Gujarat High Court
D M Jadeja & 9 vs Gujarat Tourism Development ... on 11 January, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/2563/2001 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2563 of 2001
With
SPECIAL CIVIL APPLICATION NO. 2573 of 2001
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
==========================================================
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 ?
========================================================== D M JADEJA & 9....Petitioner(s) Versus GUJARAT TOURISM DEVELOPMENT CORPORATION LIMITED &
3....Respondent(s) ========================================================== Appearance:
MR YATIN OZA, SR.ADVOCATE with MR NIRZAR S DESAI, ADVOCATE for the Petitioner(s) No. 1 - 10 MR SWAPNESHWAR GOUTAM, AGP for the Respondent(s) No. 3 MR KUNAL B.NAIK for M/S TRIVEDI & GUPTA, ADVOCATE for the Respondent(s) No. 1 MR KV SHELAT, ADVOCATE for the Respondent(s) No. 4 RULE SERVED for the Respondent(s) No. 2 ========================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Page 1 of 32 HC-NIC Page 1 of 32 Created On Thu Jan 12 00:46:05 IST 2017 C/SCA/2563/2001 CAV JUDGMENT Date : 11/01/2017 COMMON CAV JUDGMENT Since the issues raised in both the captioned writ- applications are interrelated, those were heard analogously and are being disposed of by this common judgment and order.
For the sake of convenience, the Special Civil Application No.2563 of 2001 is treated as the lead matter.
By this writ-application, the writ-applicants have prayed for the following reliefs :
"(A) Your Lordships may be pleased to admit this petition.
(B) This Hon'ble Court may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondents to pay the petitioners the pay scale of those direct recruit Managers Grade I i.e. 8000-13500.
(C) Pending admission, hearing and final disposal of the petition, this Hon'ble Court may be pleased to direct the respondents to pay the petitioners the pay scale of those direct recruit Managers Grade I i.e. 8000-13500.
(D) Any other and further reliefs as may be deemed fit and proper in the interest of justice."
The case of the writ-applicants may be summarised as under :
The writ-applicants seek to challenge the order dated 9th December 2000 passed by the respondent no.2, by which the Page 2 of 32 HC-NIC Page 2 of 32 Created On Thu Jan 12 00:46:05 IST 2017 C/SCA/2563/2001 CAV JUDGMENT writ-applicants have been denied the higher pay-scale of Rs.8000-13500. The writ-applicants are serving with the respondent no.1 - Corporation as the Managers since a long period of time. The Corporation came into existence in the year 1978. It is an autonomous body. Before the Corporation was established, the writ-applicants were serving under the Ministry of Tourism. On creation of the Corporation in the year 1978, the writ-applicants were absorbed in the Corporation. They all were earlier working as the Manager-Grade-I in the pay-scale of Rs.425-700.
It is the case of the writ-applicants that according to the hierarchy, the Manager Grade-I would be promoted to the post of Manager. At the relevant point of time the pay-scale of the cadre of the Manager was Rs.700-1300. It is the case of the writ-applicants that after being promoted to the post of Manager from the post of Manager Grade-I they should have been put in the pay-scale of Rs.700-1300. However, instead of doing so, the respondents created a new pay-scale which was higher than Rs.435-700 but lower than Rs.700-1300. The new pay-scale was fixed at Rs.550-900. According to the writ- applicants, there was no pay-scale of Rs.550-900 on the establishment of the Corporation. Despite the same, they were put in the said pay-scale. Identically situated persons serving as the Managers in the Corporation but recruited directly were paid the pay-scale of Rs.700-1300.
It is the case of the writ-applicants that the nature of the work, the other service conditions, responsibilities, etc. remained the same. The pay-scale of Rs.700-1300 came to be revised to Rs.2200-4000 and thereafter to Rs.8000-13500.Page 3 of 32
HC-NIC Page 3 of 32 Created On Thu Jan 12 00:46:05 IST 2017 C/SCA/2563/2001 CAV JUDGMENT In the past, the writ-applicants had preferred the Special Civil Application No.5882 of 1989 with regard to the very same subject matter. The said writ-application was disposed of by a learned Single Judge vide order dated 29th September 2000. The order reads as under :
"The Managers' Association of the Gujarat Tourism Corporation has preferred this petition for a direction to the respondents to pay salary to its members in the scale of 700 - 1300 (revised to 2200 - 4000 and further revised to 8000 - 13500) from the date of their appointment. The basis of their claim is that the direct recruits appointed to the same cadre were drawing the pre-revised pay-scale of Rs. 2200 - 4000. The grievance of these Managers is that though they are required to discharge identical work and they are inter-transferable to various resorts, they are given a lower pay-scale which amounted to a discriminatory treatment violative of their right to equality guaranteed by Articles 14 and 16 of the Constitution of India. Several instances of transfers of the members of the petitioners' Association to "A" grade resorts have been relied upon to indicate that the petitioners' members have been discharging work similar to the work done by the direct recruits who are given higher pay-scale. During the course of the arguments, since the petitioner had not made such demand before the concerned authorities and the authorities therefore had no occasion to apply their mind and take a decision on the subject pertaining to the grievances of the petitioner, it appeared to be proper for the petitioner Association and/or its members to make a representation to the concerned authorities of the respondent, so that they may take into account the grievances which are sought to be raised before this Court and take a decision on administrative side in accordance with law. In this background, it has been stated by the learned Counsel for the petitioner that the petitioner and/or its members shall make a representation within two weeks from today before the concerned authority of the respondents ventilating their grievances and seeking an appropriate decision in the matter.Page 4 of 32
HC-NIC Page 4 of 32 Created On Thu Jan 12 00:46:05 IST 2017 C/SCA/2563/2001 CAV JUDGMENT The learned Counsel appearing for the respondent No..1 - Tourism Corporation states that the Corporation will take an appropriate decision in accordance with law after considering the representation, within four weeks after it is received. It is accordingly directed that the respondents shall consider the application/representation of the petitioner and/or its members that may be made and take a decision in accordance with law within four weeks after it is received. The application/representation that may be made by the petitioner shall be decided independently of the stand taken by the respondents in the affidavits that have been filed in this petition. If the decision goes against the petitioner, it will be open to the petitioner to challenge the same in accordance with law. In view of this arrangement, the learned Counsel for the petitioner states that the petitioner does not press for this petition at this stage. The petition stands disposed of accordingly. Rule is discharged with no order as to costs."
Pursuant to the order passed by this Court referred to above, the writ-applicants preferred a detailed representation, which came to be rejected vide order dated 9th December 2000. Being dissatisfied, the writ-applicants have come up with this writ-application.
Mr.Yatin Oza, the learned senior advocate assisted by Mr.Nirjar Desai, the learned counsel appearing for the writ- applicants, vehemently submitted that the respondents committed a serious error in rejecting the representation filed by his clients. According to Mr.Oza, the principle of 'equal pay for equal work' directly applies in the present case.
Mr.Oza pointed out that except the qualifications there is no substantial difference so far as his clients compared to the Managers working in the 'A' category resorts run by the Corporation in the State of Gujarat are concerned. There is no Page 5 of 32 HC-NIC Page 5 of 32 Created On Thu Jan 12 00:46:05 IST 2017 C/SCA/2563/2001 CAV JUDGMENT good reason for the Corporation to create a disparity in the pay-scale on any ground. Mr.Oza laid much emphasis on the following averments made in the writ-application :
"The petitioners state and submit that on number of occasions the present petitioners had worked and are still working at all those A category resorts which are viz. Chorwad, Ahmedpur-Mandvi, Sasan-Gir, Ubhrat, Pavagadh etc. and at all those places, which are A category resorts their work has been found to be satisfactory. Annexed hereto and marked as Annuxure-G collectively are the copies of the orders passed by respondents transferring petitioners to those A category resorts. The petitioners state and submits that a bare perusal of these would itself be evident to the effect that the petitioners are in fact serving and performing their duties of Manager of those A category resorts but yet for some extraneous reasons the respondents are not paying them pay scale of those direct recruit managers (8000- 13500) and, therefore, this Hon'ble Court's indulgence is craved for by the by the present petitioners."
In support of his submissions, Mr.Oza has placed strong reliance on a Division Bench decision of this Court in the case of State of Gujarat v. Dr.P.A.Bhatt (Letters Patent Appeal No.295 of 2013 and allied appeals, decided on 17th January 2014).
On the other hand, all the writ-applications have been vehemently opposed by Mr.Kunal B.Naik, the learned counsel appearing for the Corporation and the learned APP appearing for the State respondents. The learned counsel would submit that the writ-applicants have no case and the principle of 'equal pay for equal work' is not applicable in the facts of the case. The learned counsel has placed reliance on the following averments made in the affidavit-in-reply filed on behalf of the respondent nos.1 and 2.
Page 6 of 32HC-NIC Page 6 of 32 Created On Thu Jan 12 00:46:05 IST 2017 C/SCA/2563/2001 CAV JUDGMENT "4. Before dealing with the contentions raised by the petitioners in the present petition and before entering into the merits of the case. I would like to point out factual position with regard to the commencement of service of the petitioners in the respondent corporation. Whereas, petitioners No.1, 6, 8, 9 & 10 were before their appointment in the respondent corporation were employed in the Information and Broadcasting and Tourism Department of respondent No.3. I humbly submit that upon incorporation of the respondent corporation on 1.9.1978, the petitioners Nos.1, 6, 8, 9 & 10 were sent on deputation to the respondent corporation. Respondents No.2, 3, 4, 5 & 7 were employed by the respondent corporation from time to time.
5. Therefore. the statement made in para 3.2 of the petition to give an impression as if all the petitioners were Government servants working in Ministry of Tourism of the Government of Gujarat is factually wrong. The petitioners No.1, 6, 8 & 10 while in the Government service were employed in the pay scale of Rs.260-400 whereas petitioner No.9 was in the scale of Rs.330-560 and therefore, the contention that they were working as Manager-I grade in the pay scale of Rs.425-700 is also factually not correct. Upon their deputation to the respondent corporation, depending upon their length of service in Government, they were absorbed either in the Manager Grade-II in the scale of Rs.330-560 or in the Manager Grade-III in the scale of Rs.260-400. Subsequently with the growth of tourism in the State of Gujarat, a need was felt to recruit Managers with professional qualifications and requisite experience in the scale of Rs.700-1300. Accordingly, an advertisement was released on 17.8.1984 in all the leading newspapers published from Ahmedabad, Mumbai and Delhi inviting applications from the candidates holding Diploma in Hotel Management and Catering services from recognized institutions, together with at least 3 years work experience in management capacity. Alternatively candidates with 6 years experience in managerial capacity in Hotel industry were also eligible to apply. Hereto annexed and marked ANNEXURE-I is copy of one of such advertisements. In response to the said advertisement after considering the candidates who were Page 7 of 32 HC-NIC Page 7 of 32 Created On Thu Jan 12 00:46:05 IST 2017 C/SCA/2563/2001 CAV JUDGMENT called for interview, only one candidate Shri Atul Kapoor fulfilled the requisite criteria and was therefore appointed as a Deputy Manager in the scale of Rs.700-1300 at Chorwad Beach Palace Resort. None of the petitioners viz. No. 1, 6, 8, 9 & 10 were holding requisite qualifications and experience. They therefore, did not respond to the advertisement and therefore, there was no question at consideration of their cases for appointment in the scale at Rs.700-1300. I humbly submit that as already stated hereinabove, the petitioners No.1, 6, 8, 9 & 10 were not working in the scale of Rs.425-700 as falsely alleged. Besides, the appointments in the posts advertised were not in the nature of departmental promotion, but that of fresh appointment to strengthen the managerial cadre of the respondent corporation consistent with the growth of tourism activities conducted by the respondent corporation. I humbly submit that the statements made in the petition are far from truth and misleading and the present petition is therefore, requires to be dismissed in limine.
6. I humbly submit that the petitioners mentioned below were appointed in the services of the respondent corporation on various dates and on various posts and scale of pay as per the details hereinbelow:
Petitioner Date of Post Pay Scale
No. appointment
2 1.2.1980 Manager Gr.II 330-560
3 7.3.1979 Receptionist 330-560
4 6.4.1979 Catering Manager 330-560
5 10.3.1980 Manager Gr.II 330-560
7 3.12.1979 Senior Store Keeper 380-560
6.1 Subsequently, all the above petitioners have been promoted in the higher pay scales as Managers, firstly in the pay scale of Rs.425-700 from 19.5.1984, secondly in the pay scale of Rs.550-900 from 19.5.1989 and thereafter those who have completed 9 years of service in the respondent corporation have been placed in the higher pay scale of Rs.650-10500. It would thus be seen Page 8 of 32 HC-NIC Page 8 of 32 Created On Thu Jan 12 00:46:05 IST 2017 C/SCA/2563/2001 CAV JUDGMENT no injustice as alleged has been meted out to any of the petitioners. The respondent corporation was/is entitled to create new posts and appropriate pay scales for them depending upon the requirements of the respondent corporation and therefore, the petitioners could not have claimed promotion to those posts only on the basis of their being the employees of the respondent corporation when new posts and pay scales were evolved. It is not the case of the petitioners that they were not considered for these posts despite the fact that they possess the requisite qualifications and experience. I humbly submit that it is not true to say that the candidate appointed in the scale of Rs.700-1300 had to do the same nature of job and had to shoulder the same responsibilities. Except for making the bald statement of similarity, the petitioners have not stipulated the attributes of similarity. I deny that the promotions were given or appointments were made merely on the basis of whims and caprice of the respondent corporation. I humbly submit that the qualifications, skill, prowess, aptitude and experience required for a manager managing large Tourist Resorts at Chorwad and Ahmedpur Mandvi cannot be equated with a Manager of small resorts and hotels. While it is true that in case of some of the petitioners were temporarily posted at Chorwad Palace Resort but at that time the said resort was in the stage of being established and had not blossomed into a full scale tourism resort. I humbly submit that the allegations of discrimination by not paying full salary as per principle of equal pay for equal work are totally false and baseless. I humbly submit that the representation submitted by the petitioners pursuant to the order dated 29.9.2000 of this Hon'ble Court in Spl. CA. No.5882 of 1989 were duly considered from all angles by the Joint Managing Director of the respondent corporation on 8.11.2000, upon instructions of the Managing Director of the respondent corporation. However, none of the petitioners were found suitable for absorption in the scale of Rs.700-1300. A reply dated 9.12.2000 to that effect was sent to Shri U.N. Vyas, the General Secretary of petitioners Association (viz. Managers Association, Tourism Corporation of Gujarat Limited). I humbly submit that the allegations of non-application of mind and thereby causing grave prejudice to the petitioners are wholly baseless and not true.
Page 9 of 32HC-NIC Page 9 of 32 Created On Thu Jan 12 00:46:05 IST 2017 C/SCA/2563/2001 CAV JUDGMENT
7. I humbly submit that during the course of meeting with the petitioners on 8.11.2000, their grievances were heard in extenso and they were explained the detailed reasons as to why they were not equated or considered for appointment in the same of 700-1300 and subsequent revised pay scales. It was therefore, not felt necessary to give a detailed answer. It is not true that the reply was given only as a matter of routine or for the purpose of giving reply within the time limit set by this Hon'b1e Court.
7.1 I humbly submit that during the relevant period, the Tourists Resorts at Chorward and Ahmedpur Mandvi were categorised as 'A' grade. However, with passage of time and depreciation of the old structure, the respondent corporation could not maintain the same standard of facilities at Chorwad from 1994 and therefore, the status of 'A' grade given to Chonrvard Resort was discontinued. It was after this scaling down of the status that the petitioners No.2, 6, 7, 9 & 10 were posted at Chomard only for a short duration of one year. Whereas, the respondent corporation relieved itself of the responsibility of maintaining tourist resort at Ahmedpur Mandvi consistent with the decision of the Government to privatize the same from October, 1994. It is, therefore, clear that when the above named petitioners were posted at Chorward for short durations, they did not ipso facto became eligible for being elevated to the scale of Rs.700-1300 (revised from time to time, last revision being Rs.8000-13500). The said pay scales was created for candidates holding specific qualification and requisite experience and the petitioners did not fulfill both those requirements. I humbly submit that temporary postings at Chorward after the status of the resort had been scaled down on account of depletion in the facilities available at the said resort, could not be made a ground for putting the petitioners in the sale of Rs.700-1300 (revised from time to time). Simple geographical transfer from one place to another regardless of the factual background cannot confer any right upon the petitioners to claim the higher pay scale.
7.2 I humbly submit that only the resort at Chorward and Page 10 of 32 HC-NIC Page 10 of 32 Created On Thu Jan 12 00:46:05 IST 2017 C/SCA/2563/2001 CAV JUDGMENT Ahmedpur Mandvi were placed in category 'A'. Other resorts at Sasan-Gir, Ubhrat, Pavagadh, etc. have never been put in category 'A' because the facilities similar to the facilities at Choward and Ahmedpur Mandvi do not exist at those resorts. The assertion in this paragraph to the effect that the resorts at Sasan-Gir, Ubhrat, Pavagadh, etc. are also of category 'A' is a deliberate mis-statement far from truth. I humbly submit that as aforesaid resort at Ahmedpur Mandvi has been privatized since October, 1994 and the other resorts at Sasan-Gir and Ubhrat are loss making and have also been privatized. It is true. With reference to Annexure-G to the petition, it may appear that the petitioners were transferred at the respective places without specific mention that they were transferred for short duration on temporary basis. However, the above factual account will bear testimony to the contentions of the respondent corporation. It needs no emphasis to state that pay scales are evolved in consideration of the job responsibilities, job description and the skill and education required to shoulder the said responsibilities. The respondent corporation is a business venture and has to be run on sound commercial principles with cost consciousness and when necessary it has to resort to scaling down its activities when the need arises or the prospects of business expansion or even maintenance of the existing business at the same level are dim. The petitioners have possibly missed this important principle of business and commerce while claiming the pay scale of a Manager category 'A'.
8. I may new deal with some of the main allegations and submissions in the petition, however, as stated earlier, I reserve my right and crave leave to file further and detailed affidavit at later stage.
8.1. With reference to the averments in para 2, I deny that the order dated 9.12.2000 passed by respondent No.2 is illegal, arbitrary and malafide, as alleged or otherwise. I deny that the petitioners are entitled to pay scale of Rs.800-1350. I also deny that the order dated 9.12.2000 is passed under gross violation of principles of law and/or that its surfers from the vice of non-
Page 11 of 32HC-NIC Page 11 of 32 Created On Thu Jan 12 00:46:05 IST 2017 C/SCA/2563/2001 CAV JUDGMENT application of mind, as alleged or otherwise.
8.2. I humbly submit that the averments, allegations and submissions made in paras 3.1 to 3.6 which are contrary to what is stated hereinabove earlier and/or what contains in the record of the respondent corporation, are not true and they are not admitted and they are hereby denied. The averments in para 3.2 which relate to history of the corporation and/or about the absorption of the petitioner in the respondent corporation. are matter of record and for exact details and facts. I would refer to and rely upon the records. The averments in para 3.2 by virtue of which the petitioners have attempted to explain so-called hierarchy and/or promotional channel etc. are petitioners' own and convenient interpretation and submissions and the same are not admitted. It is not admitted that all the petitioners are required to put in the pay scale of Rs.700-1300. It is also not true that though all the petitioners were put in the pay scale of Rs.700- 1300, the respondent corporation, instead of doing so, created a new pay scale which was higher than that of Rs.425-700, but lower than that of Rs.700-1300. The said allegation is inaccurate and has been made out of context and without mentioning the relevant details and other aspects related to the said subject. In this regard, I reiterate my submissions hereinabove earlier particularly those made in paras 4 & 6 to 13. Likewise, the allegations made in para 3.3 also are inaccurate and have been made out of context and without mentioning relevant details and therefore, they are not admitted. The petitioners' allegation that they were similarly situated persons as compared to others who were also the Managers in the Corporation but were direct recruits, is misconceived and petitioners' own and convenient interpretation and method of looking at the facts. The allegation that the nature of work and other service conditions and responsibilities of both the set of persons i.e. the petitioners and those in the other set viz. direct recruits, was same, is not justified but is misconceived, erroneous and devoid of merits. In this regard, I reiterate the submissions made hereinabove earlier. I deny that there was any whimsical action on the part of respondent Corporation of paying two different grades and pays to different persons and/or that the said persons were Page 12 of 32 HC-NIC Page 12 of 32 Created On Thu Jan 12 00:46:05 IST 2017 C/SCA/2563/2001 CAV JUDGMENT serving on the same post, as claimed or otherwise. Merely because the designation of the two sets of persons was same, it does not automatically follow that the qualifications and/or nature of work and/or responsibilities and/or efficiency in executing the work and such other relevant aspects were also same and similar. It is denied that the only difference between the said two sets of persons was that in one set the persons were promoted whereas in the other set, the persons were direct recruits. It is denied that right from 1989 the respondent Corporation started discriminating petitioners, as alleged or otherwise and/or that the principle of equal pay for equal work was not observed. as alleged or otherwise. It is humbly submitted that in view of the differences between the two sets of persons e.g. qualifications etc. the said doctrine would not be applicable in present case. It is denied that for extraneous reasons the petitioners were ignored and were given prejudicial treatment, as alleged or otherwise. It is denied that the members of the petitioners' association were entitled to higher pay scale of Rs.700- 1300 (subsequently revised to Rs.2200-4000 and further revised to Rs.8000-13500). While denying the allegations in para 3.5, I say that it is not true that the respondent Corporation sat idle with reference the representation made pursuant to the order of the Hon'ble Court.
8.3. The allegations and submissions, except that notice alleging contempt was given and that the representation has been decided by virtue of order dated 9.12.2000 and that it was addressed/forwarded to the association, made in para 3.6 are not true and the same are denied. It is denied that the respondents did not care to apply mind over the representation. as alleged or otherwise. Merely because the order dated 9.12.2000 was addressed/forwarded to the Secretary of the Association, it would not mean that the respondents have not applied mind to the representations, as alleged or otherwise. The petitioners have, on the premise that the representations were made individually and yet the order dated 9.12.2000 in that regard has been addressed/forwarded to association only, attempted to allege that the same have not been considered and there is no application of mind however, the said allegation is incorrect and Page 13 of 32 HC-NIC Page 13 of 32 Created On Thu Jan 12 00:46:05 IST 2017 C/SCA/2563/2001 CAV JUDGMENT unjustified and not admitted and while denying the said allegation, I humbly submit that a cursory glance at the representations would demonstrate that even the representations, though ostensibly made separately/ individually, are in effect and substance like a single representation inasmuch as all the contents are same except the two blanks which have been filled-in in each case separately. To illustrate this aspect of my submission, I annex hereto the copies of representations received by the Corporation and they are collectively marked ANNEXURE "II". When same/similar representations with only modifications regarding name and blanks are made, it is unjustified to assert and allege that merely because the order has not been sent individually to each one it means that there is non- application of mind and/or the representation has not been duly considered. I humbly submit that after carefully considering the representation, submissions and factual aspects as well relating to the subject matter, the decision was taken and therefore, the allegation about non-application of mind and/or non-consideration of the representation are not true or justified and they are not admitted. In light of the fact that the SCA No.5882/89 was preferred by the association, wherein the Hon'ble Court passed the order dated 29.9.2000 and in light of the fact that similar/same representation were made by the concerned persons, it is mere glossing over of the said fact when it is claimed that the association had not made the representation. The allegation to the effect that the order dated 9.12.2000 has been passed merely for rejecting the representation and/or that it shows utmost non-application of mind and/or it has been passed without considering the same and without seriously going into the merits, is neither true nor justified and the said allegation is denied.
8.4 The averments, allegations and submissions made below para 4 under the heading "Grounds" from sub- paras (a) to (d), are misconceived, devoid of merits and substance, unjustified, contrary to facts and settled legal position and they are not admitted. In reply, I reiterate the submissions made hereinabove, and more particularly in paras 4 & 6 to 13. I humbly submit that it is not true that the order dated 9.12.2000 was a pre-
Page 14 of 32HC-NIC Page 14 of 32 Created On Thu Jan 12 00:46:05 IST 2017 C/SCA/2563/2001 CAV JUDGMENT determined reply and/or that it has been given just for the sake of giving it and only with a view to see that the respondents may not commit any contempt, as alleged or otherwise. I deny the allegation that the respondents are not interested in doing justice or redressing the grievance of the petitioners, as alleged or otherwise. The averments. allegations and submissions made purportedly on the basis of the reply affidavit in SCA No.5882/89 have been made by conveniently interpreting the submissions in the said affidavit and/or by reading the same out of context and without having regard to the facts. It is erroneous and misconceived to contend that there is no difference between the direct recruit Managers and the petitioners and/or that the respondents are attempting to run away from the liability to pay equal wages to the petitioners. The other averments and al1egations in paras under reply are vague, unsubstantiated, baseless and unjustified. The petitioners have, in paras under reply, indulged in self- praise while stating and asserting that their experience and dedication towards the work was found to be even far more suitable and superior as compared to those direct recruit Managers. In light of the facts of present case, it is misconceived to contend that the doctrine of equal pay for equal work would be applicable. "
Mr.Naik has also placed reliance on one further affidavit filed on behalf of the respondent no.1, wherein it has been stated as under :
"3. I humbly state that the claim of the petitioners herein seeking the then pay scale available to the direct recruits to the post of assistant managers is misconceived and devoid of merits. I say that the persons recruited directly to the post of manager/assistant manager were having special qualifications and therefore different pay scale was created for them. I further state that management and maintenance of some of the resorts of the Corporation required higher degree of skill and specialized knowledge in hotel management. I state that none of the petitioners possess any qualified degree/diploma in hotel management. The direct recruitments on 3 posts i.e. 1 post of assistant manager Page 15 of 32 HC-NIC Page 15 of 32 Created On Thu Jan 12 00:46:05 IST 2017 C/SCA/2563/2001 CAV JUDGMENT and 2 posts of manager were therefore made by selecting the candidates who have pursued the studies in hotel management and have experience in hotel management. I state that the petitioners could have competed in the selection procedure for direct recruitment but they have not participated in the selection procedure and now they want the pay scales granted to the direct recruits without undergoing the selection procedure. Further none of the petitioner possesses qualifications and therefore even otherwise the petitioners are not eligible to claim the pay-scales granted to the persons who are more qualified than the petitioners I humbly state that the persons who were directly recruited to the post of manager with..specialized qualification were required to fulfill following three qualification:
i. The candidate must have diploma from any recognized hotel management and catering institution.
ii. The candidate should have minimum experience of five years in management capacity alongwith the diploma.
iii. The candidate should have minimum experience of 8 years in management capacity in hotels if they are not holding diploma in hotel management.
I humbly state that the persons who were directly recruited to the post of assistant managers were required to fulfill the following qualifications:
i. The candidates must have a diploma from a recognized hotel management and catering institution alongwith minimum three years experience in management capacity.
ii. The candidate must have a minimum experience of 6 years and above in management capacity in a hotel if he is not holding diploma in hotel management.Page 16 of 32
HC-NIC Page 16 of 32 Created On Thu Jan 12 00:46:05 IST 2017 C/SCA/2563/2001 CAV JUDGMENT I say and state that the Corporation has come into existence on 1.9.1978 which was set up as a separate entity to promote tourism within the state. I say that before the said date activity of tourism was carried out under Tourism Department of the State. Thus the Corporation in its early years was required to undertake activity of promotion of tourism within the state. I say that as a part of such activity the Corporation was of the opinion that some places in the state would have greater potential for development as tourist destination and therefore the Corporation had decided to develop such places by recruiting persons who are more qualified in hotel management. I say that therefore a decision was taken by the Corporation on 17.8.1984 to make direct recruitment by giving public advertisement. A copy of the decision dated 17.8.1984 is annexed herewith and marked as Annexure R1.
I say that pursuant to such decision of the Corporation the Corporation issued a public advertisement and after undertaking selection process the eligible candidates had been appointed by the Corporation. Copy of the appointment order of the eligible candidates is annexed herewith and marked as Annexure R2. I say that such candidates possess better qualifications in hotel management than the petitioners. Therefore they had been granted higher pay-scale by the Corporation. I say that the petitioner could have and ought to have competed at the time of selection, however without competing now the petitioners are not entitled to claim the same pay-scale which would be granting back-door benefit without in fact being qualified for such pay-scale. Any of the petitioners, if at all they were qualified, could have applied for such post. However, none of the petitioner had made an application for the post of direct recruitment as manager/assistant manager.
4. I humbly state that the petitioners who were working as Manager Grade-I could not compare themselves with the direct recruits as they form two different classes on the basis of their qualifications and quality of work. I say that the classification between the petitioners and the direct recruits is because of the aforesaid reasons and therefore the claim of the petitioners for equal pay-scale Page 17 of 32 HC-NIC Page 17 of 32 Created On Thu Jan 12 00:46:05 IST 2017 C/SCA/2563/2001 CAV JUDGMENT is neither sustainable on facts nor tenable in law. I say that the petitioners herein were either absorbed from the department of tourism at the time of creation of the Corporation or were recruited by the respondent corporation as per their qualifications. Thereafter the Corporation has granted them promotions as per promotional avenues available to them. I say that the petitioners have never challenged the different pay- scales and promotional avenues prescribed under the Tourism Corporation of Gujarat Ltd. (General Conditions of Service) Rules. 1986. All the petitioners who were absorbed from the government department were put in the pay scale of 260-400 and thereafter they were given pay scale of 330-560.0ther petitioners who were directly recruited by the Corporation were put in the pay scale of 330-560. I humbly state that the petitioners were given promotion and equivalent pay scale as per the rules from time to time.
5. I humbly state that the candidate who had completed five years in the pay scale of 330-560 was promoted and was given pay scale of 425-700. Thereafter, once the candidate had completed five years in the pay scale of 425-700 they were again promoted and given pay-scale of 550-900 (subsequently revised to 1640-2900 and further revised to 5500-9000). I humbly state that the direct recruit candidates were eligible to further promotions under the rules as per their qualifications and the petitioners also could have competed for further promotions by acquiring such qualifications. However the petitioners have chosen not to compete for the promotions. Therefore such petitioners had also been granted benefits of higher pay-scale as provided under government resolution dated 16.8.1994. A copy of the said resolution is annexed herewith and marked as Annexure R3. As per the said resolution the candidate who is in the pay scale of 550-900 was entitled for higher-grade pay scale in 650-1200 (subsequently revised to 2000-3200 and further revised to 6500- 10500). The candidates who were entitled for higher-
grade pay scale were duly given the same. Copies of order granting such higher-grade pay scale is annexed herewith and marked as Annexure R4 colly. Thus once the petitioners were given promotion and thereafter higher grade pay scale was granted to the eligible Page 18 of 32 HC-NIC Page 18 of 32 Created On Thu Jan 12 00:46:05 IST 2017 C/SCA/2563/2001 CAV JUDGMENT candidates as per Government Resolution dated 16.8.1994, there was no question in putting them in the pay scale of 700-1300 which was entirely for different class.
I humbly state that petitioners are not correct in contending that for the pay scale of 425-700 they would be promoted in the pay scale of 700-1300. As a matter of fact and as per rules the petitioners could have been promoted from the pay scale of 425-700 to 550-900 and thereafter there was no criterion for promotion. Hence those candidates who were eligible for promotion thereafter were given higher~grade pay-scale. The petitioners are deriving a wrong analogy by stating that from the pay scale of 425-700 they will be promoted in the pay scale of 700-1300. As per rules from the post of manager in pay scale of 425-700 they will be promoted as manager in the pay scale of 550-900. Subsequently from the pay scale of 550-900 they would be only entitled for higher grade pay scale.
6. I humbly state that there were two different pay scales for candidates pursuant to direct recruitment and possessing special qualification and for candidates who were absorbed/recruited. The candidates who were directly recruited with special qualification were needed to have either diploma in hotel management or experience in hotel management industry. That was the reason a different pay scale was provided to them because of the difference in quality of performance of work. The Corporation has provided two different pay scales on the basis of education qualification and because of difference in quality of work. Even the petitioners. if at all they had such qualifications, could have opted for such direct recruitment with special qualification. However none of such petitioners have opted for such direct recruitment. The petitioners are therefore not correct in asking for pay scale of candidates who are directly recruited with special qualification over looking the pay scale which is provided to them as per the rules. I humbly state that merely because designation of two sets of persons is the same, it does not automatically follow that the qualification and/or nature of work or responsibilities or efficiency in Page 19 of 32 HC-NIC Page 19 of 32 Created On Thu Jan 12 00:46:05 IST 2017 C/SCA/2563/2001 CAV JUDGMENT executing the work and such other relevant aspect would also be the same The Corporation therefore have granted higher pay-scale to direct recruit managers than the pay scale prescribed for other employees as per recruitment rules. I humbly state that the said pay scale of 700-1300 revised from time to time, was created for candidates holding specific qualification and requisite experience and the petitioners did not fulfill both the requirements. I humbly state that there the allegations of inter-se transfers are vague inasmuch as if due to shortage of managers some petitioners are posted in some resorts the same would not make them eligible for the pay-scale granted to other managers on the basis of their qualifications and their quality of work I say that assessment of the work and qualifications has been done at the highest level of the Corporation which requires expert knowledge. Thus the petitioners are not right in claiming that such classification is unreasonable."
In such circumstances referred to above, the learned counsel appearing for the Corporation would submit that there being no merit in the writ-applications, the same be rejected.
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 in the writ-applications.
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 Page 20 of 32 HC-NIC Page 20 of 32 Created On Thu Jan 12 00:46:05 IST 2017 C/SCA/2563/2001 CAV JUDGMENT 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.
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.
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 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.
In the case on hand, the writ-applicants, upon their deputation to the respondent Corporation and having regard to Page 21 of 32 HC-NIC Page 21 of 32 Created On Thu Jan 12 00:46:05 IST 2017 C/SCA/2563/2001 CAV JUDGMENT their length of service in the Government, were absorbed either in the Manager Grade-II in the scale of Rs.330-560 or in the Manager Grade-III in the scale of Rs.260-400.
It appears from the materials on record that with a view to boost the tourism in the State of Gujarat, a policy decision was taken to recruit Managers with professional qualifications and requisite experience in the pay-scale of Rs.700-1300 at good resorts. Accordingly, an advertisement was issued dated 17th August 1984 in all the leading newspapers published from Ahmedabad, Mumbai and Delhi, inviting applications from the candidates holding the Diploma in Hotel Management and Catering Services from the recognized institutions with atleast three years of work experience in the management capacity.
It has been pointed out in the affidavit-in-reply that none of the writ-applicants possessed the requisite qualifications and the experience. They did not even respond to the advertisement referred to above. The pay-scale which is being demanded by the writ-applicants herein was a special pay- scale for highly qualified Managers to take care of the good resorts run by the Corporation in the State of Gujarat.
Let me assume for the moment that the writ-applicants herein also worked at those resorts but that by itself will not be sufficient to apply the principle of 'equal pay for equal work'.
I am of the view that the averments made in the two affidavits filed on behalf of the Corporation make the picture more than clear.
Page 22 of 32HC-NIC Page 22 of 32 Created On Thu Jan 12 00:46:05 IST 2017 C/SCA/2563/2001 CAV JUDGMENT 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 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."
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 Page 23 of 32 HC-NIC Page 23 of 32 Created On Thu Jan 12 00:46:05 IST 2017 C/SCA/2563/2001 CAV JUDGMENT 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 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) 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 the basis of criteria such as experience and seniority, Page 24 of 32 HC-NIC Page 24 of 32 Created On Thu Jan 12 00:46:05 IST 2017 C/SCA/2563/2001 CAV JUDGMENT 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.
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 ."
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 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 Page 25 of 32 HC-NIC Page 25 of 32 Created On Thu Jan 12 00:46:05 IST 2017 C/SCA/2563/2001 CAV JUDGMENT 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...."
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 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 Page 26 of 32 HC-NIC Page 26 of 32 Created On Thu Jan 12 00:46:05 IST 2017 C/SCA/2563/2001 CAV JUDGMENT 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).
The Supreme Court while deciding a similar issue in 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.Page 27 of 32
HC-NIC Page 27 of 32 Created On Thu Jan 12 00:46:05 IST 2017 C/SCA/2563/2001 CAV JUDGMENT
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)).
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:-
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.
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 Page 28 of 32 HC-NIC Page 28 of 32 Created On Thu Jan 12 00:46:05 IST 2017 C/SCA/2563/2001 CAV JUDGMENT 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.
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.
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 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) 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 Page 29 of 32 HC-NIC Page 29 of 32 Created On Thu Jan 12 00:46:05 IST 2017 C/SCA/2563/2001 CAV JUDGMENT 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......"
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 supervisory jurisdiction of the court can operate".
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.
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 Page 30 of 32 HC-NIC Page 30 of 32 Created On Thu Jan 12 00:46:05 IST 2017 C/SCA/2563/2001 CAV JUDGMENT 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 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."
In view of the above, no case is made out. Both the writ- applications fail and are hereby rejected. Rule discharged.
Page 31 of 32HC-NIC Page 31 of 32 Created On Thu Jan 12 00:46:05 IST 2017 C/SCA/2563/2001 CAV JUDGMENT (J.B.PARDIWALA, J.) MOIN Page 32 of 32 HC-NIC Page 32 of 32 Created On Thu Jan 12 00:46:05 IST 2017