Allahabad High Court
Bhawani Prasad Sahu And 8 Ors. vs State Of U.P. Through Secy. Finance ... on 14 December, 2022
Author: Neeraj Tiwari
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R Court No. - 7 Case :- WRIT - A No. - 167 of 2014 Petitioner :- Bhawani Prasad Sahu And 8 Ors. Respondent :- State Of U.P. Through Secy. Finance Deptt. Lko. And Another Counsel for Petitioner :- Durga Prasad Dwivedi,Ashutosh Shahi,Sharad Dwivedi Counsel for Respondent :- C.S.C. Hon'ble Neeraj Tiwari,J.
Heard learned counsel for the petitioners and learned Standing Counsel for the State-respondents.
Present petition has been filed with the following prayers:-
"(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 7.4.2011, 8.12.2010, 22.9.2009, 7.10.2010, 11.3.2011, 30.12.2011, 1.4.2012 passed by the opposite parties as contained at Annexure No.1, 2, 3, 4, 5, 6 & 7/
(ii) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to fix the pay scale of the petitioners equal to the pay scale of generator operator of Irrigation Department i.e. Rs. 4000-100-Rs.6000 with effect from 1.1.1996."
Learned counsel for the petitioners submitted that present controversy is arising due to discrimination of pay scale of the similarly situated employees in two departments of State of U.P., i.e. Public Works Department (in short PWD) and Irrigation Department.
Learned counsel for the petitioners submitted that petitioners were initially appointed as daily wager in PWD. Services of petitioners were regularized on 2.7.2003 (wrongly typed as 2.7.2013). He next submitted that petitioner nos. 1 to 6 were selected and appointed from the post of Helper to Generator Operator by the Selection Committee whereas petitioner nos. 7, 8 & 9 were working on the post of Generator Operator since their initial appointment. Presently, all petitioners were working on the post of Generator Operator in different divisions of PWD. He further submitted that petitioner nos. 1, 3 & 5 are operating the generators of 100 KVA whereas petitioner nos. 2 & 4 are operating generator of 320 KVA & 140 KVA respectively. Further, petitioner nos. 8 & 9 are operating generator of 180 KVA & 100 KVA. Petitioner nos. 6 & 7 are operating generator of 125 KVA and 62.5 KVA.
He next submitted that like petitioners, there are also daily wagers employees in Irrigation Department, later on who have been given appointment on the post of Generator Operator with identical nature of work. He further submitted that Irrigation Department bifurcated their work in two parts depending upon the capacity of generator, which they are operating. The operators, who are operating generator of 50 KVA have been given pay scale of Rs.3050-4590/- whereas other operators, who are operating generator over and above of 50 KVA are given pay scale of Rs.4000-6000/-. He next submitted that petitioners as well as generator operator of Irrigation Department are performing same duty, but petitioners were deprived from the pay scale of Rs.4000-6000/- and being paid the pay scale of Rs.3050-4590/-.
Considering this fact that matter was considered by the Chief Engineer, PWD and vide letter dated 31.7.2012 recommendation has been made to respondent no.2 to grant similar pay scale as given to the generator operator of Irrigation Department, but the same has not been granted. Again, Chief Engineer, PWD vide letters dated 25.4.2013 & 1.5.2013 had made recommendation with similar request to PWD, but no action has been taken. He firmly submitted that Irrigation Department and PWD, both are department of State of U.P. and petitioners as well as generator operators of Irrigation Department are performing same work and duty, therefore, petitioners are also entitled for same pay scale as given to generator operators of Irrigation Department running the generators of over and above of 50 KVA.
In support of his contention, he has placed reliance upon the judgment of the Apex Court in the case of Randhir Singh vs. Union of India and others reported in (1982) 1 SCC 618, where Apex Court has held that if two departments are under control of one Government and employees are having similar duty, no discrimination can be made in their salary and both sets of employees would be governed by principal of 'equal pay for equal work' and entitled for same salary.
He next submitted that the same ratio of law was again followed by the Apex Court in the matter of State of Punjab and others Vs. Jagjit Singh and others reported in (2017) 1 SCC 148.
Learned Standing Counsel vehemently opposed the submission and submitted that petitioners cannot claim parity of pay scale as a matter of right. He next submitted that merely similarity of designation or quantum of work cannot be a ground for equality of pay scale. In support of his contention, he has placed reliance upon the judgment of Apex Court in the matter of State of Madhya Pradesh vs. Seema Sharma passed in Civil Appeal No. 3892 of 2022.
He further submitted that fixation of pay scale and determination of parity in duties is the function of the executive and scope of judicial review is very limited. In support of this contention, he has also placed reliance upon the judgment of the Apex Court in the case of State of Haryana and another vs. Haryana Civil Secretariat Personal Staff Association reported in 2022 6 SCC 72.
Being confronted by the Court, learned Standing Counsel appearing for the State could not dispute this fact that Irrigation Department and PWD are the department of State of U.P. with equal status headed by Principal Secretary. He also could not point out any difference about the nature of appointment of petitioners in PWD and other employees in Irrigation Department. Other Factual submissions so argued by the learned counsel for the petitioners could also not be disputed by the learned Standing Counsel.
I have considered the rival submissions advanced by the learned counsel for the parties and perused the records. I have also gone through the judgments relied upon by the leaned counsel for the parties. Facts of the case are undisputed. Irrigation Department and PWD are the department of State of U.P., having equal status headed by the Principal Secretary appointed by the State Government. Petitioners as well as generator operator of Irrigation Department are performing same duty of running the generator of over and above of 50 KVA. There is also no difference in appointment procedure and nature of work of petitioners and generator operators of Irrigation Department. Similar matter came before the Apex Court in the case of State of U.P. vs. Randheer Singh (supra) and Apex Court has taken clear cut view that if two departments are under control of one Government and employees are having similar duty, no discrimination can be made in their salary and both sets of employees would be governed by principal of 'equal pay for equal work.' Relevant paragraph nos. 8 & 9 of the said judgment are quoted hereinbelow:-
"8. It is true that the principle of 'equal pay for equal work' is not expressly declared by our Constitution to be a fundamental right. But it certainly is a Constitutional goal. Art.39(d)of the Constitution proclaims 'equal pay for equal work for both men and women" as a Directive Principle of State Policy. 'Equal pay for equal work for both men and women' means equal pay for equal work for everyone and as between the sexes. Directive principles, as has been pointed out in some of the judgments of this Court have to be read into the fundamental rights as a matter of interpretation. Art. 14of the Constitution enjoins the state not to deny any person equality before the law or the equal protection of the laws and Art.16 declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. These equality clauses of the Constitution must mean some thing to everyone. To the vast majority of the people the equality clauses of the Constitution would mean nothing if they are unconcerned with the work they do and the pay they get. To them the equality clauses will have some substance if equal work means equal pay. Whether the special procedure prescribed by a statute for trying alleged robber-barons and smuggler kings or for dealing with tax evaders is discriminatory, whether a particular Governmental policy in the matter of grant of licences or permits confers unfettered discretion on the Executive, whether the takeover of the empires of industrial tycoons is arbitrary and unconstitutional and other questions of like nature, leave the millions of people of this country untouched. Questions concerning wages and the like, mundane they may be, are yet matters of vital concern to them and it is there, if at all that the equality clauses of the Constitution have any significance to them. The preamble to the Constitution declares the solemn resolution of the people of India to constitute India into a Sovereign Socialist Democratic Republic. Again the word 'Socialist' must mean something. Even if it does not mean 'To each according to his need', it must atleast mean 'equal pay for equal work'. The principle of 'equal pay for equal work' is expressly recognized by all socialist systems of law, e.g, Section 59 of the Hungarian Labour. Code, para 2 of Section 111 of the Czechoslovak Code, Section 67 of the Bulgarian Code, Section 40 of the Code of the German Democratic Republic, para 2 of Section 33 of the Rumanian Code. Indeed this principle has been incorporated in several western labour codes too. Under provisions in Section 31 (g. No. 2d) of Book I of the French Code du Travail, and according to Argentinian law, this principle must be applied to female workers in all collective bargaining agreements. In accordance with Section 3 of the Grundgesetz of the German Federal Republic, and clause 7, Section 123 of the Mexican Constitution, the principle is given universal significance (vide: International Labour Law by Istvan Szaszy p. 265). The preamble of the Constitution of the International Labour Organisation recognises the principle of 'equal remuneration for work of equal value' as constituting one of the means of achieving the improvement of conditions "involving such injustice, hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperilled". Construing Articles 14 and 16 in the light of the Preamble and Art.39(d)we are of the view that the principle 'Equal pay for Equal work' is deducible from those Article and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though these drawing the different scales of pay do idential work under the same employer.
9. There cannot be the slightest doubt that the drivers in the Delhi Police Force perform the same functions and duties as other drivers in service of the Delhi Administration and the Central Government. If anything, by reason of their investiture with the 'powers, functions and privileges of a police officer', their duties and responsibilities are more arduous. In answer to the allegation in the petition that the driver-constables of the Delhi Police Force perform no less arduous duties than drivers in other departments, it was admitted by the respondents in their counter that the duties of the driver-constables of the Delhi Police Force were onerous. What then is the reason for giving them a lower scale of pay than others ? There is none. The only answer of the respondents is that the drivers of the Delhi Police Force and the other drivers belong to different departments and that the principle of equal pay for equal work is not a principle which the Courts may recognise and act upon. We have shown that the answer is unsound. The clarification is irrational. We, therefore, allow the Writ Petition and direct the respondents to fix the scale of pay of the petitioner and the drivers-constables of the Delhi Police Force atleast on a par with that of the drivers of the Railway Protection Force. The scale of pay shall be effective from 1st January, 1973, the date from which the recommendations of the Pay Commission were given effect."
In the matter of State of Punjab and others Vs. Jagjit Singh (supra), same factum of law is expressed in detail by the Apex Court. Relevant paragraph no. 42.3 & 60 of the said judgment are quoted hereinbelow:-
"The principle of ''equal pay for equal work', applies to cases of unequal scales of pay, based on no classification or irrational classification (see - the Randhir Singh case1). For equal pay, the concerned employees with whom equation is sought, should be performing work, which besides being functionally equal, should be of the same quality and sensitivity (see - the Federation of All India Customs and Central Excise Stenographers (Recognized) case3, the Mewa Ram Kanojia case5, the Grih Kalyan Kendra Workers' Union case6 and the S.C. Chandra case.
57. Having traversed the legal parameters with reference to the application of the principle of ''equal pay for equal work', in relation to temporary employees (daily-wage employees, ad-hoc appointees, employees appointed on casual basis, contractual employees and the like), the sole factor that requires our determination is, whether the concerned employees (before this Court), were rendering similar duties and responsibilities, as were being discharged by regular employees, holding the same/corresponding posts. This exercise would require the application of the parameters of the principle of ''equal pay for equal work' summarized by us in paragraph 42 above. However, insofar as the instant aspect of the matter is concerned, it is not difficult for us to record the factual position. We say so, because it was fairly acknowledged by the learned counsel representing the State of Punjab, that all the temporary employees in the present bunch of appeals, were appointed against posts which were also available in the regular cadre/establishment. It was also accepted, that during the course of their employment, the concerned temporary employees were being randomly deputed to discharge duties and responsibilities, which at some point in time, were assigned to regular employees. Likewise, regular employees holding substantive posts, were also posted to discharge the same work, which was assigned to temporary employees, from time to time. There is, therefore, no room for any doubt, that the duties and responsibilities discharged by the temporary employees in the present set of appeals, were the same as were being discharged by regular employees. It is not the case of the appellants, that the respondent-employees did not possess the qualifications prescribed for appointment on regular basis. Furthermore, it is not the case of the State, that any of the temporary employees would not be entitled to pay parity, on any of the principles summarized by us in paragraph 42 hereinabove. There can be no doubt, that the principle of ''equal pay for equal work' would be applicable to all the concerned temporary employees, so as to vest in them the right to claim wages, at par with the minimum of the pay-scale of regularly engaged Government employees, holding the same post."
Respondents have also relied upon the judgment of Apex Court in the matter of State of Madhya Pradesh vs. Sushma Sharma (supra). Apex Court held that while considering the case of 'equal pay for equal work', mode of recruitment, qualification for the post, nature of work, value of work & responsibilities involved and various other factors has to be taken into consideration and Court can only interfere where there is discrimination between two sets of employees appointed by the State Government. Here, there is no dispute that both the department are having equal status, mode of recruitment, qualification for the post, nature of work, value of work and responsibilities etc., are also same, therefore, Court has full authority to interfere in the matter. In fact, this judgment is in favour of petitioner. Relevant paragraph nos.18 & 23 of the same are quoted hereinbelow:
"18. In Ramesh Chandra Bajpai (supra), this Court further held that it was well-settled that the doctrine of equal pay for equal work could only be invoked when the employees were similarly circumstanced in every way. Mere similarity of designation or similarity or quantum of work was not determinative of equality in the matter of pay scales. The Court had to consider all the relevant factors such as the mode of recruitment, qualifications for the post, the nature of work, the value of work, responsibilities involved and various other factors.
23. The fixation of scales of pay is a matter of policy, with which the Courts can only interfere in exceptional cases where there is discrimination between two sets of employees appointed by the same authority, in the same manner, where the eligibility criteria is the same and the duties are identical in every aspect."
Respondents have also relied another judgment of Apex Court in the matter of State of Haryana and another vs. Haryana Civil Secretariat Personal Staff Association (supra) and this judgment is also in favour of petitioners. In the said judgment, Apex Court has held that ordinarily courts will not enter upon the ask of job evaluation which is generally left to expert bodies like the Pay Commissions, etc., but that is not to say that the Court has no jurisdiction and the aggrieved employees have no remedy, if they are unjustly treated by arbitrary State action or inaction. Here the facts are undisputed that the status of both the employees are equal, therefore, Court has full right to intervene in the matter. Relevant paragraph nos. 9 & 10 are quoted hereinbelow:-
"This Court in the case of Secretary, Finance Department vs. West Bengal Registration Service Association and Ors., [1993] Supp I SCC 153, dealing with the question of equation of posts and equation of salaries of government employees, made the following observations :
"We do not consider it necessary to traverse the case law on which reliance has been placed by counsel for the appellants as it is well settled that equation of posts and determination of pay scales is the primary function of the executive and not the judiciary and, therefore, ordinarily courts will not enter upon the ask of job evaluation which is generally left to expert bodies like the Pay Commissions, etc. But that is not to say that the Court has no jurisdiction and the aggrieved employees have no remedy if they are unjustly treated by arbitrary State action or inaction. Courts must, however, realize that job evaluation is both a difficult and time consuming task which even expert bodies having the assistance of staff with requisite expertise have found difficult to undertake sometimes on account of want of relevant data and scales for evaluating performances of different groups of employees. This would call for a constant study of the external comparisons and internal relativities on account of the changing nature of job requirements. The factors which may have to be kept in view for job evaluation may include (i) the work programme of his department (ii) the nature of contribution expected of him (iii) the extent of his responsibility and accountability of the discharge of his diverse duties and functions (iv) the extent and nature of freedoms/ limitations available or imposed on him in the discharge of his duties (v) the extent of powers vested in him (vi) the extent of his dependence on superiors for the exercise of his powers (vii) the need to co-ordinate with other departments, etc. We have also referred to the history of service and the effort of various bodies to reduce the total number of pay scales to a reasonable number. Such reduction in the number of pay scales has to be achieved by resorting to broadbanding of posts by placing different posts having comparable job charts in a common scale. Substantial reduction in the number of pay scales must inevitably lead to clubbing of posts and grades which were earlier different and unequal. While doing so care must be taken to ensure that such rationalization of the pay structure does not throw up anomalies. Ordinarily a pay structure is evolved keeping in mind several factors, e.g., (i) method of recruitment, (ii) level at which recruitment is made, (iii) the hierarchy of service in a given cadre, (iv) minimum educational/technical qualifications required, (v) avenues of promotion, (vi) the nature of the duties and responsibilities, (vii) the horizontal and vertical relativities with similar jobs, (viii) public dealings, (ix) satisfaction level, (x) employer's capacity to pay, etc. We have referred to these matters in some detail only to emphasise that several factors have to be kept in view while evolving a pay structure and the horizontal and vertical relativities have to be carefully balanced keeping in mind the hierarchical arrangements, avenues for promotion, etc, Such a carefully evolved pay structure ought not to be ordinarily disturbed as it may upset the balance and cause avoidable ripples in other cadres as well. It is presumably for this reason that the Judicial Secretary who had strongly recommended a substantial hike in the salary of the Sub-Registrars to the Second (State) Pay Commission found it difficult to concede the demand made by the Registration Service before him in his capacity as the Chairman of the Third (State) Pay Commission. There can therefore, be no doubt that equation of posts and equation of salaries is a complex matter which is best left to an expert body unless there is cogent material on record to come to a firm conclusion that a grave error had crept in while fixing the pay scale for a given post and Court's interference is absolutely necessary to undo the injustice.
It is to be kept in mind that the claim of equal pay for equal work is not a fundamental right vested in any employee though it is a constitutional goal to be achieved by the Government. Fixation of pay and determination of parity in duties and responsibilities is a complex matter which is for the executive to discharge. While taking a decision in the matter several relevant factors, some of which have been noted by this Court in the decided case, are to be considered keeping in view the prevailing financial position and capacity of the State Government to bear the additional liability of a revised scale of pay, It is also to be kept in mind that the priority given to different types of posts under the prevailing policies of the State Government is also a relevant factor for consideration by the State Government. In the context of complex nature of issues involved, the far reaching consequences of a decision in the matter and its impact on the administration :of the State Government courts have taken the view that ordinarily courts should not try to delve deep into administrative decisions pertaining to pay fixation and pay parity. That is not to say that the matter is not justiciable or that the courts cannot entertain any proceeding against such administrative decision taken by the government. The courts should approach such matters with restraint and interfere only when they are satisfied that the decision of the government is patently irrational unjust and prejudicial to a section of employees and the government while taking the decision has ignored factors which are material and relevant for a decision in the matter. Even in a case where the court holds the order passed by the government to be unsustainable then ordinarily a direction should be given to the State Government or the authority taking the decision to reconsider the matter and pass a proper order. The court should avoid giving a declaration granting a particular scale of pay and compelling the government to implement the same. As noted earlier, in the present case 'the High Court has not even made any attempt to compare the nature of duties and responsibilities of the two sections of the employees, one in the State Secretariat and the other in the Central Secretariat. It has also ignored the basic principle that there are certain rules, regulations and executive instructions issued by the employers which govern the administration of the cadre."
In light of facts mentioned hereinabove as well as law laid down by Apex Court, this Court is of the view that once the employer is same, mode of recruitment, qualification for the post, nature of work and other responsibilities are same, such employees shall be governed by principal of 'equal pay for equal work', and there cannot be any denial of similar pay scale on any ground.
In the present case, there is no dispute on the point that mode of recruitment of petitioners as well as employees of Irrigation Department i.e. generator operators is the same. Further, they are having same nature of work i.e. running generators over and above of 50 KVA. Their principal employer is also same i.e. State Government having full control over both the departments i.e. PWD and Irrigation Department headed by Principal Secretary.
Therefore, the writ petition is allowed and impugned orders dated 7.4.2011, 8.12.2010, 22.9.2009, 7.10.2010, 11.3.2011, 30.12.2011, 1.4.2012 are hereby quashed. A writ of mandamus be issued to the respondents to pay the same pay scale i.e. Rs.4000-6000/- to the petitioners also as given to generator operators of Irrigation Department from the date on which it has given to them.
They shall also be entitled for the interest at the bank rate from due date to the date of actual payment.
No order as to costs.
Order Date :- 14.12.2022 Junaid