Allahabad High Court
Dr. Gita Rani Rastogi And Others vs The Authorised Controller Meerut ... on 9 September, 2019
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 09.05.2019 Delivered on 09.09.2019 Court No. - 34 Case :- WRIT - A No. - 22156 of 1995 Petitioner :- Dr. Gita Rani Rastogi And Others Respondent :- The Authorized Controller Meerut College And Others Counsel for Petitioner :- V.B.Singh, Ajay Rajendra, P.K. Rai Counsel for Respondent :- Ajay Yadav, A.K. Sharma, Ashok Khare Hon'ble Sudhir Agarwal,J.
1. Six petitioners, i.e., Dr. Gita Rani Rastogi, Dr. Balreshwar Prasad Yadava, Dr. Satadeo Tyagi, Dr. Ravindra Kumar Bhati, Dr. Mrs. Nira Singh and Dr. Rajesh Kumar, have filed this writ petition under Article 226 of the Constitution of India. They have prayed for issue of a writ of mandamus commanding respondents to pay regular salary to petitioners in the pay scale applicable to Teachers/ Lecturers, i.e., Rs. 2200-4000/- since date of their initial appointment and not to interfere in their functioning as Teachers/ Lecturers. In alternative petitioners have prayed to issue a direction to respondent, Authorised Controller of Meerut College, Meerut (hereinafter referred to as "College") to pay salary to petitioners in the scale of Rs. 2200-4000/- and not to interfere in the functioning of petitioners.
2. Facts, in brief, giving rise to present writ petition are that College is a Post Graduate College and its affairs are managed by a duly constituted Committee of Management. It is affiliated to Ch. Charan Singh University, Meerut (hereinafter referred to as "University"). At the time of filing of writ petition, College was being managed by Authorised Controller.
3. Petitioner-1, Dr. Gita Rani Rastogi, was appointed by Honorary Secretary of Committee of Management of College vide order dated 16.11.1988 as "Tutor" in the Department of Botany on consolidated remuneration of Rs. 850/- per month. Since then Petitioner-1 is continuously working in every Session except some breaks given during end of Session and re-engaged at the commencement of Session. In other words during the period of summer vacation neither she is engaged nor remuneration is paid. At the time of filing of writ petition consolidated remuneration of Petitioner-1 was enhanced to Rs. 1200/- per month.
4. Similarly Petitioner-2, Dr. Baleshwar Prasad Yadava, was appointed as 'Tutor' in Chemistry Department in the Session 1988-89. However, he has brought on record a letter dated 15.05.1992 whereby he was informed that he would cease to work w.e.f. 20.05.1992. A certificate issued by Principal of College on 23.03.1993 has also been placed on record verifying that Petitioner-2 worked in the Department of Chemistry during Sessions 1988-89, 1989-90, 1990-91 and 1991-92 and at the time of issue of certificate he was working in the Session 1992-93.
5. Petitioner-3, Dr. Satadeo Tyagi, was initially appointed in Session 1990-91 but letter of appointment placed on record is dated 08/10.02.1992 appointing Petitioner-3 as 'Tutor' in the Department of Zoology on consolidated remuneration of Rs. 1000/- per month.
6. Petitioner-4, Dr. Ravindra Kumar Bhati, was appointed as 'Tutor' in the Department of Zoology vide appointment letter dated 05/06.01.1990 on a consolidated remuneration of Rs. 850/- per month.
7. Petitioner-5, Dr. Mrs. Nira Singh, was appointed as 'Tutor' in Zoology Department and vide letter dated 03.04.1989 she was ceased to work w.e.f. 15.04.1989 but thereafter it is said that in subsequent Session she was again engaged and had continued in the same manner as Petitioner-1 has continued.
8. Petitioner-6, Dr. Rajesh Kumar, was appointed in Session 1992-93 in the Department of Botany as 'Tutor' and has continued thereafter in the same manner as Petitioner-1 has continued.
9. Petitioners are continuously working against sanctioned posts which are lying vacant and instead of regular salary they are being paid consolidated remuneration. They are required to take 18-24 classes per week and also taking practical classes. They are assigned invigilation duties in examination. Petitioners claim that in fact they are discharging same duties as are being discharged and supposed to be discharged by Teachers appointed on regular basis as 'Lecturer'. Details of vacancies of 'Lecturers' in the Department of Zoology, Botany and Chemistry are given in para 20 of writ petition in the form of chart as under:
Post Reasons for Vacancy Zoology-
Post No. 1 - Lecturer - Superannuation of Dr. R.K. Kotpal Post No. 2 - Lecturer - Death of Dr. S.K. Agarwal Post No. 3 - Lecturer - Superannuation of Dr. B.S. Tomar Post No. 4 - Lecturer - Superannuation of Dr. J.C. Agarwal Post No. 5 - Lecturer - Superannuation of Dr. R.P. Sethi Botany-
Post No. 1 - Lecturer - Superannuation of Dr. S.K. Rai Post No. 2 - Lecturer - Death of Dr. Ashok Kumar Post No. 3 - Lecturer - Resignation of Dr. P.D. Sharma Chemistry-
Post No. 1 - Lecturer - Superannuation of Dr. Jagdish Prasad
10. Detail of vacancies has also been forwarded by Management of College on 10.06.1993 giving vacancies in different Departments of College. It is further said that three years degree courses have been introduced in University since 1988-89 but Director, Higher Education has not sanctioned new posts as required by Management of College. Strength of students have increased considerably as several new sections have been introduced still new posts have not been sanctioned. Petitioners are continuously discharging duties taking classes and performing same duties as are performed by regularly appointed 'Lecturers' but are getting only consolidated remuneration and they are termed as 'Tutors'. Petitioners claim that they are entitled for same salary as applicable to regularly appointed 'Lecturers' by extending benefit of 'equal pay for equal work' and in this regard reliance is placed on Vijay Kumar and others vs. State of Punjab and others, AIR 1994 SC 265.
11. It is further said that under Section 60-E of U.P. State Universities Act, 1973 (hereinafter referred to as "Act, 1973") responsibility of payment of salary is that on State Government, therefore, petitioners are entitled for salary admissible to regular 'Lecturers' from State Exchequer. State Government has also discriminated petitioners and similarly placed other 'Teachers' inasmuch as in the past it has made provisions for regularization of ad hoc Teachers by amending U.P. Higher Education Services Commission Act, 1980 (hereinafter referred to as "Act, 1980") but that benefit is not being extended to petitioners. Initially ad hoc Teachers working prior to 03.01.1984 were regularized by insertion of Section 31-B of Act, 1980 and thereafter remaining ad hoc Teachers appointed after 03.01.1986 and before 30.06.1991 were regularized by inserting Section 31-C of Act, 1980.
12. A counter affidavit has been filed on behalf of Director, Higher Education for himself and Respondents-3, 4 and 5. It is stated therein that College is affiliated to University and governed by the provisions of Act, 1973, Act, 1980 and Statutes, Rules and Regulations made thereunder. College is an aided non-Government College. Recruitment to the post of teaching staff is governed by Act, 1980 and Section 12 thereof provides that every appointment of Teacher in College shall be made by Management in accordance with the provisions of Act, 1980 and every appointment made in contravention thereof shall be void. Act, 1980 as initially enacted has Section 16, as under:
"16. Appointment of ad hoc teachers.--(1) Where the management has notified a vacancy to the Commission in accordance with sub-section (2) of Section 12, and the Commission fails to recommend the names of suitable candidates in accordance with sub-section (1) of that section within three months from the date of such notification, the management may appoint a teacher on purely ad hoc basis from amongst the persons holding qualification prescribed therefor.
(2) Every appointment of an ad hoc teacher under sub-section (1) shall cease with effect from the earliest of the following dates, namely--
(a) when the candidate recommended by the Commission joins the posts;
(b) where the period of two months from the date of receipt of the recommendation of the Commission under sub-section (1) of Section 12 expires;
(c) thirtieth day of June following the date of such ad hoc appointment." (emphasis added)
13. Perusal of Section 16 shows that if a vacancy of a teacher of the College is notified to U.P. Higher Education Services Commission (hereinafter referred to as "UPHESC") but no recommendation is made within three months then Management may appoint a Teacher, purely on ad hoc basis, from amongst the persons holding qualification prescribed therefor. Before enactment of Act, 1980, State Government issued a Government Order dated 15.06.1978 permitting part time appointment of Teachers in affiliated and associated non-Government Colleges. The Government Order dated 15.06.1978 has been revoked by Government Order dated 19.04.1993. Petitioners were never selected and appointed in accordance with the provisions of Act, 1980 read with Act, 1973. Management made appointments of 'Tutors' as a local arrangement without having any authority of law for making such appointments. Petitioners appointments were not against any specific and sanctioned posts. No post of part time Teacher was created in College by Competent Authority, i.e., Director, Higher Education in the subject in which petitioners claimed to have been appointed. Petitioners did not discharge duties at par or similar to those as are discharged by regularly appointed 'Lecturers'. Some regular appointments have been made but on account of interim orders passed by this Court regularly appointed Teachers are not being permitted to join. Doctrine of "equal pay for equal work" is not attracted in the case in hand. Liability of payment of salary under Section 60-E of Act, 1973 is not applicable to the persons like petitioners since they are not validly appointed Teachers in the College. Provisions of regularization contained in Section 31-B and 31-C of Act, 1980 are also not applicable to petitioners as the same are applicable to those Teachers who were validly appointed on ad hoc basis as per the provisions made in Section 16 of Act, 1980.
14. Respondent-1 has filed a separate counter affidavit stating that Petitioners even do not possess minimum requisite qualification prescribed in Act, 1973 and 'First Statute of University' (hereinafter referred to as "First Statute") as also the norms prescribed by University Grants Commission (hereinafter referred to as "UGC") applicable to University and Colleges. Petitioners have filed writ petition with concealment of facts inasmuch as petitioners have worked only till 19.04.1995 and not thereafter. Present writ petition was filed in August, 1995 when they were not working. Petitioner-1 was appointed in 1988-89 for a period of three months and 12 days only as a part time 'Tutor'. None of the petitioners have worked for more than four months in a Session. Services of petitioners stood terminated w.e.f. 19.04.1995 while writ petition was filed in August, 1995. Interim order was passed on 16.08.1995 when none of the petitioners was working. Petitioners have never been appointed as 'Lecturers' hence question of their appointments made against sanctioned posts of Lecturers does not arise. Petitioners were engaged as 'Tutors', who were required to impart education in the respective subjects assigned to them. A 'Lecturer' perform multifarious activities including administrative work also. Work of 'Tutor' discharged by petitioners cannot be equated with Lecturer. On the post of Lecturer (Zoology) two Teachers, namely, Smt. Seema Sharma and Sri Neel Mani Kant Das having been recommended by UPHESC were appointed and they started working from 07.11.1994 but their continuance was interrupted due to interim order passed in writ petition. Similarly in Botany Department three Teachers, namely, Dr. Smt. Suman Verma, Sri Abhijit Dutta and Dr. Ramesh Chandra Arya were appointed and recommended by UPHESC as Lecturer in August, 1995 but they also could not be allowed to join due to interim order passed by this Court. Petitioners engagement as 'Tutor' is dehors the Statutes, namely, Act, 1980 and Rules framed thereunder as also Removal of Difficulties Orders issued thereunder.
15. In the annexures filed to counter affidavit Respondent-1 has demonstrated that Petitioner-2, Dr. Baleshwar Prasad Yadava secured 52.9% marks in M.Sc., therefore, did not satisfy requirement of consistent good academic record, hence he was not qualified for appointment as Teacher in a Degree College. Similarly, Petitioner-3, Dr. Satadeo Tyagi had secured 45.2% marks in Intermediate and 52.2% marks in B.Sc., hence was not qualified as he did not possess consistent good academic record. Similar ground has been taken in respect of Petitioner-4, Dr. Ravindra Kumar Bhati, who had secured 46.6% marks in Intermediate.
16. Sri Ajay Rajendra, Advocate who has put in appearance on behalf of petitioners stated that he is pressing this writ petition only in respect of Petitioner-3. He said that Petitioner-1 has not worked after 1995 and Petitioners-2, 4 and 6 have been selected and appointed on regular basis elsewhere, therefore, this writ petition is now surviving and being pressed only for Petitioner-3. It is also pointed out that even Petitioner-3, Dr. Satadeo Tyagi, after attaining age of superannuation has retired on 31.01.2018 but he was entitled to be considered for regularization as also for payment of salary in the pay scale applicable to regularly appointed Lecturers by applying the principle of "equal pay for equal work". He pointed out that there was no procedure for ad hoc appointment under Act, 1980. Ad hoc appointment was permitted under Section 16 but the same was deleted w.e.f. 22.11.1991 by U.P. Act No. 2 of 1992. Petitioner-3, however, being a part time Teacher, was entitled for "equal pay for equal work" in the light of Supreme Court's judgment in Anurag Tripathi and others vs. State of U.P. and others, 2008(3) ESC 1588 and Dr. Gaurav Mishra and others vs. State of U.P. and others, 2011(1) UPLBEC 665.
17. In the writ petition only relief sought by petitioners is regarding payment of salary at par with regularly appointed 'Lecturers'. Therefore, I proceed to consider, "whether claim of Petitioner-3 for whom only this writ petition has been pressed, is justified and permissible in law". In fact, to adjudicate the present writ petition in the context of relief sought by petitioner-3 and also the facts borne out from pleadings of parties, this Court has to answer the following questions:-
(i) Whether the appointment of petitioner-3 as 'Tutor' is valid having been made by Management in accordance with the relevant statutory provisions or the very appointment itself is dehors the statute and made by Management exceeding its power of appointment prescribed under the Statute.
(ii) Whether petitioner-3 possess requisite qualification for appointment to the post of Lecturer as per First Statutes of University of Meerut read with Act, 1973.
(iii) Whether the doctrine of "equal pay for equal work" as claimed by petitioner-3 is attracted in this case.
18. Period of appointment and working of Petitioner-3 as 'Tutor' in Department of Zoology has been given in Annexure-CA-3 to the counter affidavit filed by Respondent-1 and it read as under:
Sl. No. Session Duration of work Remuneration Source of Payment 1 1990-91 24.1.91 to 24.4.91= 3 months 1000=00 Misc+General Fund 2 1991-92 11.2.92 to 20.5.92=3 months 9 days 1000=00 Misc. + General fund 3 1992-93 4.1.93 to 30.4.93=3 months 26 days 1200=00 Misc. +General fund 4 1994-95 13.2.95 to 19.4.95=2 months 6 days 1200=00 Misc. +General fund
19. The engagement of Petitioner-3 in every Session is about three months and odd. In 1994-95 it is only for two months and six days. It is said that thereafter Petitioner-3 continued to work pursuant to interim order passed by this Court on 16.08.1995. Petitioner-3 was not appointed against any sanctioned post. There is no post of 'Tutor' sanctioned in the College. Admittedly, petitioner-3 was appointed as 'Tutor'. Appointment letter clearly shows that he shall not have any lien on any post or any claim for regularization etc. It is also evident that appointment is not referable to Section 16 read with Section 12 of Act, 1980 inasmuch as there is nothing on record to show that vacancy of Lecturer (Zoology) was notified by UPHESC and since Management did not receive any recommendation in the next three months from the date of such requisition sent to UPHESC, appointment was made by Management as permitted under Section 16 of Act, 1980 as it was existing on 24.01.1991.
20. Learned counsel for Petitioner-3 attempted to rely on a Government Order dated 15.06.1978 to suggest that part time appointment was made pursuant to said Government Order. Once appointment including ad hoc appointment or part time appointment is governed by Statute and Section 12 clearly provides that any appointment made otherwise shall be void, I find it difficult to accept that any valid appointment can be claimed on the basis of an executive order, i.e., 15.06.1978 which is not in conformity with Statute itself.
21. However, even otherwise I find that appointment of Petitioner-3 does not fall within the ambit of Government Order dated 15.06.1978. A bare perusal of Government Order dated 15.06.1978 shows that it was not without any conditions. Moreover, it was applicable in certain restricted cases. Relevant contents of said Government Order are reproduced as under:
^^fo"k;%&lEc) rFkk lg;qDr xSj ljdkjh egkfo|ky;ksa esa va'kdkfyd v/;kidksa dh fu;qfDr rFkk osru lank;A egksn;] mi;qZDr fo"k; ls lEcfU/kr 'kkldh; i=kad 1515 @15&76&¼11½&3 ¼49½@75 fnukad 31 ekpZ 1976 ds vuqdze esa rFkk f'k{kk funs'kd ¼mPp f'k{kk½ mRrj izns'k] bykgkckn ds v)Z 'kkldh; i=kad vFkZ@13392@75&76 fnukad 22 vxLr] 1975 ds lkFk voyfEcr i= O;ogkj ds lUnHkZ esa eq>s ;g dgus dk funsZ'k gqvk gS fd jkT;iky egksn; fuEufyf[kr fo"k;ksa@ladk;ksa esa va'kdkyhu v/;kidksa dh fu;qfDr fd;s tkus dh lg"kZ vkKk iznku djrs gSa%& ¼1½ fof'k"V ladk;ksa esa dfri; fu/kkZfjr fo"k;ksa ds dqN iz'u i=ksa ds v/;kiu gsrq ;Fkk dkuwu vkSj ch0,M0A ¼2½ ,sls fo"k;ksa ds fy, ftudk v/;;u fo'ofo|ky; }kjk vfuok;Z dj fn;k x;k gks fdUrq tks ,d iw.kZ fo"k; ds rqY; u gks vkSj ,sls fo"k; ftuds v/;kiu ds fy, izfr lIrkg dk;ZHkkj iw.kZdkfyd izoDrk ds fy;s visf{kr dk;ZHkkj dh rqyuk esa de gksA fdUrq izfrcU/k ;g gS fd va'kdkfyd v/;kidksa dk vuqikr fdlh Hkh le; lEc) foHkkx esa iw.kZdkfyd v/;kidksa dh dqy la[;k ds ,d pkSFkkbZ ls vf/kd u gksxkA 2- eq>s ;g dgus dk funsZ'k gqvk gS fd va'kdkyhu v/;kidksa dh fu;qfDr fuEufyf[kr 'krksZa ds v/khu tk;sxh%& ¼1½ 'kSf{kd vgZrk;sa ogh gksaxh tks lEcfU/kr fo'ofo|ky;ksa }kjk fu/kkZfjr gksaA ¼2½ vf/kdre vk;q 60 o"kZ gksxh ijUrq ;fn dksbZ O;fDr 60 o"kZ dh vk;q l= ds e/; esa iw.kZ djrk gS rks mldh fu;qfDr l=kUr vFkkZr 30 twu rd tkjh jgsxhA ¼3½ vH;FkhZ rRle; fdlh Hkh egkfo|ky; ;k fo'ofo|ky; esa iw.kZdkfyd v/;kid ugha gksxkA ¼4½ fu;qDr v/;kid dks de ls de 6 ihfj;M izfr lIrkg i<+kuk vfuok;Z gksxkA ¼5½ va'kdkyhu fu;qfDr ,d f'k{kk l= esa yxkrkj 10 ekl ls vf/kd dh vof/k ds fy;s ekU; u gksxhA 3- eq>s ;g Hkh dgus dk funsZ'k gqvk gS fd ftl egkfo|ky; dks va'kdkyhu v/;kid dh vko';drk gksxh mls f'k{kk funs'kd ¼mPp f'k{kk½] mi;qZDr 'krksZa ds v/khu in Lohd`r djsaxs vkSj fo'ofo|ky; ls vgZrkvksa ds lEcU/k esa vuqeksnu izkIr djuk gksxkA 4- eq>s ;g Hkh dgus dk funsZ'k gqvk gS fd jkT;iky egksn; va'kdkyhu in ij fu;qDr v/;kidks dks :0 350& ¼rhu lkS ipkl :i;s½ izfrekl fu;r osru dh nj ls v/;kiu HkRrk Hkh fn;s tkus dh Lohd`fr iznku djrs gSaA ;g HkRrk mi;qZDr 2 o 3 esa fu/kkZfjr 'krksZa rFkk izfdz;k dh iwfrZ ij osru lank; [kkrs ds ek/;e ls lEcfU/kr v/;kid dks fn;k tk;sxkA** "Subject: Appointment and salary payment of part time teachers in the affiliated and associated non-government degree colleges.
Sir, In pursuance of the official letter no. 1515/15-76-(11)-3 (49)/75 dated 31st March, 1976, regarding the subject captioned above, as also the demi-official letter no. Arth/13392/75/76 dated 22nd August, 1975 of the Director of Education (Higher Education), Uttar Pradesh, Allahabad with the related correspondence, I am directed to say that his excellency the Governor is pleased to order the appointment of part-time teachers in the following subjects/faculties:
(1) In particular faculties, for teaching some papers of some prescribed subjects such as Law and B.Ed.
(2) For those subjects study whereof has been made compulsory by the University but which is not equivalent to a full-fledged subject and for those subjects for teaching which weekly burden of charge is less than the burden of charge required to be undertaken by a full-time lecturer. But the restriction is that the ratio of part-time teachers shall at any time not exceed one fourth of the total number of full-time teachers in the department concerned.
2. I am directed to say that the appointment of part-time teachers shall be subject to the following terms and conditions:
(1) Educational qualifications shall be the same as may be prescribed by the universities concerned.
(2) The maximum age shall be 60 years but if a person completes the age of 60 years in the middle of the session, his appointment shall continue till the end of the session, i.e, 30th June.
(3) The candidate must not be a full-time teacher at that time in any degree college or university.
(4) It shall be mandatory for the appointed teacher to teach at least six periods a week.
(5) The part time appointment shall not be valid for a period more than ten consistent months in an academic session.
3. I am directed to say further that whichever degree college is in need of part-time teachers shall be sanctioned posts subject to the aforesaid terms and conditions and shall have to obtain approval with respect to the qualifications from the university.
4. I am directed to say further that his excellency the Governor is pleased to also accord assent to the payment of teaching allowance on the fixed pay of Rs. 350 (three hundred fifty rupees) per month to the teachers appointed on part-time posts. On fulfilment of the conditions, and completion of the procedure, prescribed in the aforesaid paras 2 & 3, this allowance shall be given to the teacher concerned through salary payment account." (English translation by Court) (emphasis added)
22. Aforesaid Government Order dated 15.06.1978 permits appointment of part-time Teachers in particular faculties for teaching some papers of some prescribed subjects such as Law and B.Ed. Admittedly, appointment of 'Tutor' in the department of Zoology as such without reference to relevant papers of prescribed subject is not covered by aforesaid condition. Moreover, subjects given illustratively are Law and B.Ed. which shows that aforesaid condition was for professional courses and not general subjects.
23. Next is the condition which permits part-time appointment of Teacher in respect of those subjects which were made compulsorily by University and these are subjects for which teaching is not required as a full-fledged subject for the entire year. This condition is also not applicable in the present case and no material has been placed on record to satisfy the above condition also. In fact, conditions contained in paras 1 and 2 of Government Order dated 15.06.1978 are not shown to be satisfied in the present case where petitioner-3 has been appointed as 'Tutor' in the department of Zoology. Learned counsel for petitioners though has referred to the Government Order but could not show as to how above two conditions are satisfied so as to attract the aforesaid Government Order in respect of appointment of petitioner-3.
24. Further terms and conditions applicable for appointment of "part-time Teacher" under aforesaid Government Orders are:-
(i) Educational qualification has to be same as prescribed by University for appointment of corresponding status of 'Teacher'.
(ii) A degree College when required a part-time Teacher will seek sanction of the post from the competent authority and approval in respect of qualification has to be obtained from University. (This condition is mentioned in para-3 of aforesaid Government Order).
25. Learned counsel for petitioners could not show that any part-time Teacher's post was sanctioned by competent authority on the request of College or University and with regard to qualification any approval was obtained from University. Therefore, apparently I am satisfied that appointment of petitioner-3 as 'Tutor' is neither referable or relatable nor can be covered by Government Order dated 15.06.1978. The appointment is evidently dehors the aforesaid Government Order.
26. Excluding aforesaid Government Order, despite repeated query, learned counsel for petitioners could not show any other provision under which alleged engagement of petitioner-3 as 'Tutor' could have been made by College. It is also not in dispute that in 1990-91 i.e. on 24.01.1991, when petitioner was appointed/engaged as 'Tutor' in Zoology Department, Section 16 of Act, 1980 was in existence but appointment in question was not made satisfying mandatory conditions provided in Section 16. Therefore, appointment of petitioner-3 does not fall within the ambit of Section 16. No other provision has been brought to the notice of this Court to show that appointment of petitioner-3 as 'Tutor' was validly made by Management in exercise of power available to it to engage such part-time Teacher as 'Tutor'. Therefore, appointment of petitioner-3 is/was ex facie dehors the statutory provisions. Learned counsel for petitioners also could not dispute that there is no post with the designation of 'Tutor' sanctioned in the College and, therefore, appointment of petitioner-3 as 'Tutor' was with a designation which was not in respect of any sanctioned post in the College. In nutshell the appointment of Petitioner-3 is wholly illegal.
27. The first question, therefore, is answered against petitioner-3 holding that his appointment was not made by Management in exercise of power under any provision of statute and it was dehors the statutory provisions. It was beyond the power of appointment conferred upon Management since relevant provision which permitted Management to make appointment of Teachers in the College was neither applicable nor attracted nor followed by Management in appointing petitioner-3 as 'Tutor'. Hence, it was patently illegal.
28. In order to answer question-2, I would have to examine whether petitioner-3 did possess requisite qualifications required for appointment as 'Lecturer' in a Degree College.
29. The required requisite qualification is prescribed in Statute 11.13 of First Statutes of University of Meerut (hereinafter referred to as "First Statute"). Statute 11.13 is part of Chapter 11 Part-II of First Statutes and relevant provisions, i.e., Statute 11.13, Clauses (1), (2), (5) and (6) read as under:
"(1) In the case of any college affiliated with the University the minimum qualification as (for the post of lecturer in the Faculty of Arts) except the department of Music, Drawing and Painting and the Faculty of Commerce, Agriculture, Business Administration and Science shall be Master's degree or an equivalent degree of a foreign University in the relevant subject with atleast 55 per cent marks or its equivalent grade and consistently good academic record.
(2) In the case of any college affiliated with the University the minimum qualification for the post of a lecturer in the Faculty of Education shall be Master's degree or an equivalent degree of a foreign University in Education (that is an M.Ed. Degree) with atleast 55 per cent marks or its equivalent grade and consistently good academic record.
(5) For purpose of this Statute the expression "consistently good academic record" in relation to the Faculty of Education or Faculty of Law or other Faculties shall have the same meaning as given to it in sub-clause (a) or sub-clause (b) or sub-clause (c) of clause (5) of Statute 11.01 as the case may be.
(6) For appointment to the post of lecturer only those candidates shall be eligible who besides fulfilling the minimum academic qualifications prescribed for the post of a lecturer have qualified in a comprehensive test, if any, to be conducted as per scheme of University Grants Commission." (emphasis added)
30. Statute 11.13(5) takes us to Statute 11.01, Clause (5) and sub-clause (a) applicable in respect of appointment in Faculties other than Education and Law, which is relevant for the purpose of this case and reads as under:
"(5) For the purposes of this Statute--
(a) A candidate (other than a candidate for Lecturership in the Faculties of Education and Law) having obtained either 55 per cent marks in Bachelor's degree examination and Second class in Intermediate examination, or 50 per cent marks in each of the two examinations separately, is said to have consistently good academic record." (emphasis added)
31. Petitioner-3 had secured 45.2 % marks in Intermediate and 52.2% marks in Graduation. The requirement under Statute is atleast 55% marks in Graduation and Second Class in Intermediate or 50% marks in each of aforesaid two examinations. Admittedly, Petitioner-3 did not satisfy the aforesaid qualification prescribed in Statute, hence cannot be said to be a person qualified for appointment as "Lecturer" in a College affiliated to University governed by First Statute.
32. Now I come to question-3, "whether doctrine of "equal pay for equal work" is applicable in the case in hand".
33. The above doctrine has to be seen in the present case in the light of the facts that firstly, Petitioner-3 did not possess minimum requisite qualification prescribed under Statute for appointment to the post of Lecturer; he was not appointed validly by Management and ex facie appointment was illegal and further the mere fact that Petitioner-3 took some classes or was assigned invigilation work etc. cannot be said to equate him with a person regularly appointed on the post of Lecturer and required to perform multifarious duties. In fact there is nothing in writ petition to show as to what are complete duties, obligations, responsibilities and level of degree to be observed by Lecturer so as to examine, whether Petitioner-3 actually was discharging duties equal to a person appointed as Lecturer in the College.
34. Doctrine of "equal pay for equal work" is not to be applied on mere asking or on showing that on some aspect a person is doing same thing which is being done by another without having an indepth study of different circumstances, factors and complexities of nature of work as a wholesome. In order to see, what are the aspects which have to be seen before attracting doctrine of "equal pay for equal work" it would be appropriate to have a retrospect of some authorities of Apex Court wherein this aspect has been examined time and again.
35. In Randhir Singh v. Union of India and Ors., (1982) 1 SCC 618, Court considering principle of equal pay for equal work held that it is not an abstract doctrine but one of substance. Construing Articles 14 and 16 in the light of Preamble and Article 39(d) of the Constitution, Court held that principle of equal pay for equal work is deducible from those Articles and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though those drawing different scales of pay do identical work under the same employer. However it was also held -
"It is well known that there can be and there are different grades in a service, with varying qualifications for entry into a particular grade, the higher grade often being a promotional, avenue for officers of the lower grade. The higher qualifications for the higher grade, which may be either academic qualifications or experience based on length of service, reasonably sustain the classification of the officers into two grades with different scales of pay. The principle of 'equal pay for equal work' would be an abstract doctrine not attracting Article 14 if sought to be applied to them..."
36. In R.D. Gupta and Ors. v. Lt. Governor, Delhi Administration and Ors. (1987) 3 SCC 505, Court applying principle of equal pay for equal work, in para 20 of the judgment, considered correctness of defence taken by employer justifying non application of said principle, and held -
"the ministerial staff in the NDMC constitute a unified cadre. The recruitment policy for the selection of the ministerial staff is a common one and the recruitment is also done by a common agency. They are governed by a common seniority list. The ministerial posts in the three wings of the BDNC viz, the general wing, the electricity wing and the waterworks wing are interchangeable posts and the postings an made from the common pool according to administrative convenience and exigencies of service and not on the basis of any distinct policy or special qualifications. Therefore, it would be futile to say that merely because a member of the ministerial staff had been given a posting in the electricity wing, either due to force of circumstances or due to voluntary preferment, he stands on a better or higher footing or in a more advantageous position than his counterparts in the general wing. It is not the case of the respondents that the ministerial staff in the electricity wing perform more onerous or more exacting duties than the ministerial staff in the general wing. It therefore follows that all sections of the ministerial staff should be treated alike and all of them held entitled to the same scales of pay for the work of equal nature done by them." (para 20)
37. In Federation of All India Customs and Central excise Stenographers and Ors. v. Union of India and Ors., (1988) 3 SCC 91, it was held :
"there may be qualitative difference as regards reliability and responsibility justifying different pay scale. Functions may be the same but the responsibilities make a difference. One cannot deny that often the difference is a mater of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as such value judgment is made bonafide, reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination" (Para 7) (Emphasis added)
38. It was further observed that-
"the same amount of physical work may entail different quality of work, some more sensitive, some requiring more tact, some less, it varies from nature and culture of employment." (para 11) (Emphasis added)
39. In Jaipal and Ors. v. State of Haryana and Ors., (1988) 3 SCC 354, the Apex Court held :
"The doctrine of equal work equal pay would apply on the premise of similar work, but it does not mean that there should be complete identity in all respects. If the two classes of persons do same work under the same employer, with similar responsibility, under similar working conditions the doctrine of 'equal work equal pay would apply and it would not be open to the State to discriminate one class with the other in paying salary. The State is under a constitutional obligation to ensure that equal pay is paid for equal work." (para 6)
40. In State of U.P. and Ors. v. J.P. Chaurasia and Ors. (1989)1 SCC 121, Court while considering justification of two pay scales of Bench Secretaries of High Court, observed :
"Entitlement to the pay scale similar would not depend upon either the nature of work or volume of work done by Bench Secretaries. Primarily it requires among others, evaluation of duties and responsibilities of the respective posts. More often functions of two posts may appear to be the same or similar, but there may be difference in degrees in the performance. The quantity of work may be the same, but quality may be different that cannot be determined by relying upon averments in affidavits of Interested parties. The equation of posts or equation of pay must be left to the executive Government. It must be determined by expert bodies like Pay commission. They would be the best judge to evaluate the nature of duties and responsibilities of posts. If there is any such determination by a Commission or Committee, the court should normally accept it. The Court should not try to linker with such equivalence unless it is shown that it was made with extraneous consideration" (para 18) (Emphasis added)
41. In Grih Kalyan Kendra Workers' Union v. Union of India and Ors. JT 1991 (1) SC 60, it was observed :
"the question of parity in pay scale cannot be determined by applying mathematical formula. It depends upon several factors namely nature of work, performance of duties, qualifications, the quality of work performed by them. It is also permissible to have classification in services based on hierarchy of posts, pay scale, value of work and responsibility and experience. The classification must, however, have a reasonable relation to the object sought to be achieved." (para 7) (Emphasis added)
42. In The Secretary, Finance Department and Ors. v. West Bengal Registration Service Association and Ors. JT 1992 (2) SC 27, the Court observed :
"job valuation is both a difficult and time consuming task which even expert bodies having the assistance of staff with requisite expertise have found difficult to undertake sometimes on account of want of relevant data and scales for evaluating performances of different groups of employees. The factors which may have to be kept in view for job evaluation may include (1) the work programme of his department (ii) the nature of contribution expected of him (iii) the extent of his responsibility and accountability in the discharge of his diverse duties and functions (iv) the extent and nature of freedoms/limitations available or imposed on him in the discharge of his duties (v) the extent of powers vested In him (vi) the extent of his dependence on superiors for the exercise of his powers (vii) the need to coordinate with other departments etc. It was further observed that normally a pay structure is evolved keeping in mind several factors e.g., (i) method of recruitment, (ii) level at which recruitment is made, (iii) the hierarchy of service in a given cadre, (iv) minimum educational/technical qualifications required, (v) avenues of promotion (vi) the nature of duties and responsibilities, (vii) the horizontal and vertical relativities with similar jobs, (viii) public dealings, (ix) satisfaction level, (x) employer 's capacity to pay. Etc. (para 12) (Emphasis added)
43. In Jaghnath v. Union of India and Anr., AIR 1992 SC 126, Court, following its earlier judgments, observed:
"classification of officers into two grades with different, scales of pay based either on academic qualification or experience, or length of service is sustainable. Apart from that, higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues is very common in career service. There is selection grade for District Judges. There is senior time scute in Indian Administrative Service. There is suppertime scale in other like services. The entitlement to these higher pay scales depends upon seniority-cum-merit or merit-cum-seniority. The differentiation so made in the same cadre will not amount to discrimination. The classification based on experience is a reasonable classification. It has a rational nexus with the object thereof. To hold otherwise, it would be detrimental to the Interest of the service itself." (para 7)
44. In Secretary, Finance Department and others Vs. West Bengal Registration Service Association and others, AIR 1992 SC 1203, Court held that equation of posts and determination of pay scales is the primary function of the executive and not the judiciary and, therefore, ordinarily Courts will not enter upon the task of job evaluation which is generally left to expert bodies like the Pay Commissions, etc. It does not mean that Court has no jurisdiction and aggrieved employees have no remedy if they are unjustly treated by arbitrary State action or inaction. Courts must, however, realise that job evaluation is both a difficult and time consuming task which even expert bodies having the assistance of staff with requisite expertise have found difficult to undertake, sometimes on account of want of relevant data and scales for evaluating performance of different groups of employees. This would call for a constant study of the external comparisons and internal relativities on account of the changing nature of job requirements. Some of the factors which have to be kept in view for job evaluation may include (i) the work programme of his department, (ii) the nature of contribution expected of him (iii) the extent of his responsibility and accountability in the discharge of his diverse duties and functions, (iv) the extent and nature of freedoms/limitations available or imposed on him in the discharge of his duties, (v) the extent of powers vested in him, (vi) the extent of his dependence on superiors for the exercise of his powers,, (vii) the need to coordinate with other departments, etc.
45. Court further says that a pay structure is evolved normally keeping in mind several factors, like, (i) method of recruitment, (ii) level at which recruitment is made, (iii) the hierarchy of service in a given cadre, (iv) minimum educational/technical qualifications required, (v) avenues of promotion, (vi) the nature of duties and responsibilities, (vii) the horizontal and vertical relativities with similar jobs, (viii) public dealings, (ix) satisfaction level, (x) employer's capacity to pay, etc. The list is not exhaustive but illustrative.
46. In State of Madhya Pradesh and Anr. v. Pramod Bhartiya and Ors. (1993) 1 SCC 539, Court held as under-
"It would he evident from this definition that the stress is upon the similarity of skill, effort and responsibility when performed under similar conditions. Further, as pointed out by Mukharji, J. (as he then was) in Federation of All India Customs and Excise Stenographers the quality of work may vary from post to post. It may vary from institution to institution We cannot ignore or overlook this reality. It is not a matter of assumption but one of proof. The respondents (original petitioners) have failed to establish that their duties, responsibilities and functions are similar to those of the non-technical lecturers in Technical Colleges. They have also failed to establish that the distinction between their scale of pay and that of non technical lecturers working in Technical Schools is either irrational and that it has no basis, or that it is vitiated by mala fides, either in law or in fact (see the approach adopted in Federation case). It must be remembered that since the plea of equal pay for equal work has to be examined with reference to Article 14. the burden is upon the petitioners to establish their right to equal pay, or the plea of discrimination, as the case may be This burden the original petitioners (respondents herein) have failed to discharge." (para 13) (Emphasis added)
47. In Shyam Babu Verma and Ors. v. Union of India and Ors. (1994) 2 SCC 521, Court observed :
"the principle of equal pay for equal work should not be applied in a mechanical or casual manner. Inequality of the men in different groups excludes applicability of the principle of equal pay for equal work to them. Unless it is established that there is no reasonable basis to treat them separately in matters of payment of wages or salary, the Court should not Interfere holding different pay scale as discriminatory"(para 9)
48. In Sher Singh and Ors. v. Union of India and Ors. (1995)6 SCC 515, Court rejected the claim of Library staff of Delhi University and its constituent colleges regarding parity in pay with the teaching staff on the ground that the nature of duties, work load, experience and responsibilities of the two sets of employees in question are totally different from each other.
49. In Union of India and Ors. v. Delhi Judicial Service Assn. and Anr. JT 1995 (2) SC 578, Court, reversing the judgment of High Court which allowed same scale of pay to all officers of Higher Judicial Services, held :
"We think that the high Court was not right in giving selection grade scale of pay to all the officers on the principle of equal pay for equal work. If that be so the Dist. Munsif (Junior civil Judge, Junior subordinate Judge) etc. lowest officer in judicial hierarchy is entitled to the pay of the Senior most super-time scale district Judge as all of hem are discharging judicial duty. The marginal difference principle also is equally inappropriate. Similarly of posts or scale of pay in different services are not relevant. The nature of the duty, nature of the responsibility and degree of accountability etc. are relevant and germane considerations Grant of selection grade, suppertime scale etc. would be akin to a promotion. The result of the impugned direction would wipe out the distinction between the time Scale and Selection grade officers. The learned Counsel for the Union of India, pursuant to our order, has placed before us the service conditions prevailing in the Higher Judicial Services in other States in the country. Except Gujrat which had wiped out the distinction after the judgment in all India Judges Association's case, all other States maintained the distinction between the Grade I and tirade II Higher Judicial offices or Time Scale and Selection Grade or Suppertime scales etc. In fact this distinction is absolutely necessary to inculcate hard work, to maintain character, to improve efficiency, to encourage honesty and integrity among the officers and accountability. Such distinctions would not only be necessary in the Higher Judicial Service but also, indeed in all services under the State and at every stage." (para 5) (Emphasis added)
50. In Sita Devi and Ors. v. State of Haryana and Ors. JT 1996 (7 SC 438, Court upheld different pay scales on the basis of qualification, relying on its earlier judgments in The State of Mysore and Anr. v. P. Narasinga Rao, AIR 1968 SC 349; State of Jammu and Kashmir v. Triloki Nath Khosa, AIR 1974 SC 1 and P. Murugesan and Ors. v. State of Tamil Nadu, 1993 (2) SCC 340.
51. In State of Haryana v. Jasmer Singh and Ors. AIR 1997 SC 1788:1997 (1) AWC2.145 (SC)(NOC), Court justified different pay scales, on various factors, observing as under:
"It is therefore, clear that the quality of work performed by different sets of persons holding different Jobs will have to be evaluated There may be differences in educational or technical qualifications which may have a bearing on the stills which the holders bring to their job although the designation of the job may be the same. There may also be other considerations which have relevance to efficiency in service which may justify differences in pay scales on the basis of criteria such as experience and seniority, or a need to prevent stagnation in the cadre, so that good performance can be elicited from persons who have reached the top of the pay scale. There may be various other similar considerations which may have a hearing on efficient performance in a job. This Court has repeatedly observed that evaluation of such jobs for the purposes of pay scale must be left to expert bodies and, unless there are any mala fides, its evaluation should be accepted." (para 8) (Emphasis added)
52. In Garhwal Jal Sansthan Karmachari Union and Anr. v. State of U.P. and Ors. (1997) SCC 24, Court, in para 8 of the Judgment, rejected the claim of pay parity, between employees of Jal Nigam and Jal Sansthan, on the ground of qualitative difference in the duties, function and responsibilities in the two organizations.
53. Considering difference in mode of recruitment and different service rules, in State of Rajasthan v. Kunji Raman, AIR 1997 SC 693, Court upheld different pay scale for work charged employees and those employed in regular establishment.
54. In Union of India and Ors. v. Pradip Kumar Dey (2000) 8 SCC 580 : 2001 (1) AWC 176(SC), question of parity of pay scale of Naik, Radio Operator in CRPF and employees working as Radio Operator in Directorate of Coordination Police Wireless came up for consideration on the principle of equal pay for equal work and Court negated parity, observing that different pay scales prescribed taking into account hierarchy in service and other relevant factors, cannot be interfered, as it would disturb entire chain of hierarchy.
55. In State of Orissa and Ors. v. Balaram Sahu and Ors. (2003) 1 SCC 250 : 2003 (1) AWC 273 (SC), Court observed as under:
"Though "equal pay for equal work" is considered to be a concomitant of Article 14 as much as "equal pay for unequal work" will also be a negation of that right, equal pay would depend upon not only the nature or the volume of work, but also on the qualitative difference as regards reliability and responsibility as well and though the functions may be the same, but the responsibilities do make a real and substantial difference." (para 11)
56. In State of Haryana and Anr. v. Haryana Civil Secretariat Personal Staff Association, (2002) 6 SCC 72 : 2002 (3) AWC 2477 (SC), it was held in para 10 -
"It is to be kept in mind that the claim of equal pay for equal work is not a fundamental right vested in any employee though it is a constitutional goal to be achieved by the Government. Fixation of pay and determination of parity in duties and responsibilities is a complex matter which is for the executive to discharge, While taking a decision in the matter, several relevant factors, some of which have been noted by this Court in the decided case, are to be considered keeping in view the prevailing financial position and capacity of the State Government to hear the additional liability of a revised scale of pay. It is also to be kept in mind that the priority given to different types of posts under the prevailing policies of the Slate Government is also a relevant factor for consideration by the State Government. In the context of the complex nature of issues involved, the far-reaching consequences of a decision in the matter and its impact on the administration of the State Government, courts have taken the view that ordinarily courts should not try to delve deep into administrative decisions pertaining to pay fixation and pay parity. That is not to say that the matter is not justiciable or that the courts cannot entertain any proceeding against such administrative decision taken by the Government. The courts should approach such matters with restraint and interfere only when they are satisfied that the decision of the Government is patently irrational, unjust and prejudicial to a section of employees and the Government while taking the decision has ignored factors which are material and relevant for a decision in the matter..." (Para 10)
57. In State Bank of India and Anr. v. M.R. Ganesh Babu and Ors. (2002) 4 SCC 556, Court observed in para 16-
"The principle of equal pay for equal work has been considered and applied in many reported decisions of this Court. The principle has been adequately explained and crystallized and sufficiently reiterated in a catena of decisions of this Court. It is well settled that equal pay must depend upon the nature of work done. It cannot he judged by the mere volume of work; there may be qualitative difference as regards reliability and responsibility Functions may be the same but the responsibilities make a difference. One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as value judgment is made bona fide, reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination. The principle is not always easy to apply as there are inherent difficulties in comparing and evaluating the work done by different persons in different organizations, or even in the same organization. Differentiation in pay scales of persons holding same posts and performing similar work on the basis of difference in the degree of responsibility, reliability and confidentiality would be a valid differentiation. The judgment of administrative authorities concerning the responsibilities which attach to the post, and the degree of reliability expected of an incumbent, would be a value judgment of the authorities concerned which, if arrived at bona fide, reasonably and rationally, was not open to interference by the court." (Emphasis added)
58. The difference in pay scale and wages for work charge employees and those engaged in regular establishment has been upheld in State of Punjab and others Vs. Gurdeep Kumar Uppal and others, AIR 2001 SC 2691, State of Punjab and others Vs. Ishar Singh and others, AIR 2002 SC 2422 and Punjab State Electricity Board and others Vs. Jagjiwan Ram and others, JT 2009 (3) SC 400.
59. In Deb Narayan Shyam and others Vs. State of West Bengal and others, 2005(2) SCC 286, Court summarized as to when doctrine of equal pay for equal work would apply in the light of exposition of law laid down in catena of its earlier decisions and said:
"Large number of decisions have been cited before us with regard to the principle of 'equal pay for equal work' by both sides. We need not deal with the said decisions to overburden this judgment. Suffice it to say that the principle is settled that if the two categories of posts perform the same duties and function and carry the same qualification, then there should not be any distinction in pay scale between the two categories of posts similarly situated. But when they are different and perform different duties and qualifications for recruitment being different, then they cannot be said to be equated so as to qualify for equal pay for equal work."
60. The above dictum has been followed in Union of India and Another Vs. Mahajabeen Akhtar, AIR 2008 SC 435.
61. In Haryana State Electricity Board and another Vs. Gulshan Lal and others, JT 2009(9) SC 95 Court observed that same or similar nature of work, by itself, does not entitle an employee to invoke doctrine of equal pay for equal work. Qualification, experience and other factors would be relevant for the said purpose.
62. A three Judge Bench of Apex Court in State of Haryana and others Vs. Charanjit Singh and others, AIR 2006 SC 161 said that 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 and 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 a person has not gone through the process of recruitment 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 justify a difference in pay scales. The earlier nomenclature designating a person as a carpenter or a craftsman is not enough to come to the conclusion that he was doing the same work as another carpenter or craftsmen 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 mere volume of work. There may be qualitative difference as regards reliability and responsibility.
63. The above view has been followed in Union of India and others Vs. Dineshan K. K., AIR 2008 SC 1026, Haryana State Minor Irrigation Tubewells Corporation and others Vs. G.S. Uppal and others, AIR 2008 SC 2152 and Food Corporation of India and others Vs. Ashish Kumar Ganguli and others, 2009(8) SCALE 218.
64. Recently in State of Punjab and another Vs. Surjit Singh and others, 2009(11) SCALE 149, after referring to its earlier judgments, Court has summarized dictum, in the following manner:
"In our opinion fixing pay scales by courts by applying the principle of equal pay for equal work upsets the high constitutional principle of separation of powers between the three organs of the State. 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 (and there too the matter should be sent for examination by an Expert Committee appointed by the government instead of the court itself granting higher pay)."
65. It further says that grant of benefit of doctrine of "equal pay for equal work" depends upon a large number of factors including equal work, equal value, source and manner of appointment, equal identity of group and wholesale or complete identity. Court in Surjit Singh (supra) also stressed upon that the principle has undergone a sea change and the matter should be examined strictly on the basis of the pleadings and proof available before Court to find out whether distinction between two is based on any relevant factor or not. The onus to prove lie on the person who alleges discrimination and claims enforcement of the doctrine of equal pay for equal work.
66. In State of Madhya Pradesh and others Vs. Ramesh Chandra Bajpai, 2009(11) SCALE 619 Court said that it is well settled that the doctrine of equal pay for equal work can be invoked only when employees are similarly situated. Similarity in designation or nature or equation of work is not determinative for equality in the matter of pay scales. Court has to consider the factors like the source and mode of recruitment/appointment, qualifications, nature of work, the value thereof, responsibility, reliability, experience, confidentiality, functional need, etc. In other words the equality clause can be invoked in the matter of pay scale only when there is a whole sale identity between the two posts.
67. In A.K.Behra Vs. Union of India & Anr., JT 2010 (5) SC 290, Court, in paras 84 and 85, said:
"84. The principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of differences of circumstances. It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed.
85. The law can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognize even degree of evil, but the classification should never be arbitrary, artificial or evasive."
68. In State of Rajasthan & Ors. Vs. Daya Lal & Ors., 2011 (2) SCC 429, Court culled down following principles:
"Part time temporary employees in government run institutions cannot claim parity in salary with regular employees of the government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute." (Emphasis added)
69. This decision has been followed in Union Territory Administration, Chandigarh and Ors. v. Mrs. Manju Mathur and Anr., JT 2011 (3) SC 179.
70. In Hukam Chand Gupta vs. Director General, I.C.A.R. and Ors. AIR 2013 SC 547, Court observed that in order to attract doctrine of "equal pay for equal work", assessment of the nature and quality of duties performed and responsibilities shouldered by the incumbents is necessary. Even if, the two persons are working on two posts having same nomenclature, it would not lead to the necessary inference that the posts are identical in every manner.
71. Now examining the pleadings of Petitioners in the present case and the factors with regard to nature of appointment already discussed above and relevant factors which are needed for evaluation of job, I find that the degree of responsibility, level quality of work, element of value of work in the matter of imparting education to students, degree and level of expertise etc., procedure of recruitment etc. negate claim of Petitioner-3. 'Tutor' cannot be equated with a 'Lecturer'. Mere fact that teaching work being done by Tutor and a Lecturer may be similar, but quality, precision etc. would not equate a Lecturer with the appointment of Petitioner-3 as Tutor. There can be difference in degree of performance also. A person appointed on the post of Lecturer after undergoing strict procedure of selection, stands differently than a person like Petitioner-3, who was not even qualified for appointment but engaged as Tutor by Management without having any power of such appointment to impart education to the students. It was a stop gap arrangement in fact. Therefore, I have no hesitation in holding that Petitioner-3 working as 'Tutor' cannot be equated with regularly appointed Lecturer in the College and doctrine of "equal pay for equal work" in the present case is not applicable at all.
72. In view of above, I find no merit in this writ petition. No relief as prayed for by Petitioner-3 can be granted. Writ petition is accordingly dismissed.
73. However, cost is made easy.
Order Date :- 09.09.2019 AK