Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6
CASE NO.:
Appeal (civil) 4210-4211 of 2000
PETITIONER:
Orissa University of Agriculture & Technology & Anr.
RESPONDENT:
Manoj K. Mohanty
DATE OF JUDGMENT: 17/04/2003
BENCH:
SHIVARAJ V. PATIL & ARIJIT PASAYAT.
JUDGMENT:
J U D G M E N T
Shivaraj V. Patil J.
The respondent was appointed as a Typist against
the vacancy of Junior Assistant on his application by
the order dated 20.7.1990 on a consolidated salary of
Rs. 530/- per month temporarily until further orders.
His father was serving as a Lecturer in Statistics in
the appellant-University. He died in harness on
27.6.1971. It is the further case of the respondent
that although in the appointment order it was mentioned
as Typist, he was working as Junior Assistant in the
Examination Section of the College of Engineering and
Technology; two certificates dated 4.12.1993 and
25.3.1996 were given to him by Dean which bear the
testimony of his working as Junior Assistant; though he
had been serving for more than five years, his services
were not regularized, instead appellants absorbed some
of his juniors; by the order dated 26.3.1996, he was
appointed for a period of 59 days w.e.f. 27.3.1996 to
24. 5.1996 with a break of one day. Under the
circumstances, he filed writ petition in the High Court
seeking regularization of his services as a Junior
Assistant w.e.f. 21.7.1990.
The appellants filed counter-affidavit in the High
Court resisting his claim contending that he was not
appointed on regular basis; he has to go through the
process of recruitment test/interview and after he
becomes successful, then only he can be appointed on
regular basis.
The High Court observing that the respondent has
been working as Junior Assistant since 21.7.1990 on a
consolidated pay; the Dean of the College has certified
that he is sincere and hard-working; he has served for
more than five years and that posts of Junior Assistant
are lying vacant, directed the appellants to take
appropriate decision to consider the question of
appointing him on regular basis. The High Court
disposed of the writ petition on 11.9.1997 in the
following terms:-
"6. In the result, by modifying the
impugned order dated 26.3.1996 at
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
Annexure-6, we direct that the
petitioner may not be disengaged from
service till appropriate decision is
taken by the opp. Parties. We pass this
order in view of the admitted position
that the post against which the
petitioner has been continuing as Junior
Assistant is available and the said post
is also required for the purpose which
necessitated petitioner’s appointment.
The opp. parties are further directed to
pay the petitioner regular scale of pay
admissible to Junior Assistant from the
month of September, 1997.
7. The writ application is accordingly
disposed."
Aggrieved by the direction to pay the respondent
regular scale of pay admissible to Junior Assistant
from the month of September, 1997, the appellants filed
a review application on 20.4.1998 seeking review of the
order dated 11.9.1997 passed in the writ petition. The
High Court dismissed the review application on 3.2.1999
observing that there was delay in filing the same and
that no explanation was given for the delay in filing
the review application, but the High Court proceeded to
consider the merits of the contentions raised in
greater details than the consideration made in the
original order disposing of the writ petition. We are
of the opinion that certain observations made while
disposing of review petition were unnecessary and at
any rate they cannot alter the legal position having
impact and bearing on the facts of the case. Hence,
aggrieved by the orders of the High Court made in the
writ petition and review application, these appeals are
filed challenging their correctness and validity.
This Court on 15.7.1999 issued notice confining it
to the question as to whether the respondent was
entitled to the grant of regular pay-scale w.e.f.
September, 1997. In the meanwhile, the operation of
the impugned order to the extent it directed the
appellants to pay regular pay-scale w.e.f.
September,1997 was stayed.
The learned Counsel for the appellants urged that
the respondent was appointed on a consolidated salary
of Rs.530/- per month temporarily until further orders;
unless he goes through the process of regular
recruitment and his services are regularized, he is not
entitled for regular pay-scale w.e.f. September, 1997.
According to him, the High Court committed serious
error in giving direction to give respondent regular
pay-scale w.e.f. September, 1997; there was no legal
basis for giving such direction; when the respondent
was appointed on temporary basis on a consolidated
salary, it was not open to him to claim regular pay-
scale. The learned counsel further contended that the
High Court was not right in directing the appellants to
pay regular scale of pay admissible to Junior Assistant
from the month of September, 1997 without examining the
facts and position of law stated by this Court as
regards ’equal pay for equal work’.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
The learned counsel for the respondent made
submissions supporting the impugned order. He
submitted that the respondent has been working since
five years prior to filing of the writ petition;
vacancies in the post of Junior Assistant are
available; the respondent is discharging the duties of
Junior Assistant and is doing the same/similar work as
is being done by regularly appointed Junior Assistants;
he is entitled for regular pay-scale and the High Court
was right in giving direction to give him regular pay-
scale w.e.f. September, 1997.
It is not in dispute that the respondent was
appointed as Typist on consolidated salary of Rs.530/-
per month temporarily until further orders against the
post of Junior Assistant. This fact is evident from
the very appointment order dated 20.7.1990. The
services of the respondent had not been regularized.
His appointment was not made through the process meant
for regular recruitment. The only question that is to
be considered in these appeals is whether the
directions given by the High Court to give regular pay-
scale to the respondent w.e.f. September, 1997 is
justified and sustainable. The relevant averments in
this regard are contained in para 7 and 8 of the writ
petition, which read thus:-
"7. That similarly while extracting
from him the work of a Junior Assistant
the inaction in allowing him the scale
of pay of Junior Assistant also violates
the principle of equal pay for equal
work.
8. That in such background, it is most
humbly submitted that instead of
regularizing his services, the
authorities have been passing orders
engaging the petitioner in the spells of
89 days, 59 days and 44 days with one
day break. This clearly amounts to
unfair labour practice. Even on the
break-days, the petitioner has been made
to work. The last such 59 days’
appointment has been made on 26.3.1996.
Copy of the last appointment order is
filed herewith as Annexsure-5. The
petitioner has again submitted a
representation during January, 1996 for
regularization of his services and for
allowing him equal pay for equal work.
Despite commendatory certificates by
opp. Party No. 3, till date no progress
has been made and the petitioner
apprehends that at any moment his
services may be dispensed with. Copy of
the representation is filed herewith as
Annexure-6."
In the counter filed on behalf of the appellants
in para 5 meeting the averments made in paras 7-9 of
writ petition, it is stated thus:-
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
"5. That in reply to the averments
made in paragraphs 7 to 9, it is
submitted that the prescribed rate of
wage attached to the posts on
consolidated basis as per Govt. in
Labour Employment Department circular
the amount of Rs. 910/- per month in
respect of both the posts of
Typist/Junior Assistant are allowed to
the persons continuing on such
contracted basis.
In the instant case, the Petitioner
has not been deprived of getting the
wage of Rs. 910/- per month at par with
rates approved by the Government in
Labour and Employment Department.
The Petitioner has been engaged on
consolidated pay on casual basis, casual
workers are dis-engaged when there is no
work to provide them. Accordingly, at
times the petitioner is allowed
engagement to meet the urgent need of
work with necessary break. The
engagement of the persons for a period
of 89 days, 59 days and 44 days on adhoc
basis, consolidated pay and casual basis
respectively are made by the University
from time to time as per Circular No.
21133 dt. 15.7.1995, a copy of which is
annexed herewith as Annexure-A."
The High Court before directing to give regular
pay-scale to the respondent w.e.f. September, 1997 on
the principle of ‘equal pay for equal work’ did not
examine the pleadings and facts of the case in order to
appreciate whether the respondent satisfied the
relevant requirements such as the nature of work done
by him as compared to the nature of work done by the
regularly appointed Junior Assistants, the
qualifications, responsibilities etc. When the services
of the respondent had not been regularized, his
appointment was on temporary basis on consolidated pay
and he had not undergone the process for regular
recruitment, direction to give regular pay-scale could
not be given that too without examining the relevant
factors to apply the principle of ‘equal pay for equal
work’. It is clear from the averments made in the writ
petition extracted above, nothing is stated as regards
the nature of work, responsibilities attached to the
respondent without comparing to the regularly recruited
Junior Assistants. It cannot be disputed that there
was neither necessary averments in the writ petition
nor any material was placed before the High Court so as
to consider the application of principle of ‘equal pay
for equal work’.
This Court in Union of India and Ors. vs. Pradip
Kumar Dey [(2000) 8 SCC 580], after referring to
various decisions dealing with the similar question in
para 8 has held thus:-
"In our considered view, the Division
Bench of the High Court was not right
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
and justified in straightaway giving
direction to grant pay scale to the
respondent when there was no material
placed before the Court for comparison
in order to apply the principle of
"equal pay for equal work" between the
Radio Operators of CRPF and the Radio
Operators working in civil side in the
Central Water Commission and the
Directorate of Police Wireless. In the
absence of material relating to other
comparable employees as to the
qualifications, method of recruitment,
degree of skill, experience involved in
performance of job, training required,
responsibilities undertaken and other
facilities in addition to pay scales,
the learned Single Judge was right when
he stated in the order that in the
absence of such material it was not
possible to grant relief to the
respondent. No doubt, the Directorate
of CRPF made recommendations to the Pay
Commission for giving higher pay scales
on the basis of which claim is made by
the respondent for grant of pay scale.
The factual statements contained in the
recommendation of a particular
department alone cannot be considered
per se proof of such things or they
cannot by themselves vouch for the
correctness of the same. The said
recommendation could not be taken as a
recommendation made by the Government.
Even otherwise a mere recommendation did
not confer any right on the respondent
to make such a claim for writ of
mandamus."
Before giving such direction. the High Court also
did not keep in mind as to what would be its
implications and impact on the other employees working
in the appellant-University. From the averments made
in the writ petition extracted above, it is clear that
no details were given and no material was placed before
the High Court for comparison in order to apply the
principle of ‘equal pay for equal work’. This Court in
State of Haryana & Ors. vs. Jasmer Singh & Ors. [(1996)
11 SCC 77] observed that the principle of ‘equal pay
for equal work’ is not always easy to apply. There are
inherent difficulties in comparing and evaluating work
done by different persons in different organizations or
even in the same organization.
Yet, in another decision in State Bank of India &
Anr. vs. M.R.Ganesh Babu & Ors [(2002) 4 SCC 556], a
Bench of three learned Judges of this Court, while
dealing with the same principle, in para 16 has
expressed that:-
"The principle of equal pay for equal
work has been considered and applied in
many reported decisions of this Court.
The principle has been adequately
explained and crystallized and
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
sufficiently reiterated in a catena of
decisions of this Court. It is well
settled that equal pay must depend upon
the nature of work done. It cannot be
judged by the mere volume of work; there
may be qualitative difference as regards
reliability and responsibility.
Functions may be the same but the
responsibilities made a difference. One
cannot deny that often the difference is
a matter of degree and that there is an
element of value judgment by those who
are charged with the administration in
fixing the scales of pay and other
conditions of service. So long as such
value judgment is made bona fide,
reasonably on an intelligible criterion
which has a rational nexus with the
object of differentiation, such
differentiation will not amount to
discrimination. The principle is not
always easy to apply as there are
inherent difficulties in comparing and
evaluating the work done by different
persons in different organizations, or
even in the same organization.
Differentiation in pays scales of
persons holding same posts and
performing similar work on the basis of
difference in the degree of
responsibility, reliability and
confidentiality would be a valid
differentiation. The judgment of
administrative authorities concerning
the responsibilities which attach to the
post, and the degree of reliability
expected of an incumbent, would be a
value judgment of the authorities
concerned which, if arrived at bona
fide, reasonably and rationally, was not
open to interference by the court."
In the absence of necessary averments and
materials placed on record, there was no scope to give
direction as is done by the High Court in the impugned
order. The burden was on the respondent to establish
that he has a right to equal pay on the principle of
‘equal pay for equal work’ relying on Article 14 of the
Constitution. That having not been done, the respondent
was not entitled for the direction to get regular pay-
scale w.e.f. September, 1997. This being the position,
it is unnecessary to examine the other contentions
urged and decisions cited by the learned counsel for
the respondent.
In view of what is stated above, we find it
difficult to sustain the direction given by the High
Court in the impugned order to grant regular pay-scale
to the respondent admissible to Junior Assistant from
the month of September, 1997. Hence, we set aside the
said direction and allow the appeals to that extent
with no order as to costs.