has to
not to undertake casting handle magazine
and correction weighing 200 kg for
making change in the
type point;
4 The Mono Operator has Only, Lino Operator can
to operate under the correct the cast working light done by him and its not manually feasible;
5 The Mono Operator has The casting correction to change a justification undertaken by the lino drum only while making operator is not manually change in the type point possible only Lino Operator can do it on lino machine 6 The casting correction The Lino Operator has to undertaken under the make faultless work line Page 41 of 68 HC-NIC Page 41 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT mono system is possible by line, and therefore, manually and it is done his work is of greater by the Compositor. responsibility.
Incorrect work done by the Mono Operator can be revised.
13 I respectfully say and submit that, as a third desideratum, it is pertinent to refer to the current position, out of 46 petitioners has reached the age of superannuation/ unfortunately expired so far as the other 8 petitioners are at present with the different departments with the State Government.
14. I respectfully say and submit that, the technique of Mono and lino printing has become out-of-date, and thus, the deponent office is not currently taken any service from the employee of Mono Operators and Lino Operators. The copy of the details of each petitioners who were appointed in the carder of Mono and Lino operator in Special Civil Application No. 1768 of 1992 is annexed herewith and marked as ANNEXURE-IV.
15 I respectfully say and submit that, as a fourth desideratum, it is pertinent to refer to the Pay-Scales in consonance with the prevailing 'Revision of Pay Rules.' (Here in after referred as ROP's), the said desiderata establishes how the Pay-Scale is differentiated for both these cadres of Mono and Lino Operator since its inception. I say and submit that since the creation of these posts, the posts had never been considered to be at parity ever.
16. I respectfully say and submit that, the classification of Mono Operators and Lino Operators according to the ROP's and the Pay scale applicable at the relevant time is mentioned herein below in the tabular format-
ROP Pay-scale ROP Pay scale Page 42 of 68 HC-NIC Page 42 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT ROP Rules, 350-560 ROP Rules, 380-600 1975 1975 Annexure-A-1 ROP Rules, 1200-2040 ROP Rules, 1350-2200 1987 1987 Annexure-A-2 ROP Rules, 4000-6000 ROP Rules, 4500-7000 1998 1998 Annexure-A-3 ROP Rules, 5200-20200 ROP Rules, 5200-20200 2009 Grade Pay 2009 Grade Pay Annexure-A-4 2400 2800
A copy of the aforesaid Pay Rules is annexed herewith and marked as ANNEXURE- Colly along with the affidavit in reply.
17. I respectfully say and submit that, as a last desideratum, it is very obsequiously submitted that, there cannot be any mechanical application of the doctrine of equal pay to equal work qua, the glooming, amiss and feable contention of the petitioner, in connection with soaring prayer of the petitioner in seeking pay anomaly with these two carders of Mono and Lino operator. At this juncture, it is pertinent to bear in mind, the settled legal position which clearly establishes that, the doctrine of equal pay to equal work is not a abstract doctrine, and is capable of being enforced in the Court of Law but equal pay much before equal work. At this juncture, the answering respondent humbly submits that there is no equal work at all, to establish and demonstrate that this doctrine can be applied in the instant case."
14. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is, whether the writ-applicants are entitled to the reliefs as prayed for Page 43 of 68 HC-NIC Page 43 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT in the writ-applications.
15. It is well-settled that the doctrine of equal pay for equal work can be invoked only when the employees are similarly situated. Similarity in the designation or nature or quantum of work is not determinative of equality in the matter of pay-scales. The Court has to consider the factors like the source and mode of recruitment/appointment, 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 a wholesale identity between the holders of the two posts.
16. As held by the Supreme Court in the case of Supreme Court Employees Welfare Association v. Union of India and another, AIR 1990 SC 334, that although the doctrine equal pay for equal work does not come within Article 14 of the Constitution of India as an abstract doctrine, yet if any classification has been made relating to the pay-scale and such classification is unreasonable and/or if unequal pay is based on no classification, then Article 14 will at once be attracted and such classification should be set at naught and equal pay may be directed to be paid for equal work.
17. Where unequal pay has brought about a discrimination within the meaning of Article 14 of the Constitution of India, it will be a case of equal pay for equal work, as envisaged by Article 14 of the Constitution Page 44 of 68 HC-NIC Page 44 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT of India. If the classification is proper and reasonable, and has a nexus to the object sought to be achieved, the doctrine of equal pay for equal work will have no application, even though the persons doing the same work are not getting the same pay. It is for the Government or the management to fix the pay-scales, after considering various other matters and the Court can only consider, whether such fixation of the pay-scales has resulted in an invidious discrimination or is arbitrary or patently erroneous in law or in facts.
18. It appears from the materials on record that according to the Sarela Pay Commission, the Lino Operators and the Mono Operators were being paid the salary in the pay scale of Rs.175-275. The Lino Operators came before this Court by filing the Special Civil Application No.2008 of 1972, in which, they submitted that their salary should be higher than the Mono Operators. The said writ application came to be withdrawn on the statement being made by the State Government before the Court that the Desai Pay Commission would look into the issue and the petitioner could make a representation in that regard to the Desai Pay Commission. The Desai Pay Commission considered the representation of the Lino Operators and recommended the pay scale of Rs.380-600, whereas for the Mono Operators, the pay scale of Rs.350-560 was recommended. It appears that the Lino Operators, thereafter, filed one another writ petition being the Special Page 45 of 68 HC-NIC Page 45 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT Civil Application No.2025 of 1976 for the implementation of the Desai Pay Commission and the said writ application came to be allowed by this Court. The argument of Mr. Jani, the learned counsel is that neither before the Desai Pay Commission nor before this Court, the Mono Operators were the parties and were given any opportunity of putting forward their case. According to Mr. Tanna, the Desai Pay Commission only considered the representation of the Lino Operators. Thus, it appears that after the Desai Pay Commission, the Lino Operators were put in the pay scale of Rs.380-600, whereas the Mono Operators were put in the pay scale of Rs.350-560.
19. The revision of pay in the year 1987 brought the Lino Operators in the pay scale of Rs. 1350-2200 and the Mono Operators in the scale of Rs.1200-2040. Once again, in the revision of pay 1998, the Lino Operators were put in the pay scale of Rs.4500-7000, whereas the Mono Operators were placed in the pay scale of Rs.4000-6000.
20. It appears that in the Central Government, the Mono Operators and the Lino Operators are being paid the salary in the same scale. Before the 3rd Central Pay Commission, an attempt was made by the Lino Operators to seek a higher scale than the Mono Operators, but the same was not accepted.
21. The case of the petitioners may be summarized as Page 46 of 68 HC-NIC Page 46 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT under;
(A) The Mono Operators do the work of preparing budget, preparing annual development program, priority work of Legislative Assembly,election work, gazette work, audit report, etc. The Lino Operators are required to prepare books or reports where there are no figures or chart and the subject mater is in running script.
(B) The Lino Operators do not have the work like preparing charts, giving figures and using a different language in the draft etc. The Lino Operators have to use one language at a time and have to work with approximately 90 buttons where less pressure have to be applied and running material has to be typed with the person operating the machine can read directly. The Lino Operators for composing work has three assistants available, i.e., the Lino Attendant, Lino Reservoir and Compositors. A Mono Operator has to do his work alone and has to operate a key board which has 396 keys in three scripts and four languages. The machine used by the Mono Operators works by pressure compressor to the tune of 15 pounds and one has to apply force to operate the keys. After applying pressure on the keys, the material is reflected on the Mono spool which cannot be read directly and, therefore, operating has to be done with full concentration of mind.
Page 47 of 68HC-NIC Page 47 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT The petitioners state that keeping this grievance in mind, the petitioners had made a detailed representation to Shri C.N. Shah, One Man Committee appointed after Justice S.A. Shah submitted his report. The petitioners state that the said representation has been preferred on 13.10.1987. The petitioners state that this Honourable Court (Coram: K. Singh,J.) vide order dated 25.8.1998 had directed the present petitioners to prefer representation in addition to representation dated 13.10.1987 and the respondents authorities to decide the same. The respondent authorities could also refer the said matter to the "Anomaly Commission". The petitioners preferred representation dated 25.9.1998 which came to be decided vide order dated 24.9.1999 in which order the respondent authorities have also referred to the original representation of the petitioners herein dated 13.10.1987. It is stated in the said order that the Expert Committee had considered the said representation and had recommended identical pay scales for the Mono Operators and the Lino Operators. The said proposal of the Expert Committee had not been accepted by the Finance Department of the State Government. The respondent authorities while rejecting the later representation of the petitioners have given the reason that the Lino Operators do more work ,and from time to time, at revision of pay scales, the Mono Operators have always been placed at a lower scale than the Lino Operators. In short, the petitioners state that the representation of the present Page 48 of 68 HC-NIC Page 48 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT petitioners has been rejected vide a non-speaking order by the respondent authorities.
The petitioners base their claim for being given equal pay scale compared to the Lino Operators on the following grounds;
(1) The Desai Pay Commission, which recommended the higher pay scale for the Lino Operators, had not heard the case of the Mono Operators.
(2) This Hon'ble Court while deciding the Special Civil Application No.2025 of 1976 has not declared that the Mono Operators are required to be paid a lesser scale, this Hon'ble Court had only directed the State-Government to implement recommendation of the Desai Pay Commission vis-a-vis the Lino Operators.
(3) The Mono Operators claim that the work done by them is of more responsible and arduous nature as compared to the Lino Operators which contention had been examined through representation dated 13.10.1987 by the Expert Committee which had recommended grant of equal scales to the Mono and Lino Operators. That whether the work of the Lino Operator or the Mono Operator is more arduous and/or responsible, whether the work is equal etc. is the domain of the Expert Committee which can look into and understand all the technical Page 49 of 68 HC-NIC Page 49 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT aspects of the same. The Expert Committee has recommended in favour of the petitioners. The recommendation of the Expert Committee has been rejected by the Finance Department, no reasons are provided.
(4) In the Central Government, both Lino and Mono Operators are being paid the same scale and attempt of Lino Operators to be granted a higher scale and had been rejected by the Third Pay Commission.
(5) While rejecting the representation preferred as per the order of this Hon'ble Court, the respondent authorities have not given any just or cogent reasons for the rejection. Total non-application of mind is reflected in the reasoning that at every revision of pay, the Lino Operators are paid higher than the Mono Operators. That initially the First Pay Commission recommended equal pay scales for Lino and Mono Operators and on the basis of recommendation of the Desai Pay Commission, the Lino Operators started getting the higher pay scale.
22. Let me now look into the position of law as regards the doctrine of equal pay for equal work and also the binding effect of the Pay Commissions' recommendations.
23. In the case of M.P. Rural Agriculture Extension Officers Association vs. State of M.P. & Anr., 2004(4) Page 50 of 68 HC-NIC Page 50 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT 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 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 Page 51 of 68 HC-NIC Page 51 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT 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 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 Page 52 of 68 HC-NIC Page 52 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT 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. "
24. 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 as under;
"11. There can be no denial of the legal position that Page 53 of 68 HC-NIC Page 53 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT 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.
25. 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. "
26. 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;
"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 Page 54 of 68 HC-NIC Page 54 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT 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".
27. In Government of West Bengal v. Tarun Kumar Roy, (2004)1 SCC 347, a three-Judge Bench of the Supreme Court held as under :
"14. Article 14 read with Article 39(d) of the Constitution of India envisages the doctrine of equal Page 55 of 68 HC-NIC Page 55 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT 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."
28. 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 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 Page 56 of 68 HC-NIC Page 56 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT 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)
29. 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 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 Page 57 of 68 HC-NIC Page 57 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT 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.
30. 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 ."
31. 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 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 Page 58 of 68 HC-NIC Page 58 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT 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...."
32. 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 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 Page 59 of 68 HC-NIC Page 59 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT 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. v. Ramesh Chandra Bajpai, (2009) 13 SCC 635) : (2010 AIR SCW 2748).
33. The Supreme Court while deciding a similar issue in Page 60 of 68 HC-NIC Page 60 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT 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)).
34. 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 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:-
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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.
35. 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.
36. 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.
37. In Union of India and Ors. v. S.L. Dutta and 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 Page 62 of 68 HC-NIC Page 62 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT 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)
38. 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......"
39. 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 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 Page 63 of 68 HC-NIC Page 63 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT supervisory jurisdiction of the court can operate".
40. 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.
41. 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 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 Page 64 of 68 HC-NIC Page 64 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT 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.
42. This Court fairly concedes to the fact that it is not equipped with the expertise to decide as to whether the post of the Mono Operators is, in all respect, comparable with the post of the Lino Operators. Prima facie, a case could be said to have been made out by the writ applicants, but I am of the view that it would be appropriate to ask the State Government to reexamine the entire case of the writ applicants in light of the relevant details, facts, data and the documents elaborated by the Page 65 of 68 HC-NIC Page 65 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT writ applicants.
43. 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.
44. 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 accept its recommendations. However, the State Government is not expected to brush aside the recommendations lightly and without assigning any Page 66 of 68 HC-NIC Page 66 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT 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.
45. This writ application is disposed of with the following directions;
45.1 The State-respondents are directed to take up the case of the writ applicants for reconsideration as regards the pay scale.
45.2 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 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 Page 67 of 68 HC-NIC Page 67 of 68 Created On Sat Oct 14 00:08:18 IST 2017 C/SCA/1768/1992 CAV JUDGMENT 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 68 of 68 HC-NIC Page 68 of 68 Created On Sat Oct 14 00:08:18 IST 2017