“REPORTABLE”
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 213 OF 2013
State of Punjab & Ors. … Appellants
Versus
Jagjit Singh & Ors. … Respondents
WITH
|CIVIL APPEAL NO. 10356 OF 2016 |CIVIL APPEAL NO. 236 OF 2013 |
|(Arising out of SLP (CIVIL).31676 CC NO. 15616| |
|OF 2011) | |
|CIVIL APPEAL NO.10357 OF 2016 |CIVIL APPEAL NO. 245 OF 2013 |
|(Arising out of SLP (CIVIL) 31677 CC NO. 16434| |
|OF 2011) | |
|CIVIL APPEAL NO.10358 OF 2016 |CIVIL APPEAL NO. 246 OF 2013 |
|(Arising out of SLP (CIVIL) NO. 37162 OF 2012)| |
|CIVIL APPEAL NO. 10360 OF 2016 |CIVIL APPEAL NO. 247 OF 2013 |
|(Arising out of SLP (CIVIL) NO. 37164 OF 2012)| |
|CIVIL APPEAL NO.10361 OF 2016 |CIVIL APPEAL NO. 248 OF 2013 |
|(Arising out of SLP (CIVIL) NO. 37165 OF 2012)| |
|CIVIL APPEAL NO. 211 OF 2013 |CIVIL APPEAL NO. 249 OF 2013 |
|CIVIL APPEAL NO. 212 OF 2013 |CIVIL APPEAL NO. 257 OF 2013 |
|CIVIL APPEAL NO. 214 OF 2013 |CIVIL APPEAL NO. 260 OF 2013 |
|CIVIL APPEAL NO. 217 OF 2013 |CIVIL APPEAL NO. 262 OF 2013 |
|CIVIL APPEAL NO. 218 OF 2013 |CIVIL APPEAL NO. 966 OF 2013 |
|CIVIL APPEAL NO. 219 OF 2013 |CIVIL APPEAL NO. 2231 OF 2013 |
|CIVIL APPEAL NO. 220 OF 2013 |CIVIL APPEAL NO. 2299 OF 2013 |
|CIVIL APPEAL NO. 221 OF 2013 |CIVIL APPEAL NO. 2300 OF 2013 |
|CIVIL APPEAL NO. 222 OF 2013 |CIVIL APPEAL NO. 2301 OF 2013 |
|CIVIL APPEAL NO. 223 OF 2013 |CIVIL APPEAL NO. 2702 OF 2013 |
|CIVIL APPEAL NO. 224 OF 2013 |CIVIL APPEAL NO. 7150 OF 2013 |
|CIVIL APPEAL NO. 225 OF 2013 |CIVIL APPEAL NO. 8248 OF 2013 |
|CIVIL APPEAL NO. 226 OF 2013 |CIVIL APPEAL NO. 8979 OF 2013 |
|CIVIL APPEAL NO. 227 OF 2013 |CIVIL APPEAL NO. 9295 OF 2013 |
|CIVIL APPEAL NO. 228 OF 2013 |CIVIL APPEAL NO. 10362 OF 2016 |
| |(Arising out of SLP (CIVIL) NO. 9464|
| |OF 2013) |
|CIVIL APPEAL NO. 229 OF 2013 |CIVIL APPEAL NO. 10363 OF 2016 |
| |(Arising out of SLP (CIVIL) NO. |
| |11966 OF 2013) |
|CIVIL APPEAL NO. 230 OF 2013 |CIVIL APPEAL NO. 10364 OF 2016 |
| |(Arising out of SLP (CIVIL) NO. |
| |17707 OF 2013) |
|CIVIL APPEAL NO. 231 OF 2013 |CIVIL APPEAL NO. 10365 OF 2016 |
| |(Arising out of SLP (CIVIL) NO. |
| |24410 OF 2013) |
|CIVIL APPEAL NO. 232 OF 2013 |CIVIL APPEAL NO. 871 OF 2014 |
|CIVIL APPEAL NO. 233 OF 2013 |CIVIL APPEAL NO. 10366 OF 2016 |
| |(Arising out of SLP (CIVIL) NO. 4340|
| |OF 2014) |
|CIVIL APPEAL NO. 234 OF 2013 |CIVIL APPEAL NO. 10527 OF 2014 |
|CIVIL APPEAL NO. 235 OF 2013 | |
J U D G M E N T
Jagdish Singh Khehar, J.
1. Delay in filing and refiling Special Leave Petition (Civil)…. CC no.
15616 of 2011, and Special Leave Petition (Civil)…. CC no. 16434 of 2011 is
condoned. Leave is granted in all special leave petitions.
2. A division bench of the Punjab and Haryana High Court, in State of
Punjab & Ors. v. Rajinder Singh & Ors. (LPA no. 337 of 2003, decided on
7.1.2009), set aside, in an intra-court appeal, the judgment rendered by a
learned single Judge of the High Court, in Rajinder Singh & Ors. v. State
of Punjab & Ors. (CWP no. 1536 of 1988, decided on 5.2.2003). In the above
judgment, the learned single Judge had directed the State to pay to the
writ petitioners (who were daily-wagers working as Pump Operators, Fitters,
Helpers, Drivers, Plumbers, Chowkidars etc.), minimum of the pay-scale,
revised from time to time, with permissible allowances, as were being paid
to similarly placed regular employees; arrears payable, were limited to a
period of three years, prior to the date of filing of the writ petition.
In sum and substance, the above mentioned division bench held, that
temporary employees were not entitled to the minimum of the pay-scale, as
was being paid to similarly placed regular employees.
3. Another division bench of the same High Court, in State of Punjab &
Ors. v. Rajinder Kumar (LPA no. 1024 of 2009, decided on 30.8.2010),
dismissed an intra-Court appeal preferred by the State of Punjab, arising
out of the judgment rendered by a learned single Judge in Rajinder Kumar v.
State of Punjab & Ors. (CWP no. 14050 of 1999, decided on 20.11.2002), and
affirmed the decision of the single Judge, in connected appeals preferred
by employees. The letters patent bench held, that the writ petitioners
(working as daily-wage Pump Operators, Fitters, Helpers, Drivers, Plumbers,
Chowkidars, Ledger Clerks, Ledger Keepers, Petrol Men, Surveyors, Fitter
Coolies, Sewermen, and the like), were entitled to minimum of the pay-
scale, alongwith permissible allowances (as revised from time to time),
which were being given to similarly placed regular employees. Arrears
payable to the concerned employees were limited to three years prior to the
filing of the writ petition. In sum and substance, the division bench in
State of Punjab & Ors. v. Rajinder Kumar (LPA no. 1024 of 2009) affirmed
the position adopted by the learned single Judge in Rajinder Singh & Ors.
v. State of Punjab & Ors. (CWP no. 1536 of 1988). It is apparent, that the
instant division bench, concluded conversely as against the judgment
rendered in State of Punjab & Ors. v. Rajinder Singh (LPA no. 337 of 2003),
by the earlier division bench.
4. It would be relevant to mention, that the earlier judgment rendered,
in State of Punjab & Ors. v. Rajinder Singh & Ors. (LPA no. 337 of 2003)
was not noticed by the later division bench – in State of Punjab & Ors. v.
Rajinder Kumar (LPA no. 1024 of 2009). Noticing a conflict of views
expressed in the judgments rendered by two division benches in the above
matters, a learned single Judge of the High Court, referred the matter for
adjudication to a larger bench, on 11.5.2011. It is, therefore, that a
full bench of the High Court, took up the issue, for resolving the dispute
emerging out of the differences of opinion expressed in the above two
judgments, in Avtar Singh v. State of Punjab & Ors. (CWP no. 14796 of
2003), alongwith connected writ petitions. The full bench rendered its
judgment on 11.11.2011. The present bunch of cases, which we have taken up
for collective disposal, comprise of a challenge to the judgment rendered
by the division bench of the High Court in State of Punjab & Ors. v.
Rajinder Singh & Ors. (LPA no. 337 of 2003, decided on 7.1.2009); a
challenge to the judgment, referred to above, in State of Punjab & Ors. v.
Rajinder Kumar (LPA no. 1024 of 2009, decided on 30.8.2010); as also, a
challenge to the judgment rendered by the full bench of the High Court in
Avtar Singh v. State of Punjab & Ors. (CWP no. 14796 of 2003, decided on
11.11.2011). This bunch of cases, also involves challenges to judgments
rendered by the High Court, by relying on the judgments referred to above.
5. The issue which arises for our consideration is, whether temporarily
engaged employees (daily-wage employees, ad-hoc appointees, employees
appointed on casual basis, contractual employees and the like), are
entitled to minimum of the regular pay-scale, alongwith dearness allowance
(as revised from time to time) on account of their performing the same
duties, which are discharged by those engaged on regular basis, against
sanctioned posts. The full bench of the High Court, while adjudicating
upon the above controversy had concluded, that such like temporary
employees were not entitled to the minimum of the regular pay-scale, merely
for reason, that the activities carried on by daily-wagers and the regular
employees were similar. However, it carved out two exceptions, and
extended the minimum of the regular pay to such employees. The exceptions
recorded by the full bench of the High Court in the impugned judgment are
extracted hereunder:-
“(1) A daily wager, ad hoc or contractual appointee against the
regular sanctioned posts, if appointed after undergoing a selection
process based upon fairness and equality of opportunity to all other
eligible candidates, shall be entitled to minimum of the regular pay
scale from the date of engagement.
(2) But if daily wagers, ad hoc or contractual appointees are not
appointed against regular sanctioned posts and their services are
availed continuously, with notional breaks, by the State Government or
its instrumentalities for a sufficient long period i.e. for 10 years,
such daily wagers, ad hoc or contractual appointees shall be entitled
to minimum of the regular pay scale without any allowances on the
assumption that work of perennial nature is available and having
worked for such long period of time, an equitable right is created in
such category of persons. Their claim for regularization, if any, may
have to be considered separately in terms of legally permissible
scheme.
(3) In the event, a claim is made for minimum pay scale after more
than three years and two months of completion of 10 years of
continuous working, a daily wager, ad hoc or contractual employee
shall be entitled to arrears for a period of three years and two
months.”
6. The issue which has arisen for consideration in the present set of
appeals, necessitates a bird’s eye view on the legal position declared by
this Court, on the underlying ingredients, which govern the principle of
‘equal pay for equal work’. It is also necessary for resolving the
controversy, to determine the manner in which this Court has extended the
benefit of “minimum of the regular pay-scale” alongwith dearness allowance,
as revised from time to time, to temporary employees (engaged on daily-wage
basis, as ad-hoc appointees, as employees engaged on casual basis, as
contract appointees, and the like). For the aforesaid purpose, we shall,
examine the above issue, in two stages. We shall first examine situations
where the principle of ‘equal pay for equal work’ has been extended to
employees engaged on regular basis. And thereafter, how the same has been
applied with reference to different categories of temporary employees.
7. Randhir Singh v. Union of India[1], decided by a three-Judge bench:
The petitioner in the instant case, was holding the post of Driver-
Constable in the Delhi Police Force, under the Delhi Administration. The
scale of pay of Driver-Constables, in case of non-matriculates was Rs.210-
270, and in case of matriculates was Rs.225-308. The scale of pay of
Drivers in the Railway Protection Force, at that juncture was Rs.260-400.
The pay-scale of Drivers in the non-secretariat offices in Delhi was,
Rs.260-350. And that, of Drivers employed in secretariat offices in Delhi,
was Rs.260-400. The pay-scale of Drivers of heavy vehicles in the Fire
Brigade Department, and in the Department of Lighthouse was Rs.330-480.
The prayer of the petitioner was, that he should be placed in the scale of
pay, as was extended to Drivers in other governmental organizations in
Delhi. The instant prayer was based on the submission, that he was
discharging the same duties as other Drivers. His contention was, that the
duties of Drivers engaged by the Delhi Police Force, were more onerous than
Drivers in other departments. He based his claim on the logic, that there
was no reason/justification, to assign different pay-scales to Drivers,
engaged in different departments of the Delhi Administration.
(ii) This Court on examining the above controversy, arrived at the
conclusion, that merely the fact that the concerned employees were engaged
in different departments of the Government, was not by itself sufficient to
justify different pay-scales. It was acknowledged, that though persons
holding the same rank/designation in different departments of the
Government, may be discharging different duties. Yet it was held, that if
their powers, duties and responsibilities were identical, there was no
justification for extending different scales of pay to them, merely because
they were engaged in different departments. Accordingly it was declared,
that where all relevant considerations were the same, persons holding
identical posts ought not to be treated differently, in the matter of pay.
If the officers in the same rank perform dissimilar functions and exercise
different powers, duties and responsibilities, such officers could not
complain, that they had been placed in a dissimilar pay-scale (even though
the nomenclature and designation of the posts, was the same). It was
concluded, that the principle of ‘equal pay for equal work’, which meant
equal pay for everyone irrespective of sex, was deducible from the Preamble
and Articles 14, 16 and 39(d) of the Constitution. The principle of ‘equal
pay for equal work’, was held to be applicable to cases of unequal scales
of pay, based on no classification or irrational classification, though
both sets of employees (- engaged on temporary and regular basis,
respectively) performed identical duties and responsibilities.
(iii) The Court arrived at the conclusion, that there could not be the
slightest doubt that Driver-Constables engaged in the Delhi Police Force,
performed the same functions and duties, as other Drivers in the services
of the Delhi Administration and the Central Government. Even though he
belonged to a different department, the petitioner was held as entitled to
the pay-scale of Rs.260-400.
8. D.S. Nakara v. Union of India[2], decided by a five-Judge
Constitution Bench: It is not necessary for us to narrate the factual
controversy adjudicated upon in this case. In fact, the main issue which
arose for consideration pertained to pension, and not to wages. Be that as
it may, it is of utmost importance to highlight the following observations
recorded in the above judgment:-
“32. Having succinctly focused our attention on the conspectus of
elements and incidents of pension the main question may now be
tackled. But, the approach of court while considering such measure is
of paramount importance. Since the advent of the Constitution, the
State action must be directed towards attaining the goals set out in
Part IV of the Constitution which, when achieved, would permit us to
claim that we have set up a welfare State. Article 38 (1) enjoins the
State to strive to promote welfare of the people by securing and
protecting as effective as it may a social order in which justice -
social, economic and political shall inform all institutions of the
national life. In particular the State shall strive to minimise the
inequalities in income and endeavour to eliminate inequalities in
status, facilities and opportunities. Art. 39 (d) enjoins a duty to
see that there is equal pay for equal work for both men and women and
this directive should be understood and interpreted in the light of
the judgment of this Court in Randhir Singh v. Union of India & Ors.,
(1982) 1 SCC 618. Revealing the scope and content of this facet of
equality, Chinnappa Reddy, J. speaking for the Court observed as
under: (SCC p.619, para 1)
"Now, thanks to the rising social and political consciousness
and the expectations aroused as a consequence and the forward
looking posture of this Court, the under-privileged also are
clamouring for the rights and are seeking the intervention of
the court with touching faith and confidence in the court. The
Judges of the court have a duty to redeem their Constitutional
oath and do justice no less to the pavement dweller than to the
guest of the five-star hotel."
Proceeding further, this Court observed that where all relevant
considerations are the same, persons holding identical posts may not
be treated differently in the matter of their pay merely because they
belong to different departments. If that can't be done when they are
in service, can that be done during their retirement? Expanding this
principle, one can confidently say that if pensioners form a class,
their computation cannot be by different formula affording unequal
treatment solely on the ground that some retired earlier and some
retired later. Art. 39 (e) requires the State to secure that the
health and strength of workers, men and women, and children of tender
age are not abused and that citizens are not forced by economic
necessity to enter avocations unsuited to their age or strength. Art.
41 obligates the State within the limits of its economic capacity and
development, to make effective provision for securing the right to
work, to education and to provide assistance in cases of unemployment,
old age, sickness and disablement, and in other cases of undeserved
want. Art. 43 (3) requires the State to endeavour to secure amongst
other things full enjoyment of leisure and social and cultural
opportunities.”
It is however impossible to overlook, that the Constitution Bench noticed
the Randhir Singh case1, and while affirming the principle of ‘equal pay
for equal work’, extended it to pensionary entitlements also.
9. Federation of All India Customs and Central Excise Stenographers
(Recognized) v. Union of India[3], decided by a two-Judge bench: The
petitioners in the above case, were Personal Assistants and Stenographers
attached to heads of departments in the Customs and Central Excise
Department, of the Ministry of Finance. They were placed in the pay-scale
of Rs.550-900. The petitioners claimed, that the basic qualifications, the
method, manner and source of recruitment, and their grades of promotion
were the same as some of their counterparts (Personal Assistants and
Stenographers) attached to Joint Secretaries/Secretaries and other officers
in the Central Secretariat. The above counterparts, it was alleged, were
placed in the pay-scale of Rs.650-1040. The petitioners’ contention was,
that their duties and responsibilities were similar to the duties and
responsibilities discharged by some of their counterparts. Premised on the
instant foundation, it was their contention, that the differentiation in
their pay-scales, was violative of Articles 14 and 16 of the Constitution
of India. The petitioners claimed ‘equal pay for equal work’.
(ii) The assertions made by the petitioners were repudiated by the Union
of India. Whilst acknowledging, that the duties and work performed by the
petitioners were/was identical to that performed by their counterparts
attached to Joint Secretaries/Secretaries and other officers in the
secretariat, yet it was pointed out, that their counterparts working in the
secretariat, constituted a class, which was distinguishable from them. It
was asserted, that the above counterparts discharged duties of higher
responsibility, as Joint Secretaries and Directors in the Central
Secretariat performed functions and duties of greater responsibility, as
compared to heads of departments, with whom the petitioners were attached.
It was contended, that the principle of ’equal pay for equal work’ depended
on the nature of the work done, and not on the mere volume and kind of
work. The respondents also asserted, that people discharging duties and
responsibilities which were qualitatively different, when examined on the
touchstone of reliability and responsibility, could not be placed in the
same pay-scale.
(iii) While adjudicating upon the controversy, this Court arrived at the
conclusion, that the differentiation of the pay-scale was not sought to be
justified on the basis of the functional work discharged by the petitioners
and their counterparts in the secretariat, but on the dissimilarity of
their responsibility, confidentiality and the relationship with the public
etc. It was accordingly concluded, that the same amount of physical work,
could entail different quality of work, some more sensitive, some requiring
more tact, some less. It was therefore held, that the principle of ‘equal
pay for equal work’ could not be translated into a mathematical formula.
Interference in a claim as the one projected by the petitioners at the
hands of a Court, would not be possible unless it could be demonstrated,
that either the differentiation in the pay-scale was irrational, or based
on no basis, or arrived at mala fide, either in law or on fact. In the
light of the stance adopted by the respondents, it was held that it was not
possible to say, that the differentiation of pay in the present
controversy, was not based on a rational nexus. In the above view of the
matter, the prayer made by the petitioners was declined.
10. State of U.P. v. J.P. Chaurasia[4], decided by a two-Judge bench:
Prior to 1965, Bench Secretaries in the High Court of Allahabad, were
placed in a pay-scale higher than that allowed to Section Officers. Bench
Secretaries were placed in the pay-scale of Rs.160-320 as against the pay-
scale of Rs.100-300 extended to Section Officers. A Rationalization
Committee, recommended the pay-scale of Rs.150-350 for Bench Secretaries
and Rs.200-400 for Section Officers. While examining the recommendation,
the State Government placed Bench Secretaries in the pay-scale of Rs.200-
400, and Section Officers in the pay-scale of Rs.515-715. Dissatisfied
with the apparent down-grading, Bench Secretaries demanded, that they
should be placed at par with Section Officers, even though their principal
prayer was for being placed in a higher pay-scale. The matter was examined
by the Pay Commission, which also submitted its report. The Pay Commission
refused to accept, that Bench Secretaries and Section Officers could be
equated, for the purpose of pay-scales. The Pay Commission was of the
view, that the nature of work of Section Officers was not only different,
but also, more onerous than that of Bench Secretaries. It also expressed
the view, that Section Officers had to bear more responsibilities in their
sections, and were required to exercise control over their subordinates.
Additionally, they were required to prepare lengthy original notes, in
complicated matters. The Pay Commission therefore recommended, the pay-
scale of Rs.400-750 for Bench Secretaries and Rs.500-1000 for Section
Officers. Thereupon, the Anomalies Committee, while rejecting the claim of
Bench Secretaries for being placed on par with Section Officers, suggested
that 10 posts of Bench Secretaries should be upgraded and placed in the pay-
scale of Rs.500-1000 (the same as, Section Officers). Those Bench
Secretaries, who were placed in the pay-scale of Rs.500-1000 were
designated as Bench Secretaries Grade-I, and those placed in the pay-scale
of Rs.400-750, were designated as Bench Secretaries Grade-II.
(ii) This Court while adjudicating upon the controversy, examined the
matter from two different angles. Firstly, whether Bench Secretaries in
the High Court of Allahabad, were entitled to the pay-scale admissible to
Section Officers? Secondly, whether the creation of two grades with
different pay-scales in the cadre of Bench Secretaries despite the fact
that they were discharging the same duties and responsibilities, was
violative of the principle of ‘equal pay for equal work’?
(iii) While answering the first question this Court felt, that the issue
required evaluation of duties and responsibilities of the respective posts,
with which equation was sought. And it was concluded, that on the subject
of equation of posts, the matter ought to be left for determination to the
executive, as the same would have to be examined by expert bodies. It was
however held, that whenever it was felt, that expert bodies had not
evaluated the duties and responsibilities in consonance with law, the
matter would be open to judicial review. In the present case, while
acknowledging that at one time Bench Secretaries were paid more emoluments
than Section Officers, it was held, that since successive Pay Commissions
and even Pay Rationalization Committees had found, that Section Officers
performed more onerous duties, bearing greater responsibility as compared
to Bench Secretaries, it was not possible for this Court to go against the
said opinion. As such, this Court rejected the prayer of the Bench
Secretaries as of right, to be assigned a pay-scale equivalent to or higher
than that of Section Officers.
(iv) With reference to the second question, namely, whether there could be
two scales of pay in the same cadre, of persons performing the same or
similar work or duties, this Court expressed the view, that all Bench
Secretaries in the High Court of Allahabad performed the same duties, but
Bench Secretaries Grade-I were entitled to a higher pay-scale than Bench
Secretaries Grade-II, on account of their selection as Bench Secretaries
Grade-I, out of Bench Secretaries Grade-II, by a Selection Committee
appointed under the rules, framed by the High Court. The above selection,
was based on merit with due regard to seniority. And only such Bench
Secretaries Grade-II who had acquired sufficient experience, and also
displayed a higher level of merit, could be appointed as Bench Secretaries
Grade-I. It was therefore held, that the rules provided for a proper
classification, for the grant of higher emoluments to Bench Secretaries
Grade-I, as against Bench Secretaries Grade-II.
(v) In the above view of the matter, the claim raised by the Bench
Secretaries for equal pay, as was extended to Section Officers, was
declined by this Court.
11. Mewa Ram Kanojia v. All India Institute of Medical Sciences[5],
decided by a two-Judge bench: The petitioner in this case, was
appointed against the post of Hearing Therapist, at the AIIMS, with effect
from 3.8.1972. At that juncture, he was placed in the pay-scale of Rs.210-
425. Based on the recommendations made by the Third Pay Commission (which
were adopted by the AIIMS), the pay-scale for the post of Hearing Therapist
was revised to Rs.425-700, with effect from 1.1.1973. The petitioner
accordingly came to be paid emoluments in the aforesaid revised pay-scale.
The petitioner asserted, that the post of Hearing Therapist was required to
discharge duties and responsibilities which were similar to those of the
posts of Speech Pathologist and Audiologist. The said posts were in the
pay-scale of Rs.650-1200. Since the claim of the petitioner for the
aforesaid higher pay-scale (made under the principle of ‘equal pay for
equal work’) was not acceded to by the department, he made a representation
to the Third Pay Commission, which also negatived his claim for parity, as
also, for a higher pay-scale. It is therefore that he sought judicial
intervention. His main grievance was, that Hearing Therapist performed
similar duties and functions as the posts of Senior Speech Pathologist,
Senior Physiotherapist, Senior Occupational Therapist, Audiologist, and
Speech Pathologist, and further, the qualifications prescribed for the
above said posts were almost similar. Since those holding the above
mentioned comparable posts were also working in the AIIMS, it was asserted,
that the action of the employer was discriminatory towards the petitioner.
(ii) Whilst controverting the claim of the petitioner it was pointed out,
that the post of Hearing Therapist was not comparable with the posts
referred to by the petitioner. It was contended, that neither the
qualifications nor the duties and functions of the posts referred to by the
petitioner, were similar to that of Hearing Therapist. In the absence of
equality between the post of Hearing Therapist, and the other posts
referred to by the petitioner, it was asserted, that the claim of the
petitioner was not acceptable under the principle of ‘equal pay for equal
work’.
(iii) During the course of hearing, the petitioner confined his claim for
parity only with the post of Audiologist. It was urged, that educational
qualifications, as well as, duties and functions of the posts of Hearing
Therapist and Audiologist were similar (if not the same). It was
contended, that a Hearing Therapist was required to treat the deaf and
other patients suffering from hearing defects. A Hearing Therapist is
required to help in the rehabilitation of persons with hearing impairments.
It was also pointed out, that an Audiologist’s work was to coordinate the
separate professional skills, which contribute to the study, treatment and
rehabilitation of persons with impaired hearing. As such it was submitted,
that a person holding the post of an Audiologist, was a specialist in the
non-medical evaluation, habilitation and rehabilitation, of those who have
language and speech disorders. On the aforesaid premise, the petitioner
claimed parity with the pay-scale of Audiologists.
(iv) This Court held, that there was a qualitative difference between the
two posts, on the basis of educational qualifications, and therefore, the
principle of ‘equal pay for equal work’, could not be invoked or applied.
It was further held, that the Third Pay Commission had considered the claim
of Hearing Therapists, but did not accede to the grievances made by them.
Since the Pay Commission was in better position to judge the volume of
work, qualitative difference and the reliability and responsibility
required of the two posts, this Court declined to accept the prayer made by
the petitioner, under the principle of ‘equal pay for equal work’.
12. Grih Kalyan Kendra Workers’ Union v. Union of India[6], decided by a
two-Judge bench: The workers’ union in the above case, had approached this
Court, in the first instance in 1984, by filing writ petition no. 13924 of
1984. In the above petition, the relief claimed was for payment of wages
under the principle of ‘equal pay for equal work’. The petitioners sought
parity with employees of the New Delhi Municipal Committee, and employees
of other departments of the Delhi Administration, and the Union of India.
They approached this Court again by filing civil writ petition no. 869 of
1988, which was disposed of by the judgment cited above.
(ii) The petitioners were employees of Grih Kalyan Kendras. They desired
the Union of India to pay them wages in the regular pay-scale, on par with
other employees performing similar work under the New Delhi Municipal
Committee, or the Delhi Administration, or the Union of India. It would be
relevant to mention, that the petitioner- Workers’ Union was representing
employees working in various centres of the Grih Kalyan Kendras, on ad-hoc
basis. Some of them were being paid a fixed salary, described as a
honorarium, while others were working on piece-rate wages at the production
centres, without there being any provision for any scale of pay or other
benefits like gratuity, pension, provident fund etc.
(iii) In the first instance, this Court endeavoured to deal with the
question, whether the employers of these workers were denying them wages as
were being paid to other similarly placed employees, doing the same or
similar work. The question came to be examined for the reason, that unless
the petitioners could demonstrate that the employees of the Grih Kalyan
Kendras, were being discriminated against on the subject of pay and other
emoluments, with other similarly placed employees, the principle of ‘equal
pay for equal work’ would not be applicable. During the course of the
first adjudication in writ petition no. 13924 of 1984, this Court requested
a former Chief Justice of India, to make recommendations after taking into
consideration, firstly, whether other similarly situated employees (engaged
in similar comparable posts, putting in comparable hours of work, in a
comparable employment) were being paid higher pay, and if so, what should
be the entitlement of the agitating employees, so as not to violate the
principle of ‘equal pay for equal work’, and secondly, if there was no
other similar comparable employment, whether the remuneration of the
agitating employees, deserved to be revised on the ground, that their
remuneration was unconscionable or unfair, and if so, to what extent. In
the report filed by the former Chief Justice of India, it was concluded,
that there was no employment comparable to the employment held by those
engaged by the Grih Kalyan Kendras, and therefore, they could not seek
parity with other employees working either with the New Delhi Municipal
Committee, or the Delhi Administration, or the Union of India.
(iv) Based on the aforesaid factual conclusion, this Court held that the
concept of ‘equal pay for equal work’ implies and requires, equal treatment
for those who are similarly situated. It was held, that a comparison could
not be drawn between unequals. Since the workers who had approached the
Court in the present case, had failed to establish that they were situated
similarly as others, it was held, that they could not be extended benefits
which were being given to those, with whom they claimed parity. In this
behalf this Court also opined, that the question as to whether persons were
situated equally, had to be determined by the application of broad and
reasonable tests, and not by way of a mathematical formula of exactitude.
And therefore, since there were no other employees comparable to the
employees working in the Grih Kalyan Kendras, this Court declined to
entertain the prayer made by the petitioners.
13. Union of India v. Pradip Kumar Dey[7], decided by a two-Judge bench:
It was the case of the respondent, that he was holding the post of Naik
(Radio Operator), in which capacity he was discharging similar duties as
those performed in the Directorate of Coordination Police Wireless, and
other central government agencies. It was also the claim of the
respondent, that the duties performed by him as Naik (Radio Operator) were
more hazardous than those performed by personnel with similar
qualifications and experience in State services, and other organizations.
Even though a learned single Judge dismissed the writ petition, an intra-
Court appeal preferred by the respondent, was allowed.
(ii) The Union of India raised three contentions, in its appeal to this
Court. Firstly, that the pay-scale claimed by the respondent, was that of
the post of Assistant Sub-Inspector of Police. It was pointed out, that
the respondent was holding an inferior post - of Naik (Radio Operator). It
was highlighted, that the post of Assistant Sub-Inspector of Police, was a
promotional post, for the post held by the respondent. Secondly, it was
asserted on behalf of the Union of India, that the respondent had not
placed any material before the Court, on which the High Court could have
arrived at the conclusion, that the essential qualifications of the post
against which the respondent claimed parity, as also, the method of
recruitment thereto, were the same as that of the post held by the
respondent. Thirdly, the post of Naik (Radio Operator) held by the
respondent was extended the benefit of special pay of Rs.80/- per month,
and that, there was nothing on the record of the case to show, that Radio
Operators in the Central Water Commission or the Directorate of Police
Wireless, were enjoying similar benefits.
(iii) This Court while accepting the contentions advanced at the hands of
the Union of India held, that the pay-scale claimed by the respondent was
that for the post of Assistant Sub-Inspector, which admittedly was a
promotional post for Naik (Radio Operator), i.e., the post held by the
respondent. And as such, the claim made by the respondent, of parity with
a post superior in hierarchy (to the post held by him), was not
sustainable. Furthermore, this Court arrived at the conclusion, that there
was no material on the record of the case to demonstrate, that the
essential qualifications and the method of recruitment for, as also, the
duties and responsibilities of the post held by him, were similar to those
of the post, against which the respondent was claiming parity.
14. State Bank of India v. M.R. Ganesh Babu[8], decided by a three-Judge
bench: Entry into the management cadre in banking establishments, is
Junior Management Grade Scale-1. The said cadre comprises of Probationary
Officers, Trainee Officers and other officers who possess technical skills
(specialized officers), such as Assistant Law Officers, Security Officers,
Assistant Engineers, Technical Officers, Medical Officers, Rural
Development Officers, and other technical posts. All the posts in the
Junior Management Grade Scale-1 cadre, were divisible into two categories –
generalist officers, and specialist officers. Under the prevalent rules –
the 1979 Order, the benefit of a higher starting pay, was extended only to
Probationary Officers and Trainee Officers (i.e. to generalist officers),
while Rural Development Officers and other specialist officers like
Assistant Law Officers, Security Officers, Assistant Engineers etc., were
not entitled to a higher starting pay. Rural Development Officers,
agitated their claim for similar benefits, as were extended to Probationary
Officers and Trainee Officers (i.e. to the generalist officers). The
question of viability of the claim raised by Rural Development Officers,
was referred to the Bhatnagar Committee. The Bhatnagar Committee made its
recommendation, in favour of Rural Development Officers, finding that they
were required to shoulder, by and large, the same duties and
responsibilities, as Probationary Officers and Trainee Officers, so far as
agricultural advances were concerned. The Committee accordingly
recommended, that it was a fit case for removal of the anomaly in their
salary fitment. It recommended that, Rural Development Officers be allowed
the same fitment of salary at the time of appointment, as was extended to
Probationary Officers and Trainee Officers (i.e. to the generalist
officers). The recommendation made by the Bhatnagar Committee was
accepted, and accordingly, Rural Development Officers were extended the
same fitment of salary, as generalist officers.
(ii) Since the benefit of additional increment was denied to other
specialist officers, they also made a grievance and claimed the benefit of
additional increments, as had been extended to Rural Development Officers.
Since the State Bank of India did not accede to their request, they
approached the Karnataka High Court. The specialist officers claimed, that
in all respects, they performed similar duties and responsibilities, as
Rural Development Officers, and therefore, they were entitled to the
benefit of additional increments, at the time of their appointment, as had
been extended to Rural Development Officers. A learned single Judge of the
High Court, on being impressed by the fact, that some of the Rural
Development Officers, who had not opted for absorption in the generalist
cadre (but had continued under the specialist cadre), were also extended
the benefit of higher starting pay, accepted the claim of the specialist
officers. Appeals preferred against the judgment rendered by the learned
single Judge, were dismissed by a division bench of the High Court.
(iii) This Court while examining the challenges, narrated the parameters on
which the benefit of ‘equal pay for equal work’ can be made applicable, as
under:-
“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 crystalised 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 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 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
such 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.”
Based on the aforesaid parameters, this Court considered the acceptability
of the claim of the specialist officers, for parity with the generalist
officers. This Court recorded its conclusion, as under:-
“19. We have carefully perused the order of the Bank and find that
several reasons have been given for non-acceptance of the respondents'
claim. It has been highlighted that the Probationary Officers/Trainee
Officers are being recruited from market/promoted from clerical staff
by the Bank by means of all-India written test and interview to get
the best talent from the market and within, with a view to man the
Bank's top management in due course. Leaned counsel for the
respondents submitted that the same is also true of specialist
officers. However, it is contended on behalf of the appellant Bank
that the generalist officers are exposed to various assignments
including mandatory rural assignments. Unlike them, the services of
Assistant Law Officers are utilized as in-house advisors on legal
matters in administrative offices. The duties and responsibilities of
Probationary Officers/Trainee Officers are more onerous while the
specialist officers are not exposed to operational work/risk. It is,
therefore, quite clear that there exists a valid distinction in the
matter of work and nature of operations between the specialist
officers and the general category officers. The general category
officers are directly linked to the banking operations whereas the
specialist officers are not so linked and they perform the specified
nature of work. RDOs were given similar fitment as the generalist
officers since it was found that they were required to shoulder, by
and large, the same duties and responsibilities as Probationary
Officers and Trainee Officers in so far as conducting Bank's
agricultural advances work was concerned. This was done on the basis
of the recommendations of the Bhatnagar Committee and keeping in view
the fact that the decision has been taken that there would be no
future recruitment of RDOs and the existing RDOs were proposed to be
absorbed in general banking cadre. The recruitment of RDOs has been
discontinued since 1985. Taking into account the nature of duties and
responsibilities shouldered by the respondents the Bank has concluded
that the duties and responsibilities of the respondents are not
comparable to the duties and responsibilities of the RDOs, the
Probationary Officers or the Trainee Officers.
20. Learned counsel for the respondents submitted that specialist
officers are also recruited from the open market and are confirmed
after successfully completing the probation of 2 years. Before the
Order of 1979 came into force, they were similarly being granted
benefit of additional increments at the time of appointment in the
same manner as the generalist officers. However, after the order of
1979 they have been deprived of this benefit. Subsequently that
benefit was extended to RDOs but not to the respondents and others
like them. We have earlier noticed that the RDOs were given the
benefit of advance increments on the basis of the report of an Expert
Committee which justified their classification with the generalist
officers, having regard to the nature of duties and responsibilities
shouldered by them. However, on consideration of the case of the
respondents, the Bank as reached a different conclusion. The Bank has
found that their duties and responsibilities are not the same as those
of Probationary Officers/Trainee Officers/RDOs. It is no doubt true
that the specialist officers render useful service and their valuable
advice in the specialised fields is of great assistance to the Bank in
its banking operations. The officers who belong to the generalist
cadre, namely the officers who actually conduct the banking operations
and who take decisions in regard to all banking works are advised by
the specialist officers. There can be no doubt that the service
rendered by the specialist officers is also valuable, but that is not
to say that the degree of responsibility and reliability is the same
as those of the Probationary Officers, the Trainee Officers, and the
RDOs, who directly carry on the banking operations and are required to
take crucial decisions based on the advice tendered by the specialist
officers. The Bank has considered the nature of duties and
responsibilities of the various categories of officers and has reached
bona fide decision that while generalist officers take all crucial
decisions in banking operations with which they are directly linked,
and are exposed to operational work and risk since the decisions that
they take has significant effect on the functioning of the bank and
quality of its performance, the specialist officers are not exposed to
such risks nor are they required to take decisions as vital as those
to be taken by the generalist officers. They at best render advice in
their specialized field. The degree of reliability and responsibility
is not the same. It cannot be said that the value judgment of the Bank
in this regard is either unreasonable, arbitrary or irrational. Having
regard to the settled principles and the parameters of judicial
interference, we are of the considered view that the decision taken by
the Bank cannot be faulted on the ground of its being either
unreasonable, arbitrary or discriminatory and therefore judicial
interference is inappropriate.”
On account of the reasons recorded above, specialist officers could not
substantiate their claim of parity. They were held not entitled to benefit
of the principle of ‘equal pay for equal work’
15. State of Haryana v. Haryana Civil Secretariat Personal Staff
Association[9], decided by a two-Judge bench: The respondent Association
in the above case, filed a writ petition before the Punjab and Haryana High
Court, seeking a direction to the appellant herein, to grant Personal
Assistants in the Civil Secretariat, Haryana, the pay-scale of Rs.2000-3500
+ Rs.150 as special pay, which had been given to Personal Assistants
working in the Central Secretariat. The aforesaid prayer was made in the
background of the fact, that the State of Haryana had accepted the
recommendations of the Fourth Central Pay Commission, with regard to
revision of pay-scales, with effect from 1.1.1986. The case of Personal
Assistants before the High Court was, that prior to 1986, Personal
Assistants working in the Civil Secretariat, Haryana, were enjoying a
higher scale of pay, than was extended to Personal Assistants working in
the Central Secretariat. On the receipt of Fourth Central Pay Commission
report, the Central Government revised the pay-scale of Personal Assistants
to Rs.2000-3500 with effect from 1.1.1986. It was pointed out, that even
though the Government of Haryana had accepted the recommendation of the
Fourth Central Pay Commission, and had also implemented the same, in
respect of certain categories of employees, it did not accept the same in
the case of Personal Assistants. The pay-scale of Personal Assistants in
the Civil Secretariat, Haryana, was revised to Rs.1640-2900 + 150 as
special pay.
(ii) It was also the contention of Personal Assistants, that in respect of
certain categories of employees of different departments of the State of
Haryana, like Education, Police, Transport, Health and Engineering and
Technical staff, the State Government had fully adopted the recommendations
of the Fourth Central Pay Commission, by granting them the pay-scale of
Rs.2000-3500. The claim of the Personal Assistants was also premised on
the fact, that Personal Assistants working in the Civil Secretariat,
Haryana, discharged duties which were comparable with that of Personal
Assistants in the Central Secretariat. And so also, their
responsibilities.
(iii) The High Court allowed the claim of the Association. It held, that
Personal Assistants working in the Civil Secretariat, Haryana, were
entitled to the pay-scale of Rs.2000-3500, with effect from 1.1.1986. The
State of Haryana approached this Court. This Court, while recording its
consideration, expressed the view, that the High Court had ignored certain
settled principles of law, while determining the claim of Personal
Assistants, by applying the principle of parity. This Court felt, that the
High Court was persuaded to accept the claim of Personal Assistants, only
because of the designation of their post. This, it was held, was a
misconceived application of the principle. In its analysis, it was
recorded, that the High Court had assumed, that the assertions made at the
behest of the Personal Assistants, that they were discharging similar
duties and responsibilities as Personal Assistants in the Central
Secretariat, had remained unrebutted. That, this Court found, was
factually incorrect. The State of Haryana, in its counter affidavit before
the High Court, had adopted the specific stance, that there was no
comparison between the Personal Assistants working in the Civil
Secretariat, Haryana, and Personal Assistants working in the Central
Secretariat. It was highlighted, that the qualifications prescribed for
Personal Assistants in the Central Secretariat, were different from those
prescribed for Personal Assistants in Civil Secretariat, Haryana. The High
Court was also found to have erred in its determination, by not making any
comparison of the nature of duties and responsibilities, or about the
qualifications prescribed for recruitment. This Court accordingly set
aside the order passed by the High Court, allowing parity.
(iv) In order to delineate the parameters, on the basis of which the
principle of ‘equal pay for equal work’ can be made applicable, this Court
observed as under:-
“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 bear 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 State
Government is also a relevant factor for consideration by the State
Government. In the context of 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. Even in a case where the court holds the order
passed by the Government to be unsustainable then ordinarily a
direction should be given to the State Government or the authority
taking the decision to reconsider the matter and pass a proper order.
The court should avoid giving a declaration granting a particular
scale of pay and compelling the government to implement the same. As
noted earlier, in the present case the High Court has not even made
any attempt to compare the nature of duties and responsibilities of
the two sections of the employees, one in the State Secretariat and
the other in the Central Secretariat. It has also ignored the basic
principle that there are certain rules, regulations and executive
instructions issued by the employers which govern the administration
of the cadre.”
16. Orissa University of Agriculture & Technology v. Manoj K.
Mohanty[10], decided by a two-Judge bench: The respondent in the above
case, was appointed as a Typist in 1990, on a consolidated salary of
Rs.530/- per month, against a vacancy of the post of Junior Assistant. It
was his averment, that even though in the appointment order, he was shown
to have been appointed against the post of Typist, he had actually been
working as a Junior Assistant, in the Examination Section of the institute.
In order to demonstrate the aforesaid factual position, the respondent
placed reliance on two certificates dated 4.12.1993 and 25.3.1996, issued
to him by the Dean of the institute, affirming his stance. Despite the
passage of five years since his induction into service, he was paid the
same consolidated salary (referred to above), and was also not being
regularized. It was also pointed out, that another individual junior to
him was regularized against the post of Junior Assistant. The respondent
then approached the Orissa High Court by way of a writ petition, seeking
appointment on regular basis. The High Court disposed of the said writ
petition, by directing, that the respondent be not disengaged from service.
The High Court further directed, that the respondent be paid salary in the
regular scale of pay admissible to Junior Assistants, with effect from
September, 1997. A review petition filed against the High Court’s order
dated 11.9.1997, was dismissed. Dissatisfied with the above orders, the
Orissa University of Agriculture & Technology approached this Court. While
dealing with the question of ‘equal pay for equal work’, this Court,
noticed the factual position as under:-
“10. The High Court before directing to give regular pay-scale to the
respondent w.e.f. September, 1997 on the principle of “equal pay for
equal work” did not examine the pleadings and facts of the case in
order to appreciate whether the respondent satisfied the relevant
requirements such as the nature of work done by him as compared to the
nature of work done by the regularly appointed Junior Assistants, the
qualifications, responsibilities etc. When the services of the
respondent had not been regularized, his appointment was on temporary
basis on consolidated pay and he had not undergone the process for
regular recruitment, direction to give regular pay-scale could not be
given that too without examining the relevant factors to apply the
principle of “equal pay for equal work”. It is clear from the
averments made in the writ petition extracted above, nothing is stated
as regards the nature of work, responsibilities attached to the
respondent without comparing them with the regularly recruited Junior
Assistants. It cannot be disputed that there were neither necessary
averments in the writ petition nor any material was placed before the
High Court so as to consider the application of principle of “equal
pay for equal work”.”
Based on the fact, that the respondent had not placed sufficient material
on the record of the case, to demonstrate the applicability of the
principle of ‘equal pay for equal work’, this Court set aside the order
passed by the High Court, directing that the respondent be paid wages in
the regular scale of pay, with effect from September, 1997.
17. Government of W.B. v. Tarun K. Roy[11], decided by a three-Judge
bench: There were two technical posts, namely, Operator-cum-Mechanic and
Sub-Assistant Engineer, in the Irrigation Department, of the Government of
West Bengal. In 1970, the State Government revised pay-scales. During the
aforesaid revision, the pay-scale of the post of Operator-cum-Mechanic,
which was initially Rs.180-350, was revised to Rs.230-425, with effect from
1.4.1970. The pay-scale of the post of Sub-Assistant Engineer was
simultaneously revised to Rs.350-600, with a higher initial start of
Rs.330, with effect from the same date. Some persons in the category of
Operator-cum-Mechanic, possessing the qualification of diploma in
engineering, claimed entitlement to the nomenclature of Sub-Assistant
Engineer, as also, the scale of pay prescribed for the post of Sub-
Assistant Engineer. The Government of West Bengal, during the course of
hearing of the matter before this Court, adopted the position, that diploma
holder engineers working as Operator-cum-Mechanics in the Irrigation
Department, were not entitled to be designated as Sub-Assistant Engineers.
The said plea was negatived by this Court in State of West Bengal v. Debdas
Kumar, 1991 Supp. (1) SCC 138.
(ii) Another group of Operator-cum-Mechanics, who did not possess diploma
in engineering, and were graduates in science, or were holding school final
examination certificate, claimed parity with Operator-cum-Mechanics,
possessing the qualification of diploma in engineering. This Court, while
rejecting their claim, observed as under:-
“30. The respondents are merely graduates in Science. They do not
have the requisite technical qualification. Only because they are
graduates, they cannot, in our opinion, claim equality with the
holders of diploma in Engineering. If any relief is granted by this
Court to the respondents on the aforementioned ground, the same will
be in contravention of the statutory rules. It is trite that this
Court even in exercise of its jurisdiction under Article 142 of the
Constitution of India would not ordinarily grant such a relief which
would be in violation of a statutory provision.”
18. S.C. Chandra v. State of Jharkhand[12], decided by a two-Judge bench:
In the above matter, a number of civil appeals were disposed of, through a
common order. The appellants had approached the High Court with the
prayer, that directions be issued to the respondents, to fix their pay-
scale at par with the pay-scale of government secondary school teachers, or
at par with Grade I and II Clerks of the respondent company (Bharat Coking
Coal Ltd. – BCCL). The appellants also prayed, that facilities such as
provident fund, gratuity, pension and other retiral benefits, should also
be made available to them. In addition to the above prayers, the
appellants also sought a direction, that the management of the school, be
taken over by the State Government. Dissatisfied with the orders passed by
the High Court, the employees of the school approached this Court. This
Court disposed of the matter by recording the following conclusion:-
“21. Learned counsel for the appellants have relied on Article 39(d)
of the Constitution. Article 39(d) does not mean that all the
teachers working in the school should be equated with the clerks in
BCCL or the Government of Jharkhand for application of the principle
of equal pay for equal work. There should be total identity between
both groups i.e. the teachers of the school on the one hand and the
clerks in BCCL, and as such the teachers cannot be equated with the
clerks of the State Government or of BCCL. The question of
application of Article 39(d) of the Constitution has recently been
interpreted by this Court in State of Haryana v. Charanjit Singh,
(2006) 9 SCC 321, wherein Their Lordships have put the entire
controversy to rest and held that the principle, “equal pay for equal
work” must satisfy the test that the incumbents are performing equal
and identical work as discharged by employees against whom the equal
pay is claimed. Their Lordships have reviewed all the cases bearing
on the subject and after a detailed discussion have finally put the
controversy to rest that the persons who claimed the parity should
satisfy the court that the conditions are identical and equal and same
duties are being discharged by them. Though a number of cases were
cited for our consideration but no useful purpose will be served as in
State of Haryana v. Charanjit Singh, (2006) 9 SCC 321, all these cases
have been reviewed by this Court. More so, when we have already held
that the appellants are not the employees of BCCL, there is no
question seeking any parity of the pay with that of the clerks of
BCCL.”
A perusal of the determination rendered by this Court reveals, that for
claiming parity under the principle of ‘equal pay for equal work’, there
should be total identity between the post held by the claimants, and the
reference post, with whom parity is claimed.
19. Official Liquidator v. Dayanand[13], decided by a three-Judge bench:
Directions were issued by the Calcutta and Delhi High Courts to the
appellant, in the above matter, to absorb persons employed by the Official
Liquidators (attached to those High Courts) under Rule 308 of the Companies
(Court) Rules, 1959, against sanctioned posts, in the Department of Company
Affairs. By virtue of the above directions, the respondents who were
employed/engaged by Official Liquidators, were paid salaries and allowances
from the Company’s funds. The question that arose for consideration before
this Court was, whether the respondents were entitled to sanctioned
Government posts, in the office of the Official Liquidator(s). While
disposing of the above issue, this Court held as under:-
“100. As mentioned earlier, the respondents were employed/engaged by
the Official Liquidators pursuant to the sanction accorded by the
Court under Rule 308 of the 1959 Rules and they are paid salaries and
allowances from the company fund. They were neither appointed against
sanctioned posts nor were they paid out from the Consolidated Fund of
India. Therefore, the mere fact that they were doing work similar to
the regular employees of the Offices of the Official Liquidators
cannot be treated as sufficient for applying the principle of equal
pay for equal work. Any such direction will compel the Government to
sanction additional posts in the Offices of the Official Liquidators
so as to facilitate payment of salaries and allowances to the company-
paid staff in the regular pay scale from the Consolidate Fund of India
and in view of our finding that the policy decision taken by the
Government of India to reduce the number of posts meant for direct
recruitment does not suffer from any legal or constitutional
infirmity, it is not possible to entertain the plea of the respondents
for payment of salaries and allowances in the regular pay scales and
other monetary benefits on a par with regular employees by applying
the principle of equal pay for equal work.”
20. State of West Bengal v. West Bengal Minimum Wages Inspectors
Association[14], decided by a two-Judge bench: The respondent
Association represented the cadre of Inspector (Agricultural Minimum
Wages), before the High Court of Calcutta. The claim made before the High
Court was, that the said cadre was entitled to parity in pay-scales, with
the posts of Inspector (Cooperative Societies), Extension Officer
(Panchayats) and Revenue Officer. The aforesaid claim of parity was based
on the sole consideration, that the posts of Inspector (Agricultural
Minimum Wages) on the one hand, and the posts of Inspector (Cooperative
Societies), Extension Officer (Panchayats) and Revenue Officer on the
other, were in the same pay-scale, prior to the revision of pay-scales,
i.e., Pay-Scale 9 (– Rs.300-600). After the pay revision in 1981, while
the Inspector (Agricultural Minimum Wages) cadre, was retained in Pay-Scale
9 (– Rs.300-600), the other three cadres – Inspector (Cooperative
Societies), Extension Officer (Panchayats) and Revenue Officer, were placed
in Pay-Scale 11 (– Rs.425-1050). It was based on the above factual
assertion, that the respondents claimed placement in Pay-Scale 11 (- Rs.425-
1050). The claim of the respondents, was not based on the assertion, that
Inspectors (Agricultural Minimum Wages) were discharging duties and
responsibilities, which were similar/identical to those of Inspectors
(Cooperative Societies), Extension Officers (Panchayats) and Revenue
Officers. It is this aspect, which weighed with this Court while
determining the claim of the respondents for parity. In the above
adjudication, this Court recorded the following observations:-
“20. The burden to prove disparity is on the employees claiming
parity – vide State of U.P. v. Ministerial Karamchari Sangh, (1998) 1
SCC 422; Associate Banks Officers’ Association v. SBI, (1998) 1 SCC
428; State of Haryana v. Haryana Civil Secretariat Personal Staff
Association, (2002) 6 SCC 72; State of Haryana v. Tilak Raj, (2003) 6
SCC 123; S.C. Chandra v. State of Jharkhand, (2007) 8 SCC 279 and U.P.
SEB v. Aziz Ahmad, (2009) 2 SCC 606.
21. What is significant in this case is that parity is claimed by
Inspectors, AMW, by seeking extension of the pay scale applicable to
Inspector (Cooperative Societies), Extension Officers (Panchayat) and
KGO-JLRO (Revenue Officers) not on the basis that the holders of those
posts were performing similar duties or functions as Inspectors, AMW.
On the other hand, the relief was claimed on the ground that prior to
ROPA Rules 1981, the posts in the said three reference categories, and
Inspectors, AMW were all in the same pay scale (Pay Scale 9), and that
under ROPA Rules 1981, those other three categories have been given a
higher Pay Scale of No.11, while they – Inspectors, AMW - were
discriminated by continuing them in the Pay Scale 9.
22. The claim in the writ petition was not based on the ground that
subject post and reference category posts carried similar or identical
duties and responsibilities but on the contention that as the subject
post holders and the holders of reference category posts who were
enjoying equal pay at an earlier point of time, should be continued to
be given equal pay even after pay revision. In other words, the parity
claimed was not on the basis of equal pay for equal work, but on the
basis of previous equal pay.
23. It is now well-settled that parity cannot be claimed merely on
the basis that earlier the subject post and the reference category
posts were carrying the same scale of pay. In fact, one of the
functions of the Pay Commission is to identify the posts which deserve
a higher scale of pay than what was earlier being enjoyed with
reference to their duties and responsibilities, and extend such higher
scale to those categories of posts.
24. The Pay Commission has two functions; to revise the existing pay
scale, by recommending revised pay scales corresponding to the pre-
revised pay scales and, secondly, make recommendations for upgrading
or downgrading posts resulting in higher pay scales or lower pay
scales, depending upon the nature of duties and functions attached to
those posts. Therefore, the mere fact that at an earlier point of
time, two posts were carrying the same pay scale does not mean that
after the implementation of revision in pay scales, they should
necessarily have the same revised pay scale.
25. As noticed above, one post which is considered as having a
lesser pay scale may be assigned a higher pay scale and another post
which is considered to have a proper pay scale may merely be assigned
the corresponding revised pay scale but not any higher pay scale.
Therefore, the benefit of higher pay scale can only be claimed by
establishing that holders of the subject post and holders of reference
category posts, discharge duties and functions identical with, or
similar to, each other and that the continuation of disparity is
irrational and unjust.”
Based on the above consideration, this Court observed, that Inspectors
(Agricultural Minimum Wages), had neither pleaded nor proved, that they
were discharging duties and functions similar to the duties and functions
of the Inspectors (Cooperative Societies), Extension Officers (Panchayats)
and Revenue Officers, and therefore held, that their claim for pay parity,
under the principle of ‘equal pay for equal work’, could not be accepted.
21. Union Territory Administration, Chandigarh v. Manju Mathur[15],
decided by a two-Judge bench: In the above matter, the respondents were
working as Senior Dieticians and Dieticians in the Directorate of Health
Services of the Chandigarh Administration. They were posted in the General
Hospital, Chandigarh, under the Union Territory Administration of
Chandigarh. They were placed in the pay-scale of Rs.1500-2540 and Rs.1350-
2400, respectively. They moved the Chandigarh Administration, seeking the
pay-scale extended to their counterparts, employed in the State of Punjab.
The posts against which they were claiming equivalence, were those of
Dietician (gazetted) and Dietician (non-gazetted) in the Directorate of
Research and Medical Education, Punjab. The posts with which they were
seeking equivalence, were sanctioned posts in the Rajindera Hospital
(Patiala) and the Shri Guru Teg Bahadur Hospital (Amritsar). These posts
were in the pay-scale of Rs.2200-4000 and Rs.1500-2640, respectively.
After the State Government declined to accept their claim, they approached
the High Court of Punjab and Haryana, which accepted their claim.
Dissatisfied with the judgment rendered by the High Court, the Union
Territory Administration of Chandigarh, approached this Court.
(ii) During the pendency of the proceedings before this Court, a direction
was issued to the Union Territory Administration of Chandigarh, to appoint
a ‘High Level Equivalence Committee’, to examine the nature of duties and
responsibilities of the post of Senior Dietician working under the Union
Territory Administration of Chandigarh, vis-a-vis, Dietician (gazetted)
working under the State of Punjab. And also to examine the nature of
duties and responsibilities of the post of Dietician, working under the
Union Territory Administration of Chandigarh, vis-a-vis, Dietician (non-
gazetted) working under the State of Punjab, and submit a report. A report
was accordingly submitted to this Court (which is extracted in the above
judgment).
(iii) In its report, the ‘High Level Equivalence Committee’ arrived at the
conclusion, that the duties and responsibilities of the posts held by the
respondents, and the corresponding reference posts with which they were
claiming parity, were not comparable or equivalent. As such, this Court
recorded the following observations:-
“9. We have heard the learned Counsel for the parties. We find from
the report of the High Level Equivalence Committee extracted above
that the Directorate of Research and Medical Education, Punjab, is a
teaching institution in which the Dietician has to perform
multifarious duties such as teaching the probationary nurses in
subjects of nutrition dietaries, control and management of the
kitchen, etc., whereas, the main duties of the Dietician and Senior
Dietician in the Government Multi-Specialty Hospital in the Union
Territory Chandigarh are only to check the quality of food being
provided to the patients and to manage the kitchen.”
Based on the above determination, the prayer for parity under the principle
of ‘equal pay for equal work’ was declined to the respondents, and
accordingly the judgment of the High Court, was set aside.
22. Steel Authority of India Limited v. Dibyendu Bhattacharya[16],
decided by a three-Judge bench: The respondent in the above case, was
appointed against the post of Speech Therapist/Audiologist, in the Durgapur
Steel Plant, in S-6 grade in Medical and Health Services. After serving
for a few years, he addressed a representation to the appellant, claiming
parity with one B.V. Prabhakar, employed at the Rourkela Steel Plant (a
different unit of the same company). The said B.V. Prabhakar was holding
the post of E-1 grade in the executive cadre, though designated as Speech
Therapist/Audiologist. In his representation, the respondent did not claim
parity in pay, but only claimed change of the cadre and upgradation of his
post, and accordingly relaxation in eligibility, so as to be entitled to be
placed in the pay-scale of posts in E-1 grade.
(ii) The appellant did not accept the claim raised by the respondent. He
accordingly approached the High Court of Calcutta. A division bench of the
High Court, accepted his claim for pay parity. It is in the aforesaid
background, that the appellant approached this Court, to assail the
judgment rendered by the High Court. The issue of pay parity was dealt
with by this Court, by recording the following observations:-
“30. In view of the above, the law on the issue can be summarised to
the effect that parity of pay can be claimed by invoking the
provisions of Articles 14 and 39(d) of the Constitution of India by
establishing that the eligibility, mode of selection/recruitment,
nature and quality of work and duties and effort, reliability,
confidentiality, dexterity, functional need and responsibilities and
status of both the posts are identical. The functions may be the same
but the skills and responsibilities may be really and substantially
different. The other post may not require any higher qualification,
seniority or other like factors. Granting parity in pay scales depends
upon the comparative evaluation of job and equation of posts. The
person claiming parity, must plead necessary averments and prove that
all things are equal between the posts concerned. Such a complex issue
cannot be adjudicated by evaluating the affidavits filed by the
parties.
31. The onus to establish the discrimination by the employer lies on
the person claiming the parity of pay. The Expert Committee has to
decide such issues, as the fixation of pay scales etc. falls within
the exclusive domain of the executive. So long as the value judgment
of those who are responsible for administration i.e. service
conditions, etc., is found to be bonafide, reasonable, and on
intelligible criteria which has a rational nexus of objective of
differentiation, such differentiation will not amount to
discrimination. It is not prohibited in law to have two grades of
posts in the same cadre. Thus, the nomenclature of a post may not be
the sole determinative factor. The courts in exercise of their limited
power of judicial review can only examine whether the decision of the
State authorities is rational and just or prejudicial to a particular
set of employees. The court has to keep in mind that a mere difference
in service conditions does not amount to discrimination. Unless there
is complete and wholesale/wholesome identity between the two posts
they should not be treated as equivalent and the Court should avoid
applying the principle of equal pay for equal work.”
Based on the above consideration, this Court recorded its analysis, on the
merits of the controversy, as under:-
“34. Shri B.V. Prabhakar, had been appointed in E-1 Grade, in the
Rourkela unit, considering his past services in the Bokaro Steel
Plant, another unit of the Company, for about two decades prior to the
recruitment of the respondent. As every unit may make appointments
taking into consideration the local needs and requirement, such parity
claimed by the respondent cannot be held to be tenable. The reliefs
sought by the respondent for upgradation of the post and waiving the
eligibility criteria had rightly been refused by the appellants and by
the learned Single Judge. In such a fact-situation, there was no
justification for the Division Bench to allow the writ petition,
granting the benefit from the date of initial appointment of the
respondent. The respondent has not produced any tangible material to
substantiate his claim, thus, he could not discharge the onus of proof
to establish that he had made some justifiable claim. The respondent
miserably failed to make out a case for pay parity to the post of E-1
Grade in executive cadre. The appeal, thus, deserves to be allowed.”
It is, therefore apparent, that this Court did not accept the prayer of pay
parity, in the above cited case, based on the principle of ‘equal pay for
equal work’.
23. Hukum Chand Gupta v. Director General, Indian Council of Agricultural
Research[17], decided by a two-Judge bench: In the above matter, the
appellant was originally appointed as a Laboratory Assistant in Group D, in
the National Dairy Research Institute. He was promoted as a Lower Division
Clerk, after he qualified a limited departmental competitive examination.
He was further promoted as a Senior Clerk, again after qualifying a limited
departmental competitive examination. At this stage, he was placed in the
pay-scale of Rs.1200-2040. He was further promoted to the post of
Superintendent in the pay-scale of Rs.1640-2900, yet again, after passing a
departmental examination. Eventually, he was promoted as an Assistant
Administrative Officer, on the basis of seniority-cum-fitness. The Indian
Council of Agricultural Research revised the pay-scales of Assistants, from
Rs.1400-2600 to Rs.1640-2900, with effect from 1.1.1986. However, the pay-
scale of the post of Superintendent was not revised.
(ii) The appellant submitted a representation seeking revision of his pay-
scale on the ground, that in the headquarters of the Indian Council of
Agricultural Research, the post of Superintendent is a promotional post,
from the post of Assistant (which carried the pay-scale of Rs.1640-2900).
He also claimed parity in pay-scale with one J.I.P. Madan. The claim of
the appellant was not accepted by the authorities, whereupon, he first
approached the Administrative Tribunal and eventually the High Court of
Punjab and Haryana, which also did not accept his contention. It is,
therefore, that he approached this Court.
(iii) While adjudicating upon the above controversy, this Court relied and
endorsed the reasons recorded by the Administrative Tribunal in rejecting
the claim of the appellant in the following manner:-
“9. By a detailed order, the Tribunal rejected both the claims. It
was observed that the post at headquarters cannot be compared with the
post at institutional level as both are governed by different sets of
service rules. The second prayer with regard to the higher pay scale
given to Shri J.I.P. Madan was rejected on the ground that he had been
given the benefit of second upgradation in pay since he had earned
only one promotion throughout his professional career. Aggrieved by
the aforesaid, the appellant filed a writ petition C.W.P. No. 9595 CAT
of 2004 before the High Court. The writ petition has also been
dismissed by judgment dated 8-7-2008. This judgment is impugned in the
present appeal.”
This Court, recorded the following additional reasons, for not accepting
the claim of the appellant, by observing as under:-
“15. In our opinion, the explanation given by Mrs. Sunita Rao does
not leave any room for doubt that the claim made by the appellant is
wholly misconceived. There is no comparison between the appellant and
Shri J.I.P. Madan. The appellant had duly earned promotion in his
cadre from the lowest rank to the higher rank. Having joined in Group
D, he retired on the post of AAO. On the other hand, Shri J.I.P. Madan
had been working in the same pay scale till his promotion on the post
of AAO. Therefore, he was held entitled to the second upgradation
after 24 years of service. He had joined as an Assistant by Direct
Recruitment and promoted on 24-8-1990 as a Superintendent.
After the merger of the post of Assistant with the Superintendent, the
earlier promotion of Shri Madan was nullified, as Assistant was no
longer a feeder post for the promotion on the post of Superintendent.
Thus, a financial upgradation, in view of ACP Scheme, was granted to
him since he had no opportunity for the second promotion.”
This Court concluded the issue by holding as under:-
“20. We are also not inclined to accept the submission of the
appellant that there can be no distinction in the pay scales between
the employees working at headquarters and the employees working at the
institutional level. It is a matter of record that the employees
working at headquarters are governed by a completely different set of
rules. Even the hierarchy of the posts and the channels of promotion
are different. Also, merely because any two posts at the headquarters
and the institutional level have the same nomenclature, would not
necessarily require that the pay scales on the two posts should also
be the same. In our opinion, the prescription of two different pay
scales would not violate the principle of equal pay for equal work.
Such action would not be arbitrary or violate Articles 14, 16 and 39D
of the Constitution of India. It is for the employer to categorize the
posts and to prescribe the duties of each post. There can not be any
straitjacket formula for holding that two posts having the same
nomenclature would have to be given the same pay scale. Prescription
of pay scales on particular posts is a very complex exercise. It
requires assessment of the nature and quality of the duties performed
and the responsibilities shouldered by the incumbents on different
posts. Even though, the two posts may be referred to by the same name,
it would not lead to the necessary inference that the posts are
identical in every manner. These are matters to be assessed by expert
bodies like the employer or the Pay Commission. Neither the Central
Administrative Tribunal nor a Writ Court would normally venture to
substitute its own opinion for the opinions rendered by the experts.
The Tribunal or the Writ Court would lack the necessary expertise
undertake the complex exercise of equation of posts or the pay scales.
21. In expressing the aforesaid opinion, we are fortified by the
observations made by this Court in State of Punjab vs. Surjit Singh,
(2009) 9 SCC 514. In that case, upon review of a large number of
judicial precedents relating to the principle of “equal pay for equal
work”, this Court observed as follows: (SCC pp. 527-28, para 19)
“19. … ‘19. … 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…..
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 make 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
regard. 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.’*” (emphasis supplied)
In our opinion, the aforesaid observations would be a complete answer
to all the submissions made by the appellant.”
For the above reasons, this Court rejected the claim of the appellant,
based on the principle of ‘equal pay for equal work’.
24. National Aluminum Company Limited v. Ananta Kishore Rout[18], decided
by a two-Judge bench: The appellant in the above matter, i.e., National
Aluminum Company Limited (hereinafter referred to as, NALCO) had
established two schools. In the first instance, NALCO itself looked after
the management of the said schools. In 1985, it entered into two separate
but identical agreements with the Central Chinmoy Mission Trust, Bombay,
whereby the management of the schools was entrusted to the above trust. In
1990, a similar agreement was entered into for the management of the above
two schools, with the Saraswati Vidya Mandir Society (affiliated to Vidya
Bharati Akhila Bharatiya Shiksha Sansthan). Accordingly, with effect from
1990, the said Society commenced to manage the affairs of the employees, of
the above two schools. Two writ petitions were filed by the employees of
the two schools before the High Court of Orissa at Cuttack, seeking a
mandamus, that they be declared as employees of NALCO, and be treated as
such, with the consequential prayer, that the employees of the two schools
be accorded suitable pay-scales, as were admissible to the employees of
NALCO. The High Court accepted the above prayers. It is, therefore, that
NALCO approached this Court.
(ii) In adjudicating upon the above matter, this Court recorded its
consideration as under:-
“33. Insofar as their service conditions are concerned, as already
conceded by even the respondents themselves, their salaries and other
perks which they are getting are better than their counter parts in
Government schools or aided/ unaided recognised schools in the State
of Orissa. In a situation like this even if, for the sake of argument,
it is presumed that NALCO is the employer of these employees, they
would not be entitled to the pay scales which are given to other
employees of NALCO as there cannot be any comparison between the two.
The principle of ‘‘equal pay for equal work’’ is not attracted at all.
Those employees directly employed by NALCO are discharging altogether
different kinds of duties. Main activity of NALCO is the manufacture
and production of alumina and aluminium for which it has its
manufacturing units. The process and method of recruitment of those
employees, their eligibility conditions for appointment, nature of job
done by those employees etc. is entirely different from the employees
of these schools. This aspect is squarely dealt with in the case of SC
Chandra vs. State of Jharkhand, (2007) 8 SCC 279, where the plea for
parity in employment was rejected thereby refusing to give parity in
salary claim by school teachers with class working under Government of
Jharkhand and BCCL. The discussion which ensued, while rejecting such
a claim, is recapitulated hereunder in the majority opinion authored
by A.K. Mathur, J.: (SCC p. 289, paras 20-21)
“20. After going through the order of the Division Bench we are
of opinion that the view taken by the Division Bench of the High
Court is correct. Firstly, the school is not being managed by
BCCL as from the facts it is more than clear that BCCL was only
extending financial assistance from time to time. By that it
cannot be saddled with the liability to pay these teachers of
the school as being paid to the clerks working with BCCL or in
the Government of Jharkhand. It is essentially a school managed
by a body independent of the management of BCCL. Therefore, BCCL
cannot be saddled with the responsibilities of granting the
teachers the salaries equated to that of the clerks working in
BCCL.
21. Learned counsel for the appellants have relied on Article
39(d) of the Constitution. Article 39(d) does not mean that all
the teachers working in the school should be equated with the
clerks in BCCL or the Government of Jharkhand for application of
the principle of equal pay for equal work. There should be total
identity between both groups i.e. the teachers of the school on
the one hand and the clerks in BCCL, and as such the teachers
cannot be educated with the clerks of the State Government or of
BCCL. The question of application of Article 39(d) of the
Constitution has recently been interpreted by this Court in
State of Haryana v. Charanjit Singh, (2006) 9 SCC 321, wherein
Their Lordships have put the entire controversy to rest and held
that the principle, 'equal pay for equal work' must satisfy the
test that the incumbents are performing equal and identical work
as discharged by employees against whom the equal pay is
claimed. Their Lordships have reviewed all the cases bearing on
the subject and after a detailed discussion have finally put the
controversy to rest that the persons who claimed the parity
should satisfy the court that the conditions are identical and
equal and same duties are being discharged by them. Though a
number of cases were cited for our consideration but no useful
purpose will be served as in Charanjit Singh all these cases
have been reviewed by this Court. More so, when we have already
held that the appellants are not the employees of BCCL, there is
no question seeking any parity of the pay with that of the
clerks of BCCL.”
Based on the above consideration, this Court recorded its conclusion as
follows:-
“35. We say at the cost of repetition that there is no parity in the
nature of work, mode of appointment, experience, educational
qualifications between the NALCO employees and the employees of the
two schools. In fact, such a comparison can be made with their counter
parts in the Government schools and/or aided or unaided schools. On
that parameter, there cannot be any grievance of the staff which is
getting better emoluments and enjoying far superior service
conditions.”
It is, therefore apparent, that the principle of ‘equal pay for equal work’
was held to be not applicable to the employees of the two schools, so as to
enable them to claim parity, with the employees of NALCO.
25. We shall now attempt an analysis of the decisions rendered by this
Court, wherein temporary employees (differently designated as work-charge,
daily-wage, casual, ad-hoc, contractual, and the like) raised a claim for
being extended wages, equal to those being drawn by regular employees, and
the parameters determined by this Court, in furtherance of such a claim.
Insofar as the present controversy is concerned, the same falls under the
present category.
26. Dhirendra Chamoli v. State of U.P.[19], decided by a two-Judge bench:
Two Class-IV employees of the Nehru Yuvak Kendra, Dehradun, engaged as
casual workers on daily-wage basis, claimed that they were doing the same
work as Class-IV employees appointed on regular basis. The reason for
denying them the pay-scale extended to regular employees was, that there
was no sanctioned post to accommodate the petitioners, and as such, the
assertion on behalf of the respondent-employer was, that they could not be
extended the benefits permissible to regular employees. Furthermore, their
claim was sought to be repudiated on the ground, that the petitioners had
taken up their employment with the Nehru Yuvak Kendra knowing fully well,
that they would be paid emoluments of casual workers engaged on daily-wage
basis, and therefore, they could not claim beyond what they had voluntarily
accepted.
(ii) This Court held, that it was not open to the Government to exploit
citizens, specially when India was a welfare state, committed to a
socialist pattern of society. The argument raised by the Government was
found to be violative of the mandate of equality, enshrined in Article 14
of the Constitution. This Court held that the mandate of Article 14
ensured, that there would be equality before law and equal protection of
the law. It was inferred therefrom, that there must be ‘equal pay for
equal work’. Having found, that employees engaged by different Nehru Yuvak
Kendras in the country were performing similar duties as regular Class-IV
employees in its employment, it was held, that they must get the same
salary and conditions of service as regular Class-IV employees, and that,
it made no difference whether they were appointed on sanctioned posts or
not. So long as they were performing the same duties, they must receive
the same salary.
27. Surinder Singh v. Engineer-in-Chief, CPWD[20], decided by a two-Judge
bench: The petitioners in the instant case were employed by the Central
Public Works Department on daily-wage basis. They demanded the same wage
as was being paid to permanent employees, doing identical work. Herein,
the respondent-employer again contested the claim, by raising the plea that
petitioners could not be employed on regular and permanent basis for want
of permanent posts. One of the objections raised to repudiate the claim of
the petitioners was, that the doctrine of ‘equal pay for equal work’ was a
mere abstract doctrine and was not capable of being enforced in law.
(ii) The objection raised by the Government was rejected. It was held,
that all organs of the State were committed to the directive principles of
the State policy. It was pointed out, that Article 39 enshrined the
principle of ‘equal pay for equal work’, and accordingly this Court
concluded, that the principle of ‘equal pay for equal work’ was not an
abstract doctrine. It was held to be a vital and vigorous doctrine
accepted throughout the world, particularly by all socialist countries.
Referring to the decision rendered by this Court in the D.S. Nakara case2,
it was held, that the above proposition had been affirmed by a Constitution
Bench of this Court. It was held, that the Central Government, the State
Governments and likewise, all public sector undertakings, were expected to
function like model and enlightened employers and further, the argument
that the above principle was merely an abstract doctrine, which could not
be enforced through a Court of law, could not be raised either by the State
or by State undertakings. The petitions were accordingly allowed, and the
Nehru Yuvak Kendras were directed to pay all daily-rated employees,
salaries and allowances as were paid to regular employees, from the date of
their engagement.
28. Bhagwan Dass v. State of Haryana[21], decided by a two-Judge bench:
The Education Department of the State of Haryana, was pursuing an adult
education scheme, sponsored by the Government of India, under the National
Adult Education Scheme. The object of the scheme was to provide functional
literacy to illiterates, in the age group of 15 to 35, as also, to impart
learning through special contract courses, to students in the age group of
6 to 15, comprising of dropouts from schools. The petitioners were
appointed as Supervisors. They were paid remuneration at the rate of
Rs.5,000/- per month, as fixed salary. Prior to 7.3.1984, they were paid
fixed salary and allowance, at the rate of Rs.60/- per month. Thereafter,
the fixed salary was enhanced to Rs.150/- per month. The reason for
allowing them fixed salary was, that they were required to work, only on
part-time basis. The case set up by the State Government was, that the
petitioners were not full-time employees; their mode of recruitment was
different from Supervisors engaged on regular basis; the nature of
functions discharged by them, was not similar to those discharged by
Supervisors engaged in the regular cadre; and their appointments were made
for a period of six months, because the posts against which they were
appointed, were sanctioned for one year at a time.
(ii) Having examined the controversy, this Court rejected all the above
submissions advanced on behalf of the State Government. It was held, that
the duties discharged by the petitioners even though for a shorter
duration, were not any different from Supervisors, engaged in the regular
cadre. Even though recruitment of Supervisors in the regular cadre was
made by the Subordinate Selection Board by way of an open selection,
whereas the petitioners were selected through a process of consideration
which was limited to a cluster of a few villages, it was concluded that,
that could not justify the denial to the petitioners, wages which were
being paid to Supervisors, working in the regular cadre. It was held, that
so long as the petitioners were doing work, which was similar to the work
of Supervisors engaged in the regular cadre, they could not be denied
parity in their wages. Accordingly it was held, that from the standpoint
of the doctrine of ‘equal pay for equal work’, the petitioners could not be
discriminated against, in regard to pay-scales. Having concluded that the
petitioners possess the essential qualification for appointment to the post
of Supervisor, and further the duties discharged by them were similar to
those appointed on regular basis, it was held, that the petitioners could
not be denied wages payable to regular employees. This Court also declined
the plea canvassed on behalf of the Government, that they were engaged in a
temporary scheme against posts which were sanctioned on year to year basis.
On the instant aspect of the matter, it was held, that the same had no
bearing to the principle of ‘equal pay for equal work’. It was held, that
the only relevant consideration was, whether the nature of duties and
functions discharged and the work done was similar. While concluding, this
Court clarified that in the instant case, it was dealing with temporary
employees engaged by the same employer, doing work of the same nature, as
was being required of those engaged in the regular cadre, on a regular
basis. It was held, that the petitioners, who were engaged on temporary
basis as Supervisors, were entitled to be paid on the same basis, and in
the same pay-scale, at which those employed in the regular cadre
discharging similar duties as Supervisors, were being paid.
29. Daily Rated Casual Labour Employed under P&T Department through
Bhartiya Dak Tar Mazdoor Manch v. Union of India[22], decided by a two-
Judge bench: The persons on whose behalf the Mazdoor Manch had approached
this Court under Article 32 of the Constitution of India, were working as
daily-rated casual labourers, in the Posts and Telegraphs Department. They
included three broad categories of workers, namely, unskilled, semi-skilled
and skilled. The unskilled labour consisted of Safai Workers, Helpers,
Peons, and the like. The unskilled labour was engaged in digging, carrying
loads and other similar types of work. The semi-skilled labour consisted
of Carpenters, Wiremen, Draftsmen, A.C. Mechanics etc. They needed to have
technical experience, but were not required to possess any degree or
diploma qualification. The skilled labour consisted of labourers doing
technical work. The skilled labourers were required to possess technical
degree/diploma qualification.
(ii) All the three categories of employees, referred to above, were
engaged as casual labourers. They were being paid very low wages. Their
wages were far less than the salary and allowances paid to regular
employees, of the Posts and Telegraphs Department, engaged for the same
nature of work. The Director General, Posts and Telegraphs Department, by
an order dated 15.5.1980 prescribed the following wages for casual
labourers in the Department:-
“(i) Casual labour who has not completed 720 days of service in a
period of three years at the rate of 240 days per annum with the
Department as on April 1, 1980.
No change. They will continue to be paid at the approved local
rates.
(ii) Casual labour who having been working with the Department from
April 1, 1977 or earlier and have completed 720 days of service as on
April 1, 1980.
Daily wages equal to 75 per cent of 1/30th of the minimum of
Group D Time Scale plus admissible DA.
(iii) Casual labour who has been working in the Department from April
1, 1975 or earlier and has completed 1200 days of service as on April
1, 1980.
Daily wages equal to 1/30th of the minimum of the Group D Time
Scale plus 1/30th of the admissible DA.
(iv) All the casual labourers will, however, continue to be employed
on daily wages only.
(v) These orders for enhanced rates for category (ii) and (iii)
above will take effect from May 1, 1980.
(vi) A review will be carried out every year as on the first of April
for making officials eligible for wages indicated in paras (ii) and
(iii) above.
(vii) The above arrangement of enhanced rates of daily wages will be
without prejudice to absorption of casual mazdoors against regular
vacancies as and when they occur….”
Four years later, by an order dated 26.7.1984, the rate of wages payable to
casual labourers in Posts and Telegraphs Department, was revised as under:-
“(i) Casual semi-skilled/skilled labour who has not completed 720
days of service over a period of three years or more with the
department.
No change. They will continue to be paid at the approved local
rates.
(ii) Casual semi-skilled/skilled labour who has completed 720 days of
service over a period of three years or more.
Daily wage equal to 75 per cent of 1/30th of the minimum of the
scale of semi-skilled (Rs.210-270) or skilled (Rs.260-350) as the case
may be, plus admissible DA/ADA thereon.
(iii) Casual labour who has completed 1200 days of service over a
period of 5 years or more.
Daily wage equal to 1/30th of the minimum of the pay scale of
semi-skilled (Rs.210-270) skilled (Rs.260-350) as the case may be,
plus DA/ADA admissible thereon.
(iv) All the casual semi-skilled/skilled labour will, however
continue to be employed on daily wages only.
(v) These orders for enhanced rates for category (ii) and (iii)
above will take effect from April 1, 1984.
(vi) A review for making further officials eligible for wages vide
(ii) and (iii) above will take effect as on first of April every year.
(vii) If the rates calculated vide (ii) and (iii) above happen to be
less than the approved local rates, payment shall be made as per
approved local rates for above categories of labour.
(viii) The above arrangements of enhanced rates of daily wages
will be without prejudice to absorption of casual semi-skilled/skilled
labour against regular vacancies as and when they occur…..”
(iii) Aggrieved by the discrimination made against them, through the
aforementioned orders dated 15.5.1980 and 26.7.1984, the Mazdoor Manch
submitted a statement of demands, inter alia, claiming the same salary and
allowances and other benefits, as were being paid to regular and permanent
employees of the Union of India, in the corresponding cadres. The
aforesaid demands were departmentally rejected on 13.12.1985. It is,
therefore, that the petitioners approached this Court for the redressal of
their grievances.
(iv) Before this Court the Union of India contended, that the employees in
question belonged to the category of casual labourers, and had not been
regularly employed. As such, it was urged that they were not entitled to
the same privileges, which were extended to regular employees.
(v) This Court while adjudicating upon the controversy, took into
consideration the fact that, the employees in question were rendering the
same kind of service which was being rendered by regular employees. The
submission advanced before this Court, on behalf of the casual labourers,
was under Article 38(2) of the Constitution, which provides that “The State
shall, in particular, strive to minimize the inequalities in income, and
endeavour to eliminate inequalities in status, facilities and
opportunities, not only amongst individuals but also amongst groups of
people residing in different areas or engaged in different vocations.” It
was also urged on behalf of the employees, that the State could not deny
(at least) the minimum pay in the pay-scales of regularly employed workmen,
even though the Government may not be compelled to extend all the benefits
enjoyed by regularly recruited employees.
(vi) While adjudicating upon the controversy, this Court expressed the
view, that the denial of wages claimed by the workers in question, amounted
to exploitation of labour. It was held, that the Government cannot take
advantage of its dominant position, and compel any worker to work even as a
casual labourer on starvation wages. It was pointed out, that a casual
labourer who had agreed to work on such low wages, had done so, because he
had no other choice. In the opinion of this Court, it was poverty, that
had driven the workers to accept such low wages. In the above view of the
matter, in the facts and circumstances of the case, this Court held that
classification of employees into regularly recruited employees and casual
employees for the purpose of paying less than the minimum wage payable to
employees in the corresponding regular cadres, particularly in the lowest
rung in the department, where the pay-scales were the least, was not
tenable. This Court also held that the classification of labourers into
three categories (depicted in the orders dated 15.5.1980 and 26.7.1984,
extracted above) for the purpose of payment of wages at different rates,
was not tenable. It was held, that such a classification was violative of
Articles 14 and 16 of the Constitution, besides being opposed to the spirit
of Article 7 of the International Covenant on Economic, Social and Cultural
Rights, 1966, which exhorts all State parties to ensure fair wages and
equal wages for equal work. Accordingly, this Court directed the Union of
India, and the other respondents, to pay wages to the workmen, who were
engaged as casual labourers, belonging to different categories, at rates
equivalent to the minimum pay, in the pay-scales of regularly employed
workers, in the corresponding cadres, but without any increments. The
workers were also held to be entitled to corresponding dearness allowance
and additional dearness allowance, if any, payable thereon. It was also
directed, that whatever other benefits were being extended to casual
labourers hitherto before, would be continued.
30. Harbans Lal v. State of Himachal Pradesh[23], decided by a two-Judge
bench: The petitioners in this case were Carpenters (1st and 2nd grade),
employed at the Wood Working Centre of the Himachal Pradesh State
Handicraft Corporation. They were termed as daily-rated employees. Their
claim in their petition was for emoluments in terms of wages paid to their
counterparts in regular Government service, under the principle of ‘equal
pay for equal work’. On the factual matrix, based on the averments made in
the pleadings, this Court felt that the Corporation with which the
petitioners were employed, had no regularly employed Carpenter. It is,
therefore evident, that the claim of the petitioners was only with
reference to Carpenters engaged in different Government services. In the
instant factual backdrop, this Court expressed the view, that the claim
made by the petitioners could not be accepted, because the discrimination
complained of, must be within the same establishment, owned by the same
management. It was emphasized, that a comparison under the principle of
‘equal pay for equal work’ could not be made with counterparts in other
establishments, having a different management, or even with establishments
in different geographical locations, though owned by the same master. It
was held, that unless it was shown, that there was discrimination amongst
the same set of employees under the same master, in the same establishment,
the principle of ‘equal pay for equal work’ would not be applicable. It
is, therefore, that the claim of the petitioners was rejected.
31. Grih Kalyan Kendra Workers’ Union v. Union of India6, decided by a
two-Judge bench: The workers’ union had approached this Court, for the
first time, in 1984, by filing writ petition no. 13924 of 1984. In the
above petition, the relief claimed was for payment of wages under the
principle of ‘equal pay for equal work’. The petitioners sought parity
with employees of the New Delhi Municipal Committee, and also, with
employees of other departments of the Delhi Administration, and the Union
of India. They approached this Court again by filing civil writ petition
no. 869 of 1988, which was disposed of by the above cited case.
(ii) The petitioners were employees of Grih Kalyan Kendras. They desired
the Union of India, to pay them wages in the regular pay-scales, at par
with other employees performing similar work, under the New Delhi Municipal
Committee, or the Delhi Administration, or the Union of India. It would be
relevant to mention, that the petitioner- Workers’ Union, was representing
employees working on ad-hoc basis. Some of them were being paid a fixed
salary (described as honorarium), while others were working on piece-rate
wages at the production centres, without there being any provision for any
scale of pay, or other benefits like gratuity, pension, provident fund etc.
(iii) This Court, in the first instance, endeavoured to deal with the
question, whether employers of these workers, were denying them wages as
were being paid to other similarly placed employees, doing the same or
similar work. The question came to be examined on account of the fact,
that unless the petitioners could demonstrate, that the employees of the
Grih Kalyan Kendras were being discriminated against, on the subject of pay
and other emoluments, with other similarly placed employees, the principle
of ‘equal pay for equal work’ would not be applicable. During the course
of the first adjudication, in writ petition no. 13924 of 1984, this Court
requested a former Chief Justice of India to make recommendations after
taking into consideration, firstly, whether other similarly situated
employees (engaged in similar comparable works, putting in comparable hours
of work, in a comparable employment) were being paid higher pay, and if so,
what should be the entitlement of the agitating employees, in order to
comply with the principle of ‘equal pay for equal work’; and secondly, if
there is no other similar comparable employment, whether the remuneration
of the agitating employees deserved to be revised, on the ground that their
remuneration was unconscionable or unfair, and if so, to what extent.
Pursuant to the above request, the former Chief Justice of India,
concluded, that there was no employment comparable to the employment held
by those engaged by the Grih Kalyan Kendras, and therefore, they could not
seek parity with employees, working either under the New Delhi Municipal
Committee, or the Delhi Administration, or the Union of India.
(iv) Based on the aforesaid factual conclusion, this Court held, that the
concept of equality implies and requires equal treatment, for those who are
situated equally. Comparison between unequals is not possible. Since the
workers who had approached this Court had failed to establish, that they
were situated similarly as others, they could not be extended benefits
which were being given to those, with whom they claimed parity. And
therefore, since there were no other employees comparable to the employees
working in the Grih Kalyan Kendras, this Court declined to entertain the
prayer made by the petitioners.
32. Ghaziabad Development Authority v. Vikram Chaudhary[24], decided by a
two-Judge bench: The respondents in this case were engaged by the Ghaziabad
Development Authority, on daily-wage basis. The instant judgment has been
referred to only because it was cited by the learned counsel for the
appellants. In the cited case, the claim raised by the respondents was not
based on the principle of ‘equal pay for equal work’, yet it would be
relevant to mention, that while disposing of the appeal preferred by the
Ghaziabad Development Authority, this Court held that the respondents, who
were engaged as temporary daily-wage employees, would not be entitled to
pay at par with regular employees, but would be entitled to pay in the
minimum wages prescribed under the statute, if any, or the prevailing wages
as available in the locality. It would, therefore, be improper for us to
treat this judgment as laying down any principle emerging from the concept
of ‘equal pay for equal work’.
33. State of Haryana v. Jasmer Singh[25], decided by a two-Judge bench:
The respondents were employed as Mali-cum-Chowkidars/Pump Operators on
daily-wage basis, under the employment of the Government of Haryana. They
had approached the High Court claiming the same salary as was being paid to
the regularly employed persons, holding similar posts in the State of
Haryana. The instant prayer was made by the respondents, under the
principle of ‘equal pay for equal work’. The above prayer made by the
respondents, was granted by the High Court. The High Court issued a
direction to the State Government, to pay the respondents, the same salary
and allowances as were being paid to regular employees holding similar
posts, with effect from the dates on which the respondents were engaged by
the State Government.
(ii) This Court held, that the respondents who were employed on daily-wage
basis, could not be treated at par with persons employed on regular basis,
against similar posts. It was concluded, that daily-rated workers were not
required to possess the qualifications required for regular workers, nor
did they have to fulfill the postulated requirement of age, at the time of
recruitment. Daily-rated workers, it was felt, were not selected in the
same manner as regular employees, inasmuch as, their selection was not as
rigorous as that of employees selected on regular basis. This Court
expressed the view, that there were also other provisions relating to
regular service, such as the liability of a member of the service to be
transferred, and his being subjected to disciplinary jurisdiction. It was
pointed out, that daily-rated employees were not subjected to either of the
aforesaid contingencies/consequences. In view of the aforesaid
consideration, this Court held that the respondents, who were employed on
daily-wage basis, could not be equated with regular employees for purposes
of their wages, nor were they entitled to obtain the minimum of the regular
pay-scale extended to regular employees. This Court, however held, that if
a minimum wage was prescribed for such workers, the respondents would be
entitled to it, if it was higher than the emoluments which were being paid
to them.
(iii) It would be relevant to mention that in the above decision this Court
took notice of the fact, that the State of Haryana had taken policy
decisions from time to time to regularize the services of the employees,
similarly placed as the respondents, wherein daily-wage employees on
completion of 3/5 years’ service, were entitled to regularization. On
their being regularized, they were entitled to wages payable to regular
employees.
34. State of Punjab v. Devinder Singh[26], decided by a two-Judge bench:
The respondents were daily-wage Ledger-Keepers/Ledger Clerks engaged by the
State of Punjab. They approached the Punjab & Haryana High Court, claiming
salary and allowances, as were being paid to regular employees holding
similar posts. The High Court held in their favour, and directed the State
Government to pay to the respondents, salary and allowances, as were being
paid to regular employees holding similar posts. The aforesaid decision
was rendered because the High Court accepted their contention, that they
were doing the same work as was taken from regular Ledger-Keepers/Ledger
Clerks. Their prayer was accordingly accepted, under the principle of
‘equal pay for equal work’.
(ii) This Court was of the view that the principle of ‘equal pay for equal
work’ could enure to the benefit of the respondents to the limited extent,
that they could have been paid the minimum of the pay-scale of Ledger-
Keepers/Ledger Clerks, appointed on regular basis. This conclusion was
drawn by applying the principle of ‘equal pay for equal work’. This Court,
therefore, allowed the prayer made by the State Government to the aforesaid
limited extent. The right claimed by the respondents, to be paid in the
same time scale, as regularly employed Ledger-Keepers/Ledger Clerks were
being paid, was declined.
35. State of Haryana v. Tilak Raj[27], decided by a two-Judge bench:
Thirty five respondents were appointed at different points of time, as
Helpers on daily-wages by the Haryana Roadways. They filed a writ petition
before the Punjab and Haryana High Court, claiming regularization because
they had rendered long years of service. They also claimed salary, as was
payable to regular employees, engaged for the same nature of work, as was
being performed by them. Even though, the High Court did not accept the
prayer made by the respondents, either for regularization or for payment of
wages at par with regular employees, it directed the State of Haryana to
pay to the respondents, the minimum pay in the scale of pay applicable to
regular employees. The State of Haryana being aggrieved by the order
passed by the High Court, approached this Court.
(ii) While disposing of the appeal preferred by the State of Haryana, this
Court accepted the contention advanced on its behalf, that a scale of pay
is attached to a definite post. This Court also accepted, that a daily-
wager holds no post. In view of the above factual/legal position, this
Court arrived at the conclusion, that the prayer made by the respondents
before the High Court, that they be granted emoluments in the pay-scale of
the regular employees, could not be acceded to. Since no material was
placed before the High Court, comparing the nature of duties of either
category, it was held, that it was not possible to hold that the principle
of ‘equal pay for equal work’ could be invoked by the respondents, to claim
wages in the regular pay-scale.
(iii) Despite having found that the respondents were not eligible to claim
wages in the regular scale of pay, on account of the fact that they were
engaged on daily-wage basis, this Court directed the State of Haryana to
pay to the respondents, the minimum wages as prescribed for such workers.
36. Secretary, State of Karnataka v. Umadevi[28], decided by a five-Judge
Constitution Bench: Needless to mention, that the main proposition
canvassed in the instant judgment, pertained to regularization of
government servants, based on the employees having rendered long years of
service, as temporary, contractual, casual, daily-wage or on ad-hoc basis.
It is, however relevant to mention, that the Constitution Bench did examine
the question of wages, which such employees were entitled to draw. In
paragraph 8 of the judgment, a reference was made to civil appeal nos. 3595-
612 of 1999, wherein, the respondent-employees were temporarily engaged on
daily-wages in the Commercial Taxes Department. As they had rendered
service for more than 10 years, they claimed permanent employment in the
department. They also claimed benefits as were extended to regular
employees of their cadre, including wages (equal to their salary and
allowances) with effect from the dates from which they were appointed.
Even though the administrative tribunal had rejected their claim, by
returning a finding, that they had not made out a case for payment of
wages, equal to those engaged on regular basis, the High Court held that
they were entitled to wages, equal to the salary of regular employees of
their cadre, with effect from the date from which they were appointed. The
direction issued by the High Court resulted in payment of higher wages
retrospectively, for a period of 10 and more years. It would also be
relevant to mention, that in passing the above direction, the High Court
had relied on the decision rendered by a three-Judge bench of this Court in
Dharwad District PWD Literate Daily-Wage Employees Association v. State of
Karnataka[29]. The Constitution Bench, having noticed the contentions of
the rival parties, on the subject of wages payable to daily-wagers,
recorded its conclusions as under:-
“55. In cases relating to service in the commercial taxes department,
the High Court has directed that those engaged on daily wages, be paid
wages equal to the salary and allowances that are being paid to the
regular employees of their cadre in government service, with effect
from the dates from which they were respectively appointed. The
objection taken was to the direction for payment from the dates of
engagement. We find that the High Court had clearly gone wrong in
directing that these employees be paid salary equal to the salary and
allowances that are being paid to the regular employees of their cadre
in government service, with effect from the dates from which they were
respectively engaged or appointed. It was not open to the High Court
to impose such an obligation on the State when the very question
before the High Court in the case was whether these employees were
entitled to have equal pay for equal work so called and were entitled
to any other benefit. They had also been engaged in the teeth of
directions not to do so. We are, therefore, of the view that, at best,
the Division Bench of the High Court should have directed that wages
equal to the salary that is being paid to regular employees be paid to
these daily-wage employees with effect from the date of its judgment.
Hence, that part of the direction of the Division Bench is modified
and it is directed that these daily-wage earners be paid wages equal
to the salary at the lowest grade of employees of their cadre in the
Commercial Taxes Department in government service, from the date of
the judgment of the Division Bench of the High Court. Since, they are
only daily-wage earners, there would be no question of other
allowances being paid to them. In view of our conclusion, that Courts
are not expected to issue directions for making such persons permanent
in service, we set aside that part of the direction of the High Court
directing the Government to consider their cases for regularization.
We also notice that the High Court has not adverted to the aspect as
to whether it was regularization or it was giving permanency that was
being directed by the High Court. In such a situation, the direction
in that regard will stand deleted and the appeals filed by the State
would stand allowed to that extent. If sanctioned posts are vacant
(they are said to be vacant) the State will take immediate steps for
filling those posts by a regular process of selection. But when
regular recruitment is undertaken, the respondents in C.A. Nos. 3595-
3612 and those in the Commercial Taxes Department similarly situated,
will be allowed to compete, waiving the age restriction imposed for
the recruitment and giving some weightage for their having been
engaged for work in the Department for a significant period of time.
That would be the extent of the exercise of power by this Court
under Article 142 of the Constitution to do justice to them.”
We have extracted the aforesaid paragraph, so as not to make any inference
on our own, but to project the determination rendered by the Constitution
Bench, as was expressed by the Bench. We have no hesitation in concluding,
that the Constitution Bench consciously distinguished the issue of pay
parity, from the issue of absorption/regularization in service. It was
held, that on the issue of pay parity, the High Court ought to have
directed, that the daily-wage workers be paid wages equal to the salary at
the lowest grade of their cadre. The Constitution Bench expressed the
view, that the concept of equality would not be applicable to the issue of
absorption/regularization in service. And conversely, on the subject of
pay parity, it was unambiguously held, that daily-wage earners should be
paid wages equal to the salary at the lowest grade (without any
allowances).
37. State of Haryana v. Charanjit Singh[30], decided by a three-Judge
bench: A large number of civil appeals were collectively disposed of by a
common order. In all these appeals, the respondents were daily-wagers, who
were appointed as Ledger Clerks, Ledger Keepers, Pump Operators, Mali-cum-
Chowkidar, Fitters, Petrol Men, Surveyors, etc. All of them claimed the
minimum wages payable under the pay-scale extended to regular Class-IV
employees. The above relief was claimed with effect from the date of their
initial appointment. It would be relevant to mention, that while the
appeals disposed of by the common order were pending before this Court, all
the respondents were regularized. From the date of their regularization,
they were in any case, being paid salary in the scales applicable to
regular Class-IV employees. The limited question which came up for
adjudication before this Court in the matters was, whether the directions
issued by the High Court to pay the minimum wage in the scale payable to
Class-IV employees to the respondents, from the date of their filing the
respective petition before the High Court, was required to be interfered
with. While adjudicating upon the aforesaid issue, this Court made the
following observations:-
“19. Having considered the authorities and the submissions we are of
the view that the authorities in the cases of State of Haryana v.
Jasmer Singh, (1996) 11 SCC 77, State of Haryana v. Tilak Raj, (2003)
6 SCC 123, Orissa University of Agriculture & Technology v. Manoj K.
Mohanty, (2003) 5 SCC 188, Govt. of W.B. v. Tarun K. Roy, (2004) 1 SCC
347, 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 the 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 make 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.”
Having made the above observations, the judgments rendered by the High
Court were set aside, and the matters were remanded back to the High Court,
to examine each case in order to determine whether the respondents were
discharging the same duties and responsibilities, as the employees with
whom they claimed parity. In sum and substance therefore, this Court
acceded to the proposition that daily-wagers who were rendering the same
duties and responsibilities as regular employees, would be entitled to the
minimum wage in the pay-scale payable to regular employees. It is only
because the said factual determination had not been rendered by the High
Court, the matter was remanded back, for a fresh adjudication on the above
limited issue.
38. State of U.P. v. Putti Lal[31], decided by a three-Judge bench: The
question which arose for adjudication was, whether the respondents who were
daily-rated wage earners in the Forest Department, were entitled to
regularization, and should be paid the minimum of the pay-scale as was
payable to a regular worker, holding a corresponding post in the
Government. On the above issue, this Court in the above judgment, recorded
the following conclusion:-
“5. In several cases this Court applying the principle of equal pay
for equal work has held that a daily-wager, if he is discharging the
similar duties as those in the regular employment of the Government,
should at least be entitled to receive the minimum of the pay scale
though he might not be entitled to any increment or any other
allowance that is permissible to his counterpart in the Government.
In our opinion that would be the correct position and we, therefore,
direct that these daily-wagers would be entitled to draw at the
minimum of the pay scale being received by their counterparts in the
Government and would not be entitled to any other allowances or
increment so long as they continue as daily-wagers. The question of
their regular absorption will obviously be dealt with in accordance
with the statutory rules already referred to.”
It is therefore apparent, that in the instant judgment, the three-Judge
bench extended the benefit of the principle of ‘equal pay for equal work’
to persons engaged on daily-wage basis.
39. State of Punjab v. Surjit Singh[32], decided by a two-Judge bench:
The respondents in the above mentioned matter, were appointed in different
posts in the Public Health Department of the State of Punjab. All of them
were admittedly appointed on daily-wage basis. Inter alia, because the
respondent-employees had put in a number of years of service, they were
held by the High Court to be entitled to the benefit of the principle of
‘equal pay for equal work’. In the challenge raised before this Court, it
was concluded as under:-
“36. With utmost respect, the principle, as indicated hereinbefore,
has undergone a sea change. We are bound by the decisions of larger
Benches. This Court had been insisting on strict pleadings and proof
of various factors as indicated heretobefore. Furthermore, the burden
of proof even in that case had wrongly been placed on the State which
in fact lay on the writ petitioners claiming similar benefits. The
factual matrix obtaining in the said case particularly similar
qualification, interchangeability of the positions within the regular
employees and the casual employees and other relevant factors which
have been noticed by us also had some role to play.”
Rather than determining whether or not the respondents were entitled to any
benefit under the principle of ‘equal pay for equal work’, on account of
their satisfying the conditions stipulated by this Court in different
judgments including the one in State of Haryana v. Charanjit Singh30, this
Court while disposing of the above matter, required the State to examine
the cases of the respondents by appointing an expert committee, which would
determine whether or not the parameters laid down in the judgments rendered
by this Court, would entitle the respondent-employees to any benefit under
the principle of ‘equal pay for equal work’. Herein again, the principle
in question, was considered as applicable to temporary employees.
40. Uttar Pradesh Land Development Corporation v. Mohd. Khursheed
Anwar[33], decided by a two-Judge bench: In the instant case, the
respondents were employed on contract basis, on a consolidated monthly
salary of Rs.2000/-. Prior to their appointment, they were interviewed by
a selection committee alongwith other eligible candidates, and were found
to be suitable for the job. Their contractual appointment was continued
from time to time. Though they were employed on contract basis, the fact
that two posts of Assistant Engineer and one post of Junior Engineer were
vacant at the time of their engagement, was not disputed. The respondents
were not given any specific designation. The Allahabad High Court, while
accepting the claim filed by the respondents, held that they were entitled
to wages in the regular pay-scale of Rs.2200-4000, prescribed for the post
of Assistant Engineer.
(ii) This Court, while adjudicating upon the controversy arrived at the
conclusion, that the High Court had granted relief to the respondents on
the assumption that two vacant posts of Assistant Engineer were utilized
for appointing the respondents. The above impression was found to be ex-
facie fallacious, by this Court. This Court was of the view, that the
orders of appointment issued to the respondents, did not lead to the
inference, that they were appointed against the two vacant posts of
Assistant Engineer. Despite the above, this Court held, that the decision
of the appellant Corporation to effect economy by depriving the respondents
even, the minimum of pay-scale, was totally arbitrary and unjustified.
This Court expressed the view, that the very fact that the respondents were
engaged on a consolidated salary of Rs.2000 per month, while the prescribed
pay-scale of the post of Assistant Engineer in the other branches was
Rs.2200-4000, and that of Junior Engineer was Rs.1600-2660, was sufficient
to infer, that both the respondents were engaged to work against the posts
of Assistant Engineer. The appellants were directed to pay emoluments to
the respondents, at the minimum of the pay-scale, prescribed for the post
of Assistant Engineer (as revised from time to time), from the date of
their appointment, till they continued in the employment of the
Corporation.
41. Surendra Nath Pandey v. Uttar Pradesh Cooperative Bank Ltd.[34],
decided by a two-Judge bench: The appellants in the above mentioned case,
were appointed during 1978 to 1981 on daily-wage basis, by the U.P.
Cooperative Bank Ltd. Upto 30.6.1981, they were paid daily-wages. From
1.7.1981, they were paid consolidated salary of Rs.368 per month, which was
increased to Rs.575 per month with effect from 1.4.1982. From 1.7.1983,
they were extended the benefit of minimum in the pay-scale applicable to
regular employees, with allowances, but without yearly increments. Based
on regulations framed for regularization of ad-hoc appointees in 1985, the
appellants were regularized from different dates in 1985-86, whereafter,
they were paid wages in the regular pay-scale, with all allowances. In
1990, they approached the Allahabad High Court, seeking benefit of regular
pay-scale, allowances and other benefits, which were extended to regular
employees, with effect from the date of their original appointment. Their
claim was rejected by the High Court. While adjudicating upon the appeal
preferred by the appellants, this Court held as under:-
“9. We are of the view that the real issue is whether persons
employed on stopgap or ad hoc basis were entitled to the benefit of
pay scales with increments during the period of service on daily or
stopgap or ad hoc basis. Unless the appellants are able to establish
that either under the contract, or applicable rules, or settled
principles of service jurisprudence, they are entitled to the benefit
of pay scale with increments during the period of their stopgap/ad hoc
service, it cannot be said that the appellants have the right to claim
the benefit of pay scales with increments.”
The Consideration
42. All the judgments noticed in paragraphs 7 to 24 hereinabove, pertain
to employees engaged on regular basis, who were claiming higher wages,
under the principle of ‘equal pay for equal work’. The claim raised by
such employees was premised on the ground, that the duties and
responsibilities rendered by them, were against the same post for which a
higher pay-scale was being allowed, in other Government departments. Or
alternatively, their duties and responsibilities were the same, as of other
posts with different designations, but they were placed in a lower scale.
Having been painstakingly taken through the parameters laid down by this
Court, wherein the principle of ‘equal pay for equal work’ was invoked and
considered, it would be just and appropriate, to delineate the parameters
laid down by this Court. In recording the said parameters, we have also
adverted to some other judgments pertaining to temporary employees (also
dealt with, in the instant judgment), wherein also, this Court had the
occasion to express the legal position with reference to the principle of
‘equal pay for equal work’. Our consideration, has led us to the following
deductions:-
(i) The ‘onus of proof’, of parity in the duties and responsibilities of
the subject post with the reference post, under the principle of ‘equal pay
for equal work’, lies on the person who claims it. He who approaches the
Court has to establish, that the subject post occupied by him, requires him
to discharge equal work of equal value, as the reference post (see – the
Orissa University of Agriculture & Technology case10, Union Territory
Administration, Chandigarh v. Manju Mathur15, the Steel Authority of India
Limited case16, and the National Aluminum Company Limited case18).
(ii) The mere fact that the subject post occupied by the claimant, is in a
“different department” vis-a-vis the reference post, does not have any
bearing on the determination of a claim, under the principle of ‘equal pay
for equal work’. Persons discharging identical duties, cannot be treated
differently, in the matter of their pay, merely because they belong to
different departments of Government (see – the Randhir Singh case1, and the
D.S. Nakara case2).
(iii) The principle of ‘equal pay for equal work’, applies to cases of
unequal scales of pay, based on no classification or irrational
classification (see – the Randhir Singh case1). For equal pay, the
concerned employees with whom equation is sought, should be performing
work, which besides being functionally equal, should be of the same quality
and sensitivity (see – the Federation of All India Customs and Central
Excise Stenographers (Recognized) case3, the Mewa Ram Kanojia case5, the
Grih Kalyan Kendra Workers’ Union case6 and the S.C. Chandra case12).
(iv) Persons holding the same rank/designation (in different departments),
but having dissimilar powers, duties and responsibilities, can be placed in
different scales of pay, and cannot claim the benefit of the principle of
‘equal pay for equal work’ (see – the Randhir Singh case1, State of Haryana
v. Haryana Civil Secretariat Personal Staff Association9, and the Hukum
Chand Gupta case17). Therefore, the principle would not be automatically
invoked, merely because the subject and reference posts have the same
nomenclature.
(v) In determining equality of functions and responsibilities, under the
principle of ‘equal pay for equal work’, it is necessary to keep in mind,
that the duties of the two posts should be of equal sensitivity, and also,
qualitatively similar. Differentiation of pay-scales for posts with
difference in degree of responsibility, reliability and confidentiality,
would fall within the realm of valid classification, and therefore, pay
differentiation would be legitimate and permissible (see – the Federation
of All India Customs and Central Excise Stenographers (Recognized) case3
and the State Bank of India case8). The nature of work of the subject post
should be the same and not less onerous than the reference post. Even the
volume of work should be the same. And so also, the level of
responsibility. If these parameters are not met, parity cannot be claimed
under the principle of ‘equal pay for equal work’ (see - State of U.P. v.
J.P. Chaurasia4, and the Grih Kalyan Kendra Workers’ Union case6).
(vi) For placement in a regular pay-scale, the claimant has to be a
regular appointee. The claimant should have been selected, on the basis of
a regular process of recruitment. An employee appointed on a temporary
basis, cannot claim to be placed in the regular pay-scale (see – the Orissa
University of Agriculture & Technology case10).
(vii) Persons performing the same or similar functions, duties and
responsibilities, can also be placed in different pay-scales. Such as -
‘selection grade’, in the same post. But this difference must emerge out
of a legitimate foundation, such as – merit, or seniority, or some other
relevant criteria (see - State of U.P. v. J.P. Chaurasia4).
(viii) If the qualifications for recruitment to the subject post vis-a-
vis the reference post are different, it may be difficult to conclude, that
the duties and responsibilities of the posts are qualitatively similar or
comparable (see – the Mewa Ram Kanojia case5, and Government of W.B. v.
Tarun K. Roy11). In such a cause, the principle of ‘equal pay for equal
work’, cannot be invoked.
(ix) The reference post, with which parity is claimed, under the principle
of ‘equal pay for equal work’, has to be at the same hierarchy in the
service, as the subject post. Pay-scales of posts may be different, if the
hierarchy of the posts in question, and their channels of promotion, are
different. Even if the duties and responsibilities are same, parity would
not be permissible, as against a superior post, such as a promotional post
(see - Union of India v. Pradip Kumar Dey7, and the Hukum Chand Gupta
case17).
(x) A comparison between the subject post and the reference post, under
the principle of ‘equal pay for equal work’, cannot be made, where the
subject post and the reference post are in different establishments, having
a different management. Or even, where the establishments are in different
geographical locations, though owned by the same master (see – the Harbans
Lal case23). Persons engaged differently, and being paid out of different
funds, would not be entitled to pay parity (see - Official Liquidator v.
Dayanand13).
(xi) Different pay-scales, in certain eventualities, would be permissible
even for posts clubbed together at the same hierarchy in the cadre. As for
instance, if the duties and responsibilities of one of the posts are more
onerous, or are exposed to higher nature of operational work/risk, the
principle of ‘equal pay for equal work’ would not be applicable. And also
when, the reference post includes the responsibility to take crucial
decisions, and that is not so for the subject post (see – the State Bank of
India case8).
(xii) The priority given to different types of posts, under the prevailing
policies of the Government, can also be a relevant factor for placing
different posts under different pay-scales. Herein also, the principle of
‘equal pay for equal work’ would not be applicable (see - State of Haryana
v. Haryana Civil Secretariat Personal Staff Association9).
(xiii) The parity in pay, under the principle of ‘equal pay for equal
work’, cannot be claimed, merely on the ground, that at an earlier point of
time, the subject post and the reference post, were placed in the same pay-
scale. The principle of ‘equal pay for equal work’ is applicable only when
it is shown, that the incumbents of the subject post and the reference
post, discharge similar duties and responsibilities (see - State of West
Bengal v. West Bengal Minimum Wages Inspectors Association14).
(xiv) For parity in pay-scales, under the principle of ‘equal pay for equal
work’, equation in the nature of duties, is of paramount importance. If
the principal nature of duties of one post is teaching, whereas that of the
other is non-teaching, the principle would not be applicable. If the
dominant nature of duties of one post is of control and management, whereas
the subject post has no such duties, the principle would not be applicable.
Likewise, if the central nature of duties of one post is of quality
control, whereas the subject post has minimal duties of quality control,
the principle would not be applicable (see - Union Territory
Administration, Chandigarh v. Manju Mathur15).
(xv) There can be a valid classification in the matter of pay-scales,
between employees even holding posts with the same nomenclature i.e.,
between those discharging duties at the headquarters, and others working at
the institutional/sub-office level (see – the Hukum Chand Gupta case17),
when the duties are qualitatively dissimilar.
(xvi) The principle of ‘equal pay for equal work’ would not be applicable,
where a differential higher pay-scale is extended to persons discharging
the same duties and holding the same designation, with the objective of
ameliorating stagnation, or on account of lack of promotional avenues (see
– the Hukum Chand Gupta case17).
(xvii) Where there is no comparison between one set of employees of
one organization, and another set of employees of a different organization,
there can be no question of equation of pay-scales, under the principle of
‘equal pay for equal work’, even if two organizations have a common
employer. Likewise, if the management and control of two organizations, is
with different entities, which are independent of one another, the
principle of ‘equal pay for equal work’ would not apply (see – the S.C.
Chandra case12, and the National Aluminum Company Limited case18).
43. We shall now venture to summarize the conclusions recorded by this
Court, with reference to a claim of pay parity, raised by temporary
employees (differently designated as work-charge, daily-wage, casual, ad-
hoc, contractual, and the like), in the following two paragraphs.
44. We shall first outline the conclusions drawn in cases where a claim
for pay parity, raised at the hands of the concerned temporary employees,
was accepted by this Court, by applying the principle of ‘equal pay for
equal work’, with reference to regular employees:-
(i) In the Dhirendra Chamoli case19 this Court examined a claim for pay
parity raised by temporary employees, for wages equal to those being
disbursed to regular employees. The prayer was accepted. The action of
not paying the same wage, despite the work being the same, was considered
as violative of Article 14 of the Constitution. It was held, that the
action amounted to exploitation – in a welfare state committed to a
socialist pattern of society.
(ii) In the Surinder Singh case20 this Court held, that the right of equal
wages claimed by temporary employees emerged, inter alia, from Article 39
of the Constitution. The principle of ‘equal pay for equal work’ was again
applied, where the subject employee had been appointed on temporary basis,
and the reference employee was borne on the permanent establishment. The
temporary employee was held entitled to wages drawn by an employee on the
regular establishment. In this judgment, this Court also took note of the
fact, that the above proposition was affirmed by a Constitution Bench of
this Court, in the D.S. Nakara case2.
(iii) In the Bhagwan Dass case21 this Court recorded, that in a claim for
equal wages, the duration for which an employee would remain (- or had
remained) engaged, would not make any difference. So also, the manner of
selection and appointment would make no difference. And therefore, whether
the selection was made on the basis of open competition or was limited to a
cluster of villages, was considered inconsequential, insofar as the
applicability of the principle is concerned. And likewise, whether the
appointment was for a fixed limited duration (six months, or one year), or
for an unlimited duration, was also considered inconsequential, insofar as
the applicability of the principle of ‘equal pay for equal work’ is
concerned. It was held, that the claim for equal wages would be
sustainable, where an employee is required to discharge similar duties and
responsibilities as regular employees, and the concerned employee possesses
the qualifications prescribed for the post. In the above case, this Court
rejected the contention advanced on behalf of the Government, that the plea
of equal wages by the employees in question, was not sustainable because
the concerned employees were engaged in a temporary scheme, and against
posts which were sanctioned on a year to year basis.
(iv) In the Daily Rated Casual Labour Employed under P&T Department
through Bhartiya Dak Tar Mazdoor Manch case22 this Court held, that under
principle flowing from Article 38(2) of the Constitution, Government could
not deny a temporary employee, at least the minimum wage being paid to an
employee in the corresponding regular cadre, alongwith dearness allowance
and additional dearness allowance, as well as, all the other benefits which
were being extended to casual workers. It was also held, that the
classification of workers (as unskilled, semi-skilled and skilled), doing
the same work, into different categories, for payment of wages at different
rates, was not tenable. It was also held, that such an act of an employer,
would amount to exploitation. And further that, the same would be
arbitrary and discriminatory, and therefore, violative of Articles 14 and
16 of the Constitution.
(v) In State of Punjab v. Devinder Singh26 this Court held, that daily-
wagers were entitled to be placed in the minimum of the pay-scale of
regular employees, working against the same post. The above direction was
issued after accepting, that the concerned employees, were doing the same
work as regular incumbents holding the same post, by applying the principle
of ‘equal pay for equal work’.
(vi) In the Secretary, State of Karnataka case28, a Constitution Bench of
this Court, set aside the judgment of the High Court, and directed that
daily-wagers be paid salary equal to the lowest grade of salary and
allowances being paid to regular employees. Importantly, in this case,
this Court made a very important distinction between pay parity and
regularization. It was held that the concept of equality would not be
applicable to issues of absorption/regularization. But, the concept was
held as applicable, and was indeed applied, to the issue of pay parity – if
the work component was the same. The judgment rendered by the High Court,
was modified by this Court, and the concerned daily-wage employees were
directed to be paid wages, equal to the salary at the lowest grade of the
concerned cadre.
(vii) In State of Haryana v. Charanjit Singh30, a three-Judge bench of this
Court held, that the decisions rendered by this Court in State of Haryana
v. Jasmer Singh25, State of Haryana v. Tilak Raj27, the Orissa University
of Agriculture & Technology case10, and Government of W.B. v. Tarun K.
Roy11, laid down the correct law. Thereupon, this Court declared, that if
the concerned daily-wage employees could establish, that they were
performing equal work of equal quality, and all other relevant factors were
fulfilled, a direction by a Court to pay such employees equal wages (from
the date of filing the writ petition), would be justified.
(viii) In State of U.P. v. Putti Lal31, based on decisions in several
cases (wherein the principle of ‘equal pay for equal work’ had been
invoked), it was held, that a daily-wager discharging similar duties, as
those engaged on regular basis, would be entitled to draw his wages at the
minimum of the pay-scale (drawn by his counterpart, appointed on regular
basis), but would not be entitled to any other allowances or increments.
(ix) In the Uttar Pradesh Land Development Corporation case33 this Court
noticed, that the respondents were employed on contract basis, on a
consolidated salary. But, because they were actually appointed to perform
the work of the post of Assistant Engineer, this Court directed the
employer to pay the respondents wages, in the minimum of the pay-scales
ascribed for the post of Assistant Engineer.
45. We shall now attempt an analysis of the judgments, wherein this Court
declined to grant the benefit of ‘equal pay for equal work’ to temporary
employees, in a claim for pay parity with regular employees:-
(i) In the Harbans Lal case23, daily-rate employees were denied the
claimed benefit, under the principle of ‘equal pay for equal work’, because
they could not establish, that the duties and responsibilities of the
post(s) held by them, were similar/equivalent to those of the reference
posts, under the State Government.
(ii) In the Grih Kalyan Kendra Workers’ Union case6, ad-hoc employees
engaged in the Kendras, were denied pay parity with regular employees
working under the New Delhi Municipal Committee, or the Delhi
Administration, or the Union of India, because of the finding returned in
the report submitted by a former Chief Justice of India, that duties and
responsibilities discharged by employees holding the reference posts, were
not comparable with the posts held by members of the petitioner union.
(iii) In State of Haryana v. Tilak Raj27, this Court took a slightly
different course, while determining a claim for pay parity, raised by daily-
wagers (- the respondents). It was concluded, that daily-wagers held no
post, and as such, could not be equated with regular employees who held
regular posts. But herein also, no material was placed on record, to
establish that the nature of duties performed by the daily-wagers, was
comparable with those discharged by regular employees. Be that as it may,
it was directed, that the State should prescribe minimum wages for such
workers, and they should be paid accordingly.
(iv) In State of Punjab v. Surjit Singh32, this Court held, that for the
applicability of the principle of ‘equal pay for equal work’, the
respondents who were daily-wagers, had to establish through strict
pleadings and proof, that they were discharging similar duties and
responsibilities, as were assigned to regular employees. Since they had
not done so, the matter was remanded back to the High Court, for a re-
determination on the above position. It is therefore obvious, that this
Court had accepted, that where duties, responsibilities and functions were
shown to be similar, the principle of ‘equal pay for equal work’ would be
applicable, even to temporary employees (otherwise the order of remand,
would be meaningless, and an exercise in futility).
(vi) It is, therefore apparent, that in all matters where this Court did
not extend the benefit of ‘equal pay for equal work’ to temporary
employees, it was because the employees could not establish, that they were
rendering similar duties and responsibilities, as were being discharged by
regular employees, holding corresponding posts.
46. We have consciously not referred to the judgment rendered by this
Court in State of Haryana v. Jasmer Singh25 (by a two-Judge division
bench), in the preceding two paragraphs. We are of the considered view,
that the above judgment, needs to be examined and explained independently.
Learned counsel representing the State government, had placed emphatic
reliance on this judgment. Our analysis is recorded hereinafter:-
(i) In the above case, the respondents who were daily-wagers were
claiming the same salary as was being paid to regular employees. A series
of reasons were recorded, to deny them pay parity under the principle of
‘equal pay for equal work’. This Court expressed the view, that daily-
wagers could not be treated at par with persons employed on regular basis,
because they were not required to possess qualifications prescribed for
appointment on regular basis. Daily-wagers, it was felt, were not selected
in the same manner as regular employees, inasmuch as, a regular appointee
had to compete in a process of open selection, and would be appointed, only
if he fell within the zone of merit. It was also felt, that daily-wagers
were not required to fulfill the prescribed requirement of age, at the time
of their recruitment. And also because, regular employees were subject to
disciplinary proceedings, whereas, daily-wagers were not. Daily-wagers, it
was held, could also not be equated with regular employees, because regular
employees were liable to be transferred anywhere within their cadre. This
Court therefore held, that those employed on daily-wages, could not be
equated with regular employees, and as such, were not entitled to pay
parity, under the principle of ‘equal pay for equal work’.
(ii) First and foremost, it is necessary to emphasise, that in the course
of its consideration in State of Haryana v. Jasmer Singh25, this Court’s
attention had not been invited to the judgment in the Bhagwan Dass case21,
wherein on some of the factors noticed above, a contrary view was
expressed. In the said case, this Court had held, that in a claim for
equal wages, the manner of selection for appointment would not make any
difference. It will be relevant to notice, that for the posts under
reference in the Bhagwan Dass case21, the selection of those appointed on
regular basis, had to be made through the Subordinate Selection Board, by
way of open selection. Whereas, the selection of the petitioners as daily-
wagers, was limited to candidates belonging to a cluster of villages, and
was not through any specialized selection body/agency. Despite thereof, it
was held, that the benefit under the principle of ‘equal pay for equal
work’, could not be denied to the petitioners. The aforesaid conclusion
was drawn on the ground, that as long as the petitioners were performing
similar duties, as those engaged on regular basis (on corresponding posts)
from the standpoint of the doctrine of ‘equal pay for equal work’, there
could be no distinction on the subject of payment of wages.
(iii) Having noticed the conclusion drawn in State of Haryana v. Jasmer
Singh25, it would be relevant to emphasise, that in the cited judgments
(noticed in paragraph 26 onwards, upto paragraph 41), the employees
concerned, could not have been granted the benefit of the principle of
‘equal pay for equal work’ (in such of the cases, where it was so granted),
because temporary employees (daily-wage employees, in the said case) are
never ever selected through a process of open selection, by a specialized
selection body/agency. We would therefore be obliged to follow the large
number of cases where pay parity was granted, rather than, the instant
singular judgment recording a divergent view.
(iv) Temporary employees (irrespective of their nomenclature) are also
never governed by any rules of disciplinary action. As a matter of fact, a
daily-wager is engaged only for a day, and his services can be dispensed
with at the end of the day for which he is engaged. Rules of disciplinary
action, are therefore to the advantage of regular employees, and the
absence of their applicability, is to the disadvantage of temporary
employees, even though the judgment in State of Haryana v. Jasmer Singh25,
seems to project otherwise.
(v) Even the issue of transferability of regular employees referred to in
State of Haryana v. Jasmer Singh25, in our view, has not been examined
closely. Inasmuch as, temporary employees can be directed to work
anywhere, within or outside their cadre, and they have no choice but to
accept. This is again, a further disadvantage suffered by temporary
employees, yet the judgment projects as if it is to their advantage.
(vi) It is also necessary to appreciate, that in all temporary
appointments (- work-charge, daily-wage, casual, ad-hoc, contractual, and
the like), the distinguishing features referred to in State of Haryana v.
Jasmer Singh25, are inevitable, yet in all the judgments referred to above
(rendered before and after, the judgment in the State of Haryana v. Jasmer
Singh25), the proposition recorded in the instant judgment, was never
endorsed.
(vii) It is not the case of the appellants, that the respondent-employees
do not possess the minimum qualifications required to be possessed for
regular appointment. And therefore, this proposition would not be
applicable to the facts of the cases in hand.
(viii) Another reason for us in passing by, the judgment in State of
Haryana v. Jasmer Singh25 is, that the bench deciding the matter had in
mind, that daily-wagers in the State of Haryana, were entitled to
regularization on completion of 3/5 years of service, and therefore, all
the concerned employees, would in any case be entitled to wages in the
regular pay-scale, after a little while. This factual position was noticed
in the judgment itself.
(ix) It is not necessary for us to refer the matter for adjudication to a
larger bench, because the judgment in State of Haryana v. Jasmer Singh25,
is irreconcilable and inconsistent with a large number of judgments, some
of which are by larger benches, where the benefit of the principle in
question was extended to temporary employees (including daily-wagers).
(x) For all the above reasons, we are of the view that the claim of the
appellants cannot be considered, on the basis of the judgment in State of
Haryana v. Jasmer Singh25.
47. We shall now endeavour to examine the impugned judgments.
48. First and foremost, it is essential for us to deal with the judgment
dated 11.11.2011 rendered by the full bench of the High Court (in Avtar
Singh v. State of Punjab & Ors., CWP no. 14796 of 2003). A perusal of the
above judgment reveals, that the High Court conspicuously focused its
attention to the decision of the Constitution Bench in the Secretary, State
of Karnataka case28. While dealing with the above judgment, the full bench
expressed the view, that though at the first impression, the judgment
appeared to expound that payment of minimum wages drawn by regular
employees, had also to be extended to persons employed on temporary basis,
but a careful reading of the same would show that, that was not so.
Learned counsel, representing the State of Punjab, reiterated the above
position. In order to understand the tenor of the aforesaid assertion,
reference was made to paragraphs 44 and 48, of the judgment of the
Constitution Bench, which are extracted hereunder:-
“44. The concept of “equal pay for equal work’’ is different from the
concept of conferring permanency on those who have been appointed on
ad hoc basis, temporary basis, or based on no process of selection as
envisaged by the rules. This Court has in various decisions applied
the principle of equal pay for equal work and has laid down the
parameters for the application of that principle. The decisions are
rested on the concept of equality enshrined in our Constitution in the
light of the directive principles in that behalf. But the acceptance
of that principle cannot lead to a position where the court could
direct that appointments made without following the due procedure
established by law, be deemed permanent or issue directions to treat
them as permanent. Doing so, would be negation of the principle of
equality of opportunity. The power to make an order as is necessary
for doing complete justice in any cause or matter pending before this
Court, would not normally be used for giving the go-by to the
procedure established by law in the matter of public employment….
…..It would not be just or proper to pass an order in exercise of
jurisdiction under Article 226 or 32 of the Constitution or in
exercise of power under Article 142 of the Constitution permitting
those persons engaged, to be absorbed or to be made permanent, based
on their appointments or engagements. Complete justice would be
justice according to law and though it would be open to this Court to
mould the relief, this Court would not grant a relief which would
amount to perpetuating an illegality.
xxx xxx xxx
48. It was then contended that the rights of the employees thus
appointed, under Articles 14 and 16 of the Constitution, are violated.
It is stated that the State has treated the employees unfairly by
employing them on less than minimum wages and extracting work from
them for a pretty long period in comparison with those directly
recruited who are getting more wages or salaries for doing similar
work. The employees before us were engaged on daily wages in the
department concerned on a wage that was made known to them. There is
no case that the wage agreed upon was not being paid. Those who are
working on daily wages formed a class by themselves, they cannot claim
that they are discriminated as against those who have been regularly
recruited on the basis of the relevant rules. No right can be founded
on an employment on daily wages to claim that such employee should be
treated on a par with a regularly recruited candidate, and made
permanent in employment, even assuming that the principle could be
invoked for claiming equal wages for equal work. There is no
fundamental right in those who have been employed on daily wages or
temporarily or on contractual basis, to claim that they have a right
to be absorbed in service. As has been held by this Court, they cannot
be said to be holders of a post, since, a regular appointment could be
made only by making appointments consistent with the requirements of
Articles 14 and 16 of the Constitution. The right to be treated
equally with the other employees employed on daily wages, cannot be
extended to a claim for equal treatment with those who were regularly
employed. That would be treating unequals as equals. It cannot also be
relied on to claim a right to be absorbed in service even though they
have never been selected in terms of the relevant recruitment rules.
The arguments based on Articles 14 and 16 of the Constitution are
therefore overruled.”
We have given our thoughtful consideration to the observations recorded by
this Court, as were relied upon by the full bench (- as also, by the
learned counsel representing the State of Punjab). It is not possible for
us to concur with the inference drawn by the full bench, for the reasons
recorded hereunder:-
(i) We are of the considered view, that in paragraph 44 extracted above,
the Constitution Bench clearly distinguished the issues of pay parity, and
regularization in service. It was held, that on the issue of pay parity,
the concept of ‘equality’ would be applicable (as had indeed been applied
by the Court, in various decisions), but the principle of ‘equality’ could
not be invoked for absorbing temporary employees in Government service, or
for making temporary employees regular/permanent. All the observations
made in the above extracted paragraphs, relate to the subject of
regularization/permanence, and not, to the principle of ‘equal pay for
equal work’. As we have already noticed above, the Constitution Bench
unambiguously held, that on the issue of pay parity, the High Court ought
to have directed, that the daily-wage workers be paid wages equal to the
salary, at the lowest grade of their cadre. This deficiency was made good,
by making such a direction.
(ii) Insofar as paragraph 48 extracted above is concerned, all that needs
to be stated is, that they were merely submissions of learned counsel, and
not conclusions drawn by this Court. Therefore, nothing further needs to
be stated, with reference to paragraph 48.
(iii) We are therefore of the view, that the High Court seriously erred in
interpreting the judgment rendered by this Court in the Secretary, State of
Karnataka case28, by placing reliance on paragraphs 44 and 48 extracted
above, for drawing its inferences with reference to the subject of pay
parity. On the above subject/issue, this Court’s conclusions were recorded
in paragraph 55 (extracted in paragraph 36, hereinabove), which have
already been dealt with by us in an earlier part of this judgment.
49. It would also be relevant to mention, that to substantiate its
inference drawn from the judgment rendered by this Court in the Secretary,
State of Karnataka case28, the full bench of the High Court, placed
reliance on State of Punjab v. Surjit Singh32, and while doing so,
reference was made to the following observations recorded in paragraphs 27
to 30 (of the said judgment). Learned counsel for the State of Punjab has
reiterated the above position. Paragraphs 27 to 30 aforementioned are
being extracted hereunder:-
“27. While laying down the law that regularization under the
constitutional scheme is wholly impermissible, the Court in State of
Karnataka v. Umadevi (3), (2006) 4 SCC 1, had issued certain
directions relating to the employees in the services of the Commercial
Taxes Department, as noticed hereinbefore. The employees of the
Commercial Taxes Department were in service for more than ten years.
They were appointed in 1985-1986. They were sought to be regularized
in terms of a scheme. Recommendations were made by the Director,
Commercial Taxes for their absorption. It was only when such
recommendations were not acceded to, the Administrative Tribunal was
approached. It rejected their claim. The High Court, however,
allowed their prayer which was in question before this Court.
28. This Court stated: (Secretary, State of Karnataka v. Umadevi,
(2006) 4 SCC 1, pp. 19-20, para 8)
"8. … It is seen that the High Court without really coming to
grips with the question falling for decision in the light of the
findings of the Administrative Tribunal and the decisions of
this Court, proceeded to order that they are entitled to wages
equal to the salary and allowances that are being paid to the
regular employees of their cadre in government service with
effect from the dates from which they were respectively
appointed. It may be noted that this gave retrospective effect
to the judgment of the High Court by more than 12 years. The
High Court also issued a command to the State to consider their
cases for regularisation within a period of four months from the
date of receipt of that order. The High Court seems to have
proceeded on the basis that, whether they were appointed before
1-7-1984, a situation covered by the decision of this Court
in Dharwad District PWD Literate Daily Wage Employees Assn. v.
State of Karnataka, (1990) 2 SCC 396, and the scheme framed
pursuant to the direction thereunder, or subsequently, since
they have worked for a period of 10 years, they were entitled to
equal pay for equal work from the very inception of their
engagement on daily wages and were also entitled to be
considered for regularisation in their posts."
29. It is in the aforementioned factual backdrop, this Court in
exercise of its jurisdiction under Article 142 of the Constitution of
India, directed: (Secretary, State of Karnataka v. Umadevi, (2006) 4
SCC 1, p. 43, para 55)
"55. … Hence, that part of the direction of the Division Bench
is modified and it is directed that these daily-wage earners be
paid wages equal to the salary at the lowest grade of employees
of their cadre in the Commercial Taxes Department in government
service, from the date of the judgment of the Division Bench of
the High Court. Since, they are only daily-wage earners, there
would be no question of other allowances being paid to them. In
view of our conclusion, that the courts are not expected to
issue directions for making such persons permanent in service,
we set aside that part of the direction of the High Court
directing the Government to consider their cases for
regularisation. We also notice that the High Court has not
adverted to the aspect as to whether it was regularisation or it
was giving permanency that was being directed by the High Court.
In such a situation, the direction in that regard will stand
deleted and the appeals filed by the State would stand allowed
to that extent. If sanctioned posts are vacant (they are said to
be vacant) the State will take immediate steps for filling those
posts by a regular process of selection. But when regular
recruitment is undertaken, the respondents in CAs Nos. 3595-612
and those in the Commercial Taxes Department similarly situated,
will be allowed to compete, waiving the age restriction imposed
for the recruitment and giving some weightage for their having
been engaged for work in the Department for a significant period
of time. That would be the extent of the exercise of power by
this Court under Article 142 of the Constitution to do justice
to them."
30. We, therefore, do not see that any law has been laid down in
para 55 of the judgment in Umadevi case. Directions were issued in
view of the limited controversy. As indicated, the State’s grievances
were limited.”
Yet again, we are of the view, that the full bench erred in referring to
the above observations, to draw its conclusions. Our reasons are
summarized hereinbelow:-
(i) It is apparent, that this Court in State of Punjab v. Surjit Singh32,
did hold, that the determination rendered in paragraph 55 of the judgment
in the Secretary, State of Karnataka case28, was in exercise of the power
vested in this Court, under Article 142 of the Constitution of India. But
the above observation does not lead, to the conclusion or the inference,
that the principle of ‘equal pay for equal work’ is not applicable to
temporary employees. In fact, there is a positive take-away for the
temporary employees. The Constitution Bench would, in the above situation,
be deemed to have concluded, that to do complete justice to the cause of
temporary employees, they should be paid the minimum wage of a regular
employee, discharging the same duties. It needs to be noticed, that on the
subject of pay parity, the findings recorded by this Court in the
Secretary, State of Karnataka case28, were limited to the conclusions
recorded in paragraph 55 thereof (which we have dealt with above, while
dealing with the case law, on the principle of ‘equal pay for equal work’).
(ii) Even in the case under reference - State of Punjab v. Surjit Singh32,
this Court accepted the principle of ‘equal pay for equal work’, as
applicable to temporary employees, by requiring the State to examine the
claim of the respondents for pay parity, by appointing an expert committee.
The expert committee was required to determine, whether the respondents
satisfied the conditions stipulated in different judgments of this Court
including State of Punjab v. Charanjit Singh30, wherein this Court had
acceded to the proposition, that daily-wagers who were rendering the same
duties and responsibilities as regular employees, would be entitled to the
minimum wage payable to regular employees. And had therefore, remanded the
matter back to the High Court for a fresh adjudication. Paragraph 38 of
the judgment in State of Punjab v. Surjit Singh32, wherein the remand was
directed, is being extracted below:-
“38. We, therefore, are of the opinion that the interest of justice
would be subserved if the State is directed to examine the cases of
the respondents herein by appointing an expert committee as to whether
the principles of law laid down herein viz. as to whether the
respondents satisfy the factors for invocation of the decision in
State of Haryana v. Charajnit Singh, (2006) 9 SCC 321 in its entirety
including the question of appointment in terms of the recruitment
rules have been followed.”
(iii) For all the above reasons, we are of the view, that the claim of the
temporary employees, for minimum wages, at par with regularly engaged
Government employees, cannot be declined, on the basis of the judgment in
State of Punjab v. Surjit Singh32.
50. The impugned judgment rendered by the full bench, also relied upon
the judgment in Satya Prakash v. State of Bihar[35], which also attempted
to interpret the judgment in the Secretary, State of Karnataka case28.
Learned counsel for the State of Punjab also referred to the same, to
canvass the case of the State government. Relevant observations relied
upon, are reproduced below:-
“7. We are of the view that the appellants are not entitled to get
the benefit of regularization of their services since they were never
appointed in any sanctioned posts. The appellants were only engaged on
daily wages in the Bihar Intermediate Education Council.
8. In State of Karnataka v. Umadevi (3), (2006) 4 SCC 1, this Court
held that the Courts are not expected to issue any direction for
absorption/regularization or permanent continuance of temporary,
contractual, casual, daily-wage or ad hoc employees. This Court held
that such directions issued could not be said to be inconsistent with
the constitutional scheme of public employment. This Court held that
merely because a temporary employee or a casual wage worker is
continued for a time beyond the term of his appointment, he would not
be entitled to be absorbed in regular service or made permanent,
merely on the strength of such continuance, if the original
appointment was not made by following a due process of selection as
envisaged by the relevant rules. In view of the law laid down by this
Court, the directions sought for by the appellants cannot be granted.
9. Paragraph 53 of Umadevi (3) judgment, deals with irregular
appointments (not illegal appointments). The Constitution Bench
specifically referred to the judgments in State of Mysore vs. S.V.
Narayanappa, AIR 1967 SC 1071, and R.N. Nanjundappa vs. T. Thimmiah,
(1972) 1 SCC 409, in para 15 of Umadevi (3) judgment as well. Let us
refer to paras 15 and 16 of Umadevi (3) judgment in this context.
xxx xxx xxx
15. In our view, the appellants herein would fall under the category
of persons mentioned in paras 8 and 55 of the judgment and not in para
53 of judgment of Umadevi (3).”
Yet again, all that needs to be stated is, that the observations relied
upon by the full bench of the High Court, dealt with the issue of
regularization, and not with the concept of ‘equal pay for equal work’.
Paragraph 7 extracted above, leaves no room for any doubt, that the issue
being considered in the Satya Prakash case35, pertained to regularization
of the appellants in service. Our view, that the issue being dealt with
pertained to regularization gains further ground from the fact (recorded in
paragraph 1 of the above judgment), that the appellants in the Satya
Prakash case35 had approached this Court, to claim the benefit of paragraph
53 of the judgment in the Secretary, State of Karnataka case28. Paragraph
53 aforementioned, is reproduced below:-
“53. One aspect needs to be clarified. There may be cases
where irregular appointments (not illegal appointments) as explained
in State of Maysore v. S.V. Narayanappa, AIR 1967 SC 1071, R.N.
Nanjundappa v. T. Thimmiah, (1972) 1 SCC 409, and B.N. Nagarajan v.
State of Karnataka, (1979) 4 SCC 507, and referred to in para 15
above, of duly qualified persons in duly sanctioned vacant posts might
have been made and the employees have continued to work for ten years
or more but without the intervention of orders of the courts or of
tribunals. The question of regularisation of the services of such
employees may have to be considered on merits in the light of the
principles settled by this Court in the cases abovereferred to and in
the light of this judgment. In that context, the Union of India, the
State Governments and their instrumentalities should take steps to
regularize as a one-time measure, the services of
such irregularly appointed, who have worked for ten years or more in
duly sanctioned posts but not under cover of orders of the courts or
of tribunals and should further ensure that regular recruitments are
undertaken to fill those vacant sanctioned posts that require to be
filled up, in cases where temporary employees or daily wagers are
being now employed. The process must be set in motion within six
months from this date. We also clarify that regularisation, if any
already made, but not sub judice, need not be reopened based on this
judgment, but there should be no further bypassing of the
constitutional requirement and regularizing or making permanent, those
not duly appointed as per the constitutional scheme.”
A perusal of paragraph 53 extracted above, leaves no room for any doubt,
that the issue canvassed was of regularization, and not pay parity. We are
therefore of the view, that reliance on paragraph 53, for determining the
question of pay parity (claimed by the concerned employees), resulted in
the High Court drawing an incorrect inference.
51. The full bench of the High Court, while adjudicating upon the above
controversy had concluded, that temporary employees were not entitled to
the minimum of the regular pay-scale, merely for the reason, that the
activities carried on by daily-wagers and regular employees were similar.
The full bench however, made two exceptions. Temporary employees, who fell
in either of the two exceptions, were held entitled to wages at the minimum
of the pay-scale drawn by regular employees. The exceptions recorded by
the full bench of the High Court in the impugned judgment are extracted
hereunder:-
“(1) A daily wager, ad hoc or contractual appointee against the
regular sanctioned posts, if appointed after undergoing a selection
process based upon fairness and equality of opportunity to all other
eligible candidates, shall be entitled to minimum of the regular pay
scale from the date of engagement.
(2) But if daily wagers, ad hoc or contractual appointees are not
appointed against regular sanctioned posts and their services are
availed continuously, with notional breaks, by the State Government or
its instrumentalities for a sufficient long period i.e. for 10 years,
such daily wagers, ad hoc or contractual appointees shall be entitled
to minimum of the regular pay scale without any allowances on the
assumption that work of perennial nature is available and having
worked for such long period of time, an equitable right is created in
such category of persons. Their claim for regularization, if any, may
have to be considered separately in terms of legally permissible
scheme.
(3) In the event, a claim is made for minimum pay scale after more
than three years and two months of completion of 10 years of
continuous working, a daily wager, ad hoc or contractual employee
shall be entitled to arrears for a period of three years and two
months.”
A perusal of the above conclusion drawn in the impugned judgment (passed by
the full bench), reveals that the full bench carved an exception for
employees who were not appointed against regular sanctioned posts, if their
services had remained continuous (with notional breaks, as well), for a
period of 10 years. This category of temporary employees, was extended the
benefit of wages at the minimum of the regular pay-scale. In the
Secretary, State of Karnataka case28, similarly, employees who had rendered
10 years service, were granted an exception (refer to paragraph 53 of the
judgment, extracted in the preceding paragraph). The above position
adopted by the High Court reveals, that the High Court intermingled the
legal position determined by this Court on the subject of regularization of
employees, while adjudicating upon the proposition of pay parity, emerging
under the principle of ‘equal pay for equal work’. In our view, it is this
mix-up, which has resulted in the High Court recording its afore-extracted
conclusions.
(ii) The High Court extended different wages to temporary employees, by
categorizing them on the basis of their length of service. This is clearly
in the teeth of judgment in the Daily Rated Casual Labour Employed under
P&T Department through Bhartiya Dak Tar Mazdoor Manch case22. In the above
judgment, this Court held, that classification of employees based on their
length of service (- those who had not completed 720 days of service, in a
period of 3 years; those who had completed more than 720 days of service -
with effect from 1.4.1977; and those who had completed 1200 days of
service), for payment of different levels of wages (even though they were
admittedly discharging the same duties), was not tenable. The
classification was held to be violative of Articles 14 and 16 of the
Constitution.
(iii) Based on the consideration recorded hereinabove, the determination in
the impugned judgment rendered by the full bench of the High Court, whereby
it classified temporary employees for differential treatment on the subject
of wages, is clearly unsustainable, and is liable to be set aside.
52. In view of all our above conclusions, the decision rendered by the
full bench of the High Court in Avtar Singh v. State of Punjab & Ors. (CWP
no. 14796 of 2003), dated 11.11.2011, is liable to be set aside, and the
same is hereby set aside. The decision rendered by the division bench of
the High Court in State of Punjab & Ors. v. Rajinder Singh & Ors. (LPA no.
337 of 2003, decided on 7.1.2009) is also liable to be set aside, and the
same is also hereby set aside. We affirm the decision rendered in State of
Punjab & Ors. v. Rajinder Kumar (LPA no. 1024 of 2009, decided on
30.8.2010), with the modification, that the concerned employees would be
entitled to the minimum of the pay-scale, of the category to which they
belong, but would not be entitled to allowances attached to the posts held
by them.
53. We shall now deal with the claim of temporary employees before this
Court.
54. There is no room for any doubt, that the principle of ‘equal pay for
equal work’ has emerged from an interpretation of different provisions of
the Constitution. The principle has been expounded through a large number
of judgments rendered by this Court, and constitutes law declared by this
Court. The same is binding on all the courts in India, under Article 141
of the Constitution of India. The parameters of the principle, have been
summarized by us in paragraph 42 hereinabove. The principle of ‘equal pay
for equal work’ has also been extended to temporary employees (differently
described as work-charge, daily-wage, casual, ad-hoc, contractual, and the
like). The legal position, relating to temporary employees, has been
summarized by us, in paragraph 44 hereinabove. The above legal position
which has been repeatedly declared, is being reiterated by us, yet again.
55. In our considered view, it is fallacious to determine artificial
parameters to deny fruits of labour. An employee engaged for the same
work, cannot be paid less than another, who performs the same duties and
responsibilities. Certainly not, in a welfare state. Such an action
besides being demeaning, strikes at the very foundation of human dignity.
Any one, who is compelled to work at a lesser wage, does not do so
voluntarily. He does so, to provide food and shelter to his family, at the
cost of his self respect and dignity, at the cost of his self worth, and at
the cost of his integrity. For he knows, that his dependents would suffer
immensely, if he does not accept the lesser wage. Any act, of paying less
wages, as compared to others similarly situate, constitutes an act of
exploitative enslavement, emerging out of a domineering position.
Undoubtedly, the action is oppressive, suppressive and coercive, as it
compels involuntary subjugation.
56. We would also like to extract herein Article 7, of the International
Covenant on Economic, Social and Cultural Rights, 1966. The same is
reproduced below:-
“Article 7
The States Parties to the present Covenant recognize the right of
everyone to the enjoyment of just and favourable conditions of work
which ensure, in particular:
(a) Remuneration which provides all workers, as a minimum, with:
(i) Fair wages and equal remuneration for work of equal value
without distinction of any kind, in particular women being
guaranteed conditions of work not inferior to those enjoyed by
men, with equal pay for equal work;
(ii) A decent living for themselves and their families in
accordance with the provisions of the present Covenant;
(b) Safe and healthy working conditions;
(c) Equal opportunity for everyone to be promoted in his employment
to an appropriate higher level, subject to no considerations other
than those of seniority and competence;
(d) Rest, leisure and reasonable limitation of working hours and
periodic holidays with pay, as well as remuneration for public
holidays.”
India is a signatory to the above covenant, having ratified the same on
10.4.1979. There is no escape from the above obligation, in view of
different provisions of the Constitution referred to above, and in view of
the law declared by this Court under Article 141 of the Constitution of
India, the principle of ‘equal pay for equal work’ constitutes a clear and
unambiguous right and is vested in every employee – whether engaged on
regular or temporary basis.
57. Having traversed the legal parameters with reference to the
application of the principle of ‘equal pay for equal work’, in relation to
temporary employees (daily-wage employees, ad-hoc appointees, employees
appointed on casual basis, contractual employees and the like), the sole
factor that requires our determination is, whether the concerned employees
(before this Court), were rendering similar duties and responsibilities, as
were being discharged by regular employees, holding the same/corresponding
posts. This exercise would require the application of the parameters of
the principle of ‘equal pay for equal work’ summarized by us in paragraph
42 above. However, insofar as the instant aspect of the matter is
concerned, it is not difficult for us to record the factual position. We
say so, because it was fairly acknowledged by the learned counsel
representing the State of Punjab, that all the temporary employees in the
present bunch of appeals, were appointed against posts which were also
available in the regular cadre/establishment. It was also accepted, that
during the course of their employment, the concerned temporary employees
were being randomly deputed to discharge duties and responsibilities, which
at some point in time, were assigned to regular employees. Likewise,
regular employees holding substantive posts, were also posted to discharge
the same work, which was assigned to temporary employees, from time to
time. There is, therefore, no room for any doubt, that the duties and
responsibilities discharged by the temporary employees in the present set
of appeals, were the same as were being discharged by regular employees.
It is not the case of the appellants, that the respondent-employees did not
possess the qualifications prescribed for appointment on regular basis.
Furthermore, it is not the case of the State, that any of the temporary
employees would not be entitled to pay parity, on any of the principles
summarized by us in paragraph 42 hereinabove. There can be no doubt, that
the principle of ‘equal pay for equal work’ would be applicable to all the
concerned temporary employees, so as to vest in them the right to claim
wages, at par with the minimum of the pay-scale of regularly engaged
Government employees, holding the same post.
58. In view of the position expressed by us in the foregoing paragraph,
we have no hesitation in holding, that all the concerned temporary
employees, in the present bunch of cases, would be entitled to draw wages
at the minimum of the pay-scale (- at the lowest grade, in the regular pay-
scale), extended to regular employees, holding the same post.
59. Disposed of in the above terms.
60. It would be unfair for us, if we do not express our gratitude for the
assistance rendered to us by Mr. Rakesh Khanna, Additional Advocate
General, Punjab. He researched for us, on our asking, all the judgments on
the issue of pay parity. He presented them to us, irrespective of whether
the conclusions recorded therein, would or would not favour the cause
supported by him. He also assisted us, on different parameters and
outlines, suggested by us, during the course of hearing.
…..…………………………….J.
(Jagdish Singh Khehar)
…..…………………………….J.
(S.A. Bobde)
New Delhi;
October 26, 2016.
Note: The emphases supplied in all the quotations in the instant judgment,
are ours.
ITEM NO.1A COURT NO.3 SECTION IV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 213/2013
STATE OF PUNJAB AND ORS Appellant(s)
VERSUS
JAGJIT SINGH AND ORS Respondent(s)
WITH
C.A. No. 10356/2016 @ SLP(C) No.31676/2016 @ CC 15616/2011
C.A. No. 10357/2016 @ SLP(C) No.31677/2016 @ CC 16434/2011
C.A. No. 10358/2016 @ SLP(C) No.37162/2012
C.A. No. 10360/2016 @ SLP(C) No.37164/2012
C.A. No. 10361/2016 @ SLP(C) No.37165/2012
C.A. No. 211/2013
C.A. No. 212/2013
C.A. No. 214/2013
C.A. No. 217/2013
C.A. No. 218/2013
C.A. No. 219/2013
C.A. No. 220/2013
C.A. No. 221/2013
C.A. No. 222/2013
C.A. No. 223/2013
C.A. No. 224/2013
C.A. No. 225/2013
C.A. No. 226/2013
C.A. No. 227/2013
C.A. No. 228/2013
C.A. No. 229/2013
C.A. No. 230/2013
C.A. No. 231/2013
C.A. No. 232/2013
C.A. No. 233/2013
C.A. No. 234/2013
C.A. No. 235/2013
C.A. No. 236/2013
C.A. No. 245/2013
C.A. No. 246/2013
C.A. No. 247/2013
C.A. No. 248/2013
C.A. No. 249/2013
C.A. No. 257/2013
C.A. No. 260/2013
C.A. No. 262/2013
C.A. No. 966/2013
C.A. No. 2231/2013
C.A. No. 2299/2013
C.A. No. 2300/2013
C.A. No. 2301/2013
C.A. No. 2702/2013
C.A. No. 7150/2013
C.A. No. 8248/2013
C.A. No. 8979/2013
C.A. No. 9295/2013
C.A. No. 10362/2016 @ SLP(C) No. 9464/2013
C.A. No. 10363/2016 @ SLP(C) No. 11966/2013
C.A. No. 10364/2016 @ SLP(C) No. 17707/2013
C.A. No. 10365/2016 @ SLP(C) No. 24410/2013
C.A. No. 871/2014
C.A. No. 10366/2016 @ SLP(C) No. 4340/2014
C.A. No. 10527/2014
[HEARD BY HON'BLE JAGDISH SINGH KHEHAR AND HON'BLE S.A.BOBDE, JJ.]
Date : 26/10/2016 These appeals/petitions were called on for
judgment today.
For Appellant(s) Mr. Rakesh Khanna, AAG
Mr. Jagjit Singh Chhabra,Adv.
& for Ms. Kaveeta Wadia,AOR(NP)
for Mr. Kuldip Singh,AOR(NP)
for M/s. Mahalakshmi Balaji & Co.(NP)
for Ms. Naresh Bakshi,AOR(NP)
For Respondent(s) Mr. Brijesh Kr. Tamber, Adv.
for Mr. A.V. Balan, AOR
Mr. Prem Prakash, Adv.
Mr. Mukesh K. Verma, Adv.
Mr. Ramesh Goyal, Adv.
for Mr. Ashwani Bhardwaj, AOR
Mr. Vijendra Kasana, Adv.
Mr. Chand Qureshi, Adv.
for Dr. Kailash Chand, AOR
Mr. Shish Pal Laler, Adv.
Mr. S.D. Sharma, Adv.
Mr. Sonit Sinhmar, Adv.
for Mr. Balbir Singh Gupta, AOR
Mr. Himanshu Gupta, Adv.
Mr. Dinesh Verma, Adv.
for Mr. S.L. Aneja, AOR
for Mr. Subhasish Bhowmick, AOR
Mr. Vikas Mahajan, Adv.
Mr. Vishal Mahajan, Adv.
Mr. Vinod Sharma, Adv.
for Mr. B.Y. Kulkarni, AOR
Mr. Ajay Kumar Singh, AOR
Mr. Ujjal Singh, Adv.
Mr. J.P. Singh, Adv.
for Mr. R.C. Kaushik, AOR
Ms. Manju Sharma, AOR
Mr. Anil Kumar Tandale, AOR
Mr. Ashok Mathur, AOR
Mr. Varun Punia, AOR
Mr. A.S. Pundir, AOR
Ms. Vanita Mehta, AOR
Mr. Balraj Dewan, AOR
Mr. Varinder Kumar Sharma, AOR
Mr. Yash Pal Dhingra, AOR
Hon'ble Mr. Justice Jagdish Singh Khehar pronounced the
judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice S.A.
Bobde.
Leave granted in the special leave petitions.
For the reasons recorded in the reportable judgment, which is
placed on the file, the appeals stand disposed of.
(Indu Pokhriyal) (Parveen Kumar)
Court Master AR-cum-PS
-----------------------
[1] (1982) 1 SCC 618
[2] (1983) 1 SCC 304
[3] (1988) 3 SCC 91
[4] (1989) 1 SCC 121
[5] (1989) 2 SCC 235
[6] (1991) 1 SCC 619
[7] (2000) 8 SCC 580
[8] (2002) 4 SCC 556
[9] (2002) 6 SCC 72
[10] (2003) 5 SCC 188
[11] (2004) 1 SCC 347
[12] (2007) 8 SCC 279
[13] (2008) 10 SCC 1
[14] (2010) 5 SCC 225
[15] (2011) 2 SCC 452
[16] (2011) 11 SCC 122
[17] (2012) 12 SCC 666
[18] (2014) 6 SCC 756
[19] (1986) 1 SCC 637
[20] (1986) 1 SCC 639
[21] (1987) 4 SCC 634
[22] (1988) 1 SCC 122
[23] (1989) 4 SCC 459
[24] (1995) 5 SCC 210
[25] (1996) 11 SCC 77
[26] (1998) 9 SCC 595
[27] (2003) 6 SCC 123
[28] (2006) 4 SCC 1
[29] (1990) 2 SCC 396
[30] (2006) 9 SCC 321
[31] (2006) 9 SCC 337
[32] (2009) 9 SCC 514
[33] (2010) 7 SCC 739
[34] (2010) 12 SCC 400
[35] (2010) 4 SCC 179
