Allahabad High Court
Ramesh Chandra Dwivedi And 3 Others vs State Of U.P. Thru. Secretary Technical ... on 3 April, 2024
Bench: Chief Justice, Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2024:AHC-LKO:27349-DB Reserved Chief Justice's Court Case :- SPECIAL APPEAL No. - 347 of 2017 Appellant :- Ramesh Chandra Dwivedi And 3 Others Respondent :- State Of U.P. Thru. Secretary Technical Education And 3 Others Counsel for Appellant :- Sandeep Dixit,Varadraj Shreedutt Ojha Counsel for Respondent :- C.S.C. Hon'ble Arun Bhansali,Chief Justice Hon'ble Jaspreet Singh,J.
(Per : Arun Bhansali, CJ)
1. Heard Shri Varadraj Shreedutt Ojha, learned counsel for the appellants and Shri Anil Kumar Singh Visen, learned Standing Counsel for the respondents.
2. This appeal is directed against the order dated 18.7.2017 passed by learned Single Judge in Service Single No. 6885 of 2011 whereby the writ petition filed by the appellants has been dismissed.
3. The appellants had earlier approach this Court by filing Writ Petition No. 807 (SS) of 2010, which came to be decided by judgement dated 19.1.2011 whereby the appellants were directed to make a representation raising their grievances and the State respondents were directed to consider and decide the same by way of a speaking order in accordance with law and relevant Rules and Regulations. On making the representation, the same came to be rejected by order dated 17.6.2011. Aggrieved by such rejection, the writ petition was filed.
4. The claim of the appellants is that they are entitled to grant of pay scale as prescribed under the U.P. Technical Education Department Non Gazetted Technical Service Rules, 1988 from the date of coming into force of the said Rules in the pay scale of Rs.550 - 940 and revised from time to time along with arrears. It was interalia indicated in the petition that the appellants were recruited on the post of Second Instructor (Moulding), First Wood Working Instructor, Instructor (Pattern Making) and Third Machine Shop Instructor respectively based on qualifications prescribed by the State of Uttar Pradesh by means of a Government Order dated 16.10.1982 on various dates. The Rules of 1988 were brought into force with effect from 19.07.1988, wherein though the posts on which the appellants were recruited were not indicated, however, post of Workshop Instructor was indicated in the Schedule, which is having similar duties as performed by the appellants and the pay scale for the said post was Rs.550 - 940 whereas that of the posts held by the appellants is Rs.354 - 550. On coming into force of the Rules of 1988, the same were not applied to Lucknow/Gorakhpur Polytechnic Colleges where the appellants were serving. The appellants made various representations seeking parity in pay scales. However, when the representations were not answered, the petition, as indicated hereinbefore, was filed resulting in passing of the order, requiring making of the representation as was passed by the Court.
5. Pursuant to the directions passed by this Court, the representation came to be decided by the order impugned in the writ petition dated 17.6.2011 wherein the competent authority came to the conclusion that as the prescribed qualifications for the posts held by the appellants and for the post of Workshop Instructor were not similar, the representation was liable to be rejected. Based on which the representation was rejected. Feeling aggrieved, writ petition was filed.
6. Contention raised in the writ petition seeking parity in the pay scales was contested by the State respondents.
7. After hearing the parties, learned Single Judge by his impugned judgement came to the conclusion that submission of the appellants was based on fallacy as the factor relevant for the relief claimed was not the qualifications of the appellants but the minimum qualifications provided for the posts held by them. Learned Single Judge further came to the conclusion that the minimum qualifications for the recruitment under which the appellants were recruited was lower than those provided under the Rules of 1988 and relying on the judgements in Mewa Ram Kanojia v. All India Institute of Medical Sciences and others: 1989 (2) SCC 235 and Union of India through Secretary v. TVLN Mallikarjun Rao: 2015 (3) SCC 653 and the fact that the cadre of the appellants was already declared as a dying cadre, dismissed the writ petition.
8. Learned counsel for the appellants made vehement submissions that the dismissal of the representation and the writ petition, is not justified. It was emphasized that the appellants were having the requisite qualifications of Workshop Instructor as provided in the Rules of 1988 and merely because they were recruited pursuant to the qualifications indicated in the Government Order, 1982, which were lower than the qualifications indicated in the Rules of 1988, they cannot be held responsible. Further submission was made that in a supplementary affidavit dated 28.2.2017 filed by the State respondents, it was admitted by them that the appellants were appointed following due procedure by way of publication of advertisement and that they possess same qualifications and the nature of work, duties and responsibilities of the appellants as well as Workshop Instructor was same and therefore, rejection of the writ petition was wholly unjustified. Submissions were also made that the judgements in the case of Mewa Ram Kanojia (Supra) and TVLN Mallikarjun Rao (Supra) were inapplicable to the facts of the case and therefore, the order impugned deserves to be set aside. Reliance was placed on single bench judgement in Kailash Nath Saxena & others v. State of U.P. & others : 2018(3) UPLBEC 1880.
9. Learned Standing Counsel appearing for the State respondents made submissions that the plea raised by the appellants, as noticed by the learned Single Judge, is on its face fallacious inasmuch as merely because the appellants hold higher qualifications than the qualifications prescribed in the posts held by them, by itself cannot make the posts held by them equal to the other posts. Once, admittedly the requisite qualifications indicated for the posts held by the appellants and the requisite qualifications for the post of Workshop Instructor are different and the post of Workshop Instructor requires higher qualifications, the plea raised has no basis. It was submitted that the plea raised based on 'equal pay for equal work' cannot be accepted as the said principle cannot be applied in abstract, ignoring the qualifications required for the post. In respect of the reliance placed by the appellants on the supplementary affidavit dated 28.02.2017, it was submitted that the said affidavit by itself cannot change the requirements of law and as such, the appeal deserves to be dismissed. Reliance was placed on Director of Elementary Education, Odisha & others v. Pramod Kumar Sahoo: 2019 (10) SCC 674 and Union of India v. Indian Navy Civilian Design Officers Association & another : 2023 INSC 152.
10. We have considered the submissions made by counsel for the parties and perused the material available on record.
11. It is not in dispute that so far as the appellant nos. 1, 2 & 3 are concerned, they were appointed on the posts of Second Instructor (Moulding), First Wood Working Instructor and Instructor (Pattern Making) before coming into force of the Rules of 1988 and the appellant no. 4 was appointed on 30.11.1989 on the post of Third Machine Shop Instructor. The requirement of educational qualifications for the said posts, which were indicated in the advertisements issued at the relevant time, were based on the then existing Government Order issued in the year 1982. Admittedly, the qualifications indicated in the said advertisement based on which the appellants were recruited are not equivalent to the requisite qualifications as indicated for the post of 'Workshop Instructor' under the Rules of 1988 i.e. the requisite qualifications meant for the post of Workshop Instructor is higher than that of the posts for which the appellants were recruited. Further it is also an admitted fact that the cadre in question in which the appellants were recruited, came to be declared as a dying cadre i.e. no further recruitments were to take place on the said posts.
12. The foundation of the appellants in the writ petition and before this Court essentially has been the fact that they were performing the same work/duties, which were being performed by the Workshop Instructor and therefore, on the principle of equal pay for equal work, they were entitled to pay parity with Workshop Instructor. Reliance was also placed on the recommendations made by the Pay Committee, Uttar Pradesh, constituted in the context of 6th Central Pay Commission, which found that the work and duties of both the posts were similar as well as the averments contained in the counter affidavit dated 28.2.2017 filed by the respondents indicating that the duties and responsibilities of the appellants as well as Workshop Instructor working in other Polytechnic are same and that the posts held by the appellants at Lucknow/Gorakhpur Polytechnic was similar to that of Workshop Instructor in other Government Polytechnics.
13. The principles with regard to equal pay for equal work are well established. Hon'ble Supreme Court in the case of Mewa Ram Kanojia (Supra), relied on by the learned Single Judge, inter alia laid down as under :
"Even assuming that the petitioner performs similar duties and functions as those performed by an Audiologist, it is not sufficient to uphold his claim for equal pay. As already observed, in judging the equality of work for the purposes of equal pay, regard must be had not only to the duties and functions but also to the educational qualifications, qualitative difference and the measures of responsibility prescribed for the respective posts. Even if the duties and functions are of similar nature but if the educational qualifications prescribed for the two posts are different and there is difference in measure of responsibilities, the principle of 'Equal Pay for Equal Work' would not apply........"
(emphasis supplied)
14. In the case of Pramod Kumar Sahoo (Supra), it was interalia laid down as under :
"11) The concession given by the learned State Counsel before the Tribunal was a concession in law and contrary to the statutory rules. Such concession is not binding on the State for the reason that there cannot be any estoppel against law. The rules provide for a specific Grade of Pay, therefore, the concession given by the learned State Counsel before the Tribunal is not binding on the appellant.
12) The Trained Matric Teacher is the one who has been trained for the purposes of teaching. In the absence of such training, the respondent cannot be said to be a Trained Matric Teacher entitled to the pay scale meant for such teachers. The classification based upon educational qualification for grant of higher pay scale to a trained person or a person possessing higher qualification is a valid classification....."
(emphasis supplied)
15. In the case of Indian Navy Civilian Design Officers Association (Supra), a recent judgement on the issue, Hon'ble Supreme Court after referring to several judgements on the said aspect, came to the following conclusion :
"14. In view of the afore-stated legal position, it clearly emerges that though the doctrine "equal pay for equal work" is not an abstract doctrine and is capable of being enforced in a Court of Law, the equal pay must be for equal work of equal value. The equation of posts and determination of pay scales is the primary function of the Executive and not of the Judiciary. The Courts therefore should not enter upon the task of job evaluation which is generally left to the expert bodies like the Pay Commissions which undertake rigorous exercise for job evaluation after taking into consideration several factors like the nature of work, the duties, accountability and responsibilities attached to the posts, the extent of powers conferred on the persons holding a particular post, the promotional avenues, the Statutory rules governing the conditions of service, the horizontal and vertical relativities with similar jobs etc. It may be true that the nature of work involved in two posts may sometimes appear to be more or less similar, however, if the classification of posts and determination of pay scale have reasonable nexus with the objective or purpose sought to be achieved, namely, the efficiency in the administration, the Pay Commissions would be justified in recommending and the State would be justified in prescribing different pay scales for the seemingly similar posts. A higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues or frustration due to longer duration of promotional avenues is also an acceptable reason for pay differentiation. It is also a well-accepted position that there could be more than one grade in a particular service. The classification of posts and the determination of pay structure, thus falls within the exclusive domain of the Executive, and the Courts or Tribunals cannot sit in appeal over the wisdom of the Executive in prescribing certain pay structure and grade in a particular service."
16. In view of the principles laid down, the educational qualifications prescribed for the posts, which are subject matter of equivalence sought by the appellants, is a very relevant consideration in seeking equal pay for equal work.
17. In the present case, the State respondent has clearly indicated the difference in the requisite qualifications prescribed for the posts held by the appellants and that of Workshop Instructor, which fact has not been disputed by the appellants. However, the plea raised is that as they possess the qualification required for the post of Workshop Instructor and if the requisite qualifications for the posts held by them was lower than that of Workshop Instructor, they cannot be denied the benefit, which cannot be countenanced. The very fact that the requisite educational qualification for the posts held by the appellants is lower than that meant for the post of Workshop Instructor, the foundational requirement for claiming such equivalence, is missing and therefore, the entire plea sought to be raised has no basis. The indications made based on the contents of the counter affidavit by itself cannot change the legal position and the averments contained in the said counter affidavit, cannot act as an estoppel against the respondents. So far as the judgement relied on by counsel for the appellants in the case of Kailash Nath Saxena (Supra) is concerned, in the said case the issue regarding difference between requisite educational qualifications for the post regarding which equivalence was sought was not in issue and as such, the said judgement would have no application to the facts of the present case.
18. In view of the above discussions, we do not find any merit in the present appeal and the same is, therefore, dismissed.
Order Date :- 03.04.2024
nd
(Jaspreet Singh, J.) (Arun Bhansali, CJ)