Full Judgment Text
$-R-10B
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C) 6751/2003
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% Date of Judgment: 30 November, 2016
BHAGWATI PRASAD & ANOTHER ..... Petitioners
Through Mr. Kartickay Mathur, Adv.
versus
UNION OF INDIA & OTHERS ..... Respondents
Through: Mr. R.V. Sinha, Adv.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE VINOD GOEL
VINOD GOEL, J. ( ORAL )
1. This writ petition has been preferred by the petitioners feeling
aggrieved by the order dated 29.07.2003 passed by the Central
Administrative Tribunal (hereinafter referred to for short as the
´Tribunal’), whereby OA No. 1040/2001 filed by the petitioner No. 1
and 2 and their colleague namely Mr. Jagdish Kumar Mallah, was
dismissed.
2. The petitioners (1) Sh. Bhagwati Prasad and (2) Sh. Kanhaya Lal were
working as Senior Proof Readers in the Department of Posts in the pay
scale of Rs.1320-30-1560-40-2040 and at that time Junior Proof
Readers were in the pay scale of Rs.1200-30-1440-30-1800. However,
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5 Central Pay Commission made the following recommendation vide
Para No. 43.5 to merge number of pay scales as existing pay scales
WP (C) 6751/2003 Page 1 of 10
were too close to each other: -
“The latter two scales are identical but for a difference in
span. Rs.1200-1800 was a scale for skilled II category of
artisans, while Rs.1320-2040 was the scale for skilled I
category artisans. We decided to merge these categories,
so that the artisans could progress directly from Rs.950-
1500 to Rs.1320-2040 on the analogy of LDCs being
promoted as UDCs. This merger has thus taken away one
of the chief grievances of artisans who always felt
discriminated vis-à-vis their ministerial counterparts.”
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3. After acceptance of the recommendations of the 5 Central Pay
Commission Report by the Government, in the Department of Posts the
pay scale of the Junior Proof Reader and Senior Proof Readers were
amalgamated in the post known as „Proof Reader‟ and pay scale of
Rs.4000-100-6000 was made applicable w.e.f. 01.01.1996.
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4. Grieved by the recommendations of 5 Central Pay Commission, the
petitioners along with Sh. Jagdish Kumar Mallah, a Junior Proof Reader
in the Department of Posts filed OA No. 1040/2001, which was
disposed off by the Tribunal on 26.02.2002 with a direction to the
respondent to pass a detailed, speaking and reasoned order in
accordance with the rules and instructions of applicants‟ claim within a
period of three months from the date of receipt of the copy of the order
and the liberty was granted to the petitioners to revive the O.A. through
M.A., if any grievance still survived.
5. The Assistant Director General (Administration), Government of India,
Ministry of Communication and Information Technology, Department
of Posts, vide detailed order dated 19.06.2002 conveyed to the
petitioners separately that their request for grant of pay scale of
Rs.6500-200-10500 has not been acceded to by the Competent
WP (C) 6751/2003 Page 2 of 10
Authority.
6. Not satisfied with the order passed by the respondents, the petitioners
were allowed to revive the said OA vide order dated 03.09.2002. The
petitioners‟ claimed that they were enjoying pre-revised pay scale of
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Rs.1320-2040 and the 5 Central Pay Commission vide Para No. 43.5
of its report recommended clubbing of number of post and merged the
some of the pay scales. The Government of India accepted the
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recommendation of the 5 Central Pay Commission and post of Senior
Proof Reader was clubbed with that of the Junior Proof Reader and a
common nomenclature of Proof Reader was assigned and they were
placed in the corresponding pay scale of Rs.4000-100-6000.
7. The petitioners alleged that they have been meted out with step-
motherly treatment and sought quashing of the impugned order and a
direction to grant them proper pay scales. They have claimed that the
post of Proof Readers in the Ministry of Personnel, Public Grievances
and Pensions (MoP, PGP), who were in the pre-revised pay scale of
Rs.1200-2040 have been granted revised pay scale of Rs.5500-9000,
whereas the Proof Readers in the office of Registrar General of India,
Ministry of Home Affairs have been granted revised pay scales of
Rs.4500-7000 from pre-revised pay scales of Rs.1200-1800. The
petitioners pleaded that they have been performing the same duties as is
being performed by the Proof Readers in the other departments and
claimed applicability of principle of „Equal Pay for Equal Work‟.
8. The respondents disputed the claim of the petitioners before the
Tribunal on the grounds that: -
WP (C) 6751/2003 Page 3 of 10
(i) the duties, responsibilities, qualifications and
experience required for the recruitment to the post
of Proof Reader in the Department of Posts vis-à-
vis MoP, PGP and the office of Registrar General
of India, Ministry of Home Affairs were different.
(ii) the basic qualification required for Junior Proof
Readers in the Department of Posts is
matriculation with Diploma in Proof Reading or
Proof Correcting and knowledge of Hindi and for
Senior Proof Reader, it is 100% by promotion
from amongst the Junior Proof Readers of this
office. However, in MoP, PGP, qualification of
graduation of recognized University with
experience of Hindi/English proof reading is
required, and in the office of Registrar General of
India, Ministry of Home Affairs, a degree of
recognized university with two years experience of
proof reading and technical marking is required
and desirable qualification is proficiency
publishing technology. With regard to the method
of recruitment, while the post in the office of
Registrar General of India are filled up through
deputation of the officers of Central and State
Governments holding analogous posts or atleast
three years of regular service in the post carrying
the pay scales of Rs.3050-4590. The Department
of Posts prescribed filling up of Senior Proof
WP (C) 6751/2003 Page 4 of 10
Readers by promotion from the post of Junior
Proof Readers of this office.
(iii) the post of Proof Reader in MoP, PGP stands
abolished and there was no question of petitioners
seeking parity with a non-existing category.
9. The Tribunal was not convinced with the contentions of the petitioners
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and held that it has emerged out of the recommendations of the 5
Central Pay Commission for the reasons given by the Pay Commission
itself and the Government accepted the same and it is not only the Proof
Readers in the Department of Posts but the same has been made
applicable across the board to all the posts where skilled persons were
employed in different scales. With regard to the comparison with their
counterparts in MoP, PGP and RGI, the Tribunal found that the same is
not supported by the facts. In case of MoP, PGP, there was no post of
Proof Reader at the time when the application was filed as the same had
been abolished. So far as the similar posts in the other offices are
concerned, the Tribunal after perusal of the recruitment rules found that
they were distinguishable.
10. It is this order dated 29.07.2003 (impugned order), which led the
petitioners to prefer the present Writ Petition seeking a writ in the
nature of Certiorari for setting aside the impugned order dated
29.07.2003 passed by the Tribunal and to quash the order dated
19.06.2002 passed by respondent no. 1 and for issuance of a writ in the
nature of Mandamus directing the respondents to grant them parity in
pay with the persons employed in the same category in the Ministry of
Personnel, Public Grievances and Pensions and Ministry of Home
WP (C) 6751/2003 Page 5 of 10
Affairs.
11. It is contended by the learned counsel for the petitioners that the
petitioners, who have been working as Proof Readers in the Department
of Posts, have been discharging the same duties as that of their counter
parts in the Ministry of Personnel, Public Grievances and Pensions and
Registrar General of India, Ministry of Home Affairs and the principle
of „Equal Pay for Equal Work‟ is deducible from Article 14 and 16 of
the Constitution of India and should be applied to the cases of unequel
pay scale based on irrational classification. To buttress his arguments,
learned counsel for petitioners has relied upon the various judgments of
the Hon‟ble Supreme Court reported as (i) A.R. Neelayadakshni and
others Vs. University of Delhi and others, 2000 (3) SLR 691. (ii)
Randhir Singh Vs. Union of India and others, (1982) 1 SCC 618. (iii)
Bhagwan Dass and others Vs. State of Haryana, (1987) 4 SCC 634.
(iv) Alvaro Noronha Ferriera and another Vs. Union of India and
others, (1999) 4 Supreme Court Cases 408. (v) Bhagwati Prasad Vs.
Delhi State Mineral Development Corporation, AIR 1990 SC 371. (vi)
National Museum Non-Gazetted Employees Association & Anr. Vs.
Union of India & Ors. JT 1988 (1) SC 495. (vii) P.K. Ramachandra
Iyer and Others Vs. Union of India and others, (1984) 2 SCC 141.
12. Per contra, it is argued by the learned counsel for the respondent that
the person claiming parity must plead necessary averments and prove
that the work is equal between the posts concerned. He further argued
that the qualification required for the post of Proof Readers in the
Department of Posts, where the petitioners have been working, is
matriculation, whereas in the Department of Personnel, Government of
WP (C) 6751/2003 Page 6 of 10
India, degree of a recognized University or equivalent, experience of
Hindi/English proof reading is required and in the office of Registrar
General of India, Ministry of Home Affairs for the post of Proof Reader
degree of a recognized University or equivalent, two years experience
of proof reading and technical marking is required and proficiency in
desk publishing technology is desirable qualification. He further points
out that in the Department of Posts for the post of Proof Readers, the
required qualification is matriculation. He contended that the post of
Proof Reader had been abolished in MoP, PGP before petitioners
moving the Tribunal. He further submitted that the Tribunal has rightly
dismissed the O.A. and the petitioners cannot claim parity with Proof
Readers working in the office of Registrar General of India, Ministry of
Home Affairs as the qualification and method of recruitment are
different.
13. We have heard the learned counsels for the parties and perused the
record.
14. It is well settled that equation of posts or pay is best determined by
expert bodies like the Pay Commission. Such issue came up for
consideration before the Apex Court in State of U.P. Vs. J.P.
Chaurasia, (1989) 1 SCC 121, (at Page 130, Para 18) wherein it has
been held that: -
“……….The equation of posts or equation of pay must be
left to the Executive Government. It must be determined
by expert bodies like Pay Commission. They would be
the best judge to evaluate the nature of duties and
responsibilities of posts. If there is any such
determination by a Commission or Committee, the court
should normally accept it. The court should not try to
tinker with such equivalence unless it is shown that it was
WP (C) 6751/2003 Page 7 of 10
made with extraneous consideration.”
15. Hon‟ble Supreme Court has further held in Union of India and
anothers Vs. P.V. Hariharan and another, (1997) 3 Supreme Court
Cases 568 , as under: -
“5. Before parting with this appeal, we feel impelled to
make a few observations. Over the past few weeks, we
have come across several matters decided by
Administrative Tribunals on the question of pay scales.
We have noticed that quite often the Tribunals are
interfering with pay scales without proper reasons and
without being conscious of the fact that fixation of pay is
not their function. It is the function of the Government
which normally acts on the recommendations of a Pay
Commission. Change of pay scale of a category has a
cascading effect. Several other categories similarly
situated, as well as those situated above and below, put
forward their claims on the basis of such change. The
Tribunal should realize that interfering with the prescribed
pay scales is a serious matter. The Pay Commission,
which goes into the problem at great depth and happens to
have a full picture before it, is the proper authority to
decide upon this issue. Very often, the doctrine of “equal
pay for equal work” is also being misunderstood and
misapplied, freely revising and enhancing the pay scales
across the board. We hope and trust that the Tribunals
will exercise due restraint in the matter. Unless a clear
case of hostile discrimination is made out, there would be
no justification for interfering with the fixation of pay
scales.…………………………………………….”
16. In the present case, the qualification required for the post of Proof
Reader in the Ministry of Personnel, Public Grievances and Pensions, a
minimum qualification of graduation with experience of Hindi/English
proof reading is required in MoP, PGP and two years experience of
proof reading and technical marking, proficiency in desk job publishing
and technology has been prescribed in the office of Registrar General of
India. With regard to the method of recruitment, while the post in the
WP (C) 6751/2003 Page 8 of 10
office of Registrar General of India are filled up through deputation of
the officers of Central and State Governments holding analogous posts
or atleast three years of regular service in the post of carrying the pay
scales of Rs.3050-4590.
17. Moreover, in Steel Authority of India Limited and Others Vs.
Dibyendu Bhattacharya, (2011) 11 Supreme Court Cases 122, (Para
22), it has been held by the Hon‟ble Supreme Court that an employee
seeking parity of pay under Article 39 (d) of the Constitution of India is
required to prove and establish that he had been discriminated against
and the constitutional scheme postulates equal pay for equal work for
those who are equally placed in all respects. The court must consider
the factors like the source and mode of recruitment/appointment, the
qualifications, the nature of work, the value thereof, responsibility,
reliability, experience, confidentiality, functional need etc. Equality
clause can be invoked in the matter of pay scales only when there is
wholesome/wholesale identity between the holders of two posts. The
Apex Court after referring several case law concluded as under: -
“30. In view of the above, the law on the issue can be
summarised to the effect that parity of pay can be claimed
by invoking the provisions of Article 14 and 39 (d) of the
Constitution of India by establishing that the eligibility,
mode of selection/recruitment, nature and quality of work
and duties and effort, reliability, confidentiality, dexterity,
functional need and responsibility and status of both the
posts are identical. The functions may be the same but the
skills and responsibilities may be really and substantially
different. The other post may not require any higher
qualification, seniority or other like factors. Granting
parity in pay scales depends upon the comparative
evaluation of job and equation of post. The person
claiming parity, must plead necessary averments and
prove that all things are equal between the posts
WP (C) 6751/2003 Page 9 of 10
concerned. Such a complex issue cannot be adjudicated
by evaluating the affidavits filed by the parties.”
18. It may also be noticed that so far as the Ministry of Personnel, Public
Grievances and Pensions (DoPT), the post of Proof Reader has already
been abolished w.e.f. 07.02.2002 vide order No. A.11011/4/97-Ad.1,
much before the petitioners moved the Tribunal.
19. In view of the fact that the qualification for the post of Proof Readers in
the Ministry of Home Affairs, Ministry of Personnel, Public Grievances
and Pensions, is higher than the qualification required for Proof Reader
in the Department of Posts and the post having been abolished in the
Ministry of Personnel, Public Grievances and Pensions w.e.f.
01.02.2002 much before the filing of the application before the Tribunal
by the petitioners and position in law that it is the job of the
expert/Executive Committee of Government/Central Pay Commission,
which goes into the problem at great depth and happens to have a full
picture before it, we are not persuaded to interfere with the order of the
Tribunal.
20. Resultantly, the Writ Petition is hereby dismissed. No costs.
VINOD GOEL, J.
G. S. SISTANI, J.
NOVEMBER 30, 2016
“sk”
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