Full Judgment Text
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PETITIONER:
FEDERATION OF ALL INDIA CUSTOMS & CENTRALEXCISESTENOGRAPHERS
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT05/05/1988
BENCH:
MUKHARJI, SABYASACHI (J)
BENCH:
MUKHARJI, SABYASACHI (J)
PATHAK, R.S. (CJ)
CITATION:
1988 AIR 1291 1988 SCR (3) 998
1988 SCC (3) 91 JT 1988 (2) 519
1988 SCALE (1)1088
CITATOR INFO :
R 1989 SC 19 (29)
F 1989 SC 30 (3)
F 1989 SC1256 (8)
F 1989 SC1308 (11)
R 1990 SC1106 (43)
RF 1991 SC1173 (6)
ACT:
Service matter-Stenographers of Grade I attached with
officers in pay scale of Rs.2500-2750 (Level I) in the
Customs and Central Excise Departments of Ministry of
Finance, seeking pay parity with stenographers attached to
Joint Secretaries and officers above in the Ministry,
alleging discrimination violative of Articles 14 and 16(1)
of Constitution of India, and that there being no basis for
differentiation between petitioners and their counterparts.
HEADNOTE:
By this writ petition, Personal Assistants and
Stenographers (Grade I) in the pay-scale of Rs. 550-900
attached with officers in the pay-scale of Rs.2500-2750
(Level I) i.e. heads of the departments in the Customs and
Central Excise Departments of the Finance Ministry, sought
parity with the pay scale of the stenographers attached to
the Joint Secretaries and the officers above. The
petitioners asserted that they had been and were
discriminated vis-a-vis the personal assistants and
stenographers attached to the Joint Secretaries and the
officers above in the Ministry, and claimed that they should
be placed in the pay scale of Rs.650-1040 with effect from
1st January 1973. They contended that the basic
qualifications, method, manner and source of recruitment and
grades of promotion were the same as of their counterparts
attached to the Joint Secretaries/Secretaries and other
officers in the Secretariat. According to them, even on the
criteria adopted by the Third Pay Commission there was no
basis for any differentiation between the petitioners and
their counterparts. While the petitioners got a grade of
Rs.550-900, their counterparts were in the pay scale of
Rs.650-1040. The petitioners asserted that this
differentiation without any rational basis was
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discrimination violative of Articles 14 and 16(1) of the
Constitution of India. They contended for equal pay for
equal work, and alleged discrimination in the adoption of
the recommendation of the Third Pay Commission.
The respondents denied that there was any
discrimination, differentiation without basis and referred
to the Report of the Third Pay Commission, recommending
different and low scales of pay for the
999
stenographers of the non-participating attached and
subordinate offices in comparison with those in the Central
Secretariat. It was emphasised that the difference in the
functional requirements of the work done was a point. In
devising any scales of various posts/categories inter alia
the degree of skill, experience involved, training required,
responsibility taken, strain, fatigue, risk and
confidentiality undertaken, mental and physical requirements
were the factors to be borne in mind.
Dismissing the petition with an observation, the Court,
^
HELD: The petition had to be disposed of on the basis
of the position prevailing prior to the report of the Fourth
Pay Commission and its acceptance/implementation. [1007B]
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. Often the difference is
a matter of degree and 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 bonafide, reasonably on an
intelligible criteria, having a rational nexus with the
object of differentiation, such differentiation will not
amount to discrimination. Equal pay for equal work is a
concomitant of Article 14 of the Constitution. But it
follows that equal pay for unequal work will be a negation
of that right. [1009A-C]
Differentiation in implementing the award or the
recommendations of Pay Commission without rational basis may
amount to discrimination. However, in this case, there is an
element of faith, reliability and responsibility and the
functional responsibilities and the requirements of persons
doing the same amount of physical work may be different in
some cases, depending upon the officers with whom the
stenographers and personal assistants are attached. The
basic principles on which differentiation would not amount
to discrimination, violative of Article 14 or Article 16(1)
of the Constitution are well-settled. Article 14 strikes at
the arbitrariness in State action and ensures fairness and
equality of treatment. It is attracted where equals are
treated differently without any reasonable basis. Equal laws
must be applied equally and there should be no
discrimination between one person and another if as regards
the subject-matter of either administrative action or
legislation, their position is substantially the same.
Article 14 forbids
1000
class legislation but permits reasonable classification for
the purpose of legislation or administrative mandate. The
classification must, however, be founded on an intelligible
basis which distinguishes persons or things grouped together
from those left out of the group and that differentia must
have a rational nexus with the object to be achieved by the
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differentiation made in the statute or order in question.
There ought to be causal connection between the basis of
classification and the object of classification. The
observations of the Constitution Bench of this Court in D.S.
Nakara & Ors. v. Union of India, [1983] 2 S.C.R. 165 may be
seen in this connection. [1011B-G]
In this case, differentiation had been sought to be
justified in view of the nature and the types of the work
done, that is, on intelligible basis. The same amount of
physical work may entail different quality of work, some
more sensitive, some requiring more tact, some less-it
varies with nature and culture of employment. The problem
about equal pay cannot always be translated into a
mathematical formula. If it has a rational nexus with the
object to be sought for a certain amount of value judgment
of the administrative authorities charged with fixing the
pay scale has to be left with them and it cannot be
interfered with by the Court unless it is demonstrated that
either it is irrational or based on no basis or arrived at
mala fide either in law or fact. In the light of the
averments made and in the facts of this case, it was not
possible to say that the differentiation was based on no
rational nexus with the object sought to be achieved. This
application must fail and was dismissed. This, however,
would not in any way prevent or prejudice the Government
from reviewing the situation in the light of the report of
the Fourth Pay Commission or any other appropriate body, if
any, with such modification as the Government and the
authorities concerned considered fit and proper. [1013G-
H;1014A-D]
Purshottam Lal & Ors. v. Union of India & Anr., AIR
1973 SC 1088; Laljee Dubey & Ors. v. Union of India & Ors.,
[1974] 2 S.C.R. 249; Randhir Singh v. Union of India & Ors.,
[1982] 3 SCR 298; D.S. Nakara & Ors. v. Union of India,
[1983] 2 SCR 165; P.K. Ramachandra Iyer & Ors. v. Union of
India & Ors., [1984] 2 SCR 200; Delhi Vetrinary Association
v. Union of India & Ors., [1984] 3 SCR 429; P. Savita v.
Union of India & Ors., [1985] Suppl. 1 SCR 101; Surinder
Singh and Anr. v. Engineer-in-chief, C.P.W.D. & Ors., [1986]
1 SCC 639; Frank Anthony Public School Employees’
Association v. Union of India & Ors., [1986] 4 SCC 707;
Dhirendra Chamoli & Anr. v. State of U.P., [1986] 1 SCC 637;
Union of India & Anr. v. R.G. Kashikar & Anr., AIR 1986 SC
431; M.P. Singh Deputy Superintendent of Police,
1001
C.B.I. and Ors.v. Union of India & Ors., J.T. 1987 1 SC 146
and M/s. Mackinnon Mackenzie & Co. Ltd. v. Audrey D’Costa &
Anr., SLP (Civil) No. 1265/87 decided on March 26, 1987,
referred to.
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition No. 5019 of 1982.
(Under Article 32 of the Constitution of India.)
M.S. Ganesh for the Petitioner.
V.K. Kanth, N.S. Das Behal and Ms. Sushma Relan for the
Respondents.
The Judgment of the Court was delivered by
SABYASACHI MUKHARJI, J. This petition under Article 32
of the Constitution, in a representative capacity on behalf
of the stenographers (Grade I) who are attached with
officers in the pay scale of Rs.2500-2750 (Level I), seeks
parity with the pay scale of the stenographers attached to
the Joint Secretaries and officers above that rank. It is
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stated that the petitioners are in the pay scale of Rs.550-
900. The petitioners claim that they should be placed in the
pay scale of Rs.650-1040 with effect from 1st of January,
1973. It must, however, be mentioned that this petition was
filed on or about 7th of May, 1982 and submissions on this
petition were made in the end of November, 1986. Therefore,
the position pertaining to the controversy in this case is
prior to the report or the implementation of the Fourth Pay
Commission. In short, the petitioners are personal
assistants and stenographers attached to the heads of the
departments in the Customs and Central Excise Departments of
the Ministry of Finance. They assert that they have been and
are discriminated vis-a-vis personal assistants and
stenographers attached to the Joint Secretaries and officers
above them in the Ministry. In brief, it is the case of the
petitioners that between 28th of January, 1955 to 8th of
November, 1957 the Ministry of Finance prescribed certain
educational qualifications and technical proficiency
qualifications for both Stenographers and Steno-typists. On
or about 26th of April, 1968, the Department of Revenue,
Central Board of Excise and Customs made provisions for
filling the posts of Stenographers by direct recruitment and
prescribed qualifications etc. for the same. In July, 1969
the Government of India, Ministry of Home Affairs classified
the posts of Stenographers sanctioned at different levels
into four grades viz., Grade III, II, I and Selection Grade.
Posts attached to Secrataries and Additional Secretaries
were classi-
1002
fied as Selection Grade originally and were given pay of
Rs.350 (500)900 with effect from 1st of August, 1969;
Stenographers Grade-II (Rs.210-530) placed with Joint
Secretaries and officers of equivalent rank were upgraded to
Grade I in the pay scale of Rs.350(400)-770;Grade-II
stenographers were given Rs.210-530; Grade III stenographers
were given Rs.130-280 and Grade-III in petitioners’ offices
were given Rs.130-300. It is the case of the petitioners
that the counterparts of the petitioners (Grade-II
Stenographers) were in the pay scale of Rs.210-530 and
petitioners in Rs.210-425. Criteria of pay
scales/status/rank of officers for the scale of pay of
stenographers were made out. In 1970 Ministry of Home
Affairs set out the category of officers viz. Joint
Secretaries to the Government of India and officers of
equivalent rank are entitled to the sanction of scale of
category of stenographers Grade-I-Sr.P.A. in the pay-scale
of Rs.350-770. Criteria of status/rank of an officer was
again established for the pay scale of stenographers.
Ministry of Home Affairs on or about 29th of June, 1972
pursuant to the decision taken on that date reached in the
NCJCM relates to creation of posts of Stenographers Grade-I
and Grade-II in subordinate offices and other offices of the
Government of India and also identified/set out/clarified
that the posts of Stenographers attached to officers whose
status is higher than that of Deputy Secretary to the
Government of India shall be in the scale of Rs.210-425.
Criteria of status of an officer for scale of pay of
Stenographers was again established. Thereafter there was
the Third Pay Commission’s report which was accepted and
recommendations were given effect to. As a result of the
various Government notifications thereafter and Rules
framed, it is the case of the petitioners that their
counterparts, that is to say, Stenographers Grade-I
attached/sanctioned to the Joint Secretaries and equivalent
officers were given the pay scale of Rs.650(710)-1040;
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whereas the petitioners whose posts were/are sanctioned and
attached with the officers of the same Government Ministry
of Finance and the Department of Revenue and the same
administration and Grade Level I (Rs.2500-2750) Joint
Secretaries and Level-II (Rs.2250-2500) Directors, who are
also Heads of Departments, and are at par in
seniority/promotion with the counterparts officers in the
Department of Revenue were given only Rs.425-700, whereas
the Stenographers Grade-I/Senior Grade, the petitioners
discharged the same functions and indeed, have sometimes
more onerous duties and responsibilities than their
counterparts attached with Joint Secretaries and Level-II
Directors, according to the petitioners. From the affidavit
filed on behalf of the petitioners in reply to the
opposition by the respondents, it appears that the method of
recruitment in respect of Grade-I stenographers in the
Department are as follows:
1003
(i) Petitioners’ counterparts in the so-called Secretariat
& participating attached offices-CSSS.
_______________________________________________________
Grade of Classi- Designation/level/ Date of
Stenographers fication. status/rank/grades sanction/
and scale of and pay scales of or up
pay. officers for whom gradation.
sanctioned/attached.
_______________________________________________________
(1) (2) (3) (4)
_______________________________________________________
Grade-B Central (i) Joint Secretaries
(Grade-I) Civil & Equivalent.
Rs.650-(710)- Service Rs.2500-2750 1.1.1973
1040. Group ’B’
(Gazetted)(ii) Directors &
Equivalent.
Rs.2250-2500 12.11.1975
(iii) Directors &
Equivalent.
Rs.2000-2250 23.1.1984
_______________________________________________________
(ii) Petitioners’ Officers i.e. so called non-participating
attached and subordinate offices (Directorates &
Collectorates of Customs & Central Excise):
_______________________________________________________
(1) (2) (3) (4)
_______________________________________________________
Grade-I Central (i) Heads of the Departments
Rs.550-900 Civil *Directors/
Service Collectors of
Group ’B’ Customs & Central
(non- Excise Level-I
gazetted). Equivalent to
Joint Secretaries
Rs.2500-2750. 4.7.78
(ii) Directors/
Collectors of
Customs & Central
Excise Level-II
Equivalent to
Directors (IRS
IC & CE Service
1004
Rs.2250-2500 4.7.1978
(iii) Directors/
Generals/
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Principal Collectors
i.e. Level-I Col
lectors + Rs.250
S.P. Equivalent to
pay scale of
Addl. Secretary
Rs.3000 i.e. Rs.2500
-2750 + SP of
Rs.250
/* All Heads
of the Depart-
ments.
x x x x x x x
(iii) Comparative Position
_______________________________________________________
Officers’ pay scales Pay scales of Petitioners
in the two offices Stenographers pay scales with
(Petitioners & their Gr. I in Sectt.these officers.
counterparts) & Participating
Offices (Petitioners
counterparts)
sanctioned with these
officers.
(1) (2) (3)
_______________________________________________________
Rs.2500-2750 Rs.650(710)-1040 Rs.425-700
w.e.f.1.1.1973. w.e.f.1.1.73
Rs.550-900
w.e.f.4.7.78
Rs.2250-2500 Rs.650(710)-1040 Rs.425-700
w.e.f.12.11.75. w.e.f.1.1.73
Rs.550-900
w.e.f.4.7.78.
Rs.2000-2250 Rs.650(710)/1040 Rs.425-700
w.e.f.23.1.1984. w.e.f.1.1.1973
Rs.2500-2750+ Rs.650(775)-1200 Rs.550-900
Spl Pay of Rs.250 w.e.f.1.1.73
i.e.Rs.3000
_______________________________________________________
1005
In the rejoinder filed on behalf of the petitioners in
this application by one Ved Bhardwaj, General Secretary of
the Federation, it is stated that the correct position of
recruitment and position vis-a-vis the petitioners
counterparts in the so-called secretariat and participating
attached offices are as follows:
"(i) The petitioners and their Secretariat
counterparts are both members of the same Central
Civil Service;
(ii) They are both Stenographers Grade-I belonging
to Group ’B’ of the Service except that the
Secretariat Stenographers are gazetted, whereas
the petitioners are not. This exception is a
purely fortuitous circumstances;
(iii) The petitioners and their counterparts are
both sanctioned, assigned to and attached with
officers who are in the pay scales of Rs.2500-
2750, Rs.2250-2500 and Rs.2000-2250;
(iv) Majority of the petitioners’ posts are
sanctioned/ attached with Heads of the
Department."
The petitioners assert that the above facts reinforce
the petitioners’ submissions that as between them and their
Secretariat counterparts all things are equal i.e., all
relevant considerations governing both are the same and they
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hold identical posts. According to the petitioners they
discharge the same functions and, indeed, some times more
onerous duties and responsibilities than their counterparts
whether in the Ministry of Finance or other Ministeries in
the Central Secretariat. In the very nature of their service
and its concomitant duties and obligations, which concern
the administration and execution of matters falling under
the Customs Act, 1962, the Central Excise and Salt Act,
1944, the Foreign Exchange Regulations Act, 1973 and other
Acts. The petitioners have various duties to perform which
according to them are as follows:
"(a) long and arduous hours of work, generally
extending late in the evening beyond normal
office hours and sometimes throughout the
night in cases of emergency that have become
all too frequent owing to increased punitive
and preventive detention cases arising under
these Acts resulting in proceedings before
all levels of Courts including this
Honourable
1006
Court, and a spate of Parliament Questions
affecting the Ministry of Finance, Department
of Revenue, and the petitioners’ Department
in particular in all its administrative
aspects and ramifications. The petitioners
have no option but to discharge these duties
when called upon to do so and their
willingness to forego overtime (in cases
where the Stenographers are entitled) is not
accepted by the officers as affording an
excuse to relieve the petitioners of such
duties and hours of work.
(b) an excessively recurring volume of dictation
and typing, day to day to cope with the
normal and emergent exigencies, including
written correspondence, recording and
transcribing of notes on inspection tours and
preparation of investigation and tour reports
for the superior officers; of notes and
memoranda for counsel in court proceedings,
of briefs for official statements and
conferences and replies to Parliament
Questions and the Public Accounts Committee,
Chambers of Commerce, Customs and Central
Excise Advisory Councils and other bodies on
fiscal policies like Commissions/Committees,
detailed reports constituting background
material with reference to cases or matters
falling within the purview of any one or more
of the aforesaid Acts, and so on.
(c) observing the very stringent requirements of
secrecy necessarily involved in such cases or
matters,
(d) the consequent constant exposure to security
risks and to personal safety with
accompanying mental tension and strain."
The petitioners assert that basic qualifications,
method, manner and source of recruitment and grades of
promotions are the same as their counterparts attached to
the Joint Secretaries/Secretaries and other officers in the
Secretariat. According to the petitioner even on the
criteria adopted by the Third Pay Commission they seek
herein to demonstrate that there was no basis for any
differentiation between the petitioners and their
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counterparts. While the petitioners get a grade of Rs.550-
900 their counterparts are in the pay scale of Rs.650-1040.
The petitioners assert that this is discrimination. This
differenti
1007
ation without any rational basis is discrimination violative
of Article 14 and Article 16(1) of the Constitution of
India. They clamour for equal pay for equal work. They also
allege that their has been discrimination in the adoption of
the recommendations of the Third Pay Commission as detailed
in their petition.
This petition has been disposed of on the basis of the
position prevailing prior to the report of the Fourth Pay
Commission and its acceptance or implementation. The
respondents on the other hand deny that their is any
discrimination, differentiation without basis. The
respondents by their affidavit filed by one Shri S.P. Kundu,
Under Secretary to the Government of India, Ministry of
Finance assert that the Secretariat of the
Ministries/Departments of the Government of India together
constitute Headquarters Organisation. In the administrative
hierarchy of the Central Government, the Secretariat occupy
according to respondents a key position and the main role of
the Secretariat is to help the Government in the tasks of
formulation of policies, to prepare programmes in order to
translate these policies, into co-ordinated action and to
ensure the effective execution of Government policies
through periodical review. The Secretariat also helps
Ministers to discharge their accountability to Parliament
including the various Parliamentary Committees. According to
the respondents detailed execution of Government’s policies
specially in the field is left to the agencies outside the
Secretariat which are called attached or subordinate offices
of the Ministries, but they are always subject to
supervision by the Secretariat. The respondents state that
to man the various stenographic posts in the Headquarters,
the Government constituted the Central Secretariat
Stenographers Service (CSSS) which also cater to the needs
of such posts in several attached offices which are known as
participating offices. But none of the attached offices,
assert the respondents, of the Department of Revenue are
participating offices. Therefore, keeping in view the
importance and the nature and the type of the work performed
in the Ministries/Departments of the Government of India
vis-a-vis those in the attached and subordinate offices and
consequently the nature of stenographic assistance required,
according to the respondents the Third Pay Commission
recommended different scales of pay for Stenographers in
CSSS and those in the non-participating attached and
subordinate offices. The respondents in this connection have
drawn our attention to the Report of the Third Pay
Commission in recommending different and lower scales of pay
for the stenographers of the non-participating attached and
subordinate offices in comparison with those in the Central
Secretariat as follows:
1008
"As a general statement, it is correct to say
that the basic nature of a stenographer’s work
remains by and large the same whether he is
working with an officer in the secretariat or with
an officer in the subordinate office. We feel,
however, that the position needs to be examined a
little more critically because the size of a
stenographer’s job is very much dependent upon the
nature of the work entrusted to that officer. It
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would not be correct therefore to go merely by
status in these matters and disregard the
functional requirements. By the very nature of
Secretariat working the volume of dictation and
typing work can be expected to be heavier than in
a subordinate office. Also the requirement of
secrecy even in the civil offices of the
Secretariat can be very stringent. Considering the
differences in the hierarchical structure and in
the type of work transacted in the Secretariat and
in the subordinate offices, we are not in favour
of adopting a uniform pattern. Once the functional
requirements are seen to be different for the
Secretariat and the subordinate office, it will
not be worth while to aim for absolute parity in
the pay scale of Stenographers working on the two
sides."
What was emphasised before us was that the difference
in the functional requirements of the work done was one of
the points. The respondents say that in devising any scales
of various posts/categories, inter alia, the degree of
skill, experience involved, training required,
responsibility taken, strain, fatigue, risk and
confidentiality undertaken, mental and physical requirements
are factors to be borne in mind. It has been emphasised by
the respondents that though the duties and works are
identical between the petitioners and their counterparts
attached to the Secretaries in the Secretariat, their
functions are not identical with regard to their duties and
responsibilities. The respondents state that the
stenographers attached with the officers in the Secretariat
formed a distinguishable class as they have to assist the
officers in the discharge of their duties and high
responsibilities which according to the respondents are of a
much higher nature than in the attached and subordinate
offices. According to the respondents the Joint Secretaries
and Directors in the Central Secretariat performed functions
and duties of higher responsibilities than those performed
by the Heads of Departments although they are borne on
identical scales of pay. It is in this background of the
facts that the claims of the petitioner have to be judged.
1009
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 criteria 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.
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 & Others. v.
Union of India & Anr., A.I.R. 1973 SC 1088 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 and Others v. Union of India and
Others, [1974] 2 S.C.R. 249 this principle was reiterated
again. This Court in Randhir Singh v. Union of India & Ors.,
[1982] 3 S.C.R. 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.210-70 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
1010
a write under Art.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 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
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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 those drawing the different scales of pay
do identical work under the same employer."
1011
The Court further expressed the view that on the
aforesaid interpretation in the facts of that case, it was
proper to direct the Central Government to fix pay scales on
par for persons doing identical work under the same
employer. It is, however, to be borne in mind what has been
emphasised by the respondents in the instant case on this
aspect. That case related to the drivers who had been doing
physical work, in the case of stenographers and personal
assistants, there is an element of faith, reliability and
responsibility and the functional responsibilities and the
requirements of persons doing same amount of physical work
may be different in some cases depending upon the officers
with whom the stenographers and personal assistants are
attached. On behalf of the petitioners, it is emphasised
that Heads of Departments who are in the senior
Administrative Grade-Level-I (Rs.2500-2750) which is
equivalent to the pay scale of the Joint Secretaries in the
Ministries and their nature of work is virtually the same.
They have also to deal with sensitive matters. The basic
principles on which differentiation would not amount to
discrimination, violative of either Article 14 of Article
16(1) of the Constitution are well settled. Article 14 of
the Constitution strikes at the arbitrariness in State
action and ensures fairness and equality of treatment. It is
attracted where equals are treated differently without any
reasonable basis. The principle underlying the guarantee is
that all persons similarly circumstanced shall be treated
alike both in privileges conferred and liabilities imposed.
Equal laws must be applied equally and there should be no
discrimination between one person and another if as regards
the subject-matter of either administrative action or of
legislation, their position is substantially the same.
Article 14 forbids class legislation but permits reasonable
classification for the purpose of legislation or
administrative mandate. The classification must, however, be
founded on an intelligible basis which distinguishes persons
or things that are grouped together from those that are left
out of the group and that differentia must have a rational
nexus with the object to be achieved by the differentiation
made in the statute or order in question. In other words,
there ought to be causal connection between the basis of
classification and the object of the classification. See in
this connection the observations of the Constitution Bench
of this Court in the case of D.S. Nakara & Others v. Union
of India, [1983] 2 S.C.R. 165. See also P.K. Ramachandra
Iyer & Others v. Union of India & others, [1984] 2 S.C.R.
200, where this Court at page 226 of the Report reiterated
that the principle of ’equal pay for equal work’ is
deducible from those Articles 14 and 16 in the light of the
Preamble and Article 39(d) of the Constitution and might be
applied properly in the cases of unequal scales of pay based
on no classification or irrational classification
1012
though those drawing the different scales of pay do
identical work under the same employer. In Delhi Veterinary
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Association v. Union of India & Others, [1984] 3 S.C.R. 429,
which was dealing with Veterinary Assistant Surgeons working
in the Delhi Administration. It was observed dismissing the
writ petition that the question of the fixation of pay scale
for Veterinary Assistant Surgeons should be left to be
decided by the Government on the basis of the recommendation
of the Fourth Pay Commission. The question of discrimination
cannot be decided in isolation. This Court reiterated that
in addition to the principle of ’equal pay for equal work’,
the pay structure of the employees of the Government should
reflect many other social values. This Court also emphasised
the need for evolution and implementation of a scientific
national policy of incomes, wages and prices. In P. Savita
v. Union of India & Ors., [1985] Suppl. 1 S.C.R.101 this
Court was dealing with Senior Draughtsmen doing the same
work and discharging the similar functions and duties. They
were classified into two groups, on the basis of seniority
with two different pay scales. The question was whether it
was discriminatory. It was held that it was. This Court
reiterated that a group of draughtsmen entitled to higher
scale of pay was not selected by any process nor is it based
on any merit-cum-seniority basis, but is based only on
seniority-cum-fitness. Moreover, it was found that the
senior draughtsmen divided into two groups were in the same
department doing identical and same work. It was not a case
of different grades created on the ground of higher
qualification either academic or otherwise or an entitlement
by any other criteria. Thus the classification between the
two groups of senior draughtsmen was without any basis. In
view of the total absence of any plea in that case on the
side of the respondents that the Senior Draughtsmen who were
placed in the advantageous group do not perform work and
duties more onerous or different from the work performed by
the appellants groups in that case, it was held that this
grouping violated Article 14 of the Constitution. It
reiterated that the principle of ’equal pay for equal work’
would be an abstract doctrine not attracting Article 14 if
quality is made critarion for differentiation. See also
Surinder Singh and Anr. v. Engineer-in-Chief, C.P.W.D. and
Others, [1986] 1 SCC 639. This Court in a different context
had to decide this question in Frank Anthony Public School
Employees’ Association v. Union of India and Others, [1986]4
SCC 707. It was held that there cannot be discrimination in
pay and other conditions of service of school teachers
merely on the basis of aided and unaided minority schools.
As is evident the facts of the instant case are
entirely different.
1013
Here the differentiation is sought to be justified on the
similarity of the functional work but on the dissimilarity
of the responsibility, confidentiality and the relationship
with public etc. In Dhirendra Chamoli and another v. State
of U.P., [1986] 1 SCC 637, this Court was concerned with the
casual workers on daily wage basis engaged by the Government
in different Nehru Yuvak Kendras in the country performing
the same duties as performed by the regular Class-IV
employees against the sanctioned strength. The claim was
allowed with certain directions on the basis of the facts
found. See in this connection Union of India & Anr. v. R.G.
Kashikar & Anr., AIR 1986 SC 431. In Writ Petition (Civil)
Nos. 13097-13176 of 1984, M.P. Singh Deputy Superintendent
of Police, C.B.I. and Others v. Union of India & Others,
(Judgments Today 1987 1 SC 146), this Court on the facts of
that case found that among the employees of the Central
Bureau of Investigation, there are two classes of officials
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deputationists and non-deputationists amongst Sub-
Inspectors, Inspectors and Deputy Superintendent of Police.
There has been discrimination among two groups with regard
to payment of special pay. Special pay related to arduous
nature of duties to be performed. Whether they belong to the
category of deputationists or non-deputationists payment of
different rates of Special pay, it was held in the facts of
the case, did not pass the test of classification. This
Court reiterated that it was well settled that in order to
pass the test of permissible classification of persons
belonging to the same class into groups for purposes of
differential treatment two conditions must be fulfilled,
namely, that the classification must be founded on an
intelligible differentia which distinguishes persons who
were grouped together from others left out of the group and
that differentia must have a rational relation to the
objects sought to be achieved by the law which brings about
discrimination between the two groups. In M/s. Mackinnon
Mackenzie & Co. Ltd. v. Audrey D’Costa & Anr., (SLP (CIVIL)
No. 1265/87 decided on March 26,1987), the question was the
different treatment between male and female stenographers.
But there differentiation was based on the ground of sex. It
was struck down. It will clearly be violative of Article 14
and Article 16 of the Constitution.
In this case the differentiation has been sought to be
justified in view of the nature and the types of the work
done, that is, on intelligible basis. The same amount of
physical work may entail different quality of work, some
more sensitive, some requiring more tact, some less--it
varies from nature and culture of employment. The problem
about equal pay cannot always be translated into a
mathematical formula. If it has a rational nexus with the
object to be sought for, as
1014
reiterated before a certain amount of value judgment of the
administrative authorities who are charged with fixing the
pay scale has to be left with them and it cannot be
interfered with by the Court unless it is demonstrated that
either it is irrational or based on no basis or arrived mala
fide either in law or in fact. In the light of the averments
made and in the facts mentioned before, it is not possible
to say that the differentiation is based on no rational
nexus with the object sought for to be achieved. In that
view of the matter this application must fail and it is
accordingly dismissed without any order as to costs.
We must, however, make it clear that this will not in
any way prevent or prejudice the Government from reviewing
the situation in the light of the report of the Fourth Pay
Commission or any other appropriate body, if any, with such
modification as the Government and the authorities concerned
considered fit and proper.
S.L. Petition dismissed.
1015