Madras High Court
K.P.Jayasingh Gladston vs Airports Authority Of India on 28 February, 2013
Author: Vinod K.Sharma
Bench: Vinod K.Sharma
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.02.2013 CORAM: THE HONOURABLE MR.JUSTICE VINOD K.SHARMA W.P.No.8358 of 2009 1. K.P.JAYASINGH GLADSTON 2. K.V.AJESH 3. V.FRANCIS XAVIER 4. N.SURESH KUMAR 5. K.BOOVARAGAN 6. M.NAGARAJAN 7. S.N.MOHANA RANGAN 8. S.SATHISH 9. SANJAY KUMAR RAI 10. K.SUDEEP 11. Y.ANBU 12. LIJI P.MATHEW 13. R.A.SAJI 14. T.S.SUMESH 15. D.UDAYA KUMAR .. Petitioners -vs- 1. Airports Authority of India, Rep. by its Senior Manager (Personnel) Rajiv Gandhi Bhawan, Safdarjung Airport, New Delhi-110 003. 2. Airport Director, Airports Authority of India, Chennai Airport, Meenambakkam, Chennai-600 027. 3. Senior Manager (Personnel) Airports Authority of India, Chennai Airport, Meenambakkam, Chennai-600 027. .. Respondents Prayer: Writ petition is filed under Article 226 of Constitution of India for issuance of a writ in the nature of Certiorari, calling for the concerned records from the 1st respondent, quash the order of the 1st respondent bearing No.PERS/AAI/GMP/II4/2005/308 dated 29.02.2008 / 07.03.2008 as illegal, contrary to law, discriminatory and consequently, direct the respondents to designate the petitioners as Assistant (Fire Services) and fix them in the pay scale of Rs.5800-160-7720-180-10960 from the date of their appointment, pay arrears of salary along with interest at the rate of 18% p.a. For Petitioner : Mr.Balan Haridas For Respondents : Mr.R.Parthiban ***** O R D E R
The petitioners have invoked the extraordinary equitable jurisdiction of this Court under Article 226 of the Constitution of India with the following prayer:
To call for the concerned records from the 1st respondent, quash the order of the 1st respondent bearing No.PERS/AAI/GMP/II4/2005/308 dated 29.02.2008 / 07.03.2008 as illegal, contrary to law, discriminatory and consequently, direct the respondents to designate the petitioners as Assistant (Fire Services) and fix them in the pay scale of Rs.5800-160-7720-180-10960 from the date of their appointment, pay arrears of salary along with interest at the rate of 18% per annum and pass such other orders or directions as this Honble Court may deem fit in the circumstances of the case, award cost and render justice.
2. The Airports Authority of India (AAI) issued advertisement in the newspaper, inviting applications for the post of Fire Operators in the pay scale of Rs.2720-4400 in the year 2000. The qualification prescribed for the post was 10+2 with Heavy Duty Vehicle Driving Licence. In response to the advertisement, the petitioners applied for the post and they were subjected to written test, physical endurance test, driving test followed by personal interview.
3. On being successful, the petitioners were sent for basic course at its Fire Training Centre, New Delhi. After successful completion of the training, the petitioners were issued letter of appointment to the post of Fire Operators in the pay scale of Rs.2720-70-3420-80-4220-90-4400. On completion of training, the petitioner was issued orders of appointment dated 25.01.2002, designating them as Junior Assistant (Fire Services) in the pay scale of Rs.5500-10060.
4. The case of petitioner is that, the pay scale of Rs.2720-70-3420-80-4220-90-4400 was revised to Rs.5800-160-7720-180-10960 by the respondents, therefore, they should have been placed in the pay scale of Rs.5800-160-7720-180-10960 instead of Rs.5500-10060.
5. Along with advertisement for appointment at the Airport, Chennai, advertisement for filling up the post of Fire Operators in the pay scale of Rs.2720-4400 at Trivandrum, was also issued.
6. The selected candidates at Trivandrum were also deputed for training course at Fire Training Centre. The appointment orders to the Trivandrum candidates were issued on 01.10.2001. Keeping in view the revised pay scale, they were designated as Assistant (Fire Service) and placed in the pay scale of Rs.5800-10960. The respondents thereafter modified the appointment letter issued to the Trivandrum candidates, by showing them as Junior Assistant (Fire Service) in pay scale of Rs.5500-140-7180-160-10060 like petitioners, but subsequently, this order was revoked and initial order was restored.
7. The case of petitioners is that the petitioners are similarly placed with as that of persons appointed at Trivandrum, but while designating the petitioners as Junior Assistants (Fire Service) and placing them in the pay scale of Rs.5500-10060, the candidates at Trivandrum were designated as Assistants and placed in the pay scale of Rs.5800-10960.
8. In order to remove discrimination and disparity, the petitioners filed representation with the respondents for redesignating them as Assistants and for grant of pay scale of Rs.5800-10960.
9. After repeated representations, the respondents passed the impugned order on 29.02.2008 and 07.03.2008, which reads as under:
"The representation of Shri.V.Francis Xavier, Assistant (Fire Service) has been examined along with identical representations from Chennai Airport. The appointments made in NE-4 level, though the posts were advertised in NE-5 level, are in accordance with the revision of pay scales. Moreover, it is observed that the matter pertaining to Trivandrum Airport was entirely different from Chennai Airport. At Trivandrum Airport selected candidates have completed training at FTC on 01.08.2001, whereas at Chennai Airport selected candidates were sent training at FTC vide letter 14.08.2001 and were issued appointment orders on 25.1.2002 ie. After introduction of Career Progression Scheme. As such the request of Shri.V.Francis Xavier, Jr.Assistant (Fire Service) & others of Chennai Airport cannot be acceded to. The individuals concerned may be informed accordingly."
10. It is submitted, that the petitioners 11 to 15 on request were transferred to Trivandrum, but they continue to be designated as Junior Assistants and paid lower pay scale than the one paid to their counter part at Trivandrum.
11. The impugned orders are challenged by petitioners, on the ground that the post of Fire Operators was advertised in the pay scale of Rs.2720-4400 and selected candidates were sent for training. Thereafter on completion of their training on 28.12.2001, letter of appointment dated 25.01.2002 was issued in revised scale of Rs.5500-10060 instead of Rs.5800-10960. Though the pay scale of Rs.2720-4400 was revised as Rs.5800-10960, the grant of lower pay scale resulted in designating them as Junior Assistants.
12. The contention therefore is that it is an error apparent on the face of record. This stands proved from fact, that similarly placed persons, who were appointed at Trivandrum Airport were rightly placed in the revised pay scale of Rs.5800-10960 and designated as Assistants.
13. Learned counsel for the petitioners therefore contended;
i)That this action of the respondents in rejecting the representation for being treated at par with similarly situated persons, is arbitrary, thus hit by Article 14 of the Constitution of India;
ii)That action of the respondents in discriminating the petitioners merely on the ground, that persons appointed at Trivandrum were appointed before introduction of Career Progression Scheme, therefore, are differently placed, cannot be accepted, as the introduction of Career Progression Scheme has no relevance to discrimination between persons having similar qualification with same mode of selection and performing same duties under the same employer, cannot be discriminated on the principle of equal pay for equal work;
iii)That the impugned order is arbitrary and discriminative, thus, is hit by Article 14 & 16 of the Constitution of India, as persons similarly situated cannot be placed in two different pay scales in the same organization for the same job for which they were recruited;
iv)That the impugned order shows non application of mind and amounts to colourable exercise of power, therefore, being arbitrary cannot be sustained in law.
14. The writ petition is opposed by the respondents, by raising preliminary objection;
i)That writ as framed is not maintainable, as the lis raised in this writ petition is covered under the Industrial Dispute, therefore, the remedy with the petitioner is to have it adjudicated under the Industrial Dispute Act;
ii)That the writ petition suffers from delay and laches, and that the petitioner having accepted letter of appointment and joined duties, are estopped from challenging the pay scale, being bound by the terms of the binding contract.
15. On merit, while facts are not disputed, the defense raised is that appointment of Junior Assistants (Fire Service) was made at NE-4 level at Chennai Airport, although the posts were advertised in NE-5 level. This was in accordance with the revision of pay scales as per the Career Progression Scheme introduced while raising the pay scales.
16. Whereas Assistants (FS) were appointed at Trivandrum Airport at NE-5 level in Rs.5800-10960 therefore they form entirely different class from that of petitioners.
17. it is also submitted, that the candidates selected were put on basic fire training at Fire Training Centre, which was completed on 02.08.2001. Whereas Chennai Airport selected candidates were issued offer of appointment by Chennai Airport on 25.01.2002, i.e. after implementation of Career Progression Scheme. In sum and substance, the defense raised is that the petitioners do not form the same class as that of candidates selected at Trivandrum for the reason that appointment at Trivandrum was prior to enforcement of Career Progression Scheme, whereas appointment at Chennai was after enforcement of Career Progression Scheme. Therefore, claim of petitioners for equal pay for equal work cannot be sustained.
18. In support of the contention, that the petitioners are not entitled to claim equal pay for equal work, reliance is placed by the learned counsel for the respondents on the judgment of the Hon'ble Supreme Court in the case of State of Haryana and others vs. Charanjit Singh and others, 2005 (4) LLN 949, laying therein as under:
"17) Having considered the authorities and the submissions we are of the view that the authorities in the cases of Jasmer Singh, Tilak 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. In any event the party who claims equal pay for equal work has to make necessary averments and prove that all things are equal. Thus, before any direction can be issued by a Court, the Court must first see that there are necessary averments and there is a proof. If the High Court, is on basis of material placed before it, convinced that there was equal work of equal quality and all other relevant factors are fulfilled it may direct payment of equal pay from the date of the filing of the respective Writ Petition. In all these cases, we find that the High Court has blindly proceeded on the basis that the doctrine of equal pay for equal work applies without examining any relevant factors."
19. Learned counsel for the petitioners on the other hand besides reiterating the ground taken in writ petition, placed reliance on the judgement of the Hon'ble Supreme Court in Haryana State Minor Irrigation Tubewells Corporation and others vs. Chakrawarti Garg, 2008 (3) LLN 10, laying down as under:
"22.It is not in dispute that a deputationist holds the post in a particular cadre office for the duration he remains on deputation and is a part of that cadre. No material has been placed on record by the appellants to show that the deputationists are appointed against only certain particular posts or that they cannot be posted or transferred to the posts held by the respondents. In fact, it is an admitted position that the posts are mutually inter-changeable. In this situation, it is reasonable to infer that a deputationist performs the same duties as those performed by other persons working in the cadre. It is also an admitted position that the qualifications laid down for recruitment in the Corporation are identical to those prescribed in the Departments of the Government. It is further clear that the respondents have continued to work in the pay scale of Rs.2000-3500 w.e.f. 01.01.1986. As against this, their counter-parts in the Government and also the persons, who are posted in the Corporation by way of deputation, would get the scale of Rs.3000-4500 on completion of five years of service and are placed in the scale of Rs.4100-5300 (to the extent of 20% of the posts) on completion of 20 years of service. The respondents were obviously placed at a disadvantageous position. The decision of the Government in rejecting the proposal of the Board of Directors suffers from the vice of invidious discrimination and cannot be sustained because the very same decision of the Board with regard to all other employees has since been accepted and approved by the State Government. On the scrutiny of the material on record, it is clear that the appellants did not produce any evidence on record to establish that the working conditions, responsibilities and nature of duties, etc. of the respondents are different to their counter-parts working in the same categories in the State Government, Boards and other Corporations, etc. and also the persons who are working with the Corporation on deputation. "
to contend, that once it is admitted that the posts of Junior Assistant at Chennai Airport and Assistant at Trivandrum Airport are interchangeable, no other conclusion than the one that both perform similar duties, can be arrived at.
20. On consideration, I find that this writ petition deserves to succeed. It is not disputed that post of Fire Operator at Chennai and at Trivandrum were advertised in the year 2000 in the pay scale of Rs.2720-4400 by respondent no.1.
21. It is also not disputed, that the process of selection was identical except for some time gap for undergoing training and issuance of appointment letter.
22. It is further not disputed, that the posts are interchangeable, having similar qualification and the duties performed are also identical. Both employees at Chennai Airport as well as at Trivandrum Airport are employees of Airports Authority of India.
23. In view of this admitted fact, persons appointed at Chennai Airport cannot be discriminated viz-a-viz persons appointed at Trivandrum, therefore, action of the respondents in designating persons at Chennai as Junior Assistants instead of Assistants and placing them at lower pay scale is hit by Article 14 & 16 of the Constitution of India, being in violation of the principle of equal pay for equal work.
24. The contention of learned counsel for the respondents, that one appointment was prior to enforcement of Career Progression Scheme and the one after, cannot justify the discrimination. The action of respondents shows, non application of mind. The Career Progression Scheme has nothing to do with the offer of appointment, as it only takes care of stagnation on a particular post. This cannot justify the grant of lower pay scale to the petitioners, when it is not disputed, that the petitioners' pay scale of Rs.2720-4400 was revised to Rs.5800-10960, i.e. grade payable to Assistants.
25. The judgment of the Hon'ble Supreme Court in the case of State of Haryana and others vs. Charanjit Singh and others (supra), on which reliance has been placed by the learned counsel for the respondents also supports the case of petitioners, as the Hon'ble Supreme Court in that judgment categorically laid down, that in case the material placed before it, the High Court is convinced, that there was equal work of equal quality and all other relevant factors are fulfilled, then it may direct payment of equal pay for equal work. This judgment rather supports the plea that equal work cannot be discriminated..
26. In this case, it is even the case of respondents, that the persons employed at Chennai Airport are similarly placed with employees at Trivandrum, and perform same duties and the posts are also interchangeable, the only distinct drawn is that one appointment was made before Career Progression Scheme was implemented and other was after implementation of Scheme.
27. The impugned order therefore being arbitrary and discriminatory is violative of Article 14 and 16 of the Constitution and also hit by the principle of equal pay for equal work, therefore, not sustainable in law. The preliminary objections raised by the respondents are also misconceived. The petitioners have challenged the impugned orders, being violative of Article 14 & 16 and not based on violation of Industrial Law, therefore, remedy under Industrial Dispute Act is not alternative remedy, nor there is any delay, as the impugned orders have been challenged immediately. The plea of estoppel is misconceived as petitioners cannot be estopped to enforce their fundamental rights.
28. Consequently, the writ petition is allowed. The impugned order is set aside. The writ in the nature of Mandamus is issued, directing the respondents to grant designation and pay to petitioners identical to the one granted to persons appointed at Trivandrum Airport, with all consequential benefits.
29. No costs.
ar To
1. Airports Authority of India, Rep. by its Senior Manager (Personnel) Rajiv Gandhi Bhawan, Safdarjung Airport, New Delhi-110 003.
2. Airport Director, Airports Authority of India, Chennai Airport, Meenambakkam, Chennai-600 027.
3. Senior Manager (Personnel) Airports Authority of India, Chennai Airport, Meenambakkam, Chennai 600 027