Document Fragment View

Matching Fragments

46. The Apex Court in the case of S.B.MATHUR AND OTHERS Vs. HON'BLE THE CHIEF JUSTICE OF DELHI HIGH COURT AND OTHERS reported in AIR 1988 SC 2073, dealing with the question under what circumstances certain posts could be treated as equated posts or equal status posts held as under :-

11. The first submission of Mr. Thakur, learned Counsel for the petitioners is that there is a violation of Article 14 of the Constitution in treating the posts of Superintendents, Court Masters or Readers and Private Secretaries to the Judges as equal status posts. It was urged by him that the sources of recruitment to these posts were not identical and so also the qualifications required for appointments to these posts. He also pointed out that the duties of the incumbents of these posts were different. It was submitted by him that in treating these posts as equal status posts unequals were treated equally and hence the rule of equality was violated. In appreciating this submission, it must be borne in mind that it is an accepted principle that where there is an employer who has a large number of employees in his service performing diverse duties, he must enjoy a certain measure of discretion in treating different categories of his employees as holding equal status posts or equated posts, as questions, of promotion or transfer of employees inter se will necessarily arise for the purpose of maintaining the efficiency of the organisation. There is, therefore, nothing inherently wrong in an employer treating certain posts as equated posts or equal status posts provided that, in doing so, he exercises his discretion reasonably and does not violate the principles of equality enshrined in Articles 14 and 16 of the Constitution. It is also clear that for treating certain posts as equated posts or equal status posts, it is not necessary that the holders of these posts must perform completely the same functions or that the sources of recruitment to the posts must be the same nor is it essential that qualifications for appointments to the posts must be identical. All that is reasonably required is that there must not be such difference in the pay-scales or qualifications of the incumbents of the posts concerned or in their duties or responsibilities or regarding any other relevant factor that it would be unjust to treat the posts alike or, in other words, that posts having substantially higher pay-scales or status in service or carrying substantially higher responsibilities and duties or otherwise distinctly superior are not equated with posts carrying much lower pay--scales or substantially lower responsibilities and duties or enjoying much lower status in service"

48. The Apex Court in the Case of VICE-

CHANCELLOR, L.N. MITHILA UNIVERSITY Vs. DAYANANDA JHA reported in AIR 1986 SC 1200 dealing with the equivalence of posts, held as under:-

"8. The pre-requisite of the power of the Vice- Chancellor under Section 10(14) of the Act to transfer any teacher occupying a post in any department or college maintained by the University to any equivalent post in another department or college maintained by it is that they must, broadly, bear the same characteristics. The mere circumstance that the two posts are carried on the same scale of pay is not enough. That is because in the original text of the Amendment Act the words used in Section 10(14) as well as in the expression 'other equivalent post' as defined in Section 2(ka, chh) are 'Samakaksh Pad'. Learned counsel for the respondent is therefore right in contending that equivalence of the pay-scale is not the only factor in judging whether the post of Principal and that of Reader are equivalent posts. We arc inclined to agree with him that the real criterion to adopt is whether they could be regarded of equal status and responsibility, The term 'teacher' is defined in Section 2 (ka chh) (S.2(ba)) to include Principal, University Professor, College Professor, Reader, Lecturer etc. Professors of the University like head of the department, College Professors, Readers, Lecturers belong to different grades and discharge different duties and responsibilities. The power of the Vice-Chancellor to transfer any teacher under Section 10(14) is controlled by the use of the word 'Samakaksh' and he can not transfer any teacher from one post to another in a department of the university or a college unless they belong to the same class. In that view, there can be no doubt that the two posts of Principal and Reader cannot be regarded as of equal status and responsibility. The true criterion for equivalence is the status and the nature and responsibility of the duties attached to the two posts. Although the two posts of Principal and Reader are carried on the same scale of pay, the post of Principal undoubtedly has higher duties and responsibilities. Apart from the fact that there are certain privileges and allowances attached to it, the Principal being the head of the college has many statutory rights, such as: (i) He is the ex- officio member of the Senate, (ii) He has the right to be nominated as the member of the Syndicate,

49. What emerges from the aforesaid judgments is, it is well settled that equation of posts and determination of pay scales is the primary function of the executive and not the judiciary. Equivalency of two posts is not judged by the sole fact of equal pay. While determining the equation of two posts many factors other than pay will have to be taken into consideration, like the nature of duties, responsibilities, minimum qualification etc. Treating certain posts as equated posts or equal status posts, it is not necessary that the holders of these posts must perform completely the same functions or that the sources of recruitment to the posts must be the same nor is it essential that qualifications for appointments to the posts must be identical. All that is reasonably required is that there must not be such difference in the pay-scales or qualifications of the incumbents of the posts concerned or in their duties or responsibilities or regarding any other relevant factor that it would be unjust to treat the posts alike. In other words, that posts having substantially higher pay-scales or status in service or carrying substantially higher responsibilities and duties or otherwise distinctly superior are not equated with posts carrying much lower pay-scales or substantially lower responsibilities and duties or enjoying much lower status in service. Broadly stated, four factors have to be taken into consideration while determining the equation of two posts. They are:

64. In service Jurisprudence, the term 'cadre' has a definite legal connotation. In the legal sense, the word 'cadre' is not synonymous with 'service'. Fundamental Rule 9(4) defines the word 'cadre' to mean the strength of a service or part of a service sanctioned as a separate unit. It is open to the government to constitute as many cadres in any particular service as it may choose according to the administrative convenience and expediency. The persons who do not belong to the same cadre are still members of the same service. Persons belonging to different cadres are members of the same service but they do not belong to the same cadre. Where there is an employer who has a large number of employees in his service performing diverse duties, he must enjoy a certain measure of discretion in treating different categories of his employees as holding equal status posts or equated posts, as questions, of promotion or transfer of employees inter se will necessarily arise for the purpose of maintaining the efficiency of the organisation. Therefore, nothing inherently wrong in an employer treating certain posts as equated posts or equal status posts provided that, in doing so, he exercises his discretion reasonably and does not violate the principles of equality enshrined in Articles 14 and 16 of the Constitution. It is because of this legal position Regulation 2(j)(ii) confers power on the Government to declare any other duly constituted police service functioning in the State to be equivalent to the Principal Police Service of a State, a member of which normally holds charge of a Sub-division of a District for the purposes of police administration. In the absence of such a declaration, the police officer in a cadre different from the police service is not equivalent to the police officer working under the Principal Police Service. It is only on such declaration they become equivalent. Therefore, the understanding of the Tribunal that once all of them belong to one police force, statutorily equivalence is conferred on them is contrary to the express provisions contained in the Act. The interpretation placed in this regard runs counter to the statutory provisions under the Act, as such, it cannot be sustained. Accordingly, the said finding is hereby set aside.