Full Judgment Text
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CASE NO.:
Appeal (civil) 5087 of 2007
PETITIONER:
Union of India and another
RESPONDENT:
Mahajabeen Akhtar
DATE OF JUDGMENT: 01/11/2007
BENCH:
S.B. Sinha & Harjit Singh Bedi
JUDGMENT:
J U D G M E N T
(ARISING OUT OF SLP (C) NO. 6635 OF 2005)
S.B. Sinha, J.
1. Leave granted.
2. Applicability of the doctrine of \021equal pay for equal work\022 is in
question in this appeal which arises out of a judgment and order dated
19.08.2004 passed by a Division Bench of the High Court of Delhi in Civil
Writ Petition No.3719 of 2002 dismissing the writ petition filed by the
appellant questioning an order dated 11.9.2000 passed in Original
Application No.52 of 2000 by the Central Administrative Tribunal directing
to consider the question of grant of replacement pay-scale of Rs.6500-10500
to the respondent, with consequential benefits in her favour.
3. Basic fact of the matter is not in dispute.
4. Respondent herein was appointed as Technical Assistant of Urdu
Language in the Bureau of Promotion of Urdu Language. She was placed in
the pay scale of Rs.425-700. She was promoted as Research Assistant in the
scale of pay of Rs.550-900. The said scale of pay was revised to Rs.1640-
2900 on the recommendations of the Fourth Pay Revision Commission.
5. The Central Government constituted National Council for Promotion
of Urdu Language (NCPUL) in place of the Bureau of Promotion of Urdu
Language. NCPUL started functioning from 1.4.1996. Employees of the
Bureau were given an option either to continue to work in the Government
Department or get themselves transferred to NCPUL. Respondent opted for
Government service. Her name was, therefore, referred to surplus cell for
redeployment. She was redeployed as Librarian in National Gallery of
Modern Art and designated as Assistant Librarian and Information Assistant.
Her pay was upgraded in the scale of Rs.6500-10500.
6. Indisputably, the scale of pay of Rs.1640-2900 was revised to
Rs.5500-9000.
7. Consequent upon the recommendations of the Fifth Pay Commission,
Respondent filed a representation for upgradation of her pay-scale which
was not acceded to. She thereafter filed an application before the Central
Administrative Tribunal. By reason of an order dated 11.9.2000, the learned
Tribunal allowed the said application opining :
\023In the above view of the matter the application
succeeds and is accordingly allowed. The
respondents are directed to consider the grant of
the replacement scale of Rs.6500-10500/- to the
applicant, keeping in view the similarity in
essential qualification, functions in responsibilities
with those in CHD, CIIL, CSIT w.e.f 01.01.96,
with consequential benefits. This should be done
within four months from the receipt of this order.
Parties to bear their own costs (sic manner) .\024
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In arriving at the said conclusion, the Tribunal held :
\023All the institutes including BPU were functioning
on 01.01.1996 when the recommendations of the
5th Pay Commission were implemented. BPU
came to be abolished only on 31.3.1996, and,
therefore, there is no reason why the Research
Assistant in BPU should have been treated in a
different matter.\024
8. A writ petition filed by the appellant herein against the said order has
been dismissed by the High Court by reason of the impugned judgment
stating :
\023The case of the respondent in her OA was that the
post of Research Assistant in the Bureau of Urdu
and also in the other sister departments was in the
pay scale of Rs.1640-2900 upto 31.12.1995 and
that qualifications required for the incumbents also
were the same and that duties, functions performed
were also similar in nature and, therefore, if post of
Research Assistant was placed in the pay scale of
Rs.6500-10500 in those Department under the
same Education Department, she was also entitled
to the same pay scale on the principle of equality.
We find that there is no specific denial or rebuttal
to this by the petitioners in their reply to the OA.
Their stands seems to be couched in general terms.
They also seem to be suffering from some
misconception that since the post of Research
Assistant was abolished in the Bureau of Urdu
(NCPUL) and, therefore, the analogy of the pay
scale granted to Research Assistant in other sister
Departments could not be applied to her case.
What is missed is that respondent was asking for
the revised pay scale at par with the Research
Assistants in other offices under the Education
Department on the basis of similarity in the nature
of discharging of duties etc. which was not
controverted by the petitioner and to which she
was entitled in the absence of any denial in this
regard. Therefore, it can\022t be said the Tribunal has
gone wrong in directing petitioner to consider this
respondent for grant of pay scale of Rs.6500-
10500 from 1.1.1996 on the analogy of the scale
granted to Research Assistant in other Offices in
the Education Department, in view of the
similarity in qualifications functions and
responsibilities of the post of Research Assistant in
the Bureau on one hand and in the CHD, CSTT,
CIIL on the other. The Tribunal order is
accordingly affirmed and petition is disposed of.\024
9. Mr. Amrendra Sharan, learned Additional Solicitor General of India
appearing on behalf of the appellants, submitted that the Tribunal and
consequently the High Court committed a serious error in arriving at the
aforementioned conclusion in so far as they failed to take into consideration
the fact that the nature of qualification and other relevant factors clearly
point out that the post of Librarian is not equivalent to that of the post of
Research Assistant in other regional languages.
10. Mr. Kulshreshtha, learned counsel appearing on behalf of the
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respondent, on the other hand, would submit that as the respondent had been
in the job of the Bureau of Promotion of Urdu Language as on 1.1.1996
from which date the recommendations of the Fifth Pay Commission came to
be implemented, the impugned judgment and order should not be interfered
with.
11. Promotion of regional languages is undertaken by various bodies
including Central Hindi Directorate of the Ministry of Human Resources
Development, Department of Education, Central Institute of Indian
Language, Commission for Scientific and Technical Terminology, Ministry
of Human Resources Development, Department of Education and Bureau
for Promotion.
12. So far as the educational and other qualifications required by direct
recruits for promotion of the Urdu language are concerned, following are
stated to be the essential qualifications :
\023(i) Master\022s Degree of a recognized University
or equivalent.
(ii) Must have taken Urdu as optional subject at
the graduation level for 3 years/2 years
degree course in the case of M.As. or must
have taken Urdu as a second language upto
2nd years of 3 years degree graduation in
case of MA/M.Sc. M.Com or must have
taken Urdu at High School/Higher
Secondary School level in the case of
M.Sc/M.Com where offering Urdu as a
second language at degree level is not
furnished.
(iii) One years experience of teaching or
terminological and/or translation/editing
work in Urdu
Note 1 : Qualifications are relaxable at the
discretion of the Union Public Service
Commission in case of candidates otherwise well
qualified.
Note 2 : The qualification regarding experience is
relaxable at the discretion of the Union Public
Service Commission in the case of candidates
belonging to the scheduled castes and Schedules
Tribes if, at any stage of selection, the Union
Public Service Commission is of the opinion that
sufficient number of candidates from these
communities possessing the requisite experience
are not likely to be available to fill up the
vacancies reserved for them.
Desirable : Working knowledge of one or more,
modern Indian languages other than Urdu.\024
13. However, in respect of Hindi language, the qualifications prescribed
are as under :
\023(i) For post of Research Assistant (Hindi) :
Master\022s Degree in Hindi or Sanskrit with
Hindi as an elective subject at Degree stage
from a recognized university or equivalent
and should have studied English as a
compulsory/optional subject at degree level.
(ii) For Post of Research Assistant (Regional
Language) Master\022s Degree in Hindi with
knowledge of regional language concerned
and English at Secondary School level or
Master\022s Degree in the regional language
concerned with Hindi and English as
compulsory/optional subject at secondary
school examination level. (Regional
language includes only those languages
which have been specified in the Eighth
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Schedule of the Constitution of India, as
amended from time to time, baring Hindi
and Sanskrit)
(iii) For post of requiring knowledge of
Medicine : Degree in Integrated System of
Indian Medicine Bachelor of Indian
Medicine and Surgery/Bachelor of
Ayurvedic Medicine and Surgery or
Ayurveda/Pharmacy or equivalent from a
recognized university or board with Hindi
and English as compulsory/optional subject
at secondary school examination level.
(iv) For post requiring knowledge of
Engineering : (Civil, Mechanical, Electrical,
Electronics, Computer Science, Textile,
Mineral Leather Technology) : Diploma of a
recognized Institution/University or
equivalent in the subject concerned with
Hindi and English as compulsory/optional
subject as secondary school examination
level.
(v) For post of Research Assistant
(Management)/Research Assistant (Public
Administration) : Post-graduate diploma in
Management/Public Administration
respectively from a recognized university or
equivalent with knowledge of English and
Hindi as compulsory/optional subject at
secondary school examination level or
equivalent.
(vi) For post of Research Assistant (Journalism):
Master\022s degree in Hindi with Diploma in
Journalism/Mass Communication with
English as compulsory/optional subject at
secondary school examination level.
(vii) For posts in any subject other than these
mentioned above : Master\022s Degree of
recognized University or equivalent in the
subject concerned with English and Hindi as
compulsory/optional subject at Secondary
School Examination level.
Note 1 : Qualification are relaxable at the
discretion of the Union Public Service
Commission in case of candidates otherwise well
qualified.
Note 2 : Selected candidates will have to complete
a departmental training programme during their
probation.
Desirable : Only for posts of Research Assistant
(Hindi) : Certificate/Diploma from a recognized
Institute in Translation or Applied Linguistics or
Functional Hindi.\024
14. The essential qualifications required for other languages in CIIL are
stated to be as under :
\023(i) Master\022s Degree in Linguistic/Comparative
Philology/Indian Language and Literature/
Psychology/Education/Sociology/
Anthropology/Folklore/Statutics from
recognized University or equivalent.
(ii) One years research/teaching experience.
(iii) Proficiency in any Indian Language as a
subject at the Secondary School Level in the
case of Master of Arts in Linguistics or
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Comparative Philology or as a subject at the
degree level in the case of Master of Arts in
Subject other than Linguistics and
Comparative philology.
Note 1 : Specific requirement will be indicated at
the time of recruitment.\024
15. We may also note that in the case of recruitment by promotion,
deputation, transfer and grades from which promotion or deputation or
transfer to be made, the following are the requisite qualifications :
Urdu
Promotion :
Technical Assistant (Urdu) working in the Bureau
for Promotion of Urdu with 5 years regular service
in the grade.
Transfer or deputation :
(a) Officers under the Central Government/State
Government :
(i) holding analogous posts; or
(ii) with 5 years service in posts in the
scale of pay of Rs.425-700 or
equivalent; and
(b) Possessing the Education qualifications and
experience prescribed for direct recruits
under column-7. Period of deputation
including period of deputation in another ex-
cadre post held immediately preceding this
appointment in the same
organization/department shall ordinarily not
exceed 3 years.\024
Hindi
Transfer on deputation/transfer :
Officers under the Central Governments
(a) (i) Holding analogous posts in regular posts on
regular basis, or
(ii) With 5 years regular service in post in the
scale of pay of Rs.1400-2300/2600 or
(iii) with 15 years regular service in post in the
scale of Rs.950-1500 or equivalent.
(b) possessing the educational qualifications and
experience prescribed for direct recruitment
under column 8. (period of deputation
including period of deputation in another ex
cadre post held immediately preceding this
appointment in the same or some other
organization/department of the Central
Government shall ordinarily not to exceed 3
years. The maximum age limit for
appointment by transfer on deputation
including transfer shall be not exceeding 56
years, as on the closing date of receipt of
applications.\024
16. We may now consider different nature of duties required to be
performed by the these categories of officers :
\023Urdu
To assist the officer with whom they are attached
in implementing the publication programme BPU
at various stages. This includes organizing of
subjects panel melting, implementing their
decisions, checking and editing mss, organizing
Terminology committee meeting and preparing of
glossary of technical terms maintenance of record
of all the above mentioned activity and
programming the duty allotted from time to time in
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furtherance of the activity of BPU.
Hindi
To assist in the implementation of schemes
relating to periodicals, preparation of Dictionaries
\026 Lingual Bilingual, Trilingual and Multilingual,
preparation of Dictionaries in Foreign Languages
under Cultural Exchange Programme.
Other Regional Languages
To assist in Linguistic and in material production
in various Indian Languages including the non-
scheduled languages.\024
17. The requisite criteria in regard to such appointment, promotion,
transfer as well as the nature of duties required to be performed by the
incumbents of posts vis-‘-vis that of Research Assistant (Urdu) therefor, are
different. Knowledge of English for Research Assistant (Urdu) is not
necessary whereas for the Research Assistant (Hindi) and other regional
languages, the same is essential.
18. So far as the Research Assistant for CIIL is concerned, the essential
qualifications therefore are absolutely different. So far as the educational
qualifications required for promotion to the said post by the incumbents of
the Research Assistant to Research Assistant (Hindi) is concerned, therefore
also different educational qualifications are required. Not only that, the
nature of duties is also different. Whereas the Research Assistants in respect
of Urdu language are required to assist the officer with whom they are
attached, the Research Assistants in Hindi and Research Assistants of CIIL
are required to assist implementation of the scheme. The Tribunal and
consequently the High Court might not, thus, be correct in opining that the
educational qualifications as also the nature of duty being the same,
respondent was entitled to the benefit of the said scale of pay.
19. The question came to be considered in a large number of decisions of
this Court wherein it unhesitantly came to the conclusion that a large number
of factors, namely, educational qualifications, nature of duty, nature of
responsibility, nature of method of recruitment etc. will be relevant for
determining equivalence in the matter of fixation of scale of pay. {See
Secretary, Finance Department & Ors. v. West Bengal Registration Service
Association & Ors. [1993 Supp.(1) SCC 153]; State of U.P. & Ors. v. J.P.
Chaurasia & Ors. [(1989) 1 SCC 121]; Union of India & Ors. v. Pradip
Kumar Dey [(2000) 8 SCC 580] and State of Haryana & Anr. v. Haryana
Civil Secretariat Personal Staff Association [(2002) 6 SCC 72]}.
20. In Government of West Bengal v. Traun K. Roy & Ors. [(2004 (1)
SCC 347], this Court held as under :
\023Question of violation of Article 14 of the
Constitution of India on the part of the State would
arise only if the persons are similarly placed.
Equality clause contained in Article 14, in other
words, will have no application where the persons
are not similarly situated or when there is a valid
classification based on a reasonable differentia.\024
21. In U.P. State Sugar Corporation Ltd. & Anr. v. Sant Raj Singh & Ors.
[(2006) 9 SCC 82], this Court opined :
\023The doctrine of equal pay for equal work, as
adumbrated under Article 39(d) of the Constitution
of India read with Article 14 thereof, cannot be
applied in a vaccum. The constitutional scheme
postulates equal pay for equal work for those who
are equally placed in all respects. Possession of a
higher qualification has all along been treated by
this Court to be a valid basis for classification of
two categories of employees\024
22. Same principle was reiterated by a Three Judge Bench of this Court in
State of Haryana & Ors. v. Charanjit Singh & Ors. [(2006) 9 SCC 321].
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23. We are not oblivious of some decisions of this Court wherein salary
on the basis of revised pay scales has been directed to be paid on the premise
that no change in the duties and functions of employees similarly situated
had taken place although the concerned employees were working in the
different public sector undertakings {See The Employees of Tennery and
Footwear Corporation of India Ltd. & Anr. v. Union of India & Ors. [1991
Supp.(2) SCC 565]} or where scale of pay is to be fixed for the judicial
officers posted in the State cadre vis-‘-vis Union Territory Cadre {[Alvaro
Noronha Ferriera & Anr. v. Union of India & Ors. [(1999) 4 SCC 408]} but
such a question does not arise herein, as different scale of pay was
recommended by an expert body having regard to the nature of duties and
functions. It is not a case where discrimination is sought to be made on the
basis of territory or posting in public sector undertaking.
24. On the facts obtaining in this case, therefore, we are of the opinion
that the doctrine of equal pay for equal work has no application. The matter
may have been different, had the scales of pay have been determined on the
basis of educational qualification, nature of duties and other relevant factors.
We are also not oblivious of the fact that ordinarily the scales of pay of
employees working in different departments should be treated to be at par
and the same scale of pay shall be recommended. Respondent did not opt
for her services to be placed on deputation. She opted to stay in the
Government service as a surplus. She was placed in list as Librarian in
National Gallery of Modern Art. She was designated as Assistant Librarian
and Information Assistant. Her pay scale was determined at Rs.6500-10500
which was the revised scale of pay. Her case has admittedly not been
considered by the Fifth Pay Revision Commission. If a scale of pay in a
higher category has been refixed keeping in view the educational
qualifications and other relevant factors by an expert body, no exception
thereto can be taken. Concededly it was for the Union of India to assign
good reasons for placing her in a different scale of pay. It has been done.
We have noticed hereinbefore that not only the essential educational
qualifications are different but the nature of duties is also different. Article
39(d) as also Article 14 of the Constitution of India must be applied, inter
alia, on the premise that equality clause should be invoked in respect of the
people who are similarly situated in all respects.
25. Mr. Kulshreshtha has placed strong reliance on State of U.P. & Ors. v.
U.P. Sales Tax Officers Grade II Association 2003 (6) SCC 250]. In that
case the Pay Revision Commission did not consider cases of a group of
employees. On the aforementioned premise, they were held to be entitled to
the scale of pay which had been granted to the persons similarly situated.
We are not concerned with such an issue herein as the case of the respondent
has been considered and she has been given the benefit of a revised scale. It
was not necessary for the Government which had the requisite jurisdiction to
remove anomaly as has been held by this Court in Haryana State Adhyapak
Sangh & Ors. v. State of Haryana & Ors. [(1988) 4 SCC 571], whereupon
Mr. Kulshreshtha relied on. As the Union of India has already applied its
mind and revised the respondent\022s pay in the scale of pay of Rs.5500-9000,
it was for the respondent to show that she had been discriminated against.
We have noticed hereinbefore that neither in fact nor in law, any case of
discrimination has been made out.
26. Our attention has been drawn to the findings of the Tribunal that the
incumbents to the post of Research Assistants in the Bureau and Institutions
like Central Hindu Directorate and Central Institution of Indian Languages
etc. are similarly qualified and they have been performing similar functions.
There was no factual foundation for arriving at the same finding.
Consequently, the said conclusion was wrongly drawn by the Tribunal.
Furthermore, no formula having mathematical exactitude can be pressed into
service in a situation of this nature. The Tribunal and consequently the High
Court, in our opinion, therefore, was not correct in arriving at the said
decision.
27. Another aspect of the matter, however, cannot be ignored.
Respondent has been paid the amount by way of difference in the scale of
pay only for a short period. She has been held to be entitled only for a sum
of Rs.7,000/- and odd. We are, therefore, of the opinion that this Court, in
exercise of its jurisdiction under Article 142 of the Constitution, should
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direct that the amount already paid need not be recovered. Similar direction
has been passed by this Court in Haryana Civil Secretariat Personal Staff
Association (supra) stating :
\023The courts should approach such matters with
restraint and interfere only when they are satisfied
that the decision of the Government is patently
irrational, unjust and prejudicial to a section of
employees and the Government while taking the
decision has ignored factors which are material
and relevant for a decision in the matter. Even in a
case where the court holds the order passed by the
Government to be unsustainable then ordinarily a
direction should be given to the State Government
or the authority taking the decision to reconsider
the matter and pass a proper order. The court
should avoid giving a declaration granting a
particular scale of pay and compelling the
Government to implement the same.\024
{[See also Punjab National Bank & Ors. v. Manjeet Singh & Anr.
[(2006) 8 SCC 647]}
28. We, therefore, although agree with the submissions of learned
Additional Solicitor General, in the facts and circumstances of this case,
decline to grant any relief in favour of the appellant. The appeal is
dismissed in view of our observations aforementioned. There shall,
however, be no order as to costs.