SUPREME COURT OF INDIA
State of Punjab v. Jagjit Singh
26 October 2016 · Civil Appeal No. 213 of 2013 and connected matters
Explain equal pay claims of temporary workers performing comparable duties.
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Draft summary
AI-assisted historical explanation. Independently checked against the source by an AI reviewer. Not reviewed by a lawyer. This historical summary does not certify the current legal position.
In one sentence
The temporary employees proved entitlement to the minimum pay scale for equivalent work.
Question decided
When does equal pay for equal work extend to temporary government employees?
Key holdings
- Pay parity requires a proper comparison of qualifications, duties and responsibilities; a shared job title alone is insufficient.Source PDF pages: 73, 74, 75.
- The employees in these cases were entitled to the minimum of the regular pay scale for the same posts, rather than automatic regularisation.Source PDF pages: 99, 100, 101, 102.
Outcome
The matters were disposed of recognising the stated minimum-pay entitlement.
Source PDF pages: 99, 100, 101, 102.Plain-English explanation
The judgment applies constitutional equality to employees doing comparable work under different employment arrangements. The Court examined whether the temporary workers actually performed the same duties and possessed the relevant qualifications. On the accepted facts, it held that they should receive wages at the minimum of the corresponding regular pay scale. This does not erase every lawful pay distinction: differences in responsibility, qualifications or the nature of work can matter. It also does not convert a temporary appointment into a permanent post or award every allowance and progression benefit automatically. The useful distinction is between pay for work performed and regularisation of employment status. A current claim requires evidence about the actual comparator and the service rules, not merely reliance on the phrase equal pay.
Relevant law
- Constitution: Articles 14, 16 and 39(d)
- Applicable public-employment rules
Opinions
Two-judge bench; Justice Jagdish Singh Khehar authored the judgment.
Research notes and limits
Separate minimum-pay parity from full scale benefits and regularisation; verify comparators and later service-law rulings.
Judgment - source material
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Source PDF page 1
Open this page in the original PDFPage 1 “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 (Arising out of SLP (CIVIL).31676 CC NO. 15616 OF 2011) CIVIL APPEAL NO. 236 OF 2013 CIVIL APPEAL NO .10357 OF 2016 (Arising out of SLP (CIVIL) 31677 CC NO. 16434 OF 2011) CIVIL APPEAL NO. 245 OF 2013 CIVIL APPEAL NO .10358 OF 2016 (Arising out of SLP (CIVIL) NO. 37162 OF 2012) CIVIL APPEAL NO. 246 OF 2013 CIVIL APPEAL NO . 10360 OF 2016 (Arising out of SLP (CIVIL) NO. 37164 OF 2012) CIVIL APPEAL NO. 247 OF 2013 CIVIL APPEAL NO .10361 OF 2016 (Arising out of SLP (CIVIL) NO. 37165 OF 2012) CIVIL APPEAL NO. 248 OF 2013 CIVIL APPEAL NO. 211 OF 2013 CIVIL APPEAL NO. 249 OF 2013 CIVIL APPEAL NO. 212 OF 2013 CIVIL APPEAL NO. 257 OF 20 13 CIVIL APPEAL NO. 214 OF 2013 CIVIL APPEAL NO. 260 OF 2013 CIVIL APPEAL NO. 21 7 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
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Open this page in the original PDFPage 2 2 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 . 1036 3 OF 2016 (Arising out of SLP (CIVIL) NO. 11966 OF 2013) CIVIL APPEAL NO. 230 OF 2013 CIVIL APPEAL NO . 1036 4 OF 2016 (Arising out of SLP (CIVIL) NO. 17707 OF 2013) CIVIL APPEAL NO. 231 OF 2013 CIVIL APPEAL NO . 1036 5 OF 2016 (Arising out of SLP (CIVIL) NO. 24410 OF 2013) CIVIL APPEAL NO. 232 OF 2013 CIVIL APPEAL NO. 871 OF 2014 CIVIL APPEA L 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 Petit ion (Civil)…. CC no. 15616 of 2011, and Special Leave Petition (Civil)…. CC no. 1 6434 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 200 3, decided on 7.1.2009), set aside, in an intra-court appeal, the judgment rende red by a learned single Judge of the High Court, in Rajinder Singh & Ors. v. Stat e of Punjab & Ors. (CWP no. 1536 of 1988, decided on 5.2.2003). In the above j udgment, the learned single Judge had directed the State to pay to the writ pet itioners (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 simil arly placed regular
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Open this page in the original PDFPage 3 3 employees; arrears payable, were limited to a perio d of three years, prior to the date of filing of the writ petition. In sum and su bstance, 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, i n 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 Kuma r 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 (worki ng as daily-wage Pump Operators, Fitters, Helpers, Drivers, Plumbers, Cho wkidars, Ledger Clerks, Ledger Keepers, Petrol Men, Surveyors, Fitter Cooli es, Sewermen, and the like), were entitled to minimum of the pay-scale, alongwit h permissible allowances (as revised from time to time), which were being given to similarly placed regular employees. Arrears payable to the concerned employ ees 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 198 8). 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. 3 37 of 2003), by the earlier division bench.
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Open this page in the original PDFPage 4 4 4. It would be relevant to mention, that the earlie r 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 ex pressed in the judgments rendered by two division benches in the above matters, a learned single Judge of the High Court, referred the matter for adjudicatio n 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 diffe rences 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. Raj inder Kumar (LPA no. 1024 of 2009, decided on 30.8.2010); as also, a challenge t o 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 bu nch 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 app ointees, employees appointed on casual basis, contractual employees an d the like), are entitled to
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Open this page in the original PDFPage 5 5 minimum of the regular pay-scale, alongwith dearnes s allowance (as revised from time to time) on account of their performing t he same duties, which are discharged by those engaged on regular basis, again st sanctioned posts. The full bench of the High Court, while adjudicating up on 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 t he activities carried on by daily- wagers and the regular employees were similar. How ever, 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 Hi gh 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 s election process based upon fairness and equality of opportunity to all ot her eligible candidates, shall be entitled to minimum of the regular pay sca le from the date of engagement. (2) But if daily wagers, ad hoc or contractual appo intees are not appointed against regular sanctioned posts and thei r services are availed continuously, with notional breaks, by the State Go vernment or its instrumentalities for a sufficient long period i.e. for 10 years, such daily wagers, ad hoc or contractual appointees shall be e ntitled 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 categor y of persons. Their claim for regularization, if any, may have to be consider ed separately in terms of legally permissible scheme. (3) In the event, a claim is made for minimum pay s cale after more than three years and two months of completion of 10 year s of continuous working, a daily wager, ad hoc or contractual emplo yee 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 positio n declared by this Court, on the underlying ingredients, which govern the principle of ‘equal pay for equal work’.
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It is also necessary for resolving the controversy, to determine the manner in
which this Court has extended the benefit of “minim um 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 a ppointees, as employees
engaged on casual basis, as contract appointees, an d the like). For the
aforesaid purpose, we shall, examine the above issu e, 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. An d 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 pos t 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 D rivers 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.260-35 0. And that, of Drivers
employed in secretariat offices in Delhi, was Rs.26 0-400. The pay-scale of
Drivers of heavy vehicles in the Fire Brigade Depar tment, and in the Department
of Lighthouse was Rs.330-480. The prayer of the pe titioner was, that he should
be placed in the scale of pay, as was extended to D rivers in other governmental
organizations in Delhi. The instant prayer was bas ed on the submission, that he
1 (1982) 1 SCC 618 Source PDF page 7
Open this page in the original PDFPage 7 7 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 o n the logic, that there was no reason/justification, to assign different pay-scale s 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 w ere engaged in different departments of the Government, was not by itself su fficient to justify different pay-scales. It was acknowledged, that though perso ns holding the same rank/designation in different departments of the Go vernment, may be discharging different duties. Yet it was held, that if their p owers, duties and responsibilities were identical, there was no justification for exte nding different scales of pay to them, merely because they were engaged in different departments. Accordingly it was declared, that where all relevant considerat ions were the same, persons holding identical posts ought not to be treated dif ferently, in the matter of pay. If the officers in the same rank perform dissimilar fu nctions and exercise different powers, duties and responsibilities, such officers could not complain, that they had been placed in a dissimilar pay-scale (even tho ugh the nomenclature and designation of the posts, was the same). It was co ncluded, that the principle of ‘equal pay for equal work’, which meant equal pay f or everyone irrespective of sex, was deducible from the Preamble and Articles 1 4, 16 and 39(d) of the Constitution. The principle of ‘equal pay for equa l work’, was held to be applicable to cases of unequal scales of pay, based on no classification or
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irrational classification, though both sets of empl oyees (- engaged on temporary
and regular basis, respectively) performed identical duties and responsibilities.
(iii) The Court arrived at the conclusion, that the re could not be the slightest
doubt that Driver-Constables engaged in the Delhi P olice Force, performed the
same functions and duties, as other Drivers in the services of the Delhi
Administration and the Central Government. Even th ough he belonged to a
different department, the petitioner was held as en titled 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 factua l controversy adjudicated
upon in this case. In fact, the main issue which a rose for consideration pertained
to pension, and not to wages. Be that as it may, i t 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, t he State action must be
directed towards attaining the goals set out in Par t 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 effecti ve as it may a social
order in which justice - social, economic and polit ical shall inform all
institutions of the national life. In particular th e State shall strive to
minimise the inequalities in income and endeavour t o 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 t he light of the judgment
of this Court in Randhir Singh v. Union of India & Ors., (1982) 1 SCC 618 .
2 (1983) 1 SCC 304 Source PDF page 9
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Revealing the scope and content of this facet of eq uality, Chinnappa
Reddy, J. speaking for the Court observed as under: (SCC p.619, para 1)
"Now, thanks to the rising social and political con sciousness and the
expectations aroused as a consequence and the forwa rd looking
posture of this Court, the under-privileged also ar e clamouring for
the rights and are seeking the intervention of the court with touching
faith and confidence in the court. The Judges of th e court have a
duty to redeem their Constitutional oath and do jus tice 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 identi cal posts may not be
treated differently in the matter of their pay mere ly because they belong to
different departments . If that can't be done when they are in service, c an
that be done during their retirement? Expanding thi s principle, one can
confidently say that if pensioners form a class, th eir computation cannot be
by different formula affording unequal treatment so lely on the ground that
some retired earlier and some retired later. Art. 3 9 (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 citi zens are not forced by
economic necessity to enter avocations unsuited to their age or
strength. Art. 41 obligates the State within the li mits of its economic
capacity and development, to make effective provisi on for securing the
right to work, to education and to provide assistan ce in cases of
unemployment, old age, sickness and disablement, an d 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 Cons titution Bench noticed the
Randhir Singh case 1, and while affirming the principle of ‘equal pay f or equal
work’, extended it to pensionary entitlements also.
9. Federation of All India Customs and Central Exci se Stenographers
(Recognized) v. Union of India 3, decided by a two-Judge bench : The petitioners
in the above case, were Personal Assistants and Ste nographers attached to
heads of departments in the Customs and Central Exc ise Department, of the
3 (1988) 3 SCC 91 Source PDF page 10
Open this page in the original PDFPage 10 10 Ministry of Finance. They were placed in the pay-s cale 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 C entral Secretariat. The above counterparts, it was alleged, were placed in the pa y-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 co ntention, that the differentiation in their pay-scales, was violative of Articles 14 a nd 16 of the Constitution of India. The petitioners claimed ‘equal pay for equal work’. (ii) The assertions made by the petitioners were re pudiated by the Union of India. Whilst acknowledging, that the duties and w ork 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 assert ed, that the above counterparts discharged duties of higher responsibi lity, as Joint Secretaries and Directors in the Central Secretariat performed func tions and duties of greater responsibility, as compared to heads of departments , with whom the petitioners were attached. It was contended, that the principl e 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 peopl e discharging duties and
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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-sca le was not sought to be justified
on the basis of the functional work discharged by t he petitioners and their
counterparts in the secretariat, but on the dissimi larity of their responsibility,
confidentiality and the relationship with the publi c 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 fo r equal work’ could not be
translated into a mathematical formula. Interferen ce in a claim as the one
projected by the petitioners at the hands of a Cour t, would not be possible unless
it could be demonstrated, that either the different iation 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 Allaha bad, were placed in a pay-
4 (1989) 1 SCC 121 Source PDF page 12
Open this page in the original PDFPage 12 12 scale higher than that allowed to Section Officers. Bench Secretaries were placed in the pay-scale of Rs.160-320 as against th e pay-scale of Rs.100-300 extended to Section Officers. A Rationalization Co mmittee, recommended the pay-scale of Rs.150-350 for Bench Secretaries and R s.200-400 for Section Officers. While examining the recommendation, the State Government placed Bench Secretaries in the pay-scale of Rs.200-400, a nd Section Officers in the pay-scale of Rs.515-715. Dissatisfied with the app arent down-grading, Bench Secretaries demanded, that they should be placed at par with Section Officers, even though their principal prayer was for being pl aced in a higher pay-scale. The matter was examined by the Pay Commission, whic h 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 be ar more responsibilities in their sections, and were required to exercise contr ol 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 fo r Section Officers. Thereupon, the Anomalies Committee, while rejecting the claim of Bench Secretaries for being placed on par with Section Of ficers, suggested that 10 posts of Bench Secretaries should be upgraded and p laced in the pay-scale of Rs.500-1000 (the same as, Section Officers). Those Bench Secretaries, who
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Open this page in the original PDFPage 13 13 were placed in the pay-scale of Rs.500-1000 were de signated as Bench Secretaries Grade-I, and those placed in the pay-sc ale of Rs.400-750, were designated as Bench Secretaries Grade-II. (ii) This Court while adjudicating upon the controv ersy, examined the matter from two different angles. Firstly, whether Bench Secretaries in the High Court of Allahabad, were entitled to the pay-scale admissibl e to Section Officers? Secondly, whether the creation of two grades with d ifferent pay-scales in the cadre of Bench Secretaries despite the fact that th ey were discharging the same duties and responsibilities, was violative of the p rinciple 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 re spective 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 determinatio n 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 ev aluated the duties and responsibilities in consonance with law, the matter would be open to judicial review. In the present case, while acknowledging t hat at one time Bench Secretaries were paid more emoluments than Section Officers, it was held, that since successive Pay Commissions and even Pay Ratio nalization Committees had found, that Section Officers performed more one rous duties, bearing greater responsibility as compared to Bench Secretaries, it was not possible for this Court to go against the said opinion. As such, thi s Court rejected the prayer of
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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 perform ing 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 B ench Secretaries Grade-I
were entitled to a higher pay-scale than Bench Secr etaries Grade-II, on account
of their selection as Bench Secretaries Grade-I, ou t of Bench Secretaries Grade-
II, by a Selection Committee appointed under the ru les, framed by the High
Court. The above selection, was based on merit wit h due regard to seniority.
And only such Bench Secretaries Grade-II who had ac quired sufficient
experience, and also displayed a higher level of me rit, 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 emol uments to Bench Secretaries
Grade-I, as against Bench Secretaries Grade-II.
(v) In the above view of the matter, the claim rais ed 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 Med ical Sciences
5, decided by a
two-Judge bench : The petitioner in this case, was appointed again st 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 o n the recommendations
5 (1989) 2 SCC 235 Source PDF page 15
Open this page in the original PDFPage 15 15 made by the Third Pay Commission (which were adopte d 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 assert ed, that the post of Hearing Therapist was required to discharge duties and resp onsibilities 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 prin ciple of ‘equal pay for equal work’) was not acceded to by the department, he mad e a representation to the Third Pay Commission, which also negatived his clai m for parity, as also, for a higher pay-scale. It is therefore that he sought j udicial intervention. His main grievance was, that Hearing Therapist performed sim ilar duties and functions as the posts of Senior Speech Pathologist, Senior Phys iotherapist, Senior Occupational Therapist, Audiologist, and Speech Pat hologist, 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 empl oyer was discriminatory towards the petitioner. (ii) Whilst controverting the claim of the petition er it was pointed out, that the post of Hearing Therapist was not comparable with t he posts referred to by the petitioner. It was contended, that neither the qua lifications nor the duties and functions of the posts referred to by the petitione r, were similar to that of Hearing Therapist. In the absence of equality between the post of Hearing Therapist, and
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Open this page in the original PDFPage 16 16 the other posts referred to by the petitioner, it w as 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, t hat educational qualifications, as well as, duties and functions of the posts of Heari ng 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 suffe ring from hearing defects. A Hearing Therapist is required to help in the rehabi litation of persons with hearing impairments. It was also pointed out, that an Audi ologist’s work was to coordinate the separate professional skills, which contribute to the study, treatment and rehabilitation of persons with impair ed hearing. As such it was submitted, that a person holding the post of an Aud iologist, was a specialist in the non-medical evaluation, habilitation and rehabi litation, of those who have language and speech disorders. On the aforesaid pr emise, 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 cl aim 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
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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 I ndia
6, decided by a two-
Judge bench : The workers’ union in the above case, had approa ched this Court,
in the first instance in 1984, by filing writ petit ion no. 13924 of 1984. In the above
petition, the relief claimed was for payment of wag es 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 d epartments of the Delhi
Administration, and the Union of India. They appro ached this Court again by
filing civil writ petition no. 869 of 1988, which w as 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 Del hi Municipal Committee, or
the Delhi Administration, or the Union of India. I t would be relevant to mention,
that the petitioner- Workers’ Union was representin g employees working in
various centres of the Grih Kalyan Kendras, on ad-h oc basis. Some of them
were being paid a fixed salary, described as a hono rarium, while others were
working on piece-rate wages at the production centr es, without there being any
provision for any scale of pay or other benefits li ke gratuity, pension, provident
fund etc.
6 (1991) 1 SCC 619 Source PDF page 18
Open this page in the original PDFPage 18 18 (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, doi ng the same or similar work. The question came to be examined for the reason, th at unless the petitioners could demonstrate that the employees of the Grih Ka lyan Kendras, were being discriminated against on the subject of pay and oth er emoluments, with other similarly placed employees, the principle of ‘equal pay for equal work’ would not be applicable. During the course of the first adju dication in writ petition no. 13924 of 1984, this Court requested a former Chief Justice of India, to make recommendations after taking into consideration, fi rstly, whether other similarly situated employees (engaged in similar comparable p osts, putting in comparable hours of work, in a comparable employment) were bei ng 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 re muneration of the agitating employees, deserved to be revised on the ground, th at 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, th at 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 t he Delhi Administration, or the Union of India.
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(iv) Based on the aforesaid factual conclusion, thi s 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 compar ison could not be drawn
between unequals. Since the workers who had approa ched the Court in the
present case, had failed to establish that they wer e 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 beha lf this Court also opined, that
the question as to whether persons were situated eq ually, had to be determined
by the application of broad and reasonable tests, a nd not by way of a
mathematical formula of exactitude. And therefore, since there were no other
employees comparable to the employees working in th e 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 sim ilar 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 l earned single Judge
7 (2000) 8 SCC 580 Source PDF page 20
Open this page in the original PDFPage 20 20 dismissed the writ petition, an intra-Court appeal preferred by the respondent, was allowed. (ii) The Union of India raised three contentions, i n its appeal to this Court. Firstly, that the pay-scale claimed by the responde nt, 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 pr omotional 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 mater ial before the Court, on which the High Court could have arrived at the conclusion , that the essential qualifications of the post against which the respon dent 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 Opera tor) 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 Rad io Operators in the Central Water Commission or the Directorate of Police Wirel ess, were enjoying similar benefits. (iii) This Court while accepting the contentions ad vanced 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 w as a promotional post for Naik (Radio Operator), i.e., the post held by the r espondent. 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. Furthermor e, this Court arrived at the
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conclusion, that there was no material on the recor d 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 estab lishments, is Junior
Management Grade Scale-1. The said cadre comprises of Probationary Officers,
Trainee Officers and other officers who possess tec hnical skills (specialized
officers), such as Assistant Law Officers, Security Officers, Assistant Engineers,
Technical Officers, Medical Officers, Rural Develop ment Officers, and other
technical posts. All the posts in the Junior Manag ement Grade Scale-1 cadre,
were divisible into two categories – generalist off icers, and specialist officers.
Under the prevalent rules – the 1979 Order, the ben efit of a higher starting pay,
was extended only to Probationary Officers and Trai nee Officers (i.e. to
generalist officers), while Rural Development Officers and other specialist officers
like Assistant Law Officers, Security Officers, Ass istant Engineers etc., were not
entitled to a higher starting pay. Rural Developme nt Officers, agitated their claim
for similar benefits, as were extended to Probation ary Officers and Trainee
Officers (i.e. to the generalist officers). The qu estion 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
8 (2002) 4 SCC 556 Source PDF page 22
Open this page in the original PDFPage 22 22 Development Officers, finding that they were requir ed to shoulder, by and large, the same duties and responsibilities, as Probationa ry Officers and Trainee Officers, so far as agricultural advances were conc erned. The Committee accordingly recommended, that it was a fit case for removal of the anomaly in their salary fitment. It recommended that, Rural D evelopment Officers be allowed the same fitment of salary at the time of a ppointment, 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 extend ed 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 th e benefit of additional increments, as had been extended to Rural Developme nt Officers. Since the State Bank of India did not accede to their request , they approached the Karnataka High Court. The specialist officers clai med, that in all respects, they performed similar duties and responsibilities, as R ural Development Officers, and therefore, they were entitled to the benefit of add itional increments, at the time of their appointment, as had been extended to Rural De velopment Officers. A learned single Judge of the High Court, on being im pressed 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 speci alist cadre), were also extended the benefit of higher starting pay, accept ed the claim of the specialist
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Open this page in the original PDFPage 23 23 officers. Appeals preferred against the judgment r endered by the learned single Judge, were dismissed by a division bench of the High Court. (iii) This Court while examining the challenges, na rrated 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. T he principle has been adequately explained and crystalised and sufficient ly 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 b y the mere volume of work; there may be qualitative difference as regard s reliability and responsibility. Functions may be the same but the r esponsibilities make a difference. One cannot deny that often the differen ce is a matter of degree and that there is an element of value judgment by t hose 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 bon a fide, reasonably on an intelligible criterion which has a rational nexu s with the object of differentiation, such differentiation will not amou nt 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. Di fferentiation 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 responsib ilities 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 consi dered the acceptability of the claim of the specialist officers, for parity with t he generalist officers. This Court recorded its conclusion, as under:- “19. We have carefully perused the order of the Ban k and find that several reasons have been given for non-acceptance of the respondents' claim. It has been highlighted that the Probationar y Officers/Trainee Officers are being recruited from market/promoted f rom clerical staff by the Bank by means of all-India written test and intervi ew to get the best talent from the market and within, with a view to man the Bank's top
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Open this page in the original PDFPage 24 24 management in due course. Leaned counsel for the re spondents 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 O fficers are more onerous while the specialist officers are not exposed to op erational work/risk. It is, therefore, quite clear that there exists a valid di stinction in the matter of work and nature of operations between the specialis t officers and the general category officers. The general category officers are directly linked to the banking operations whereas the specialist of ficers are not so linked and they perform the specified nature of work. RDOs were given similar fitment as the generalist officers since it was fou nd that they were required to shoulder, by and large, the same duties and resp onsibilities as Probationary Officers and Trainee Officers in so fa r 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 wo uld be no future recruitment of RDOs and the existing RDOs were prop osed to be absorbed in general banking cadre. The recruitment of RDOs has been discontinued since 1985. Taking into account the na ture of duties and responsibilities shouldered by the respondents the Bank has concluded that the duties and responsibilities of the respond ents 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 t hat specialist officers are also recruited from the open market an d are confirmed after successfully completing the probation of 2 years. B efore the Order of 1979 came into force, they were similarly being granted benefit of additional increments at the time of appointment in the same m anner as the generalist officers. However, after the order of 19 79 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 inc rements on the basis of the report of an Expert Committee which justifie d their classification with the generalist officers, having regard to the natur e of duties and responsibilities shouldered by them. However, on c onsideration of the case of the respondents, the Bank as reached a diff erent conclusion . The Bank has found that their duties and responsibiliti es are not the same as those of Probationary Officers/Trainee Officers/RDO s. 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 th e Bank in its banking operations. The officers who belong to the generali st cadre, namely the officers who actually conduct the banking operation s and who take decisions in regard to all banking works are advise d by the specialist
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officers. There can be no doubt that the service re ndered by the specialist
officers is also valuable, but that is not to say t hat the degree of
responsibility and reliability is the same as those of the Probationary
Officers, the Trainee Officers, and the RDOs, who d irectly carry on the
banking operations and are required to take crucial decisions based on the
advice tendered by the specialist officers. The Ban k has considered the
nature of duties and responsibilities of the variou s categories of officers
and has reached bona fide decision that while gener alist 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 t he bank and quality of its
performance, the specialist officers are not expose d to such risks nor are
they required to take decisions as vital as those t o be taken by the
generalist officers . They at best render advice in their specialized f ield. 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 settl ed 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 an d therefore judicial
interference is inappropriate.”
On account of the reasons recorded above, specialis t 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 P ersonal 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 Persona l 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
9 (2002) 6 SCC 72 Source PDF page 26
Open this page in the original PDFPage 26 26 Haryana had accepted the recommendations of the Fou rth Central Pay Commission, with regard to revision of pay-scales, with effect from 1.1.1986. The case of Personal Assistants before the High Cou rt was, that prior to 1986, Personal Assistants working in the Civil Secretaria t, Haryana, were enjoying a higher scale of pay, than was extended to Personal Assistants working in the Central Secretariat. On the receipt of Fourth Cent ral Pay Commission report, the Central Government revised the pay-scale of Persona l 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 recommendati on 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 i n the Civil Secretariat, Haryana, was revised to Rs.1640-2900 + 150 as special pay. (ii) It was also the contention of Personal Assista nts, that in respect of certain categories of employees of different departments of the State of Haryana, like Education, Police, Transport, Health and Engineerin g and Technical staff, the State Government had fully adopted the recommendati ons of the Fourth Central Pay Commission, by granting them the pay-scale of R s.2000-3500. The claim of the Personal Assistants was also premised on the fa ct, that Personal Assistants working in the Civil Secretariat, Haryana, discharg ed duties which were comparable with that of Personal Assistants in the Central Secretariat. And so also, their responsibilities.
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Open this page in the original PDFPage 27 27 (iii) The High Court allowed the claim of the Assoc iation. It held, that Personal Assistants working in the Civil Secretariat, Haryan a, 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 s ettled principles of law, while determining the claim of Personal Assistants, by ap plying the principle of parity. This Court felt, that the High Court was persuaded to accept the claim of Personal Assistants, only because of the designatio n of their post. This, it was held, was a misconceived application of the princip le. 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 d ischarging similar duties and responsibilities as Personal Assistants in the Cent ral Secretariat, had remained unrebutted. That, this Court found, was factually incorrect. The State of Haryana, in its counter affidavit before the High C ourt, had adopted the specific stance, that there was no comparison between the Pe rsonal Assistants working in the Civil Secretariat, Haryana, and Personal Ass istants working in the Central Secretariat. It was highlighted, that the qualific ations prescribed for Personal Assistants in the Central Secretariat, were differe nt from those prescribed for Personal Assistants in Civil Secretariat, Haryana. The High Court was also found to have erred in its determination, by not ma king 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.
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Open this page in the original PDFPage 28 28 (iv) In order to delineate the parameters, on the b asis 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 equ al pay for equal work is not a fundamental right vested in any employee thou gh it is a constitutional goal to be achieved by the Government. Fixation of pay and determination of parity in duties and responsibilities is a compl ex 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 be ar 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 th e prevailing policies of the State Government is also a relevant factor for cons ideration by the State Government. In the context of complex nature of issues involve d, the far- reaching consequences of a decision in the matter a nd 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 entert ain any proceeding against such administrative decision taken by the Governmen t. The courts should approach such matters with restraint and interfere only when they are satisfied that the decision of the Government is pa tently irrational, unjust and prejudicial to a section of employees and the G overnment while taking the decision has ignored factors which are material and relevant for a decision in the matter. Even in a case where the co urt holds the order passed by the Government to be unsustainable then o rdinarily a direction should be given to the State Government or the auth ority taking the decision to reconsider the matter and pass a proper order. The court should avoid giving a declaration granting a partic ular 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 a ttempt to compare the nature of duties and responsibilities of the tw o sections of the employees, one in the State Secretariat and the oth er in the Central Secretariat. It has also ignored the basic principl e that there are certain rules, regulations and executive instructions issue d by the employers which govern the administration of the cadre.”
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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 sa lary 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 ha ve 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 hi s 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 a nother individual junior to him
was regularized against the post of Junior Assistan t. The respondent then
approached the Orissa High Court by way of a writ p etition, seeking appointment
on regular basis. The High Court disposed of the s aid 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, 1 997. 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 Agricult ure & Technology approached
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this Court. While dealing with the question of ‘eq ual pay for equal work’, this
Court, noticed the factual position as under:-
“10. The High Court before directing to give regula r 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 th e case in order to
appreciate whether the respondent satisfied the rel evant 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 resp ondent had not been
regularized, his appointment was on temporary basis on consolidated pay
and he had not undergone the process for regular re cruitment, direction to
give regular pay-scale could not be given that too without examining the
relevant factors to apply the principle of “equal p ay 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, responsibi lities attached to the
respondent without comparing them with the regularl y recruited Junior
Assistants . It cannot be disputed that there were neither nec essary
averments in the writ petition nor any material was placed before the High
Court so as to consider the application of principl e of “equal pay for equal
work”.”
Based on the fact, that the respondent had not plac ed sufficient material on the
record of the case, to demonstrate the applicabilit y of the principle of ‘equal pay
for equal work’, this Court set aside the order pas sed by the High Court, directing
that the respondent be paid wages in the regular sc ale 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-cu m-Mechanic and Sub-
Assistant Engineer, in the Irrigation Department, o f the Government of West
Bengal. In 1970, the State Government revised pay- scales. During the
aforesaid revision, the pay-scale of the post of Op erator-cum-Mechanic, which
11 (2004) 1 SCC 347 Source PDF page 31
Open this page in the original PDFPage 31 31 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.33 0, with effect from the same date. Some persons in the category of Operator-cum -Mechanic, possessing the qualification of diploma in engineering, claimed en titlement to the nomenclature of Sub-Assistant Engineer, as also, the scale of pa y prescribed for the post of Sub-Assistant Engineer. The Government of West Ben gal, during the course of hearing of the matter before this Court, adopted th e 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 d id not possess diploma in engineering, and were graduates in science, or w ere holding school final examination certificate, claimed parity with Operat or-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 Scienc e. They do not have the requisite technical qualification. Only b ecause they are graduates, they cannot, in our opinion, claim equal ity 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 t he Constitution of India would not ordinarily grant such a relief which woul d be in violation of a statutory provision.”
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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 di sposed of, through a common
order. The appellants had approached the High Cour t with the prayer, that
directions be issued to the respondents, to fix the ir pay-scale at par with the pay-
scale of government secondary school teachers, or a t par with Grade I and II
Clerks of the respondent company (Bharat Coking Coa l Ltd. – BCCL). The
appellants also prayed, that facilities such as pro vident fund, gratuity, pension
and other retiral benefits, should also be made ava ilable to them. In addition to
the above prayers, the appellants also sought a dir ection, that the management
of the school, be taken over by the State Governmen t. Dissatisfied with the
orders passed by the High Court, the employees of t he 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 BCC L or the Government
of Jharkhand for application of the principle of eq ual 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 Gove rnment 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, “e qual pay for equal work”
must satisfy the test that the incumbents are perfo rming equal and
identical work as discharged by employees against w hom the equal pay is
claimed. Their Lordships have reviewed all the cas es bearing on the
subject and after a detailed discussion have finall y 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 dut ies are being
discharged by them . Though a number of cases were cited for our
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consideration but no useful purpose will be served as in State of Haryana
v. Charanjit Singh, (2006) 9 SCC 321, all these cas es 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 see king any parity of the
pay with that of the clerks of BCCL.”
A perusal of the determination rendered by this Cou rt 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, an d 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 Hi gh 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 t he Companies (Court) Rules,
1959, against sanctioned posts, in the Department o f Company Affairs. By virtue
of the above directions, the respondents who were e mployed/engaged by Official
Liquidators, were paid salaries and allowances from the Company’s funds. The
question that arose for consideration before this C ourt was, whether the
respondents were entitled to sanctioned Government posts, in the office of the
Official Liquidator(s). While disposing of the abo ve issue, this Court held as
under:-
“100. As mentioned earlier, the respondents were em ployed/engaged by
the Official Liquidators pursuant to the sanction a ccorded 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 Co nsolidated Fund of
India. Therefore, the mere fact that they were doin g work similar to the
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regular employees of the Offices of the Official Li quidators cannot be
treated as sufficient for applying the principle of equal pay for equal work.
Any such direction will compel the Government to sa nction additional posts
in the Offices of the Official Liquidators so as to facilitate payment of
salaries and allowances to the company-paid staff i n the regular pay scale
from the Consolidate Fund of India and in view of o ur 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 a ny legal or constitutional
infirmity, it is not possible to entertain the plea of the respondents for
payment of salaries and allowances in the regular p ay scales and other
monetary benefits on a par with regular employees b y applying the
principle of equal pay for equal work .”
20. State of West Bengal v. West Bengal Minimum Wag es Inspectors
Association 14 , decided by a two-Judge bench : The respondent Association
represented the cadre of Inspector (Agricultural Mi nimum 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 th e posts of Inspector
(Cooperative Societies), Extension Officer (Panchay ats) and Revenue Officer.
The aforesaid claim of parity was based on the sole consideration, that the posts
of Inspector (Agricultural Minimum Wages) on the on e hand, and the posts of
Inspector (Cooperative Societies), Extension Office r (Panchayats) and Revenue
Officer on the other, were in the same pay-scale, p rior 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 r etained in Pay-Scale 9 (–
Rs.300-600), the other three cadres – Inspector (Co operative Societies),
Extension Officer (Panchayats) and Revenue Officer, were placed in Pay-Scale
11 (– Rs.425-1050). It was based on the above fact ual assertion, that the
14 (2010) 5 SCC 225 Source PDF page 35
Open this page in the original PDFPage 35 35 respondents claimed placement in Pay-Scale 11 (- Rs .425-1050). The claim of the respondents, was not based on the assertion, th at Inspectors (Agricultural Minimum Wages) were discharging duties and responsi bilities, which were similar/identical to those of Inspectors (Cooperati ve 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 employ ees 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 applicab le to Inspector (Cooperative Societies), Extension Officers (Pancha yat) and KGO-JLRO (Revenue Officers) not on the basis that the holder s of those posts were performing similar duties or functions as Inspector s, AMW. On the other hand, the relief was claimed on the ground that pri or to ROPA Rules 1981, the posts in the said three reference categories, a nd Inspectors, AMW were all in the same pay scale (Pay Scale 9), and t hat under ROPA Rules 1981, those other three categories have been given a higher Pay Scale of No.11, while they – Inspectors, AMW - were discrimi nated 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 s imilar or identical duties and responsibilities but on the contention that as the subject post holders and the holders of reference category posts who wer e 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 clai med 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 cl aimed merely on the basis that earlier the subject post and the referen ce 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.
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24. The Pay Commission has two functions; to revise the existing pay
scale, by recommending revised pay scales correspon ding to the pre-
revised pay scales and, secondly, make recommendati ons for upgrading
or downgrading posts resulting in higher pay scales or lower pay scales,
depending upon the nature of duties and functions a ttached to those posts.
Therefore, the mere fact that at an earlier point o f time, two posts were
carrying the same pay scale does not mean that afte r 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 an other 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 referenc e category posts,
discharge duties and functions identical with, or s imilar to, each other and
that the continuation of disparity is irrational and unjust .”
Based on the above consideration, this Court observ ed, that Inspectors
(Agricultural Minimum Wages), had neither pleaded n or proved, that they were
discharging duties and functions similar to the dut ies and functions of the
Inspectors (Cooperative Societies), Extension Offic ers (Panchayats) and
Revenue Officers, and therefore held, that their cl aim for pay parity, under the
principle of ‘equal pay for equal work’, could not be accepted.
21. Union Territory Administration, Chandigarh v. M anju Mathur 15 , decided by
a two-Judge bench : In the above matter, the respondents were workin g 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 Administratio n of Chandigarh. They were
placed in the pay-scale of Rs.1500-2540 and Rs.1350 -2400, respectively. They
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Open this page in the original PDFPage 37 37 moved the Chandigarh Administration, seeking the pa y-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 Medica l Education, Punjab. The posts with which they were seeking equivalence, wer e 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 a nd Rs.1500-2640, respectively. After the State Government declined to accept their claim, they approached the High Court of Punjab and Haryana, wh ich 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 Cha ndigarh, to appoint a ‘High Level Equivalence Committee’, to examine the nature of duties and responsibilities of the post of Senior Dietician wo rking 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 Terr itory Administration of Chandigarh, vis-a-vis, Dietician (non-gazetted) wor king under the State of Punjab, and submit a report. A report was accordin gly submitted to this Court (which is extracted in the above judgment). (iii) In its report, the ‘High Level Equivalence Co mmittee’ arrived at the conclusion, that the duties and responsibilities of the posts held by the
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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 part ies. We find from the
report of the High Level Equivalence Committee extr acted above that the
Directorate of Research and Medical Education, Punj ab, is a teaching
institution in which the Dietician has to perform m ultifarious duties such as
teaching the probationary nurses in subjects of nut rition dietaries, control
and management of the kitchen, etc., whereas, the m ain duties of the
Dietician and Senior Dietician in the Government Mu lti-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 pa rity under the principle of
‘equal pay for equal work’ was declined to the resp ondents, and accordingly the
judgment of the High Court, was set aside.
22. Steel Authority of India Limited v. Dibyendu Bh attacharya
16 , decided by a
three-Judge bench : The respondent in the above case, was appointed against
the post of Speech Therapist/Audiologist, in the Du rgapur Steel Plant, in S-6
grade in Medical and Health Services. After servin g for a few years, he
addressed a representation to the appellant, claimi ng 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 Therap ist/Audiologist. In his
representation, the respondent did not claim parity in pay, but only claimed
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Open this page in the original PDFPage 39 39 change of the cadre and upgradation of his post, an d 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 t his 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 invokin g 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, de xterity, functional need and responsibilities and status of both the posts are i dentical. The functions may be the same but the skills and responsibilities may be really and substantially different. The other post may not req uire any higher qualification, seniority or other like factors. Gra nting parity in pay scales depends upon the comparative evaluation of job and equation of posts. The person claiming parity, must plead necessary av erments and prove that all things are equal between the posts concern ed. 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 Commi ttee has to decide such issues, as the fixation of pay scales etc. fal ls within the exclusive domain of the executive. So long as the value judgm ent of those who are responsible for administration i.e. service conditi ons, etc., is found to be bonafide, reasonable, and on intelligible criteria which has a rational nexus of objective of differentiation, such differentiati on 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 no t be the sole determinative factor. The courts in exercise of the ir limited power of judicial review can only examine whether the decision of the State authorities is rational and just or prejudicial to a particular se t of employees. The court has to keep in mind that a mere difference in servi ce 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 ap plying the principle of equal pay for equal work .”
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Based on the above consideration, this Court record ed 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 ma ke appointments
taking into consideration the local needs and requi rement, such parity
claimed by the respondent cannot be held to be tena ble. The reliefs sought
by the respondent for upgradation of the post and w aiving the eligibility
criteria had rightly been refused by the appellants and by the learned
Single Judge. In such a fact-situation, there was n o justification for the
Division Bench to allow the writ petition, granting the benefit from the date
of initial appointment of the respondent. The respo ndent has not produced
any tangible material to substantiate his claim, th us, he could not
discharge the onus of proof to establish that he ha d made some justifiable
claim . The respondent miserably failed to make out a cas e for pay parity to
the post of E-1 Grade in executive cadre. The appea l, 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 C ouncil 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 Low er Division Clerk, after he
qualified a limited departmental competitive examin ation. He was further
promoted as a Senior Clerk, again after qualifying a limited departmental
competitive examination. At this stage, he was pla ced 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.
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Open this page in the original PDFPage 41 41 Eventually, he was promoted as an Assistant Adminis trative Officer, on the basis of seniority-cum-fitness. The Indian Council of Ag ricultural Research revised the pay-scales of Assistants, from Rs.1400-2600 to Rs.1 640-2900, with effect from 1.1.1986. However, the pay-scale of the post of Superintendent was not revised. (ii) The appellant submitted a representation seeki ng revision of his pay-scale on the ground, that in the headquarters of the Indi an Council of Agricultural Research, the post of Superintendent is a promotion al post, from the post of Assistant (which carried the pay-scale of Rs.1640-2 900). 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 co mpared with the post at institutional level as both are governed by diff erent sets of service rules. The second prayer with regard to the higher pay sca le given to Shri J.I.P. Madan was rejected on the ground that he had been g iven the benefit of second upgradation in pay since he had earned only one promotion throughout his professional career. Aggrieved by t he 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 reaso ns, for not accepting the claim of the appellant, by observing as under:-
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Open this page in the original PDFPage 42 42 “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 ap pellant and Shri J.I.P. Madan. The appellant had duly earned promoti on in his cadre from the lowest rank to the higher rank. Having joined i n Group D, he retired on the post of AAO. On the other hand, Shri J.I.P. Mad an had been working in the same pay scale till his promotion on the post o f AAO. Therefore, he was held entitled to the second upgradation after 2 4 years of service. He had joined as an Assistant by Direct Recruitment an d promoted on 24-8-1990 as a Superintendent. After the merger of the post of Assistant with the Superintendent, the earlier promotion of S hri Madan was nullified, as Assistant was no longer a feeder post for the pr omotion on the post of Superintendent. Thus, a financial upgradation, in v iew 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 submiss ion of the appellant that there can be no distinction in the pay scales between the employees working at headquarters and the employees working a t the institutional level . It is a matter of record that the employees worki ng at headquarters are governed by a completely different set of rules . Even the hierarchy of the posts and the channels of promotion are differe nt . Also, merely because any two posts at the headquarters and the i nstitutional level have the same nomenclature, would not necessarily requir e that the pay scales on the two posts should also be the same. In our op inion, the prescription of two different pay scales would not violate the p rinciple of equal pay for equal work. Such action would not be arbitrary or v iolate 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. The re can not be any straitjacket formula for holding that two posts hav ing the same nomenclature would have to be given the same pay sc ale. Prescription of pay scales on particular posts is a very complex ex ercise. It requires assessment of the nature and quality of the duties performed and the responsibilities shouldered by the incumbents on di fferent posts. Even though, the two posts may be referred to by the sam e 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. T he 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 for tified 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 num ber of judicial
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Open this page in the original PDFPage 43 43 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 p ay 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 wor k 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 re cruited and grouped together, as against those who were left ou t. Of course, the qualities or characteristics must have a reasonable relation to the object sought to be achieved. In service matters, m erit or experience can be a proper basis for classification for the pu rposes of pay in order to promote efficiency in administration. A hi gher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues is also an acceptable reason for pay differ entiation….. A mere nomenclature designating a person as say a car penter or a craftsman is not enough to come to the conclusion t hat he is doing the same work as another carpenter or craftsman in regular service. The quality of work which is produced may be differ ent and even the nature of work assigned may be different. It is not just a comparison of physical activity. The application of the princi ple of “equal pay for equal work” requires consideration of various dimen sions of a given job. The accuracy required and the dexterity that t he 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 regard s reliability and responsibility. Functions may be the same but the r esponsibilities make a difference . Thus, normally the applicability of this principl e must be left to be evaluated and determined by an e xpert body. These are not matters where a writ court can lightl y 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 necessa ry averments and prove that all things are equal. Thus, before a ny 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 clai m of the appellant, based on the principle of ‘equal pay for equal work’.
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24. National Aluminum Company Limited v. Ananta Kis hore 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 looke d after the management of the
said schools. In 1985, it entered into two separat e 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 sc hools, with the Saraswati
Vidya Mandir Society (affiliated to Vidya Bharati A khila Bharatiya Shiksha
Sansthan). Accordingly, with effect from 1990, the said Society commenced to
manage the affairs of the employees, of the above t wo schools. Two writ
petitions were filed by the employees of the two sc hools 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 consequenti al prayer, that the
employees of the two schools be accorded suitable p ay-scales, as were
admissible to the employees of NALCO. The High Cou rt accepted the above
prayers. It is, therefore, that NALCO approached this Court.
(ii) In adjudicating upon the above matter, this Co urt recorded its
consideration as under:-
“33. Insofar as their service conditions are concer ned, 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 sch ools in the State of
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Open this page in the original PDFPage 45 45 Orissa. In a situation like this even if, for the s ake of argument, it is presumed that NALCO is the employer of these employ ees, they would not be entitled to the pay scales which are given to ot her 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 altogeth er different kinds of duties. Main activity of NALCO is the manufacture a nd production of alumina and aluminium for which it has its manufact uring units. The process and method of recruitment of those employee s, their eligibility conditions for appointment, nature of job done by t hose employees etc. is entirely different from the employees of these scho ols. This aspect is squarely dealt with in the case of SC Chandra vs. S tate of Jharkhand, (2007) 8 SCC 279, where the plea for parity in empl oyment 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 recapitula ted 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 o f the High Court is correct. Firstly, the school is not being manage d 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 be ing paid to the clerks working with BCCL or in the Government of Jh arkhand. It is essentially a school managed by a body independent of the management of BCCL. Therefore, BCCL cannot be saddl ed with the responsibilities of granting the teachers the salar ies 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 th at all the teachers working in the school should be equated with the cl erks 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 educate d with the clerks of the State Government or of BCCL. The ques tion of application of Article 39(d) of the Constitution ha s recently been interpreted by this Court in State of Haryana v. Ch aranjit Singh, (2006) 9 SCC 321, wherein Their Lordships have put the entire controversy to rest and held that the principle, 'e qual pay for equal work' must satisfy the test that the incumbents are performing equal and identical work as discharged by employees again st whom the equal pay is claimed. Their Lordships have reviewed all the cases bearing on the subject and after a detailed discuss ion have finally put the controversy to rest that the persons who cl aimed the parity should satisfy the court that the conditions are id entical and equal
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and same duties are being discharged by them . Though a number of
cases were cited for our consideration but no usefu l purpose will be
served as in Charanjit Singh all these cases have b een 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 th e two schools. In
fact, such a comparison can be made with their coun ter 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 ‘e qual pay for equal work’ was held
to be not applicable to the employees of the two sc hools, so as to enable them to
claim parity, with the employees of NALCO.
25. We shall now attempt an analysis of the decisio ns 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 employ ees, 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, Dehra dun, 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
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Open this page in the original PDFPage 47 47 the pay-scale extended to regular employees was, th at there was no sanctioned post to accommodate the petitioners, and as such, t he assertion on behalf of the respondent-employer was, that they could not be ext ended the benefits permissible to regular employees. Furthermore, the ir 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, tha t 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 G overnment 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 t herefrom, that there must be ‘equal pay for equal work’. Having found, that emp loyees 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-I V employees, and that, it made no difference whether they were appointed on sancti oned posts or not. So long as they were performing the same duties, they must receive the same salary.
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27. Surinder Singh v. Engineer-in-Chief, CPWD 20 , decided by a two-Judge
bench : The petitioners in the instant case were employe d by the Central Public
Works Department on daily-wage basis. They demande d the same wage as was
being paid to permanent employees, doing identical work. Herein, the
respondent-employer again contested the claim, by r aising the plea that
petitioners could not be employed on regular and pe rmanent basis for want of
permanent posts. One of the objections raised to r epudiate the claim of the
petitioners was, that the doctrine of ‘equal pay fo r equal work’ was a mere
abstract doctrine and was not capable of being enforced in law.
(ii) The objection raised by the Government was rej ected. 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 p rinciple of ‘equal pay for equal
work’, and accordingly this Court concluded, that t he principle of ‘equal pay for
equal work’ was not an abstract doctrine. It was h eld to be a vital and vigorous
doctrine accepted throughout the world, particularl y by all socialist countries.
Referring to the decision rendered by this Court in the D.S. Nakara case 2, it was
held, that the above proposition had been affirmed by a Constitution Bench of
this Court. It was held, that the Central Governme nt, the State Governments and
likewise, all public sector undertakings, were expe cted to function like model and
enlightened employers and further, the argument tha t the above principle was
merely an abstract doctrine, which could not be enf orced through a Court of law,
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could not be raised either by the State or by State undertakings. The petitions
were accordingly allowed, and the Nehru Yuvak Kendr as were directed to pay all
daily-rated employees, salaries and allowances as w ere 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 p ursuing 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 al so, to impart learning through
special contract courses, to students in the age gr oup of 6 to 15, comprising of
dropouts from schools. The petitioners were appoin ted 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 allowa nce, at the rate of Rs.60/- per
month. Thereafter, the fixed salary was enhanced t o Rs.150/- per month. The
reason for allowing them fixed salary was, that the y were required to work, only
on part-time basis. The case set up by the State G overnment was, that the
petitioners were not full-time employees; their mod e of recruitment was different
from Supervisors engaged on regular basis; the natu re of functions discharged
by them, was not similar to those discharged by Sup ervisors engaged in the
regular cadre; and their appointments were made for a period of six months,
21 (1987) 4 SCC 634 Source PDF page 50
Open this page in the original PDFPage 50 50 because the posts against which they were appointed , were sanctioned for one year at a time. (ii) Having examined the controversy, this Court re jected all the above submissions advanced on behalf of the State Governm ent. It was held, that the duties discharged by the petitioners even though fo r a shorter duration, were not any different from Supervisors, engaged in the regu lar cadre. Even though recruitment of Supervisors in the regular cadre was made by the Subordinate Selection Board by way of an open selection, wherea s the petitioners were selected through a process of consideration which w as 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 Supervi sors, working in the regular cadre. It was held, that so long as the petitioner s 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 h eld, that from the standpoint of the doctrine of ‘equal pay for equal work’, the pet itioners could not be discriminated against, in regard to pay-scales. Ha ving concluded that the petitioners possess the essential qualification for appointment to the post of Supervisor, and further the duties discharged by th em were similar to those appointed on regular basis, it was held, that the p etitioners could not be denied wages payable to regular employees. This Court als o declined the plea canvassed on behalf of the Government, that they we re 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
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principle of ‘equal pay for equal work’. It was he ld, that the only relevant
consideration was, whether the nature of duties and functions discharged and the
work done was similar. While concluding, this Cour t clarified that in the instant
case, it was dealing with temporary employees engag ed by the same employer,
doing work of the same nature, as was being require d of those engaged in the
regular cadre, on a regular basis. It was held, th at the petitioners, who were
engaged on temporary basis as Supervisors, were ent itled to be paid on the
same basis, and in the same pay-scale, at which tho se employed in the regular
cadre discharging similar duties as Supervisors, were being paid.
29. Daily Rated Casual Labour Employed under P&T De partment 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 ha d approached this
Court under Article 32 of the Constitution of India , were working as daily-rated
casual labourers, in the Posts and Telegraphs Depar tment. They included three
broad categories of workers, namely, unskilled, sem i-skilled and skilled. The
unskilled labour consisted of Safai Workers, Helper s, 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 Carpent ers, Wiremen, Draftsmen,
A.C. Mechanics etc. They needed to have technical experience, but were not
required to possess any degree or diploma qualifica tion. The skilled labour
22 (1988) 1 SCC 122 Source PDF page 52
Open this page in the original PDFPage 52 52 consisted of labourers doing technical work. The s killed labourers were required to possess technical degree/diploma qualification. (ii) All the three categories of employees, referre d to above, were engaged as casual labourers. They were being paid very low wa ges. 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 ord er dated 15.5.1980 prescribed the following wages for casual labourers in the Department:- “(i) Casual labour who has not completed 720 days o f service in a period of three years at the rate of 240 days per a nnum with the Department as on April 1, 1980. No change. They will continue to be paid at the a pproved local rates. (ii) Casual labour who having been working with the Department from April 1, 1977 or earlier and have completed 720 day s of service as on April 1, 1980. Daily wages equal to 75 per cent of 1/30 th of the minimum of Group D Time Scale plus admissible DA. (iii) Casual labour who has been working in the Dep artment from April 1, 1975 or earlier and has completed 1200 days of serv ice as on April 1, 1980. Daily wages equal to 1/30 th of the minimum of the Group D Time Scale plus 1/30 th of the admissible DA. (iv) All the casual labourers will, however, contin ue to be employed on daily wages only. (v) These orders for enhanced rates for category (i i) 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 da ily 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:-
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Open this page in the original PDFPage 53 53 “(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 a pproved local rates. (ii) Casual semi-skilled/skilled labour who has com pleted 720 days of service over a period of three years or more. Daily wage equal to 75 per cent of 1/30 th 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 1/30 th of the minimum of the pay scale of semi- skilled (Rs.210-270) skilled (Rs.260-350) as the ca se may be, plus DA/ADA admissible thereon. (iv) All the casual semi-skilled/skilled labour wil l, however continue to be employed on daily wages only. (v) These orders for enhanced rates for category (i i) 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) a bove 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-skil led/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, claim ing the same salary and allowances and other benefits, as were being paid t o regular and permanent employees of the Union of India, in the correspondi ng 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 laboure rs, and had not been
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Open this page in the original PDFPage 54 54 regularly employed. As such, it was urged that the y were not entitled to the same privileges, which were extended to regular employees. (v) This Court while adjudicating upon the controve rsy, took into consideration the fact that, the employees in question were rende ring the same kind of service which was being rendered by regular employees. The submission advanced before this Court, on behalf of the casual labourer s, was under Article 38(2) of the Constitution, which provides that “The State sh all, in particular, strive to minimize the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amon gst individuals but also amongst groups of people residing in different areas or eng aged 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 regular ly employed workmen, even though the Government may not be compelled to exten d 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 Gove rnment 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, beca use he had no other choice. In the opinion of this Court, it was pover ty, that had driven the workers to accept such low wages. In the above view of the ma tter, in the facts and circumstances of the case, this Court held that cla ssification of employees into
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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 depa rtment, where the pay-scales
were the least, was not tenable. This Court also h eld that the classification of
labourers into three categories (depicted in the or ders dated 15.5.1980 and
26.7.1984, extracted above) for the purpose of paym ent of wages at different
rates, was not tenable. It was held, that such a c lassification was violative of
Articles 14 and 16 of the Constitution, besides bei ng 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 fai r wages and equal wages for
equal work. Accordingly, this Court directed the U nion of India, and the other
respondents, to pay wages to the workmen, who were engaged as casual
labourers, belonging to different categories, at ra tes equivalent to the minimum
pay, in the pay-scales of regularly employed worker s, in the corresponding
cadres, but without any increments. The workers we re also held to be entitled to
corresponding dearness allowance and additional dea rness allowance, if any,
payable thereon. It was also directed, that whatev er 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 (1 st and 2 nd grade),
employed at the Wood Working Centre of the Himachal Pradesh State Handicraft
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Open this page in the original PDFPage 56 56 Corporation. They were termed as daily-rated emplo yees. 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 petitioner s were employed, had no regularly employed Carpenter. It is, therefore evi dent, that the claim of the petitioners was only with reference to Carpenters e ngaged in different Government services. In the instant factual backdr op, 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 sa me establishment, owned by the same management. It was emphasized, that a com parison under the principle of ‘equal pay for equal work’ could not b e 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, tha t there was discrimination amongst the same set of employees under the same ma ster, in the same establishment, the principle of ‘equal pay for equa l 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 I ndia 6, 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. I n the above petition, the relief claimed was for payment of wages under the principl e of ‘equal pay for equal work’. The petitioners sought parity with employee s of the New Delhi Municipal
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Open this page in the original PDFPage 57 57 Committee, and also, with employees of other depart ments of the Delhi Administration, and the Union of India. They appro ached this Court again by filing civil writ petition no. 869 of 1988, which w as 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 pa y-scales, at par with other employees performing similar work, under the New De lhi Municipal Committee, or the Delhi Administration, or the Union of India. It would be relevant to mention, that the petitioner- Workers’ Union, was r epresenting employees working on ad-hoc basis. Some of them were being p aid a fixed salary (described as honorarium), while others were workin g on piece-rate wages at the production centres, without there being any provisi on for any scale of pay, or other benefits like gratuity, pension, provident fund etc. (iii) This Court, in the first instance, endeavoure d to deal with the question, whether employers of these workers, were denying th em 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 K alyan Kendras were being discriminated against, on the subject of pay and ot her emoluments, with other similarly placed employees, the principle of ‘equal pay for equal work’ would not be applicable. During the course of the first adju dication, in writ petition no. 13924 of 1984, this Court requested a former Chief Justice of India to make recommendations after taking into consideration, fi rstly, whether other similarly
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Open this page in the original PDFPage 58 58 situated employees (engaged in similar comparable w orks, putting in comparable hours of work, in a comparable employment) were bei ng 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’; a nd secondly, if there is no other similar comparable employment, whether the remunera tion of the agitating employees deserved to be revised, on the ground tha t their remuneration was unconscionable or unfair, and if so, to what extent . Pursuant to the above request, the former Chief Justice of India, conclud ed, that there was no employment comparable to the employment held by tho se engaged by the Grih Kalyan Kendras, and therefore, they could not seek parity with employees, working either under the New Delhi Municipal Commit tee, or the Delhi Administration, or the Union of India. (iv) Based on the aforesaid factual conclusion, thi s Court held, that the concept of equality implies and requires equal treatment, f or those who are situated equally. Comparison between unequals is not possib le. Since the workers who had approached this Court had failed to establish, that they were situated similarly as others, they could not be extended ben efits which were being given to those, with whom they claimed parity. And there fore, 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.
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32. Ghaziabad Development Authority v. Vikram Chaud hary 24 , decided by a
two-Judge bench : The respondents in this case were engaged by the Ghaziabad
Development Authority, on daily-wage basis. The in stant 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 wou ld be relevant to mention, that
while disposing of the appeal preferred by the Ghaziabad Development Authority,
this Court held that the respondents, who were enga ged 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 presc ribed under the statute, if
any, or the prevailing wages as available in the lo cality. It would, therefore, be
improper for us to treat this judgment as laying do wn 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/Pu mp 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 i n the State of Haryana. The
instant prayer was made by the respondents, under t he principle of ‘equal pay for
equal work’. The above prayer made by the responde nts, was granted by the
High Court. The High Court issued a direction to t he State Government, to pay
24 (1995) 5 SCC 210
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Open this page in the original PDFPage 60 60 the respondents, the same salary and allowances as were being paid to regular employees holding similar posts, with effect from t he 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 emp loyed on regular basis, against similar posts. It was concluded, that dail y-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 th e same manner as regular employees, inasmuch as, their selection was not as rigorous as that of employees selected on regular basis. This Court ex pressed the view, that there were also other provisions relating to regular serv ice, such as the liability of a member of the service to be transferred, and his be ing 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 emplo yees 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 responden ts 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 a bove decision this Court took notice of the fact, that the State of Haryana had t aken policy decisions from time
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to time to regularize the services of the employees , similarly placed as the
respondents, wherein daily-wage employees on comple tion of 3/5 years’ service,
were entitled to regularization. On their being re gularized, 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 C lerks engaged by the
State of Punjab. They approached the Punjab & Hary ana High Court, claiming
salary and allowances, as were being paid to regula r employees holding similar
posts. The High Court held in their favour, and di rected the State Government to
pay to the respondents, salary and allowances, as w ere being paid to regular
employees holding similar posts. The aforesaid dec ision 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 th e limited extent, that they could
have been paid the minimum of the pay-scale of Ledg er-Keepers/Ledger Clerks,
appointed on regular basis. This conclusion was dr awn by applying the principle
of ‘equal pay for equal work’. This Court, therefo re, allowed the prayer made by
the State Government to the aforesaid limited exten t. The right claimed by the
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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 t ime, as Helpers on daily-
wages by the Haryana Roadways. They filed a writ p etition before the Punjab
and Haryana High Court, claiming regularization bec ause 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 t he prayer made by the
respondents, either for regularization or for payme nt 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 regul ar 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, tha t 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 Cour t 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 employee s, could not be acceded to.
Since no material was placed before the High Court, comparing the nature of
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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 in voked by the respondents, to
claim wages in the regular pay-scale.
(iii) Despite having found that the respondents wer e 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 o f government servants, based
on the employees having rendered long years of serv ice, as temporary,
contractual, casual, daily-wage or on ad-hoc basis. It is, however relevant to
mention, that the Constitution Bench did examine th e 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 da ily-wages in the
Commercial Taxes Department. As they had rendered service for more than 10
years, they claimed permanent employment in the dep artment. They also
claimed benefits as were extended to regular employ ees of their cadre, including
wages (equal to their salary and allowances) with e ffect from the dates from
which they were appointed. Even though the adminis trative tribunal had rejected
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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 regu lar employees of their cadre,
with effect from the date from which they were appo inted. The direction issued
by the High Court resulted in payment of higher wag es retrospectively, for a
period of 10 and more years. It would also be rele vant to mention, that in
passing the above direction, the High Court had rel ied on the decision rendered
by a three-Judge bench of this Court in Dharwad Dis trict 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 b eing paid to the
regular employees of their cadre in government serv ice, with effect from
the dates from which they were respectively appoint ed . The objection
taken was to the direction for payment from the dat es 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 al lowances that are
being paid to the regular employees of their cadre in government service,
with effect from the dates from which they were res pectively engaged or
appointed. It was not open to the High Court to imp ose 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 bei ng paid to regular
employees be paid to these daily-wage employees wit h effect from the
date of its judgment. Hence, that part of the direc tion of the Division Bench
is modified and it is directed that these daily-wag e earners be paid wages
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Open this page in the original PDFPage 65 65 equal to the salary at the lowest grade of employee s 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. S ince, they are only daily-wage earners, there would be no question of o ther allowances being paid to them. In view of our conclusion, that Courts are not expe cted 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 t hat extent. If sanctioned posts are vacant (they are said to be vacant) the S tate 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 simila rly situated, will be allowed to compete, waiving the age restriction imposed for the recruitment and giving some weightage for their having been eng aged for work in the Department for a significant period of time. That w ould be the extent of the exercise of power by this Court under Article 142 o f the Constitution to do justice to them.” We have extracted the aforesaid paragraph, so as no t 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 is sue 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 th eir cadre. The Constitution Bench expressed the view, that the concept of equal ity would not be applicable to the issue of absorption/regularization in servic e. And conversely, on the subject of pay parity, it was unambiguously held, t hat daily-wage earners should be paid wages equal to the salary at the lowest grade (without any allowances).
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37. State of Haryana v. Charanjit Singh 30 , decided by a three-Judge bench : A
large number of civil appeals were collectively dis posed of by a common order.
In all these appeals, the respondents were daily-wa gers, who were appointed as
Ledger Clerks, Ledger Keepers, Pump Operators, Mali -cum-Chowkidar, Fitters,
Petrol Men, Surveyors, etc. All of them claimed th e minimum wages payable
under the pay-scale extended to regular Class-IV em ployees. The above relief
was claimed with effect from the date of their init ial appointment. It would be
relevant to mention, that while the appeals dispose d 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 limi ted question which came up
for adjudication before this Court in the matters w as, 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 t heir filing the respective
petition before the High Court, was required to be interfered with. While
adjudicating upon the aforesaid issue, this Court m ade the following
observations:-
“19. Having considered the authorities and the subm issions 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, (2 003) 6 SCC 123,
Orissa University of Agriculture & Technology v. Ma noj 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 "equa l pay for equal work" is
not an abstract doctrine and is capable of being en forced in a Court of law.
But equal pay must be for equal work of equal value . The principle of
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Open this page in the original PDFPage 67 67 "equal pay for equal work" has no mechanical applic ation 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 char acteristics must have a reasonable relation to the object sought to be achi eved. In service matters, merit or experience can be a proper basis for class ification for the purposes of pay in order to promote efficiency in a dministration. A higher pay scale to avoid stagnation or resultant frustrat ion for lack of promotional avenues is also an acceptable reason for pay differ entiation. The very fact that the person has not gone through the process of recruitment may itself, in certain cases, make a difference. If the educati onal qualifications are different, then also the doctrine may have no appli cation. Even though persons may do the same work, their quality of work may differ. Where persons are selected by a Selection Committee on th e 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 chal lenged. A classification based on difference in educational q ualifications justifies a difference in pay scales. A mere nomenclature desig nating a person as say a carpenter or a craftsman is not enough to com e 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 t he 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 reli ability and responsibility. Functions may be the same but the responsibilities make a difference. Thus normally the applicability of this principle m ust be left to be evaluated and determined by an expert body. These are not mat ters where a writ court can lightly interfere. Normally a party claim ing 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 ma ke 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 wo rk of equal quality and all other relevant factors are fulfilled it may dir ect 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 o n the basis that the doctrine of equal pay for equal work applies withou t examining any relevant factors.” Having made the above observations, the judgments r endered by the High Court were set aside, and the matters were remanded back to the High Court, to
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examine each case in order to determine whether the respondents were
discharging the same duties and responsibilities, a s the employees with whom
they claimed parity. In sum and substance therefor e, this Court acceded to the
proposition that daily-wagers who were rendering th e same duties and
responsibilities as regular employees, would be ent itled 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 Cou rt, 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 respo ndents who were daily-rated
wage earners in the Forest Department, were entitle d 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 princi ple of equal pay for
equal work has held that a daily-wager, if he is di scharging the similar
duties as those in the regular employment of the Go vernment, 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 allow ance that is permissible
to his counterpart in the Government . In our opinion that would be the
correct position and we, therefore, direct that the se daily-wagers would be
entitled to draw at the minimum of the pay scale be ing received by their
counterparts in the Government and would not be ent itled 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.”
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It is therefore apparent, that in the instant judgm ent, 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 app ointed 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 indicat ed hereinbefore, has
undergone a sea change. We are bound by the decisi ons of larger
Benches. This Court had been insisting on strict p leadings and proof of
various factors as indicated heretobefore. Further more, 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 benefi ts . The factual matrix
obtaining in the said case particularly similar qua lification,
interchangeability of the positions within the regu lar employees and the
casual employees and other relevant factors which h ave been noticed by
us also had some role to play.”
Rather than determining whether or not the responde nts 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 Singh 30 , this Court while disposing of the
above matter, required the State to examine the cas es of the respondents by
appointing an expert committee, which would determi ne whether or not the
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parameters laid down in the judgments rendered by t his Court, would entitle the
respondent-employees to any benefit under the princ iple of ‘equal pay for equal
work’. Herein again, the principle in question, wa s considered as applicable to
temporary employees.
40. Uttar Pradesh Land Development Corporation v. M ohd. 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 b y a selection committee
alongwith other eligible candidates, and were found to be suitable for the job.
Their contractual appointment was continued from ti me 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 a ny specific designation.
The Allahabad High Court, while accepting the claim filed by the respondents,
held that they were entitled to wages in the regula r pay-scale of Rs.2200-4000,
prescribed for the post of Assistant Engineer.
(ii) This Court, while adjudicating upon the contro versy arrived at the
conclusion, that the High Court had granted relief to the respondents on the
assumption that two vacant posts of Assistant Engin eer were utilized for
appointing the respondents. The above impression w as found to be ex-facie
fallacious, by this Court. This Court was of the v iew, that the orders of
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appointment issued to the respondents, did not lead to the inference, that they
were appointed against the two vacant posts of Assi stant Engineer. Despite the
above, this Court held, that the decision of the ap pellant Corporation to effect
economy by depriving the respondents even, the mini mum of pay-scale, was
totally arbitrary and unjustified. This Court expr essed 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 o f 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 respon dents were engaged to work
against the posts of Assistant Engineer. The appel lants were directed to pay
emoluments to the respondents, at the minimum of th e pay-scale, prescribed for
the post of Assistant Engineer (as revised from tim e to time), from the date of
their appointment, till they continued in the employment of the Corporation.
41. Surendra Nath Pandey v. Uttar Pradesh Cooperati ve 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-wag es. 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 o n regulations framed for
34 (2010) 12 SCC 400 Source PDF page 72
Open this page in the original PDFPage 72 72 regularization of ad-hoc appointees in 1985, the ap pellants were regularized from different dates in 1985-86, whereafter, they were p aid wages in the regular pay- scale, with all allowances. In 1990, they approach ed the Allahabad High Court, seeking benefit of regular pay-scale, allowances an d 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 whet her persons employed on stopgap or ad hoc basis were entitled to the ben efit 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 principle s 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 b e 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 claimi ng higher wages, under the principle of ‘equal pay for equal work’. The c laim raised by such employees was premised on the ground, that the duties and res ponsibilities rendered by them, were against the same post for which a higher pay-scale was being allowed, in other Government departments. Or alter natively, their duties and responsibilities were the same, as of other posts w ith different designations, but they were placed in a lower scale. Having been pai nstakingly taken through the parameters laid down by this Court, wherein the pri nciple of ‘equal pay for equal work’ was invoked and considered, it would be just and appropriate, to delineate
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Open this page in the original PDFPage 73 73 the parameters laid down by this Court. In recordi ng the said parameters, we have also adverted to some other judgments pertaini ng 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 an d responsibilities of the subject post with the reference post, under the principle o f ‘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 d ischarge equal work of equal value, as the reference post (see – the Orissa Univ ersity of Agriculture & Technology case 10 , Union Territory Administration, Chandigarh v. Man ju Mathur 15 , the Steel Authority of India Limited case 16 , and the National Aluminum Company Limited case 18 ). (ii) The mere fact that the subject post occupied b y 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 o f ‘equal pay for equal work’. Persons discharging identical duties, cannot be tre ated differently, in the matter of their pay, merely because they belong to differe nt departments of Government (see – the Randhir Singh case 1, and the D.S. Nakara case 2). (iii) The principle of ‘equal pay for equal work’, applies to cases of unequal scales of pay, based on no classification or irrati onal classification (see – the Randhir Singh case 1). For equal pay, the concerned employees with whom equation is sought, should be performing work, whic h besides being functionally
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Open this page in the original PDFPage 74 74 equal, should be of the same quality and sensitivit y (see – the Federation of All India Customs and Central Excise Stenographers (Rec ognized) case 3, the Mewa Ram Kanojia case 5, the Grih Kalyan Kendra Workers’ Union case 6 and the S.C. Chandra case 12 ). (iv) Persons holding the same rank/designation (in different departments), but having dissimilar powers, duties and responsibiliti es, 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 case 1, State of Haryana v. Haryana Civil Secretariat Personal Staff Association 9, and the Hukum Chand Gupta case 17 ). 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 respon sibilities, under the principle of ‘equal pay for equal work’, it is necessary to k eep 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 differ ence 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) case 3 and the State Bank of India case 8). The nature of work of the subject post should be the same and not less onerous than the re ference post. Even the volume of work should be the same. And so also, th e level of responsibility. If these parameters are not met, parity cannot be clai med under the principle of
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Open this page in the original PDFPage 75 75 ‘equal pay for equal work’ (see - State of U.P. v. J.P. Chaurasia 4, and the Grih Kalyan Kendra Workers’ Union case 6). (vi) For placement in a regular pay-scale, the clai mant 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 case 10 ). (vii) Persons performing the same or similar functi ons, duties and responsibilities, can also be placed in different p ay-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. Chaurasia 4). (viii) If the qualifications for recruitment to the subject post vis-a-vis the reference post are different, it may be difficult t o conclude, that the duties and responsibilities of the posts are qualitatively sim ilar or comparable (see – the Mewa Ram Kanojia case 5, and Government of W.B. v. Tarun K. Roy 11 ). In such a cause, the principle of ‘equal pay for equal work’, cannot be invoked. (ix) The reference post, with which parity is claim ed, under the principle of ‘equal pay for equal work’, has to be at the same h ierarchy 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 diff erent. Even if the duties and responsibilities are same, parity would not be perm issible, as against a superior
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Open this page in the original PDFPage 76 76 post, such as a promotional post (see - Union of India v. Pradip Kumar Dey 7, and the Hukum Chand Gupta case 17 ). (x) A comparison between the subject post and the r eference post, under the principle of ‘equal pay for equal work’, cannot be made, where the subject post and the reference post are in different establishme nts, having a different management. Or even, where the establishments are in different geographical locations, though owned by the same master (see – t he Harbans Lal case 23 ). Persons engaged differently, and being paid out of different funds, would not be entitled to pay parity (see - Official Liquidator v. Dayanand 13 ). (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 prin ciple 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 case 8). (xii) The priority given to different types of post s, under the prevailing policies of the Government, can also be a relevant factor for p lacing different posts under different pay-scales. Herein also, the principle o f ‘equal pay for equal work’ would not be applicable (see - State of Haryana v. Haryana Civil Secretariat Personal Staff Association 9). (xiii) The parity in pay, under the principle of ‘e qual pay for equal work’, cannot be claimed, merely on the ground, that at an earlier point of time, the subject post
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Open this page in the original PDFPage 77 77 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 po st, discharge similar duties and responsibilities (see - State of West Bengal v. West Bengal Minimum Wages Inspectors Association 14 ). (xiv) For parity in pay-scales, under the principle of ‘equal pay for equal work’, equation in the nature of duties, is of paramount i mportance. If the principal nature of duties of one post is teaching, whereas t hat of the other is non- teaching, the principle would not be applicable. I f the dominant nature of duties of one post is of control and management, whereas t he subject post has no such duties, the principle would not be applicable. Lik ewise, if the central nature of duties of one post is of quality control, whereas t he subject post has minimal duties of quality control, the principle would not be applicable (see - Union Territory Administration, Chandigarh v. Manju Mathur 15 ). (xv) There can be a valid classification in the mat ter of pay-scales, between employees even holding posts with the same nomencla ture i.e., between those discharging duties at the headquarters, and others working at the institutional/sub-office level (see – the Hukum Cha nd Gupta case 17 ), when the duties are qualitatively dissimilar. (xvi) The principle of ‘equal pay for equal work’ w ould not be applicable, where a differential higher pay-scale is extended to pers ons discharging the same duties and holding the same designation, with the o bjective of ameliorating
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Open this page in the original PDFPage 78 78 stagnation, or on account of lack of promotional av enues (see – the Hukum Chand Gupta case 17 ). (xvii) Where there is no comparison between one set of employees of one organization, and another set of employees of a dif ferent 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 commo n employer. Likewise, if the management and control of two organizations, is wit h different entities, which are independent of one another, the principle of ‘equal pay for equal work’ would not apply (see – the S.C. Chandra case 12 , and the National Aluminum Company Limited case 18 ). 43. We shall now venture to summarize the conclusio ns recorded by this Court, with reference to a claim of pay parity, rai sed 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 tempor ary 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 case 19 this Court examined a claim for pay parity raised by temporary employees, for wages equal to t hose being disbursed to regular employees. The prayer was accepted. The a ction of not paying the same wage, despite the work being the same, was con sidered as violative of
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Open this page in the original PDFPage 79 79 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 case 20 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 equa l work’ was again applied, where the subject employee had been appointed on te mporary basis, and the reference employee was borne on the permanent estab lishment. The temporary employee was held entitled to wages drawn by an emp loyee on the regular establishment. In this judgment, this Court also t ook note of the fact, that the above proposition was affirmed by a Constitution Be nch of this Court, in the D.S. Nakara case 2. (iii) In the Bhagwan Dass case 21 this Court recorded, that in a claim for equal wages, the duration for which an employee would rem ain (- or had remained) engaged, would not make any difference. So also, t he manner of selection and appointment would make no difference. And therefor e, whether the selection was made on the basis of open competition or was li mited to a cluster of villages, was considered inconsequential, insofar as the appl icability of the principle is concerned. And likewise, whether the appointment w as for a fixed limited duration (six months, or one year), or for an unlim ited duration, was also considered inconsequential, insofar as the applicab ility of the principle of ‘equal pay for equal work’ is concerned. It was held, tha t 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
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Open this page in the original PDFPage 80 80 possesses the qualifications prescribed for the pos t. 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, w as 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 unde r P&T Department through Bhartiya Dak Tar Mazdoor Manch case 22 this Court held, that under principle flowing from Article 38(2) of the Constit ution, Government could not deny a temporary employee, at least the minimum wag e being paid to an employee in the corresponding regular cadre, alongw ith 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 discriminator y, and therefore, violative of Articles 14 and 16 of the Constitution. (v) In State of Punjab v. Devinder Singh 26 this Court held, that daily-wagers were entitled to be placed in the minimum of the pa y-scale of regular employees, working against the same post. The above direction was issued after accepting, that the concerned employees, were doing the same w ork as regular incumbents holding the same post, by applying the principle of ‘equal pay for equal work’.
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Open this page in the original PDFPage 81 81 (vi) In the Secretary, State of Karnataka case 28 , a Constitution Bench of this Court, set aside the judgment of the High Court, an d 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 absor ption/regularization. But, the concept was held as applicable, and was indeed appl ied, to the issue of pay parity – if the work component was the same. The j udgment rendered by the High Court, was modified by this Court, and the con cerned 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 Singh 30 , a three-Judge bench of this Court held, that the decisions rendered by this Court in State of Haryana v. Jasmer Singh 25 , State of Haryana v. Tilak Raj 27 , the Orissa University of Agriculture & Technology case 10 , and Government of W.B. v. Tarun K. Roy 11 , laid down the correct law. Thereupon, this Court declared, that if the concerned daily-wage employees could establish, that they were performin g equal work of equal quality, and all other relevant factors were fulfil led, 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 Lal 31 , based on decisions in several cases (wherein the principle of ‘equal pay for equal work’ had bee n invoked), it was held, that a daily-wager discharging similar duties, as those en gaged on regular basis, would
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Open this page in the original PDFPage 82 82 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 Corporat ion case 33 this Court noticed, that the respondents were employed on cont ract basis, on a consolidated salary. But, because they were actual ly 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 judgmen ts, wherein this Court declined to grant the benefit of ‘equal pay for equ al work’ to temporary employees, in a claim for pay parity with regular employees:- (i) In the Harbans Lal case 23 , daily-rate employees were denied the claimed benefit, under the principle of ‘equal pay for equa l 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 case 6, ad-hoc employees engaged in the Kendras, were denied pay parity with regular employees working under the New Delhi Municipal Committee, or the Del hi 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 resp onsibilities discharged by employees holding the reference posts, were not com parable with the posts held by members of the petitioner union.
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Open this page in the original PDFPage 83 83 (iii) In State of Haryana v. Tilak Raj 27 , 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 hel d regular posts. But herein also, no material was placed on record, to establis h 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, tha t the State should prescribe minimum wages for such workers, and they should be paid accordingly. (iv) In State of Punjab v. Surjit Singh 32 , 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 a nd 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 pos ition. It is therefore obvious, that this Court had accepted, that where duties, re sponsibilities and functions were shown to be similar, the principle of ‘equal p ay 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 r endering similar duties and responsibilities, as were being discharged by regul ar employees, holding corresponding posts.
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Open this page in the original PDFPage 84 84 46. We have consciously not referred to the judgmen t rendered by this Court in State of Haryana v. Jasmer Singh 25 (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 indepe ndently. Learned counsel representing the State government, had placed empha tic reliance on this judgment. Our analysis is recorded hereinafter:- (i) In the above case, the respondents who were dai ly-wagers were claiming the same salary as was being paid to regular employ ees. 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-w agers could not be treated at par with persons employed on regular basis, because they were not required to possess qualifications prescribed for appointment o n 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, r egular employees were subject to disciplinary proceedings, whereas, daily-wagers were not. Daily-wagers, it was held, could also not be equated with regular em ployees, because regular employees were liable to be transferred anywhere wi thin 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 t o pay parity, under the principle of ‘equal pay for equal work’.
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Open this page in the original PDFPage 85 85 (ii) First and foremost, it is necessary to emphasi se, that in the course of its consideration in State of Haryana v. Jasmer Singh 25 , this Court’s attention had not been invited to the judgment in the Bhagwan Das s case 21 , wherein on some of the factors noticed above, a contrary view was e xpressed. In the said case, this Court had held, that in a claim for equal wage s, 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 case 21 , the selection of those appointed on regular basis, had to be made through the Subordinate Selection Board, by way of open selection. Whereas, the sele ction of the petitioners as daily-wagers, was limited to candidates belonging t o a cluster of villages, and was not through any specialized selection body/agen cy. Despite thereof, it was held, that the benefit under the principle of ‘equa l pay for equal work’, could not be denied to the petitioners. The aforesaid conclu sion was drawn on the ground, that as long as the petitioners were performing sim ilar 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 disti nction on the subject of payment of wages. (iii) Having noticed the conclusion drawn in State of Haryana v. Jasmer Singh 25 , it would be relevant to emphasise, that in the ci ted judgments (noticed in paragraph 26 onwards, upto paragraph 41), the emplo yees 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), becaus e temporary employees (daily-wage employees, in the said case) are never ever selected through a
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Open this page in the original PDFPage 86 86 process of open selection, by a specialized selecti on 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 nom enclature) 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 dis pensed 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 th e judgment in State of Haryana v. Jasmer Singh 25 , seems to project otherwise. (v) Even the issue of transferability of regular em ployees referred to in State of Haryana v. Jasmer Singh 25 , 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 al l temporary appointments (- work-charge, daily-wage, casual, ad-hoc, contractua l, and the like), the distinguishing features referred to in State of Har yana v. Jasmer Singh 25 , are inevitable, yet in all the judgments referred to ab ove (rendered before and after, the judgment in the State of Haryana v. Jasmer Sing h 25 ), the proposition recorded in the instant judgment, was never endorsed.
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Open this page in the original PDFPage 87 87 (vii) It is not the case of the appellants, that th e respondent-employees do not possess the minimum qualifications required to be p ossessed 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 jud gment in State of Haryana v. Jasmer Singh 25 is, that the bench deciding the matter had in mind, that daily- wagers in the State of Haryana, were entitled to re gularization on completion of 3/5 years of service, and therefore, all the concer ned 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 matte r for adjudication to a larger bench, because the judgment in State of Haryana v. Jasmer Singh 25 , is irreconcilable and inconsistent with a large number of judgments, some of which are by larger benches, where the benefit of the pri nciple in question was extended to temporary employees (including daily-wagers). (x) For all the above reasons, we are of the view t hat the claim of the appellants cannot be considered, on the basis of th e judgment in State of Haryana v. Jasmer Singh 25 . 47. We shall now endeavour to examine the impugned judgments. 48. First and foremost, it is essential for us to d eal with the judgment dated 11.11.2011 rendered by the full bench of the High C ourt (in Avtar Singh v. State of Punjab & Ors., CWP no. 14796 of 2003). A perusa l of the above judgment reveals, that the High Court conspicuously focused its attention to the decision of
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Open this page in the original PDFPage 88 88 the Constitution Bench in the Secretary, State of K arnataka case 28 . While dealing with the above judgment, the full bench exp ressed the view, that though at the first impression, the judgment appeared to e xpound 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, repre senting the State of Punjab, reiterated the above position. In order to underst and 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 proce ss 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 a re rested on the concept of equality enshrined in our Constitution in the li ght of the directive principles in that behalf. But the acceptance of t hat principle cannot lead to a position where the court could direct that app ointments 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 caus e or matter pending before this Court, would not normally be used for g iving 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 e xercise of power under Article 142 of the Constitution permitting those pe rsons engaged, to be absorbed or to be made permanent, based on their ap pointments or engagements . Complete justice would be justice according to l aw 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 em ployees thus appointed, under Articles 14 and 16 of the Constitu tion, 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 recru ited who are getting
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Open this page in the original PDFPage 89 89 more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the department conce rned on a wage that was made known to them. There is no case that the w age agreed upon was not being paid . Those who are working on daily wages formed a cla ss by themselves, they cannot claim that they are disc riminated as against those who have been regularly recruited on the basi s of the relevant rules. No right can be founded on an employment on daily w ages to claim that such employee should be treated on a par with a reg ularly recruited candidate, and made permanent in employment, even a ssuming that the principle could be invoked for claiming equal wages for equal work . There is no fundamental right in those who have been empl oyed on daily wages or temporarily or on contractual basis, to claim th at 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 requirement s of Articles 14 and 16 of the Constitution. The right to be treated equ ally with the other employees employed on daily wages, cannot be extend ed to a claim for equal treatment with those who were regularly emplo yed . That would be treating unequals as equals. It cannot also be reli ed 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 argume nts based on Articles 14 and 16 of the Constitution are therefore overruled.” We have given our thoughtful consideration to the o bservations 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 possi ble 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 paragrap h 44 extracted above, the Constitution Bench clearly distinguished the issues of pay parity, and regularization in service. It was held, that on th e issue of pay parity, the concept of ‘equality’ would be applicable (as had indeed be en 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
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Open this page in the original PDFPage 90 90 principle of ‘equal pay for equal work’. As we hav e 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 w orkers be paid wages equal to the salary, at the lowest grade of their cadre. Th is deficiency was made good, by making such a direction. (ii) Insofar as paragraph 48 extracted above is con cerned, all that needs to be stated is, that they were merely submissions of lea rned counsel, and not conclusions drawn by this Court. Therefore, nothin g further needs to be stated, with reference to paragraph 48. (iii) We are therefore of the view, that the High C ourt seriously erred in interpreting the judgment rendered by this Court in the Secretary, State of Karnataka case 28 , by placing reliance on paragraphs 44 and 48 extra cted above, for drawing its inferences with reference to the su bject of pay parity. On the above subject/issue, this Court’s conclusions were recorded in paragraph 55 (extracted in paragraph 36, hereinabove), which hav e already been dealt with by us in an earlier part of this judgment. 49. It would also be relevant to mention, that to s ubstantiate its inference drawn from the judgment rendered by this Court in t he Secretary, State of Karnataka case 28 , the full bench of the High Court, placed reliance on State of Punjab v. Surjit Singh 32 , and while doing so, reference was made to the fol lowing observations recorded in paragraphs 27 to 30 (of th e said judgment). Learned counsel for the State of Punjab has reiterated the above position. Paragraphs 27 to 30 aforementioned are being extracted hereunder:-
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Open this page in the original PDFPage 91 91 “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 dir ections relating to the employees in the services of the Commercial Taxes D epartment, 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 i n terms of a scheme. Recommendations were made by the Director, Commerci al Taxes for their absorption. It was only when such recommendations were not acceded to, the Administrative Tribunal was approached. It rej ected their claim. The High Court, however, allowed their prayer which was in question before this Court . 28. This Court stated: (Secretary, State of Karnata ka 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 C ourt, proceeded to order that they are entitled to wages equal to the salary and allowances that are being paid to the regular emplo yees of their cadre in government service with effect from the da tes from which they were respectively appointed. It may be noted t hat this gave retrospective effect to the judgment of the High Co urt by more than 12 years. The High Court also issued a command to t he State to consider their cases for regularisation within a pe riod of four months from the date of receipt of that order. The High Co urt seems to have proceeded on the basis that, whether they were appo inted before 1-7-1984, a situation covered by the decision of th is Court in Dharwad District PWD Literate Daily Wage Employe es Assn. v. State of Karnataka, (1990) 2 SCC 396, and the schem e framed pursuant to the direction thereunder, or subsequent ly, since they have worked for a period of 10 years, they were ent itled to equal pay for equal work from the very inception of their eng agement on daily wages and were also entitled to be considered for r egularisation in their posts." 29. It is in the aforementioned factual backdrop, t his Court in exercise of its jurisdiction under Article 142 of the Constitut ion 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 Di vision Bench is modified and it is directed that these daily-wage e arners be paid wages equal to the salary at the lowest grade of em ployees of their cadre in the Commercial Taxes Department in governm ent service, from the date of the judgment of the Division Bench of the High Court. Since, they are only daily-wage earners, the re would be no question of other allowances being paid to them. In view of our conclusion, that the courts are not expected to iss ue directions for
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Open this page in the original PDFPage 92 92 making such persons permanent in service, we set as ide that part of the direction of the High Court directing the Gover nment to consider their cases for regularisation. We also notice that the High Court has not adverted to the aspect as to whether it was reg ularisation 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 va cant) the State will take immediate steps for filling those posts b y a regular process of selection. But when regular recruitment is under taken, the respondents in CAs Nos. 3595-612 and those in the C ommercial Taxes Department similarly situated, will be allowe d to compete, waiving the age restriction imposed for the recruit ment and giving some weightage for their having been engaged for wo rk in the Department for a significant period of time. That w ould be the extent of the exercise of power by this Court under Articl e 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 wer e 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 Pun jab v. Surjit Singh 32 , did hold, that the determination rendered in paragraph 55 of the judgment in the Secretary, State of Karnataka case 28 , was in exercise of the power vested in this Court , under Article 142 of the Constitution of India. Bu t 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 employee s. In fact, there is a positive take-away for the temporary employees. The Constit ution 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 t he minimum wage of a regular employee, discharging the same duties. It needs to be noticed, that on
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Open this page in the original PDFPage 93 93 the subject of pay parity, the findings recorded by this Court in the Secretary, State of Karnataka case 28 , were limited to the conclusions recorded in parag raph 55 thereof (which we have dealt with above, while d ealing with the case law, on the principle of ‘equal pay for equal work’). (ii) Even in the case under reference - State of Pu njab v. Surjit Singh 32 , this Court accepted the principle of ‘equal pay for equa l work’, as applicable to temporary employees, by requiring the State to exam ine the claim of the respondents for pay parity, by appointing an expert committee. The expert committee was required to determine, whether the re spondents satisfied the conditions stipulated in different judgments of this Court including State of Punjab v. Charanjit Singh 30 , 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 pa yable 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 Singh 32 , wherein the remand was directed, is being extracted below:- “38. We, therefore, are of the opinion that the int erest of justice would be subserved if the State is directed to examine the c ases of the respondents herein by appointing an expert committee as to whet her the principles of law laid down herein viz. as to whether the respond ents 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
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94
Government employees, cannot be declined, on the ba sis of the judgment in
State of Punjab v. Surjit Singh 32 .
50. The impugned judgment rendered by the full benc h, 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 c ase 28 . Learned counsel for
the State of Punjab also referred to the same, to c anvass 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 t hey 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 S CC 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 Co urt held that merely
because a temporary employee or a casual wage worke r is continued for a
time beyond the term of his appointment, he would n ot be entitled to be
absorbed in regular service or made permanent, mere ly on the strength of
such continuance, if the original appointment was n ot made by following a
due process of selection as envisaged by the releva nt 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 Const itution 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 u nder the category of
persons mentioned in paras 8 and 55 of the judgment and not in para 53 of
judgment of Umadevi (3).”
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Open this page in the original PDFPage 95 95 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’. Paragra ph 7 extracted above, leaves no room for any doubt, that the issue being conside red in the Satya Prakash case 35 , 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 case 35 had approached this Court, to claim the benefit of paragraph 53 of the judgment in the Secretary, Stat e of Karnataka case 28 . Paragraph 53 aforementioned, is reproduced below:- “53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointme nts) as explained in State of Maysore v. S.V. Narayanappa, AIR 1967 SC 1 071, 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 po sts might have been made and the employees have continued to work for t en 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 measu re, 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 t he courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be fi lled up, in cases where temporary employees or daily wagers are being now e mployed . The process must be set in motion within six months fro m this date. We also clarify that regularisation, if any already made, b ut not sub judice, need not be reopened based on this judgment, but there shoul d be no further bypassing of the constitutional requirement and reg ularizing or making permanent, those not duly appointed as per the constitutional scheme.”
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Open this page in the original PDFPage 96 96 A perusal of paragraph 53 extracted above, leaves n o 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 det ermining the question of pay parity (claimed by the concerned employees), result ed in the High Court drawing an incorrect inference. 51. The full bench of the High Court, while adjudic ating upon the above controversy had concluded, that temporary employees were not entitled to the minimum of the regular pay-scale, merely for the re ason, that the activities carried on by daily-wagers and regular employees we re 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 recorde d 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 s election process based upon fairness and equality of opportunity to all ot her eligible candidates, shall be entitled to minimum of the regular pay sca le from the date of engagement. (2) But if daily wagers, ad hoc or contractual appo intees are not appointed against regular sanctioned posts and thei r services are availed continuously, with notional breaks, by the State Go vernment or its instrumentalities for a sufficient long period i.e. for 10 years, such daily wagers, ad hoc or contractual appointees shall be e ntitled 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 categor y of persons. Their claim for regularization, if any, may have to be consider ed separately in terms of legally permissible scheme. (3) In the event, a claim is made for minimum pay s cale after more than three years and two months of completion of 10 year s of continuous working, a daily wager, ad hoc or contractual emplo yee shall be entitled to arrears for a period of three years and two months.”
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Open this page in the original PDFPage 97 97 A perusal of the above conclusion drawn in the impu gned judgment (passed by the full bench), reveals that the full bench carved an exception for employees who were not appointed against regular sanctioned p osts, 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 case 28 , similarly, employees who had rendered 10 years serv ice, were granted an exception (refer to paragraph 53 of the judgment, e xtracted 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 upo n 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 Cour t recording its afore-extracted conclusions. (ii) The High Court extended different wages to tem porary employees, by categorizing them on the basis of their length of s ervice. 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 c ase 22 . In the above judgment, this Court held, that classification of e mployees 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 o f 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 ad mittedly discharging the
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Open this page in the original PDFPage 98 98 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 hereinabo ve, 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 decis ion 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 s et aside, and the same is hereby set aside. The decision rendered by the div ision 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 th e 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 minimu m of the pay-scale, of the category to which they belong, but would not be ent itled to allowances attached to the posts held by them. 53. We shall now deal with the claim of temporary e mployees before this Court. 54. There is no room for any doubt, that the princi ple of ‘equal pay for equal work’ has emerged from an interpretation of differe nt provisions of the Constitution. The principle has been expounded thr ough a large number of judgments rendered by this Court, and constitutes l aw declared by this Court.
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Open this page in the original PDFPage 99 99 The same is binding on all the courts in India, und er Article 141 of the Constitution of India. The parameters of the princ iple, have been summarized by us in paragraph 42 hereinabove. The principle of ‘ equal pay for equal work’ has also been extended to temporary employees (differen tly described as work- charge, daily-wage, casual, ad-hoc, contractual, an d the like). The legal position, relating to temporary employees, has been summarize d by us, in paragraph 44 hereinabove. The above legal position which has be en repeatedly declared, is being reiterated by us, yet again. 55. In our considered view, it is fallacious to det ermine 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 be ing 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 p rovide 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 h is dependents would suffer immensely, if he does not accept the lesser wage. Any act, of paying less wages, as compared to others similarly situate, con stitutes 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:-
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Open this page in the original PDFPage 100 100 “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 e qual value without distinction of any kind, in particular wome n 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 fami lies 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 consider ations other than those of seniority and competence; (d) Rest, leisure and reasonable limitation of wor king 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 oblig ation, in view of different provisions of the Constitution referred to above, a nd 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 unambig uous right and is vested in every employee – whether engaged on regular or temporary basis. 57. Having traversed the legal parameters with refe rence to the application of the principle of ‘equal pay for equal work’, in rel ation to temporary employees (daily-wage employees, ad-hoc appointees, employees appointed on casual basis, contractual employees and the like), the sol e factor that requires our determination is, whether the concerned employees ( before this Court), were rendering similar duties and responsibilities, as w ere being discharged by regular employees, holding the same/corresponding posts. T his exercise would require the application of the parameters of the principle of ‘equal pay for equal work’
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Open this page in the original PDFPage 101 101 summarized by us in paragraph 42 above. However, i nsofar as the instant aspect of the matter is concerned, it is not diffic ult for us to record the factual position. We say so, because it was fairly acknowl edged by the learned counsel representing the State of Punjab, that all the temp orary employees in the present bunch of appeals, were appointed against posts whic h 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 e mployees 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 dischar ged by the temporary employees in the present set of appeals, were the s ame as were being discharged by regular employees. It is not the cas e of the appellants, that the respondent-employees did not possess the qualificat ions prescribed for appointment on regular basis. Furthermore, it is n ot the case of the State, that any of the temporary employees would not be entitle d to pay parity, on any of the principles summarized by us in paragraph 42 hereina bove. There can be no doubt, that the principle of ‘equal pay for equal w ork’ 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.
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102
58. In view of the position expressed by us in the foregoing paragraph, we
have no hesitation in holding, that all the concern ed temporary employees, in the
present bunch of cases, would be entitled to draw w ages at the minimum of the
pay-scale (- at the lowest grade, in the regular pa y-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, Add itional Advocate General,
Punjab. He researched for us, on our asking, all t he 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 cau se supported by him. He
also assisted us, on different parameters and outli nes, 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.