Full Judgment Text
2022:DHC:2547
* IN THE HIGH COURT OF DELHI AT NEW DELHI
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% Reserved on: 2 June, 2022
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Pronounced on: 12 July, 2022
+ W.P.(C) 7498/2012
SUJIT GANGOPADHYAY ..... Petitioner
Through: Mr. Meet Malhotra, Sr. Advocate
with Mr. Diggaj Pathak, Mr. Ravi
S.S. Chauhan, Ms. Pallak Singh,
Ms. Shweta Sharma and Ms.
Prachi Kohli, Advocates
versus
TELECOM DISPUTES SETTLEMENT AND
APPELLATE TRIBUNAL & ORS ..... Respondents
Through: Mr. Sharath Sampath, Advocate
for R-1
Mr. Ruchir Mishra, Mr. Sanjiv K.
Saxena, Mr. Mukesh K. Tiwari and
Mr. Ramneek Mishra, Advocates
for R-2 and 3
CORAM:
HON’BLE MR. JUSTICE CHANDRA DHARI SINGH
J U D G M E N T
CHANDRA DHARI SINGH, J.
1. The instant writ petition under Article 226 of the Constitution of
India is filed for issuance of writ of mandamus or any other appropriate
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writ to quash and set aside order dated 26 September 2011 and for
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directing the respondents to grant Pay Band-2 with Grade Pay of Rs.
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4600, with effect from, 1 January 2006.
FACTUAL MATRIX
2. The petitioner joined as Lower Division Clerk with the Central
Government in 1983 and was thereafter, promoted to the level of Upper
Division Clerk. After being promoted to the level of Upper Division
Clerk, he was promoted to the post of Assistant, which the petitioner is
holding as on date with respondent No. l, on regular basis.
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3. On 11 September 2006, a proposal was initiated by the respondent
no.3 for upgradation of the pay-scale of the Assistants and Personal
Assistants (hereinafter “PAs”) of Central Secretariat Service (hereinafter
“CSS”) and Central Secretariat Stenographer Service (hereinafter
“CSSS”) from the scale of Rs.5500-9000 to that of Rs. 6500-10500 in
view of the desirability of parity with the pay-scale of Inspectors and
other analogous posts in Central Board of Direct Taxes/Central Board of
Excise and Customs (CBDT/CBEC). Thereafter, Sixth Central Pay
Commission had recommended that the pre-revised scales of Rs.5000-
8000, Rs.5500-9000, Rs.6500-10500 be merged into a revised pay-band
of Rs.9300-34800 with Grade Pay of Rs.4200 in pay band PB-II. The
Department of Personnel and Training (hereinafter “DoPT”) further
increased Grade Pay of Rs. 4200-4600 with respect to Stenographers
Grade „C‟ working in CSSS and Assistants in CSS in terms of the Office
Memorandum issued by the office of Department of
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Expenditure/respondent no.3 on 16 November 2009.
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4. The DoPT issued two OMs. One was issued on 21 December
2009 granting the benefit of Grade Pay of Rs.4600 to the Assistants of
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CSS. The second was issued on 23 December 2009 granting the benefit
of Grade Pay of Rs.4600 to Stenographer Grade „C‟ (PA) in CSSS. These
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benefits were accorded w.e.f. 1 January 2006.
5. To claim the benefits, in pursuance of the proposal by the
respondent no. 3 and the OMs issued by the DoPT, the Petitioner made a
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representation dated 5 January 2007 to respondent no. l seeking Pay
Band-2 with Grade Pay of Rs. 4600. Subsequent representations were
also made by the petitioner thereafter.
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6. On 26 September 2011, respondent no.1 rejected the request for
up-gradation of the pay scale from Rs. 5500-9000 to Rs. 6500-10500 and
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Grade Pay of Rs. 4600 of the petitioner, in light of the letter dated 18
July 2011 of DoPT that since, there has been no direct recruitment
through Competitive Examination in the TDSAT to the post of Assistant
and the posts are being filled on deputation basis, therefore, the Assistants
of TDSAT are not at par with the Assistants of CSS and CSSS.
7. The petitioner is aggrieved by the fact that the respondents denied
him the benefit of increased Grade Pay from Rs. 4200 to Rs.4600 which
was accorded by the Respondent No.3 to the Assistants and Stenographer
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Grade „C‟ of CSS/CSSS w.e.f 1 January 2006. Hence, the instant
petition has been filed by the petitioner seeking the setting aside of order
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dated 26 September 2011 and for directing the respondents to grant the
upgraded pay-scale and Grade Pay.
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SUBMISSIONS
8. Mr. Meet Malhotra, learned senior advocate appearing on behalf of
petitioner submitted that the OM issued by the DoPT provided for
upgradation of pay scale from Rs. 5500-9000 to Rs. 6500-10500 for
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Assistants of CSS and Stenographers Grade „C‟ (PA) of CSSS from 15
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September, 2006. Thereafter, on 14 November, 2006, the DoPT issued
an OM clarifying therein that the pre-revised pay scale of Rs. 6500-
10500, that is, Rs. 5500-9000 shall be applicable to Stenographer Grade
„D‟ of CSSS and Upper Divisional Clerks of Central Secretariat Clerical
Service who had been granted the ACP in the pay-scale of Rs. 5500-
9000. Moreover, respondent no. 3 accepted the recommendations made
by the Sixth Central Pay Commission after giving careful and due
consideration with respect to the civilian employees of the Central
Government in Groups „A‟, „B‟, „C‟ and „D‟. It is submitted that the
petitioner was entitled to the upgraded pay-scale of Rs. 6500-10500 inter
alia on the grounds of historical parity including nature of jobs,
functional requirements of the posts, nomenclature of the posts,
classification of the posts, identical pay scale attached to the posts and
promotional hierarchy of the category of posts with its counterparts in
CSS/CSSS. Even the conditions of service of the employees of
respondent no. 1 stipulated the same. However, despite that the petitioner
was not granted the upgraded pay-scale and Grade Pay.
9. It is submitted that prior to the upgradation of Grade Pay from Rs.
4200 to Rs. 4600, Assistants/PAs were in the pay-scale of Rs. 5500-9000
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as on 1 January, 2006 and were granted the scale of Rs. 6500-10500 in
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September 2006. Then, on 13 November, 2009 the respondent no. 3,
issued an OM granting the revised pay-scale of Rs. 4600 in pay-band PB-
II to persons who were drawing the pre-revised scale of Rs. 6500-10500
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as on 1 January, 2006 and who were granted normal replacement of
grade pay of Rs. 4200 in the pay-band PB-II. Thereafter, an OM was
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issued by the respondent no. 3 on 16 November, 2009 in this regard
extending the Grade Pay of Rs. 4600 to all the Assistants and PAs of the
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CSS amongst other organizations with effect from 1 January, 2006. It is
submitted that the pay-scale of the petitioner was not upgraded despite
the same being done in respect of Assistants and Stenographers Grade „C‟
of CSS/CSSS by the respondent no.2. Furthermore, the petitioner was
also denied benefit of upgraded and increased Grade Pay of Rs. 4600
accorded by the respondent no. 3.
10. It is further submitted that there has been historical parity between
the Assistants and Stenographer Grade „C‟ working in the DoT and its
Territorial Circle Unit, the respondent no. 1 and their counterparts
working in CSS and CSSS since the inception of the respondent no. 1,
however, this parity was tampered with by the refusal of the grant of the
upgraded pay-scale and Grade Pay. This parity can be evidently deduced
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from, firstly, the orders dated 4 September, 2000 and 7 November,
2000 issued by the respondent no. 3 sanctioning creation of temporary
posts with respondent no. 1 clearly suggest of the parity of treatment
between the posts of the respondent no. 1 and its counterparts in
CSS/CSSS, secondly, the Telecom Disputes Settlement and Appellate
Tribunal (Salaries, Allowances and other Conditions of Service of
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Chairperson and Members) Rules, 2000 (hereinafter “TDSAT Rules”),
that regulate the conditions of service of the Chairperson and Members of
the respondent no. 1, and stipulate that the pay scale and conditions of
service of the Chairperson and Members are to be the same as that of the
judges of the Supreme Court and Secretaries to the Government of India,
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respectively and thirdly, notification of respondent no. 3 dated 2
August, 2001, that laid down the rules for the Salary, Allowances and
Conditions of Service of the Officers and Employees of the respondent
no. 1, wherein one category of posts was of Assistants in CSS.
11. It is submitted that when the petitioner was promoted as Assistant,
with respondent No. l, the nomenclature of the post was mentioned as
Assistant, Central Secretariat Service or ''Assistant CSS". It is further
submitted that respondent no. 1 follows the same grade structure as is
applicable to CSS/CSSS employees. The functions of the Assistants and
Stenographer Grade „C‟ are similar in nature to their counterparts in
CSS/CSSS. There is direct recruitment for the post of Stenographers in
the respondent no. 1 which is also in parity with the service conditions in
CSS/CSSS. It is, thus, clear that from the very inception of the respondent
no. 1 in the year 2000, there has been parity between the employees of
respondent no. 1 and CSS/CSSS in terms of pay scales of the posts and
promotional hierarchy.
12. It is submitted on behalf of the petitioner that the petitioner made
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representations to the respondent no. 1, however, vide order dated 26
September 2011, the respondent no. 1 disposed of the said representation
summarily without specifying any reasons. In the said rejection order,
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reference was made to the orders dated 18 July 2011 whereby the
respondent no.3 wrote to the respondent no. 1 that the posts in the
respondent no. 1 are filled on deputation basis and there is no element of
Direct Recruitment through an All India Competitive Examination.
Similarly, the order of respondent no. 1 found mention of order of the
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respondent no. 3 dated 1 May 2012, wherein it wrote to the respondent
no. 1 that the Nodal Ministry, the Ministry of Finance had not found any
parity between the Assistants in CSS and Assistants of respondent no. 1.
In terms of the said orders, the proposal of upgradation of scale of pay of
Assistants/PAs of respondent no. 1 was not accepted.
13. It is submitted that the aforesaid orders are facially unsustainable
and unintelligible and there was no reason for rejecting the petitioner's
representation more so on the ground that his appointment was on the
deputation basis and not through Direct Recruitment.
14. The learned senior counsel submits that it is well settled that when
there is complete parity, employees in two organizations cannot be
discriminated or treated differently. Coordinate benches of this Court
have also held that discrimination cannot be allowed even when the
appointment is from two different sources. It is strongly submitted that
the mode of recruitment to a post is no ground of denial of the pay-scale,
if post is identical with respect to the pay and function. The grant of pay
scale with Grade Pay of Rs. 4600 has been granted to all the employees
of CSS/CSSS irrespective of the mode of recruitment of the said
employees. Reliance has been placed upon the judgments of the Central
Administrative Tribunal in S.R. Dheer and Others vs. Union of India
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and Others , OA No. 164/2009 dated 19 February, 2009 as well as Sri R.
Natrajan and Others vs. The Secretary, Department of Consumer
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Affairs and Others , OA No.2002/2010 dated 11 November, 2011.
15. It is submitted that in light of all the aforesaid submissions, the
impugned order may be set aside and the respondents may be directed to
give all benefits of the upgraded pay-scale as well as Grade Pay from the
respective dates alongwith other benefits that accrued to them from the
year 2008.
16. Per Contra , learned counsel for the respondent vehemently
opposed the instant writ petition and submitted that the same is devoid of
any merit and is to be dismissed. It is submitted that Grade Pay of
Rs.4600 in Pay Band PB-II was granted to Assistants of CSS only for the
reason that there was an element of Direct Recruitment to the post
through All India Competitive Examination. Whereas the post of
Stenographer „C‟ in TDSAT is concerned, it is submitted that as per
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communication dated 26 February 2002 of the Ministry of
Communication and Information Technology the Post of Stenographer
Grade „C‟ in respondent no. 1 is to be filled up on deputation basis,
therefore, the petitioner is not entitled to the grade pay of Rs. 4600/-.
17. It is submitted that the Fifth Central Pay Commission as well as
Sixth Central Pay Commission made a clear distinction between
Secretariat and Non-Secretariat Organizations, and in that process Sixth
Pay Commission vide para 3.1.14 recommended that in the case of
ministerial post in Non-Secretariat Offices, the posts of Head Clerks,
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Assistants, Steno Grade II, Office Superintendent, Steno Grade I, Private
Secretaries and Administrative Officers Grade III in the respective pay
scales of Rs.5000- 8000, Rs.5500-9000 and Rs.6500-10500 will stand
merged. Accordingly, the Stenographers Grade „C‟ and Assistant of
respondent no. 1 have been placed in the revised pay structure of
Rs.9300-34800, that is, Grade Pay Rs. 4200. Since TDSAT is a Non-
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Secretariat Organization, therefore OM dated 15 September 2006 and
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16 November 2009 did not apply to TDSAT and posts of Assistants/PAs
have been rightly placed in the revised pay scale of 9300-34800 PB-2
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Grade Pay 4200) as per recommendations of 6 Pay Commission.
18. Learned counsel for the respondent has relied on UO No.
6(12)/E.III(B)/2010 of the Department of Expenditure by which the
department has opined as under:-
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“(i) 5 CPC vide para 46.9 examined the pay scales of
Assistants in the Sectt. vis-a-vis Assistants in subordinate
offices in terms of RRs, educational qualification, method
and recruitment, duties & responsibilities etc. and
observed inter-alia, “……we are of the definite view that
the pay scale of Assistants in the Non-Secretariat
organizations should slightly be lower as compared to
pay scale of Asstt. in the Sectt.
(ii) Pre-revised scales of Assistants of CSS and Assistants
in TDSAT were 5500-9000. However, the pay scale of
Assistants of CSS was upgraded to 6500-10500 vide this
department OM NO.5/2/2004/IC dated 15.09.2006,
keeping in view their historical parity with the
Inspectors/Analogous posts in CBDT/CBEC, who were
granted the scale of pay of Rs.6500-10500 w.e.f.
21.04.2004.
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(iii) As per this department's OM dt. 16.11.2009, the
Assistant/Stenographers of CSS/CSSS have been placed
in the GP of Rs.4600/- w.e.f. 01.01.2006 keeping in view
the fact that there was an element of direct recruitment
through All India Competitive Examination. This
dispensation has been extended to
Assistant/Stenographers working in CSS/CSSS, AFHQS,
IFS(B) & RBSS. Therefore, the posts of
Assistant/Stenographers Gr. C of TDSAT are not covered
by this Department's OM dated 16.11.2009.
(iv) Since, Assistants/PAs of TDSAT were in the pre-
revised scale of Rs.5500-9000 as on
01.01.1996/01.01.2006 and TDSAT being non-
Secretariat Organization, the OM dated 15.09.2006 and
16.11.2009 will not apply to them. As such, they have
been rightly placed in the revised pay scale of Rs.9300-
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34800 (PB-2 GP 4200) as per recommendations of 6
CPC in para 3.1.14.
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(v) The 6 CPC vide para 3.1.14 recommended that in
the case of ministerial post in non-Secretariat offices, the
post of Head Clerks, Assistants, Office Superintendants
and Administrative Officers Grade III in the respective
pay scales of Rs.5000- 8000, 5500-9000 and 6500-10500
will stand merged. Accordingly, the Assistants of TDSAT
have been placed in the revised pay structure of Rs.9300-
34800 (PB-2 Grade Pay 4200).
(vi) As per this Department issued OM dated 13.11.2009,
the posts which were in the pre-revised scale of Rs.6500-
10500 as on 1.1.2006 and were granted the normal
replacement pay structure of GP of Rs.4200/- in PB-2
have been placed in the GP of Rs.4600. Since, the post of
Asstt/Stenographers of TDSAT were not in pre-revised
pay scale of Rs.6500-10500 as on 1.1.2006, these post
are not covered by this Department's OM dated
13.11.2009.
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(vii) Pay Commission is expert body which make
recommendations on pay and allowances of Central
Govt. staff keeping in view all relevant factors like
educational qualification, hierarchy, Duties, functional
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requirement, pre-revised scales etc. The 5 & 6 CPC, in
their considered judgment, made a clear distinction
between the pay scales of Secretariat and non Secretariat
Staff.
3. As regards the extension benefit of this deptt. OM
dated 16.11.2009 in respect of Assistants/Court
Master/Stenographer Gr. C in CAT, it is stated that a
proposal in this regard in pursuance of CAT Principal
Bench dated 9.4.2010 in OA No.1165/2010 and MA
No.866/2010 was referred to this deptt. by DoPT for
consideration. Keeping in view of the fact that historical
parity existed between Stenographer Gr. C/Court
Masters/Assistants in CAT vis-à-vis Stenographer Gr
C/Assistants in CSSS/CSS, the proposal of DoPT for
upgradation of the pay scale of Stenographer Gr.
C/Court Masters/Assistants from GP of Rs.4200/- to
Rs.4600/- w.e.f. 1.1.2006 was agreed to.”
19. It is submitted that the post of Assistant/Stenographers of TDSAT
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are not covered by the Office Memorandum dated 13 November 2009 as
per which the posts which were in the pre-revised pay scale of 6500-
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10500 as on 1 January 2006 and were granted the normal replacement
pay structure of Grade Pay of Rs.4200 in PB-II have been placed in the
Grade Pay of 6500-10500. Consequently, the petitioner is not entitled to
grant of Grade Pay of Rs.4600 in PB-II. It is further submitted that the
posts of Assistants/Pas of TDSAT were in the pre-revised scale of
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Rs.5500-9000 as on 1 January 1996 to 1 January 2006 and therefore not
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covered with OM dated 13 November 2009 and 16 November 2009.
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20. Learned counsel for the respondent submitted that the judgment
relied upon by the petitioner is not applicable in the present case. It is
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further submitted that the impugned order dated 26 September 2011 was
passed on the opinion of Department of Expenditure/respondent no.3 and
the said order was not challenged before this Court. It is vehemently
submitted that respondent no.1 has rightly rejected the representation on
the aforesaid opinion made by both the departments. There is no
illegality or error in the said impugned order. Learned counsel for the
respondents submitted that the instant writ petition is misconceived and
devoid of any merit and therefore liable to be dismissed.
21. Respondents No.2 and 3 filed the counter affidavit in which they
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have relied on Office Memorandum dated 16 November 2009 and stated
that Grade Pay of Rs.4600 in Pay Band PB-2 was granted to Assistants of
Central Secretariat Service only for the reason that there was an element
of direct recruitment to the post through All India Competitive
Examination. In the counter it is categorically stated that the post of
Assistant/Stenographers of TDSAT are not covered by the Office
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Memorandum dated 13 November 2009, the posts which were in the
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pre-revised pay scale of Rs. 6500-10500 as on 1 January 2006 and which
were granted normal replacement pay structure of Grade Pay Rs.4200 in
PB-II have been placed in Grade Pay of Rs.4600. Since the post of
Assistant/Stenographer of TDSAT were not in the pre-revised pay scale
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of Rs.6500-10500 as on 1 January 2006, therefore, the same are not
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covered by the Office Memorandum dated 13 November 2009,
consequently not entitled to grant of grade pay of Rs.4600 in PB-2.
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22. In the reply, the petitioner has filed the rejoinder affidavit and
denied the contentions of counter affidavit. It is contended that the
objections raised by the respondents in the counter affidavit are vague,
baseless and misconceived. It is also contended that the petitioner is
entitled to an upgraded pay scale on the basis of historical parity with his
counterparts in the CSS/CSSS as well as on the principles of 'Equal Pay
for Equal Work'. Further, it is wrong to suggest that the upgradation in
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the pay-scale in terms of OMs dated 25 September 2006 and 16
November 2009 does not apply to the petitioner, being an employee with
the TDSAT, which is a Non-Secretariat Organisation. Thus, the
objection of the Respondent in this regard suffers from manifest infirmity
and inconsistency. In any event, the mode of recruitment cannot be the
sole criterion for denial of the grade pay of Rs. 4600 to the petitioner.
23. The petitioner has also contended that the respondents have
adopted a policy which is patently erroneous and suffers from
considerable laches in that the legitimate expectations of the petitioner
have not been examined by the respondents fairly and expeditiously. In
the rejoinder affidavit it is contended that the rejoinder of the
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representation vide impugned order dated 26 September 2011 is without
application of judicious mind, contrary to law laid down by this Court as
well as by the Hon‟ble Supreme Court.
ANALYSIS AND FINDINGS
24. Heard learned counsel for the parties and perused the record.
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25. Admittedly, the DoPT, vide OM No. 20/29/2006-CSII dated 25th
September, 2006, upgraded the pay-scale to Rs. 6500-10500 from Rs.
5500-9000 in respect of Stenographers Grade „C‟ CSSS and Assistants in
CSS. Thereafter, the Sixth Central Pay Commission merged three pay-
scales, that is, Rs. 5000-8000, Rs. 5500-9000 and Rs. 6500-10500 into
the revised pay-band of Rs. 9300-34800 with Grade Pay of Rs. 4200 in
PB-II. The Respondent No.2 further increased the Grade Pay of Rs. 4200
to Rs. 4600 with respect to Stenographers Grade „C‟ working in CSSS
and Assistants in CSS in terms of Office Memorandum issued by
Department of Expenditure/Respondent no. 3 on 16th November, 2009.
26. The issue before this Court can be simplified and narrowed down
to whether there is parity between the position of
Stenographers/Assistants in CSSS/CSS and Stenographers Grade „C‟ in
the respondent no. 1/ Telecom Disputes Settlement and Appellate
Tribunal for adjudicating the question as to whether the petitioner is
entitled for the benefits arising out of the aforesaid OMs issued by the
respondents or not.
27. The word parity, in its simplest and truest sense, means equality or
being at par. Such equality can be of position, rank, value or condition
when seen in the context of service and the benefits that arise from such
service. The test of parity also starts to hold a greater significance when
seen on the touchstone of equality, as has been guaranteed under Article
14 of the Constitution of India. The test, hence, is to be considered with
the utmost care and consideration when the question of rights of the
civilian employees are in question with respect to their work and pay.
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more particularly when the benefits accruing to two similarly placed
positions are to be evaluated. The principle of equal pay for equal work
needs to be kept in mind while considering this expansive interpretation
of Article 14 of the Constitution and the rights arising thereto.
28. In Federation of All India Customs and Central Excise
Stenographers vs. Union of India , (1988) 3 SCC 91, the Hon'ble
Supreme Court observed as under on the question of „Equal Pay for Equal
Work‟:-
“ 7. Equal pay for equal work is a fundamental right. But
equal pay must depend upon the nature of the work done,
it cannot be judged by the mere volume of work, there
may be qualitative difference as regards reliability and
responsibility. Functions may be the same but the
responsibilities make a difference. One cannot deny that
often the difference is a matter of degree and that there is
an element of value judgment by those who are charged
with the administration in fixing the scales of pay and
other conditions of service. So long as such value
judgment is made bona fide, reasonably on an intelligible
criterion which has a rational nexus with the object of
differentiation, such differentiation will not amount to
discrimination. It is important to emphasise that equal
pay for equal work is a concomitant of Article 14 of the
Constitution. But it follows naturally that equal pay for
unequal work will be a negation of that right.
8. We may briefly note the principles evolved by this
Court in this respect in the backdrop of varied set of
facts. Differentiation in implementing the award or the
recommendations of Pay Commission without rational
basis may amount to discrimination. In Purshottam
Lal v. Union of India [AIR 1973 SC 1088 : (1973) 1 SCC
651 : 1973 SCC (L&S) 337] it was held that
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implementation of the revised pay scale in a particular
category of servants from a date later than that
recommended by the Pay Commission and thus non-
implementation of its report only in respect of those
persons amounts to violation of Articles 14 and 16 of the
Constitution, the Constitution Bench held. In Laljee
Dubey v. Union of India [(1974) 1 SCC 230 : 1974 SCC
(L&S) 97 : AIR 1974 SC 252 : (1974) 2 SCR 249] this
principle was reiterated again. This Court in Randhir
Singh v. Union of India [(1982) 1 SCC 618 : 1982 SCC
(L&S) 119 : AIR 1982 SC 879 : (1982) 3 SCR 298] had
to deal with the case of a driver constable in the Delhi
Police Force under the Delhi Administration. The scale
of pay in the Delhi Police Force was for non-matriculate
drivers Rs 210-270 and for matriculate drivers Rs 225-
308. The scale of pay of a driver in the Railway
Protection Force was Rs 260-400. The scale of pay of
drivers in the non-secretariat offices in Delhi was Rs
260-6-326-EB-8-350, while that of Secretariat offices in
Delhi was Rs 260-6-290-EB-6-326-8-366-EB-8-8-8-390-
10-400. The scale of pay of drivers in the office of the
Language Commission was Rs 260-300 while the drivers
of heavy vehicles in the Fire Brigade and the Department
of Light House was Rs 330-480. The petitioner and other
driver constables made a representation to the
authorities that their case was omitted to be considered
separately by the Third Pay Commission and that their
pay scales should be the same as the drivers of heavy
vehicles in other departments. As their claims for better
scales of pay did not meet with success, the said
application was filed by the petitioner for the issue of a
writ under Article 32 of the Constitution. It was allowed
by the Court. Chinnappa Reddy, J. speaking for a Bench
of three learned Judges of this Court reiterated the
following principles:
(a) “Equal pay for equal work” is not a mere
demagogic slogan but a constitutional goal
capable of attainment through constitutional
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remedies, by the enforcement of constitutional
rights (under Article 32 of the Constitution of
India).
(b) The stand (of the Government of India) that the
circumstance that persons belonging to different
departments of the government is itself a sufficient
circumstance to justify different scales of pay
irrespective of the identity of their powers, duties
and responsibilities, is unacceptable and
untenable.
(c) While equation of posts and equation of pay are
matters primarily for the Executive Government
and expert bodies like the Pay Commission and not
for the courts, where all things are equal i.e. where
all relevant considerations are the same, persons
holding identical posts may not be treated
differentially in the matter of their pay merely
because they belong to different departments.
(d) The principle of equal pay for equal work is not
an abstract doctrine when applied to government
servants performing similar functions and having
identical powers, duties and responsibilities.
(e) As matter of interpretation, the Directive
Principles, e.g. Article 39(d) of the Constitution,
have to be and have been read into the
Fundamental Rights, e.g. Articles 14 and 16 of the
Constitution. So read, the principle of equal pay
for equal work, though not expressly declared by
our Constitution to be a fundamental right, is a
constitutional goal. Construing Articles 14 and 16
in the light of the Preamble and Article 39(d), the
principle of “Equal pay for equal work” is
deducible from those articles and may be properly
applied to cases of unequal scales of pay based on
no classification or irrational classification though
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those drawing the different scales of pay do
identical work under the same employer.”
29. The principle, with reference to similar posts under same
organisation, has been discussed by the Hon‟ble Supreme Court in Mewa
Ram Kanojia vs. All India Institute of Medical Sciences , (1989) 2 SCC
235 , as under:
“ 5. While considering the question of application of
principle of “Equal pay for equal work” it has to be
borne in mind that it is open to the State to classify
employees on the basis of qualifications, duties and
responsibilities of the posts concerned. If the
classification has reasonable nexus with the objective
sought to be achieved, efficiency in the administration,
the State would be justified in prescribing different pay
scale but if the classification does not stand the test of
reasonable nexus and the classification is founded on
unreal, and unreasonable basis it would be violative of
Articles 14 and 16 of the Constitution. Equality must be
among the equals. Unequal cannot claim equality.
…
8. There are several decisions of this Court where
educational qualifications have been recognised as a
valid basis for classification. In State of Mysore v. P.
Narasingh Rao [AIR 1968 SC 349 : (1968) 1 SCR 407 :
(1968) 2 LLJ 120] , this Court held that higher
educational qualifications such as success in SSLC
examination are relevant considerations for fixation of
higher pay scale for tracers who had passed the SSLC
examination and the classification of two grades of
tracers in Mysore State, one for matriculate tracers with
higher pay scale and the other for non-matriculate
tracers with lower pay scale, was held valid. It is
pertinent to note that matriculate and non-matriculate
W.P.(C) 7498/2012 Page 18 of 41
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tracers both constituted the same service performing the
same duties and functions, yet the Court held that higher
pay scale prescribed for the matriculate tracers on the
basis of higher educational qualification was not
violative of Articles 14 and 16 of the Constitution.
In Union of India v. Dr. (Mrs) S.B. Kohli [(1973) 3 SCC
592 : 1973 SCC (L&S) 136] , classification made on the
basis of educational qualification for purposes of
promotion was upheld by this Court on the ground that
the classification made on the basis of such a
requirement was not without reference to the objectives
sought to be achieved and there could be no question of
discrimination. In State of Jammu and Kashmir v. Triloki
Nath Khosa [(1974) 1 SCC 19 : 1974 SCC (L&S) 49]
cadre of Assistant Engineers included degree-holders
and diploma-holders, they constituted one class of
service but for promotion to the post of Executive
Engineer only those Assistant Engineers were eligible for
promotion who possessed Bachelor's Degree in
Engineering and the diploma-holders were eligible only
if they had put in 7 years' minimum service no such
restriction was prescribed for degree-holders. The
diploma-holder Assistant Engineers challenged the
validity of the rule on the ground that it denied them
equal opportunity of promotion, in violation of Articles
14 and 16 of the Constitution. On a detailed
consideration a Constitution Bench of this Court upheld
the classification on the ground of difference in
educational qualification. The Court held that
clasification founded on the basis of educational
qualification had a reasonable nexus to achieve
administrative efficiency in Engineering Services. The
Court approvingly referred to the decisions of the Court
in State of Mysore v. Narasingh Rao [AIR 1968 SC 349 :
(1968) 1 SCR 407 : (1968) 2 LLJ 120] , Ganga
Ram v. Union of India [(1970) 1 SCC 377 : (1970) 3 SCR
481] and Union of India v. Dr. (Mrs) S.B. Kohli [(1973)
3 SCC 592 : 1973 SCC (L&S) 136] . The Court upheld
W.P.(C) 7498/2012 Page 19 of 41
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the classification and refused to grant any relief to
diploma-holder Engineers. In Mohd. Shujat Ali v. Union
of India [(1975) 3 SCC 76 : 1974 SCC (L&S) 454: (1975)
1 SCR 449] another Constitution Bench of this Court
upheld the classification of Supervisors into two classes,
graduates and non-graduates for the purpose of
promotion to the post of Assistant Engineers on the
ground of educational qualification although both the
class of supervisors constituted the same service.
In Federation of All India Customs & Central Excise
Stenographers (Recognised) v. Union of India [(1988) 3
SCC 91 : 1988 SCC (L&S) 673 : (1988) 7 ATC 591]
claim of Personal Assistants and Stenographers attached
to the Heads of Departments in the Customs and Central
Excise Department of the Ministry of Finance for equal
pay in parity with the Personal Assistants and
Stenographers attached to the Joint Secretaries and
officers above them in the Ministry of Finance was
rejected by this Court on the ground of the functional
requirement of the work done, training and responsibility
prescribed for the two posts. In State of U.P. v. J.P.
Chaurasia [(1989) 1 SCC 121 : 1989 SCC (L&S) 71 :
(1988) 8 ATC 929] the question arose whether it was
permissible to have two different pay scales in the cadre
of Bench Secretaries, for persons performing the same
duties and having the same responsibilities. In the light of
the various decisions of this Court it was held that the
principle of “equal pay for equal work” has no
mechanical application in every case of similar work.
Articles 14 and 16 permit reasonable classification
founded on rational basis, it is, therefore, permissible to
provide two different pay scales in the same cadre on the
basis of selection based on merit with due regard to
experience and seniority. The Court held that in such a
situation the principle of equal pay for equal work did
not apply.”
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30. Further, in Union of India vs. Dineshan K.K ., (2008) 1 SCC 586 ,
the following observations were made by the Hon‟ble Supreme Court:-
“ 12. The principle of “equal pay for equal work” has
been considered, explained and applied in a catena of
decisions of this Court. The doctrine of “equal pay for
equal work” was originally propounded as part of the
directive principles of the State policy in Article 39(d) of
the Constitution. In Randhir Singh v. Union of
India [(1982) 1 SCC 618 : 1982 SCC (L&S) 119] a
Bench of three learned Judges of this Court had
observed that principle of equal pay for equal work is
not a mere demagogic slogan but a constitutional goal,
capable of being attained through constitutional
remedies and held that this principle had to be read
under Articles 14 and 16 of the Constitution. This
decision was affirmed by a Constitution Bench of this
Court in D.S. Nakara v. Union of India [(1983) 1 SCC
305 : 1983 SCC (L&S) 145] . Thus, having regard to the
constitutional mandate of equality and inhibition
against discrimination in Articles 14 and 16, in service
jurisprudence, the doctrine of “equal pay for equal
work” has assumed status of a fundamental right.
13. Initially, particularly in the early eighties, the said
principle was being applied as an absolute rule but
realising its cascading effect on other cadres, in
subsequent decisions of this Court, a note of caution
was sounded that the principle of equal pay for equal
work had no mathematical application in every case of
similar work. It has been observed that equation of
posts and equation of pay structure being complex
matters are generally left to the executive and expert
bodies like the Pay Commission, etc. It has been
emphasised that a carefully evolved pay structure ought
not to be ordinarily disturbed by the court as it may
upset the balance and cause avoidable ripples in other
cadres as well. (Vide Secy., Finance Deptt. v. W.B.
W.P.(C) 7498/2012 Page 21 of 41
2022:DHC:2547
Registration Service Assn. [(1993) Supp (1) SCC 153 :
1993 SCC (L&S) 157 : (1993) 24 ATC 403] and State of
Haryana v. Haryana Civil Secretariat Personal Staff
Assn. [(2002) 6 SCC 72 : 2002 SCC (L&S) 822] )
Nevertheless, it will not be correct to lay down as an
absolute rule that merely because determination and
granting of pay scales is the prerogative of the
executive, the court has no jurisdiction to examine any
pay structure and an aggrieved employee has no remedy
if he is unjustly treated by arbitrary State action or
inaction, except to go on knocking at the doors of the
executive or the legislature, as is sought to be canvassed
on behalf of the appellants. Undoubtedly, when there is
no dispute with regard to the qualifications, duties and
responsibilities of the persons holding identical posts or
ranks but they are treated differently merely because
they belong to different departments or the basis for
classification of posts is ex facie irrational, arbitrary or
unjust, it is open to the court to intervene.
14. In SBI v. M.R. Ganesh Babu [(2002) 4 SCC 556 :
2002 SCC (L&S) 568] a three-Judge Bench of this
Court, dealing with the same principle, opined that
principle of equal pay is dependent 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. The functions may be the
same but the responsibilities do make a difference. It
was held that 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.
15. In State of Haryana v. Tilak Raj [(2003) 6 SCC 123:
2003 SCC (L&S) 828] it has been observed that the
principle of “equal pay for equal work” is not always
easy to apply as there are inherent difficulties in
W.P.(C) 7498/2012 Page 22 of 41
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comparing and evaluating the work of different persons
in different organisations or even in the same
organisation. It has been reiterated that this is a
concept which requires for its applicability, complete
and wholesale identity between a group of employees
claiming identical pay scales and the other group of
employees who have already earned such pay scales. It
has been emphasised that the problem about equal pay
cannot be translated into a mathematical formula.”
31. While considering the issue of “Equal Pay for Equal Work” and
parity in employment, the Hon‟ble Supreme Court in the case of Govt. of
W.B. vs. Tarun K. Roy, (2004) 1 SCC 347 , held as under:
“ 14. Article 14 read with Article 39(d) of the Constitution
of India envisages the doctrine of equal pay for equal
work. The said doctrine, however, does not contemplate
that only because the nature of the work is same,
irrespective of an educational qualification or
irrespective of their source of recruitment or other
relevant considerations the said doctrine would be
automatically applied.
XXX
20 . Question 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.”
32. Other important considerations have been observed by the Hon‟ble
Supreme Court while passing the judgement in Official Liquidator vs.
Dayanand , (2008) 10 SCC 1 that can be found in the following
paragraphs as reproduced hereunder:-
W.P.(C) 7498/2012 Page 23 of 41
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“ 94. The principle of equal pay for equal work for men
and women embodied in Article 39(d) was first
considered in Kishori Mohanlal Bakshi v. Union of
India [AIR 1962 SC 1139] and it was held that the said
principle is not capable of being enforced in a court of
law. After 36 years, the issue was again considered
in Randhir Singh v. Union of India [(1982) 1 SCC 618 :
1982 SCC (L&S) 119] , and it was unequivocally ruled
that the principle of equal pay for equal work is not an
abstract doctrine and can be enforced by reading it into
the doctrine of equality enshrined in Articles 14 and 16 of
the Constitution of India.
95. The ratio of Randhir Singh v. Union of India [(1982)
1 SCC 618 : 1982 SCC (L&S) 119] was reiterated and
applied in several cases—Dhirendra Chamoli v. State of
U.P. [(1986) 1 SCC 637 : 1986 SCC (L&S) 187]
, Surinder Singh v. CPWD [(1986) 1 SCC 639 : 1986
SCC (L&S) 189] , Daily Rated Casual Labour v. Union
of India [(1988) 1 SCC 122 : 1988 SCC (L&S) 138 :
(1987) 5 ATC 228] , Dharwad Distt. PWD Literate Daily
Wage Employees Assn. v. State of Karnataka [(1990) 2
SCC 396 : 1990 SCC (L&S) 274 : (1990) 12 ATC 902]
and Jaipal v. State of Haryana [(1988) 3 SCC 354 : 1988
SCC (L&S) 785 : (1988) 7 ATC 771] and it was held that
even a daily-wage employee who is performing duties
similar to regular employees is entitled to the same pay.
However, in Federation of All India Customs and Central
Excise Stenographers v. Union of India [(1988) 3 SCC 91
: 1988 SCC (L&S) 673 : (1988) 7 ATC 591] , Mewa Ram
Kanojia v. AIIMS [(1989) 2 SCC 235 : 1989 SCC (L&S)
329 : (1989) 10 ATC 51] , V. Markendeya v. State of
A.P. [(1989) 3 SCC 191 : 1989 SCC (L&S) 454 : (1989)
11 ATC 3] , Harbans Lal v. State of H.P. [(1989) 4 SCC
459 : 1990 SCC (L&S) 71 : (1989) 11 ATC 869] , State of
U.P. v. J.P. Chaurasia [(1989) 1 SCC 121 : 1989 SCC
(L&S) 71 : (1988) 8 ATC 929] , Grih Kalyan Kendra
Workers' Union v. Union of India [(1991) 1 SCC 619 :
1991 SCC (L&S) 621 : (1991) 16 ATC 507]
W.P.(C) 7498/2012 Page 24 of 41
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, GDA v. Vikram Chaudhary [(1995) 5 SCC 210 : 1995
SCC (L&S) 1226 : (1995) 31 ATC 129] , State of
Haryana v. Jasmer Singh [(1996) 11 SCC 77 : 1997 SCC
(L&S) 210] , State of Haryana v. Surinder
Kumar [(1997) 3 SCC 633 : 1997 SCC (L&S) 844]
, Union of India v. K.V. Baby [(1998) 9 SCC 252 : 1998
SCC (L&S) 539] , State of Orissa v. Balaram
Sahu [(2003) 1 SCC 250 : 2003 SCC (L&S) 65] , Utkal
University v. Jyotirmayee Nayak [(2003) 4 SCC 760 :
2003 SCC (L&S) 598] , State of Haryana v. Tilak
Raj [(2003) 6 SCC 123 : 2003 SCC (L&S) 828] , Union
of India v. Tarit Ranjan Das [(2003) 11 SCC 658 : 2004
SCC (L&S) 160] , Apangshu Mohan Lodh v. State of
Tripura [(2004) 1 SCC 119 : 2004 SCC (L&S) 10] , State
of Haryana v. Charanjit Singh [(2006) 9 SCC 321 : 2006
SCC (L&S) 1804] , Hindustan Aeronautics Ltd. v. Dan
Bahadur Singh [(2007) 6 SCC 207 : (2007) 2 SCC (L&S)
441] , Kendriya Vidyalaya Sangathan v. L.V.
Subramanyeswara [(2007) 5 SCC 326 : (2007) 2 SCC
(L&S) 143] and Canteen Mazdoor
Sabha v. Metallurgical & Engg. Consultants (India)
Ltd. [(2007) 7 SCC 710 : (2007) 2 SCC (L&S) 758] , the
Court consciously and repeatedly deviated from the
ruling of Randhir Singh v. Union of India [(1982) 1 SCC
618 : 1982 SCC (L&S) 119] and held that similarity in
the designation or quantum of work are not determinative
of equality in the matter of pay scales and that before
entertaining and accepting the claim based on the
principle of equal pay for equal work, the Court must
consider the factors like the source and mode of
recruitment/appointment, the qualifications, the nature of
work, the value judgment, responsibilities, reliability,
experience, confidentiality, functional need, etc.
96. In State of Haryana v. Jasmer Singh [(1996) 11 SCC
77 : 1997 SCC (L&S) 210] the two-Judge Bench laid
down the following principle : (SCC p. 81, para 8)
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“8. It is, therefore, clear that the quality of work
performed by different sets of persons holding
different jobs will have to be evaluated. There may
be differences in educational or technical
qualifications which may have a bearing on the
skills which the holders bring to their job although
the designation of the job may be the same. There
may also be other considerations which have
relevance to efficiency in service which may justify
differences in pay scales on the basis of criteria
such as experience and seniority, or a need to
prevent stagnation in the cadre, so that good
performance can be elicited from persons who
have reached the top of the pay scale. There may
be various other similar considerations which may
have a bearing on efficient performance in a job.
This Court has repeatedly observed that evaluation
of such jobs for the purposes of pay scale must be
left to expert bodies and, unless there are any mala
fides, its evaluation should be accepted.”
97. In Harbans Lal v. State of H.P. [(1989) 4 SCC 459 :
1990 SCC (L&S) 71 : (1989) 11 ATC 869] the Court held
that the claim of carpenters employed by an incorporated
company for parity in wages payable to their
counterparts in government service is unsustainable.
98. In Jawaharlal Nehru Technological University v. T.
Sumalatha [(2003) 10 SCC 405 : 2004 SCC (L&S) 219]
it was held that the respondents who were employed
under a scheme known as National Technical Manpower
Information System, which was sponsored by the then
Ministry of Education and Culture, cannot claim parity
with the regular government employees in the matter of
pay scale.
99. In Canteen Mazdoor Sabha v. Metallurgical & Engg.
Consultants (India) Ltd. [(2007) 7 SCC 710 : (2007) 2
SCC (L&S) 758] another two-Judge Bench held that
W.P.(C) 7498/2012 Page 26 of 41
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simply because some employees of a contractor of the
alleged head employer are performing the task or duties
similar to the employees of the head employer, it will not
entitle such employees to claim parity.”
33. The Hon‟ble Supreme Court in State of Punjab vs. Jagjit Singh ,
(2017) 1 SCC 148, has extensively dealt with the issue at hand in case of
temporary and regular employees and referring to several precedents, it
has observed as under:
“ 42. All the judgments noticed in paras 7 to 24
hereinabove, pertain to employees engaged on regular
basis, who were claiming higher wages, under the
principle of “equal pay for equal work”. The claim
raised by such employees was premised on the ground,
that the duties and responsibilities rendered by them
were against the same post for which a higher pay scale
was being allowed in other government departments. Or
alternatively, their duties and responsibilities were the
same as of other posts with different designations, but
they were placed in a lower scale. Having been
painstakingly taken through the parameters laid down by
this Court, wherein the principle of “equal pay for equal
work” was invoked and considered, it would be just and
appropriate to delineate the parameters laid down by this
Court. In recording the said parameters, we have also
adverted to some other judgments pertaining to
temporary employees (also dealt with, in the instant
judgment), wherein also, this Court had the occasion to
express the legal position with reference to the principle
of “equal pay for equal work”. Our consideration, has
led us to the following deductions:
42.1. The “onus of proof” of parity in the duties and
responsibilities of the subject post with the reference post
under the principle of “equal pay for equal work” lies on
the person who claims it. He who approaches the court
W.P.(C) 7498/2012 Page 27 of 41
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has to establish that the subject post occupied by him
requires him to discharge equal work of equal value, as
the reference post (see Orissa University of Agriculture
& Technology case [Orissa University of Agriculture &
Technology v. Manoj K. Mohanty, (2003) 5 SCC 188 :
2003 SCC (L&S) 645] , UT Chandigarh, Admn. v. Manju
Mathur [U.T. Chandigarh, Admn. v. Manju Mathur,
(2011) 2 SCC 452 : (2011) 1 SCC (L&S) 348] , SAIL
case [SAIL v. Dibyendu Bhattacharya, (2011) 11 SCC
122 : (2011) 2 SCC (L&S) 192] and National Aluminium
Co. Ltd. case [National Aluminium Co. Ltd. v. Ananta
Kishore Rout, (2014) 6 SCC 756 : (2014) 2 SCC (L&S)
353] ).
42.2. The mere fact that the subject post occupied by the
claimant is in a “different department” vis-à-vis the
reference post does not have any bearing on the
determination of a claim under the principle of “equal
pay for equal work”. Persons discharging identical
duties cannot be treated differently in the matter of their
pay, merely because they belong to different departments
of the Government (see Randhir Singh case [Randhir
Singh v. Union of India, (1982) 1 SCC 618 : 1982 SCC
(L&S) 119] and D.S. Nakara case [D.S. Nakara v. Union
of India, (1983) 1 SCC 305 : 1983 SCC (L&S) 145] ).
42.3. The principle of “equal pay for equal work”,
applies to cases of unequal scales of pay, based on no
classification or irrational classification (see Randhir
Singh case [Randhir Singh v. Union of India, (1982) 1
SCC 618 : 1982 SCC (L&S) 119] ). For equal pay, the
employees concerned with whom equation is sought,
should be performing work, which besides being
functionally equal, should be of the same quality and
sensitivity (see Federation of All India Customs and
Central Excise Stenographers case [Federation of All
India Customs and Central Excise
Stenographers v. Union of India, (1988) 3 SCC 91 : 1988
SCC (L&S) 673] , Mewa Ram Kanojia case [Mewa Ram
W.P.(C) 7498/2012 Page 28 of 41
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Kanojia v. All India Institute of Medical Sciences, (1989)
2 SCC 235 : 1989 SCC (L&S) 329] , Grih Kalyan Kendra
Workers' Union case [Grih Kalyan Kendra Workers'
Union v. Union of India, (1991) 1 SCC 619 : 1991 SCC
(L&S) 621] and S.C. Chandra case [S.C.
Chandra v. State of Jharkhand, (2007) 8 SCC 279 :
(2007) 2 SCC (L&S) 897 : 2 SCEC 943] ).
42.4. Persons holding the same rank/designation (in
different departments), but having dissimilar powers,
duties and responsibilities, can be placed in different
scales of pay and cannot claim the benefit of the principle
of “equal pay for equal work” (see Randhir Singh
case [Randhir Singh v. Union of India, (1982) 1 SCC 618
: 1982 SCC (L&S) 119] , State of Haryana v. Haryana
Civil Secretariat Personal Staff Assn. [State of
Haryana v. Haryana Civil Secretariat Personal Staff
Assn., (2002) 6 SCC 72 : 2002 SCC (L&S) 822]
and Hukum Chand Gupta case [Hukum Chand
Gupta v. ICAR, (2012) 12 SCC 666 : (2013) 3 SCC
(L&S) 493] ). Therefore, the principle would not be
automatically invoked merely because the subject and
reference posts have the same nomenclature.
42.5. In determining equality of functions and
responsibilities under the principle of “equal pay for
equal work”, it is necessary to keep in mind that the
duties of the two posts should be of equal sensitivity, and
also, qualitatively similar. Differentiation of pay scales
for posts with difference in degree of responsibility,
reliability and confidentiality, would fall within the realm
of valid classification, and therefore, pay differentiation
would be legitimate and permissible (see Federation of
All India Customs and Central Excise Stenographers
case [Federation of All India Customs and Central
Excise Stenographers v. Union of India, (1988) 3 SCC 91
: 1988 SCC (L&S) 673] and SBI case [SBI v. M.R.
Ganesh Babu, (2002) 4 SCC 556 : 2002 SCC (L&S) 568]
). The nature of work of the subject post should be the
W.P.(C) 7498/2012 Page 29 of 41
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same and not less onerous than the reference post. Even
the volume of work should be the same. And so also, the
level of responsibility. If these parameters are not met,
parity cannot be claimed under the principle of “equal
pay for equal work” (see State of U.P. v. J.P.
Chaurasia [State of U.P. v. J.P. Chaurasia, (1989) 1 SCC
121 : 1989 SCC (L&S) 71] and Grih Kalyan Kendra
Workers' Union case [Grih Kalyan Kendra Workers'
Union v. Union of India, (1991) 1 SCC 619 : 1991 SCC
(L&S) 621] ).
42.6. For placement in a regular pay scale, the claimant
has to be a regular appointee. The claimant should have
been selected on the basis of a regular process of
recruitment. An employee appointed on a temporary
basis cannot claim to be placed in the regular pay scale
(see Orissa University of Agriculture & Technology
case [Orissa University of Agriculture &
Technology v. Manoj K. Mohanty, (2003) 5 SCC 188 :
2003 SCC (L&S) 645] ).
42.7. Persons performing the same or similar functions,
duties and responsibilities, can also be placed in different
pay scales. Such as — “selection grade”, in the same
post. But this difference must emerge out of a legitimate
foundation, such as — merit, or seniority, or some other
relevant criteria (see State of U.P. v. J.P.
Chaurasia [State of U.P. v. J.P. Chaurasia, (1989) 1 SCC
121 : 1989 SCC (L&S) 71] ).
42.8. If the qualifications for recruitment to the subject
post vis-à-vis the reference post are different, it may be
difficult to conclude that the duties and responsibilities of
the posts are qualitatively similar or comparable
(see Mewa Ram Kanojia case [Mewa Ram Kanojia v. All
India Institute of Medical Sciences, (1989) 2 SCC 235 :
1989 SCC (L&S) 329] and State of W.B. v. Tarun K.
Roy [State of W.B. v. Tarun K. Roy, (2004) 1 SCC 347 :
W.P.(C) 7498/2012 Page 30 of 41
2022:DHC:2547
2004 SCC (L&S) 225] ). In such a case the principle of
“equal pay for equal work” cannot be invoked.
42.9. The reference post with which parity is claimed
under the principle of “equal pay for equal work” has to
be at the same hierarchy in the service as the subject
post. Pay scales of posts may be different, if the hierarchy
of the posts in question, and their channels of promotion,
are different. Even if the duties and responsibilities are
same, parity would not be permissible, as against a
superior post, such as a promotional post (see Union of
India v. Pradip Kumar Dey [Union of India v. Pradip
Kumar Dey, (2000) 8 SCC 580 : 2001 SCC (L&S) 56]
and Hukum Chand Gupta case [Hukum Chand
Gupta v. ICAR, (2012) 12 SCC 666 : (2013) 3 SCC
(L&S) 493] ).
42.10. A comparison between the subject post and the
reference post under the principle of “equal pay for
equal work” cannot be made where the subject post and
the reference post are in different establishments, having
a different management. Or even, where the
establishments are in different geographical locations,
though owned by the same master (see Harbans Lal
case [Harbans Lal v. State of H.P., (1989) 4 SCC 459 :
1990 SCC (L&S) 71] ). Persons engaged differently, and
being paid out of different funds, would not be entitled to
pay parity (see Official Liquidator v. Dayanand [Official
Liquidator v. Dayanand, (2008) 10 SCC 1 : (2009) 1
SCC (L&S) 943] ).
42.11. Different pay scales, in certain eventualities,
would be permissible even for posts clubbed together at
the same hierarchy in the cadre. As for instance, if the
duties and responsibilities of one of the posts are more
onerous, or are exposed to higher nature of operational
work/risk, the principle of “equal pay for equal work”
would not be applicable. And also when the reference
post includes the responsibility to take crucial decisions,
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and that is not so for the subject post (see SBI
case [SBI v. M.R. Ganesh Babu, (2002) 4 SCC 556 :
2002 SCC (L&S) 568] ).
42.12. The priority given to different types of posts under
the prevailing policies of the Government can also be a
relevant factor for placing different posts under different
pay scales. Herein also, the principle of “equal pay for
equal work” would not be applicable (see State of
Haryana v. Haryana Civil Secretariat Personal Staff
Assn. [State of Haryana v. Haryana Civil Secretariat
Personal Staff Assn., (2002) 6 SCC 72 : 2002 SCC (L&S)
822] ).
42.13. The parity in pay, under the principle of “equal
pay for equal work”, cannot be claimed merely on the
ground that at an earlier point of time the subject post
and the reference post, were placed in the same pay
scale. The principle of “equal pay for equal work” is
applicable only when it is shown, that the incumbents of
the subject post and the reference post, discharge similar
duties and responsibilities (see State of W.B. v. Minimum
Wages Inspectors Assn. [State of W.B. v. W.B. Minimum
Wages Inspectors Assn., (2010) 5 SCC 225 : (2010) 2
SCC (L&S) 1] ).
42.14. For parity in pay scales under the principle of
“equal pay for equal work”, equation in the nature of
duties is of paramount importance. If the principal nature
of duties of one post is teaching, whereas that of the other
is non-teaching, the principle would not be applicable. If
the dominant nature of duties of one post is of control
and management, whereas the subject post has no such
duties, the principle would not be applicable. Likewise, if
the central nature of duties of one post is of quality
control, whereas the subject post has minimal duties of
quality control, the principle would not be applicable
(see U.T. Chandigarh, Admn. v. Manju Mathur [U.T.
W.P.(C) 7498/2012 Page 32 of 41
2022:DHC:2547
Chandigarh, Admn. v. Manju Mathur, (2011) 2 SCC 452
: (2011) 1 SCC (L&S) 348] ).
42.15. There can be a valid classification in the matter of
pay scales between employees even holding posts with
the same nomenclature i.e. between those discharging
duties at the headquarters, and others working at the
institutional/sub-office level (see Hukum Chand Gupta
case [Hukum Chand Gupta v. ICAR, (2012) 12 SCC 666
: (2013) 3 SCC (L&S) 493] ), when the duties are
qualitatively dissimilar.
42.16. The principle of “equal pay for equal work”
would not be applicable, where a differential higher pay
scale is extended to persons discharging the same duties
and holding the same designation, with the objective of
ameliorating stagnation, or on account of lack of
promotional avenues (see Hukum Chand Gupta
case [Hukum Chand Gupta v. ICAR, (2012) 12 SCC 666
: (2013) 3 SCC (L&S) 493] ).
42.17. Where there is no comparison between one set of
employees of one organisation, and another set of
employees of a different organisation, there can be no
question of equation of pay scales under the principle of
“equal pay for equal work”, even if two organisations
have a common employer. Likewise, if the management
and control of two organisations is with different entities
which are independent of one another, the principle of
“equal pay for equal work” would not apply (see S.C.
Chandra case [S.C. Chandra v. State of Jharkhand,
(2007) 8 SCC 279 : (2007) 2 SCC (L&S) 897 : 2 SCEC
943] and National Aluminium Co. Ltd. case [National
Aluminium Co. Ltd. v. Ananta Kishore Rout, (2014) 6
SCC 756 : (2014) 2 SCC (L&S) 353] ).”
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34. In Union of India vs. Manoj Kumar, 2021 SCC OnLine SC 646,
while overturning the impugned judgment granting parity, the Hon‟ble
Supreme Court observed as under:
“ 20. We are fortified in the view we are seeking to adopt
in interpreting the aforesaid paragraphs of the Pay
Commission by the observations in Union of
7
India v. Tarit Ranjan Das, where it was opined that the
principle of equal pay for equal work cannot be applied
merely on basis of designation. While dealing with the
th
5 Pay Commission recommendations with respect to
functional requirements, it was held that there was no
question of any equivalence on that basis. The said case
dealt with Stenographers of the Geological Survey of
India. While observing that as a general statement it was
correct to state that the basic nature of work of a
Stenographer remained by and large the same whether
they were working for an officer in the Secretariat or for
an officer in a subordinate office; it was held that Courts
ought not to interfere if the Commission itself had
considered all aspects and after due consideration opined
that absolute equality ought not to be given.
21. In the end we would like to reiterate that the aspect of
disparity between the Secretariat and the field offices was
a matter taken note of by the Commission itself while
making the recommendations. Yet to some extent, a
separate recommendation was made qua Secretariat
Organizations and non-Secretariat Organizations. Once
these recommendations are separately made, to direct
absolute parity would be to make the separate
recommendations qua non-Secretariat Organizations
otiose. If one may say, there would have been no
requirement to make these separate recommendations if
everyone was to be treated on parity on every aspect.”
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35. The Hon‟ble Supreme Court, most recently in State of Madhya
th
Pradesh & Ors. vs. Seema Singh , Civil Appeal No. 3892 of 2022 on 12
May 2022, while adjudicating a similar question which is before this
Court, observed as under:-
“In Ramesh Chandra Bajpai (supra), this Court further
held that it was well-settled that the doctrine of equal pay
for equal work could only be invoked when the employees
were similarly circumstanced in every way. Mere
similarity of designation or similarity or quantum of work
was not determinative of equality in the matter of pay
scales. The Court had to consider all the relevant factors
such as the mode of recruitment, qualifications for the
post, the nature of work, the value of work,
responsibilities involved and various other factors.
19. In the instant case, it would be pertinent to note that
the eligibility criteria for appointment of Museum
Assistant-cum- Librarian under the 1987 Rules was
different from the eligibility criteria of appointment of
Librarian under the 1990 Rules. Under the 1987 Rules,
the minimum qualification for the post of Museum
Assistant cum Librarian was graduate but under the 1990
Rules, the minimum qualification was post graduate
degree.”
36. The abovementioned precedents lay down the several
considerations to be borne in mind while deciding the issue of parity
between two posts, whether in the same organisation or across different
organisations/departments. There is definitely no mathematical
application of the principle of parity and „Equal Pay for Equal Work‟ and
it is the Courts of the country that have laid down various factors for
deciding the question of parity amongst different designations. While
similar nature of work, responsibilities, duties and reliabilities are
W.P.(C) 7498/2012 Page 35 of 41
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relevant considerations, qualifications, mode of recruitment as well as
merit have also been observed to be significant factors while evaluating
parity and consequent question of equality of pay scale. Parity between
two or more positions may be drawn when there is no intelligible
differentia found in the nature of work and responsibilities of the two.
The position of law is also settled when a person claiming parity of pay
scales with the class or category had been situated in the past at par in the
equivalent pay scale with the counterparts with whom such parity is
claimed, the question of historical parity amongst such counterparts may
be said to be established.
37. Although the Hon‟ble Supreme Court has reiterated time and again
that „Equal Pay for Equal Work‟ is a constitutional goal, and by and large
the precedents have also acknowledged and resolved the issue of disparity
amongst and across institutions, there is no absolute application of the
principle by default, within or across organisations/departments.
Organisations as well as the government have the liberty to set different
pay-scale, where they make a reasonable, valid and intelligible
classification for employees placed at similar grades and work profiles.
However, it is crucial that this classification does not discriminate
between employees who have identical work, in terms of nature of such
work, responsibility involved, confidentiality, qualifications, mode of
recruitment and other such significant factors. Irrational classification and
apparent discrimination cannot be justified where employees placed at an
identical position are treated differently, whether working under the same
employer or placed in different public departments.
W.P.(C) 7498/2012 Page 36 of 41
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38. The fundamental of the principle, hence, is how closely a nexus or
similarity can be found between two post/positions in different
organisations/departments and how this nexus should affect the pay for
the employees appointed in this position. The above laid principles by the
Hon‟ble Supreme Court are also to be read in consonance with the
Reports of the Sixth Central Pay Commission as well as the Seventh
Central Pay Commission. The Sixth Pay Commission observed that the
field offices are at the cutting edge of administration and may, in most
cases, determine whether a particular policy turns out to be a success or a
failure in terms of actual benefit to the consumer. It noted that time has
come to grant parity between similarly placed personnel employed in
field offices and in the Secretariat but with due attention to hierarchy and
career progression as well as the functional considerations and
relativities. The Commission consolidated different cadres and placed
them under one pay scale and also strongly recommended parity between
organisations that have historical parity. The Report of the Sixth Central
Pay Commission thereby recommended full parity between Secretariat
Offices.
39. Reference is deemed necessary to be made to the Report of the
Seventh Central Pay Commission as well which discussed the issue of
parity between the Secretariat and field offices. The relevant part is
reproduced hereunder:-
“The Commission accordingly strongly recommends
parity in pay between the field staff and headquarter staff
up to the rank of Assistants on two grounds- firstly the
field staff are recruited through the same examination
W.P.(C) 7498/2012 Page 37 of 41
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and they follow the same rigour as the Assistants of CSS
and secondly there is no difference in the nature of
functions discharged by both. Therefore to bring in parity
as envisaged by the VI CPC, this Commission
recommends bringing the level of Assistants of CSS at
par with those in the field offices who are presently
drawing GP 4200. Accordingly, in the new pay matrix the
Assistants of both Headquarters as well as field will come
to lie in Level 6 in the pay matrix corresponding to pre
revised GP 4200 and pay fixed accordingly. Similarly the
corresponding posts in the Stenographers cadre will also
follow similar pay parity between field and headquarter
staff. The pay of those Assistants/Stenographer who have
in the past, been given higher Grade pay would be
protected.
Recently, through a government order similar „edge in
pay‟ has also been extended to the Upper Division Clerks
belonging to CSS in the Secretariat by way of grant of
non-functional selection grade to GP 4200 (available to
30 percent of UDCs). It is expected to lead to further
resentment at the level of UDCs in the field as well as
with other non-secretariat posts with which they had
parity before. Since as per the recommendation of this
Commission, Assistants have now come to lie in Level 6
of the pay matrix which corresponds to pre revised GP
4200, this Commission recommends withdrawal of non-
functional selection grade to GP 4200 in respect of
Upper Division Clerks belonging to CSS.”
40. The Central Pay Commission being the expert body for deciding
the matters of pay scale and pay grades also recommends that there
should be parity between similarly placed employees. However, it lays
down certain conditions and factors that help to ascertain whether there is
a nexus or parity between two otherwise apparently similar posts and
mentions two grounds, that is, similar mode of recruitment and nature of
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work. The expert Commission thereby lays down reasonable and
legitimate classification while deciding whether such parity even exists.
41. In the instant matter, parity is being sought in terms of position of
employment and the subsequent benefits that accrue to the employees
carrying out similar duties and having equal or identical conditions,
nature and degree of work while holding the said position of employment
at the Telecom Disputes Settlement and Appellate Tribunal and the
Secretariat.
42. The petitioner was placed in the pay scale of Rs. 5500-6000,
whereas, it has been alleged that counterparts in the CSSS have been
placed under the pay-scale of Rs. 6500-10500. However, keeping in view
the recommendations of the Commission as well as the opinion of the
Hon‟ble Supreme Court, it is found that to establish parity in
employment, more significant factors including qualifications and mode
of recruitment are to be given equal consideration. The question, hence, is
whether the process of recruitment for the concerned position of
Stenographers in CSSS and respondent no. 1 is on the same footing or
not. It is the case of the respondents that the position under the CSSS is
filled by way of direct recruitment by way of clearing the All-India
Competitive Examination whereas under the respondent no. 1 the position
is to be occupied on deputation basis, without passing of any competitive
examination.
43. For any benefit to be accrued to an employee, even for promotions
etc., qualifications and merit are few of the crucial considerations. A
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discrimination, which is irrational without any intelligible differentia
cannot be invidiously placed upon a person in the matter of pay scale.
However, qualification and mode of recruitment cannot be said to be
irrationally placed factors. Moreover, it cannot be said that the petitioner
working at the respondent no. 1 has the same rigours as that of the
Secretariat in terms of the requirement for recruitment, since, an
employee being deputed cannot be placed at par with an employee
appearing for and clearing a competitive examination where only a
selected few fill up the position at Ministerial organisation from amongst
thousands of those appearing for the examination. A classification based
on selection and qualification as well as merit cannot be said to be
unreasonable and therefore, the parity sought by the petitioner is beyond
the scope as interpreted by the Hon‟ble Supreme Court.
CONCLUSION
44. Keeping in view the above facts and circumstances, the position of
law and precedents as well as the fact that there is an apparent disparity
between the position held by the petitioner with the respondent no. 1 and
his counterparts at the CSS, this Court is of the considered view that the
petitioner is not entitled to any benefit sought and prayed by him of an
upgraded pay scale. For the reasons as aforestated, this Court does not
th
find any error in the order dated 26 September 2011 passed by the
respondent no. 1 rejecting the representation by the petitioner.
45. Accordingly, the instant petition stands dismissed for being devoid
of any merit.
W.P.(C) 7498/2012 Page 40 of 41
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46. Pending application, if any, also stands disposed of.
47. The judgment be uploaded on the website forthwith.
(CHANDRA DHARI SINGH)
JUDGE
JULY 12, 2022
Aj/Ms
W.P.(C) 7498/2012 Page 41 of 41