Allahabad High Court
Baldeo Singh Son Of Ramayan Singh vs The State Of U.P. Through Secretary, ... on 13 November, 2007
Bench: S. Rafat Alam, Sudhir Agarwal
JUDGMENT
S. Rafat Alam and Sudhir Agarwal, JJ.
1. The intra court appeal, under the rules of the court, arises from the judgment of the Hon'ble Single Judge dated 25.9.2007 dismissing the appellant's Civil Misc. Writ Petition No. 46478 of 2007, which had been preferred against the order of the State Government-respondent No. l dated 5.9.2007.
2. We have heard Shri S.S. Tripathi, learned Counsel for the appellant and the learned Standing Counsel appearing for the respondents and perused the record.
3. It appears that the petitioner-appellant is working as Lab Assistant (Rural). However, he made representation before the State Government claiming pay scale of Lab Assistant (Ayurved), which had been rejected vide order dated 5.9.2007. Aggrieved, the appellant preferred the aforesaid writ petition. The Hon'ble Single Judge having heard learned Counsel for the parties and having noticed that the eligibility of work and the area of work being different held that there could be no comparison between the Lab Assistant (Ayurved) and the Lab Assistant (Rural) and, therefore, dismissed the writ petition. Hence, this appeal.
4. Shri S.S. Tripathi, learned Counsel for the appellant vehemently contended that earlier there were only one cadre of Lab Assistant and common pay scale had been provided. However, subsequently, the Lab Assistant (Ayurved) claimed salary of Lab Technician, which was allowed. The Hon'ble Single Judge by the judgment dated 3.2.1989 in Civil Misc. Writ Petition No. 8364 of 1989 directed to the State Government to examine the case and grant the aforesaid pay scale on the ground that their qualification, nature of duties are similar to each other, therefore, they deserve same pay scale. It is further contended that against the aforesaid judgment SLP was dismissed and, therefore, the State Government granted pay scale of Lab Technician to the Lab Assistant (Ayurved). He, therefore, submitted that since the qualification etc. are similar to each other the Lab Assistants (Rural) are entitled to get the same scale, which is paid to Lab Assistant (Ayurved).
5. We are not convinced with the submission for the reason that it is apparent from the order of the State Government dated 5.9.2007 that the qualification, nature of work etc. of the Lab Assistant (Rural) is not similar to that of Lab Assistant (Ayurved). Besides that, admittedly, their cadre is separate and governed by separate rules. Thus, there being no similarity in the nature of work, qualification and the place of work, the parity in the pay scale cannot be claimed.
6. The principle of equal pay for equal work can neither be applied mechanically nor in a casual manner nor would be attracted only on the ground that nomenclature or some of the conditions of work or qualification etc. are similar. It depends upon a variety of factors and even a single difference may justify difference in the pay scale. It is difficult to exhaustively give all such factors or circumstances wherein the difference in pay can be justified but some of such aspect may be given hereunder as having been laid down even by the Hon'ble Apex Court, since this issue has time and again cropped up before the Hon'ble Apex Court and this Court frequently. The law has been laid down by the Hon'ble Apex Court in catena of cases, some of which are referred to herein-below.
In Randhir Singh v. Union of India and Ors. the Apex Court considering the principle of equal pay for equal work held as under-
It is not an abstract doctrine but one of substance. Construing Articles 14 and 16 in the light of the Preamble and Article 39(d) of the Constitution, the Apex Court held that the principle of equal pay for equal work is deducible from those Articles and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though those drawing the different scales of pay do identical work under the same employer.
In R.D. Gupta and Ors. v. Lt. Governor, Delhi Administration and Ors. the Apex Court applying the principle ot equal pay tor equal work, in para 20 of the judgment, considered the correctness of defence justifying non application of the said principle and held:
the ministerial staff in the NDMC constitute a unified cadre. The recruitment policy for the selection of the ministerial staff is a common one and the recruitment is also done by a common agency. They are governed by a common seniority list. The ministerial posts in the three wings of the BDNC viz, the general wing, the electricity wing and the waterworks wing are interchangeable posts and the postings are made from the common pool according to administrative convenience and exigencies of service and not on the basis of any distinct policy or special qualifications. Therefore, it would be futile to say that merely because a member of the ministerial staff had been given a posting in the electricity wing, either due to force of circumstances or due to voluntary preferment, he stands on a better or higher footing or in a more advantageous position than his counterparts in the general wing. It is not the case of the respondents that the ministerial staff in the electricity wing perform more onerous or more exacting duties than the ministerial staff in the general wing. It therefore follows that all sections of the ministerial staff should be treated alike and all of them held entitled to the same scales of pay for the work of equal nature done by them.
In Federation of All India Customs and Central excise Stenographers and Ors. v. Union of India and Ors. , it was held that- "there may be qualitative difference as regards reliability and responsibility justifying different pay scale. Functions may be the same but the responsibilities make a difference. One cannot deny that often the difference is a mater of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as such value judgment is made bonafide, reasonably on an intelligible criterion, which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination. It was further observed that the same amount of physical work may entail different quality of work, some more sensitive, some requiring more tact, some less, it varies from nature and culture of employment.
In Jaipal and Ors. v. State of Haryana and Ors. (1988) 3 SCC 354, the Apex Court held as under:
The doctrine of equal work equal pay would apply on the premise of similar work, but it does not mean that there should be complete identity in all respects. If the two classes of persons do same work under the same employer, with similar responsibility, under similar working conditions the doctrine of equal work equal pay would apply and it would not be open to the State to discriminate one class with the other in paying salary. The State is under a constitutional obligation to ensure that equal pay is paid for equal work.
In State of U.P. and Ors. v. J.P. Chaurasia and Ors. , the Apex Court while considering the justification of two pay scales of the Bench Secretaries of the High Court observed as under:
Entitlement to the pay scale similar would not depend upon either the nature of work or volume of work done by Bench Secretaries. Primarily it requires among others, evaluation of duties and responsibilities of the respective posts. More often functions of two posts may appear to be the same or similar, but there may be difference in degrees in the performance. The quantity of work may be the same, but quality may be different that cannot be determined by relying upon averments in affidavits of interested parties. The equation of posts or equation of pay must be left to the executive Government. It must be determined by expert bodies like Pay commission. They would be the best judge to evaluate the nature of duties and responsibilities of posts. If there is any such determination by a Commission or Committee, the court should normally accept it. The Court should not try to tinker with such equivalence unless it is shown that it was made with extraneous consideration.
In Grih Kalyan Kendra Workers' Union v. Union of India and Ors. , it was observed that- "the question of parity in pay scale cannot be determined by applying mathematical formula. It depends upon several factors namely nature of work, performance of duties, qualifications, the quality of work performed by them. It is also permissible to have classification in services based on hierarchy of posts, pay scale, value of work and responsibility and experience. The classification must, however, have a reasonable relation to the object sought to be achieved.
In The secretary, Finance Department and Ors. v. The West Bengal Registration Service Association and Ors. JT T992 (2) SC 27, the Apex Court observed as under:
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. The factors which may have to be kept in view for job evaluation may include (1) the work programme of his department (ii) the nature of contribution expected of him (iii) the extent of his responsibility and accountability in 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. It was further observed that normally 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 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....
In Jaghnath v. Union of India and Anr. the Apex Court following the earlier judgment observed that- "classification of officers into two grades with different scales of pay based either on academic qualification or experience or length of service is sustainable. Apart from that, higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues is very common in career service. There is selection grade for District Judges. There is senior time scale in Indian Administrative Service. There is suppertime scale in other like services. The entitlement to these higher pay scales depends upon seniority-cum-merit or merit -cum-seniority. The differentiation so made in the same cadre will not amount to discrimination. The classification based on experience is a reasonable classification. It has a rational nexus with the object thereof. To hold otherwise, it would be detrimental to the interest of the service itself....
In State of Madhya Pradesh and Anr. v. Pramod Bhartiya and Ors. (1993) 1 SCC 539 the Apex Court held as under:
It would be evident from this definition that the stress is upon the similarity of skill, effort and responsibility when performed under similar conditions. Further, as pointed out by Mukharji, J. (as he then was) in Federation of All India Customs and Excise Stenographers' the quality of work may vary from post to post. It may vary from institution to institution. We cannot ignore or overlook this reality. It is not a matter of assumption but one of proof. The respondents (original petitioners) have failed to establish that their duties, responsibilities and functions are similar to those of the non-technical lecturers in Technical Colleges. They have also failed to establish that the distinction between their scale of pay and that of non technical lecturers working in Technical Schools is either irrational and that it has no basis, or that it is vitiated by mala fides, either in law or in fact (see the approach adopted in Federation case). It must be remembered that since the plea of equal pay for equal work has to be examined with reference to Article 14, the burden is upon the petitioners to establish their right to equal pay, or the plea of discrimination, as the case may be. This burden the original petitioners (respondents herein) have failed to discharge.
In Shyam Babu Verma and Ors. v. Union of India and Ors. the Apex Court observed that- "the principle of equal pay for equal work should not be applied in a mechanical or casual manner. Inequality of the men in different groups excludes applicability of the principle of equal pay for equal work to them. Unless it is established that there is no reasonable basis to treat them separately in matters of payment of wages or salary, the Court should not interfere holding different pay scale as discriminatory".
In Sher Singh and Ors. v. Union of India and Ors. , the Apex Court rejected the claim of the library staff of Delhi University and its constituent colleges regarding parity in pay with the teaching staff on the ground that the nature of duties, work load, experience and responsibilities of the two sets of employees in question are totally different from each other.
In Union of India and Ors. v. Delhi Judicial Service Assn. and Anr. the Apex Court reversing the judgment of the High Court allowing the same scale of pay to all the officers of Higher Judicial Services, held as under:
We think that the high Court was not right in giving selection grade scale of pay to all the officers on the principle of equal pay for equal work. If that be so the Dist. Munsif (Junior civil Judge, Junior subordinate Judge) etc, lowest officer in judicial hierarchy is entitled to the pay of the Senior most super-time scale district Judge as all of hem are discharging judicial duty. The marginal difference principle also is equally inappropriate. Similarly of posts or scale of pay n different services are not relevant. The nature of the duty, nature of the responsibility and degree of accountability etc. are relevant and germane considerations. Grant of selection grade, suppertime scale etc. would be akin to a promotion. The result of the impugned direction would wipe out the distinction between the time Scale and Selection grade officers. The learned Counsel for the Union of India, pursuant to our order, has placed before us the service conditions prevailing in the Higher Judicial Services in other States in the country. Except Gujrat which had wiped out the distinction after the judgment in all India Judges Association's case, all other States maintained the distinction between the Grade 1 and Grade II Higher Judicial offices or Time Scale and Selection Grade or Suppertime scales etc. In fact this distinction is absolutely necessary to inculcate hard work, to maintain character, to improve efficiency, to encourage honesty and integrity among the officers and accountability. Such distinctions would not only be necessary in the Higher Judicial Service but also, indeed in all services under the State and at every stage....
In Sifa Devi and Ors. v. State of Haryana and Ors. , the Apex Court upheld different pay scale on the basis of qualification relying on the earlier judgments of the Apex Court in The State of Mysore and Anr. v. P. Narasinga Rao ; State of Jammu and Kashmir v. Triloki Nath Khosa and P. Murugesan and Ors. v. State of Tamil Nadu .
In State of Haryana v. Jasmer Singh and Ors. , the Apex Court justified different pay scale on various factors observing as under:
It is, therefore, clear that the quality of work performed by different sets of persons holding different jobs will have to be evaluated. 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 the basis of criteria such as experience and seniority, or a need to prevent stagnation in the cadre, so that good performance 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. This Court has repeatedly observed that evaluation of such jobs for the purposes of pay scale must be left to expert bodies and, unless there are any mala fides, its evaluation should be accepted.
In Garhwal Jal Sansthan Karmachari Union and Anr. v. State of U.P. and Ors. (1997) SCC 24, the Apex Court in para 8 of the judgment rejected the claim of pay parity between the employees of Jal Nigarm and Jal Sansthan on the ground of qualitative difference in the duties, function and responsibilities in the two organizations.
In Union of India and Ors. v. Pradip Kumar Dey , the question of parity of pay scale of Naik, Radio Operator in CRPF and the employees working as Radio Operator in Directorate of Coordination Police Wireless came up for consideration on the principle of equal pay for equal work, the Apex Court negated the validity of parity observing that the different pay scale prescribed taking into account hierarchy in service and other relevant factors cannot be interfered as it would disturb the entire chain of hierarchy.... Para-14 In State of Orissa and Ors. v. Balaram sahu and Ors. the Apex Court observed in para 11 as under:
Though "equal pay for equal work" is considered to be a concomitant of Article 14 as much as "equal pay for unequal work" will also be a negation of that right, equal pay would depend upon not only the nature or the volume of work, but also on the qualitative difference as regards reliability and responsibility as well and though the functions may be the same, but the responsibilities do make a real and substantial difference....
In State of Haryana and Anr. v. Haryana Civil Secretariat Personal Staff Association , it was held in para 10 -
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 the 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....
In State Bank of India and Anr. v. M.R. Ganesh Babu and Ors. , the Apex Court observed in para 16 as under:
The principle of equal pay for equal work has been considered and applied in may reported decisions of this Court. The principle has been adequately explained and crystallized and sufficiently reiterated in a catena of decisions of this Court. It is well settled that equal pay must depend upon the nature of work done. It cannot be judged by the mere volume of work; there may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities make a difference. One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as value judgment is made bona fide, reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination. The principle is not always easy to apply as there are inherent difficulties in comparing and evaluating the work done by different persons in different organizations, or even in the same organization. Differentiation in pay scales of persons holding same posts and performing similar work on the basis of difference in the degree of responsibility, reliability and confidentiality would be a valid differentiation. The judgment of administrative authorities concerning the responsibilities which attach to the post, and the degree of reliability expected of an incumbent, would be a value judgment of the authorities concerned which, if arrived at bona fide, reasonably and rationally, was not open to interference by the court.
In State of Haryana and Ors. v. Charanjit Singh and Ors. the Apex Court observed as under:
Having considered the authorities and the submissions we are of the view that the authorities in the cases of Jasmer Singh, filak Raj, Orissa University of Agriculture & Technology and Tarun K. Roy lay down the correct law. Undoubtedly, the doctrine of "equal pay for equal work" is not an abstract doctrine and is capable of being enforced in a Court of law. But equal pay must be for equal work of equal value. The principle of "equal pay for equal work" has no mechanical application in every case. Article 14 permits reasonable classification based on qualities or characteristics of persons recruited and grouped together, as against those who were left out. Of course, the qualities or characteristics must have a reasonable relation to the object sought to be achieved, In service matters, merit or experience can be a proper basis for classification for the purposes of pay in order to promote efficiency in administration. A higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues is also an acceptable reason for pay differentiation. The very fact that the person has not gone through the process of recruitment may itself, in certain cases, make a difference. If the educational qualifications are different, then also the doctrine may have no application. Even though persons may do the same work, their quality of work may differ. Where persons are selected by a Selection Committee on the basis of merit with due regard to seniority a higher pay scale granted to such persons who are evaluated by competent authority cannot be challenged. A classification based on difference in educational qualifications justifies a difference in pay scales. A mere nomenclature designating a person as say a carpenter or a craftsman is not enough to come to the conclusion that he is doing the same work as another carpenter or craftsman in regular service. The quality of work which is produced may be different and even the nature of work assigned may be different; It is not just a comparison of physical activity. The application of the principle of "equal pay for equal work" requires consideration of various dimensions of a given job. The accuracy required and the dexterity that the job may entail may differ from job to job. It cannot be judged by the mere volume of work. There may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities made a difference. Thus normally the applicability of this principle must be left to be evaluated and determined by an expert body. These are not matters where a writ court can lightly interfere. Normally a party claiming equal pay for equal work should be required to raise a dispute in this regards.
(emphasis added) Recently, in State of Bihar and Ors. v. Bihar State + 2 Lecturers Association and Ors. the Hon'ble Apex Court reterring to its earlier judgments has stated that the doctrine of equal pay for equal work should not be applied in casual manner. Though it is a doctrine well established in service jurisprudence and also is a concomitant of Article 14 of the Constitution but equal pay depends not only on the nature or volume of work but also on quality of work as regards reliability and response etc. In S.C. Chandra and Ors. v. State of Jharkhand and Ors. dated 21.8.2007 the Hon'ble Apex Court held that 'to attract the principle of 'equal pay for equal' work one must satisfy the basis that he is performing equal and identical work as is being discharged by others against him.
7. His lordship Hon'ble Markandey Katju, J in his separate but concurring judgment in S.C. Chandra and Ors. (supra) has observed as under:
Equal pay for equal work' is a concept, which requires for its applicability, complete and wholesale identity between a group of employees claiming identical pay scales and the other group of employees, who have already earned such pay scale. The problem about equal pay cannot always be translated into mathematical formula.
8. His lordship has also observed that grant of pay scale is purely executive function and the Court should not interfere with the same. It may have a cascading effect creating all kinds of problem for the government and authority, hence the court should exercise judicial restraint and should not interfere in such executive functions. In para 26 of the judgment S.C. Chandra and Ors. (supra) his Lordship further held as under:
In our opinion, fixing pay scale 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. Realizing 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 (and there too the matter should be sent for examination by an expert committee appointed by the Government instead of the Court itself granting higher pay.) Same view was reiterated by his Lordship in Canteen Mazdoor Sabha v. Metallurgical Engineering Consultants (1) Ltd. and Ors. and recently, in Union of India and Ors. v. Hlranmoy Sen and Ors. Civil Appeal No. 7232 of 2003 decided on 12.10.2007.
9. In view of the aforesaid exposition of law and considering the facts that the qualification, nature of work etc. of the Lab Assistant (Ayurved) and Lab Assistant (Rural) both cannot be said to be identical in any manner, in our view, the petitioner cannot invoke the above principle being situated differently. We, therefore, do not find any factual or legal error in the judgment of the Hon'ble Single Judge impugned in this appeal warranting interference.
10. The appeal is devoid of merit and is hereby dismissed. No order as to costs.