Instructor Welfare Parishad vs Union of India (UOI) and Others

Veena Birbal, J.—This petition is directed against the orders dated 20.3.2007 in O.A. No. 730/2005 and order dated 14.8.2007 in R.A. No. 129/2007 by which Tribunal declined the prayer of the petitioner for grant of pay-scale of Rs.5000-8,000/-.

The petitioner Association seeks equal pay scales for the cadres of Junior Craft Instructor and Craft Instructor in the department of Social Welfare, Govt. of NCT of Delhi. The members of Association are working in institutions such as like widow homes, schools for blind and home for mentally retarded persons etc. and impart training and education to inmates of these institutions. The scale attached with the post of Craft Instructor was Rs.1400-2600/- while that of Junior Craft Instructor was Rs.1200-2040/-. The pay-scales have since been revised to Rs.5000-8000/- and Rs.4500-7000/- after the implementation of the Fifth Central Pay Commission. It is stated that the responsibilities of the two cadres are interchangeable and the members of the cadres are doing similar work. It is the case of the petitioner that the duties and responsibilities of Junior Craft Instructors and Craft Instructors are same but there is discrimination as they are placed in different pay scales.

Petitioner Association made a representation to the Fifth Pay Commission on 25.8.1994, for merger of posts and revision of pay scales of Junior Craft Instructors and Craft Instructors. The representation was rejected. The Association then approached the court by way of O.A. No. 1012/1997 which was dismissed vide order dated 2.6.2000. The Tribunal held that the pay-scales are determined keeping in view the various factors including the nature of duties and responsibilities, educational qualifications, experience, mode of recruitment etc. The pay-scale of a post is decided by the Executive of expert body. It is admitted fact that the Fifth Pay Commission considered the case of the applicant but did not accept their demand.

The appellants filed writ petition, WP(C) No. 5439/2001 against order dated 2.6.2000, i.e. order of the Tribunal. The writ petition was dismissed as withdrawn by this Court vide order dated 3.9.2001 with liberty to the petitioners to make a representation to respondents to implement the Fifth Pay Commission''s recommendation, if any, on the subject matter and in that case concerned authority shall pass an appropriate order in the matter uninfluenced by anything said in the order of the Tribunal dated 2.6.2000.

Respondents in pursuance of the directions given by this Court in WP(C) No. 5439/2001 passed order dated 5.112003 and 29.3.2004 by which demand of petitioner Association for merger of the two pay-scales was rejected. In the two orders, the respondents, inter alia, pointed out that qualification and mode of recruitment of Craft Instructors and Junior Craft Instructors are different. Relevant portion is reproduced below for ready reference:

As per recruitment rules the post of Junior Craft Instructors are filled up by direct recruitment only. The essential qualification prescribed for the post are matriculation and diploma of Certificate in Craft concerned from any recognized institution. The Senior Instructors were in the pre-revised scale of Rs.1400-2300/- that has been revised to 4500-7000/- after Fifth Pay Commission. These posts are to be filled up 75% by promotion and 25% by direct recruitment. In the case of non-availability of candidates for promotion, the vacancies can be filled up by direct recruitment. The essential qualifications for direct recruitment are matriculation+ or equivalent; 2 years Diploma or Certificate of Training in the Trade concerned from Polytechnic/ITI or any recognized institutions; and three years practical experience in the trade. Craft Instructors/Craft Teacher was in the pre-revised scale of Rs. 1400-2600/-, which has been revised to 5000-8000/- after Fifth Pay Commission. These posts are filled up by 50% by promotion and 50% by direct recruitment. The essential qualification prescribed for direct recruitment are Higher Secondary/Senior Secondary from a recognized University/Board. (2) Diploma/Certificate of Training in Craft concerned from ITI/or any recognized institution and three years practical experience in any of the institutions or a concern of repute. The feeder grades for promotion to the post of Craft Teachers/Craft Instructor are Senior Organizers and occupational teachers.

The order passed by the respondents was challenged before the Tribunal vide O.A. No. 730/2005 and the same was dismissed with the following observations:

Thus it is abundantly clear from a careful reading of the above order that the difference in the pay scale is not without any basis but is on account of qualification and mode of recruitment etc. and it cannot, therefore, be said that the order does not spell out in detail the reason for the difference. It is quite apparent that the difference between the two categories is based on justifiable reasons. We are convinced by the submissions of the Learned Counsel for the respondents.

Review application against the order of the Tribunal was also dismissed, hence, the present writ petition.

Counsel for petitioner argued that since the post occupied by the members of the two cadres are interchangeable it is apparent that the nature of the duties and responsibilities of the Junior Craft Instructors is same as that of the Senior Craft Instructors, as such different pay-scales are violative of Article 14 & 16 of the Constitution. It is contended that existence of two pay-scales in these facts is violating of principle of equal pay for equal work. Reliance was placed on Bhagwati Prasad Vs. Delhi State Mineral Development Corporation, .

The principle of "equal pay for equal work" has been a subject matter of a number of decisions. A large number of factors such as educational qualification, nature of duties and responsibilities, mode of recruitment have been held to be relevant factors for determining the equivalence in the matter of fixation of scale of pay. In Government of West Bengal Vs. Tarun K. Roy and Others, Supreme Court held as under:

Question of violation of Article 14 of the Constitution 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 where there is a valid classification based on a reasonable differentia.

In Secretary, Finance Department and others Vs. West Bengal Registration Service Association and others, the Supreme Court noted that:

Ordinarily a pay structure is evolved keeping in mind several factors e.g. (i) method of recruitment, (ii) level at which recruitment is made (iii) the hierarchy of service in a given cadre, (iv) minimum educational/technical qualifications required, (v) avenues of promotion (vi) the nature of duties and responsibilities (vii) the horizontal and vertical relativities with similar jobs (viii) public dealings (ix) satisfaction level (x) employer''s capacity to pay etc. We have referred to these matters in some detail only to emphasis that several factors have to be kept in view while evolving a pay structure and the horizontal and vertical relatives have to be carefully balanced keeping in mind the hierarchical arrangements, avenues for promotion, etc. Such a carefully evolved pay structure ought not to be ordinarily disturbed as it may upset the balance and cause avoidable ripples in other cadres as well.... There can, therefore, be no doubt that equation of posts and equation of salaries is a complex matter which is best left to an expert body unless there is cogent material on record to come to a firm conclusion that a grave error had crept in while fixing the pay scale for a given post and Court''s interference is absolutely necessary to undo the injustice.

In State of Haryana and Others Vs. Charanjit Singh and Others, etc. etc., the Supreme Court laid down as under:

Undoubtedly, the doctrine of "equal pay for equal work" is not an abstract doctrine and is capable of being enforced in a Court of law. But equal pay must be for equal work of equal value. The principle of "equal pay for equal work" has no mechanical application in every case. Article 14 permits reasonable classification based on qualities or characteristics of persons recruited and grouped together, as against those who were left out. Of course, the qualities or characteristics must have a reasonable relation to the object sought to be achieved. In service matters, merit or experience can be a proper basis for classification for the purposes of pay in order to promote efficiency in administration. A higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues is also an acceptable reason for pay differentiation. The very fact that the person has not gone through the process of recruitment may itself, in certain cases, make a difference. If the educational qualifications are different, then also the doctrine may have no application. Even though persons may do the same work, their quality of work may differ. Where persons are selected by a Selection Committee on the basis of merit with due regard to seniority a higher pay scale granted to such persons who are evaluated by competent authority cannot be challenged. A classification based on difference in education qualifications justifies a difference in pay scales. A mere nomenclature designating a person as say a carpenter or a craftsman is not enough to come to the conclusion that he is doing the same work as another carpenter or craftsman in regular service. The quality of work which is produced may be different and even the nature of work assigned may be different. It is not just a comparison of physical activity. The application of the principle of "equal pay for equal work" requires consideration of various dimensions of given job. The accuracy required and the dexterity that the job may entail may differ from job to job. It cannot be judged by the mere volume of work. There may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities made a difference. Thus normally the applicability of this principle must be left to be evaluated and determined by an expert body.

Similarly in Shyam Babu Verma and Others Vs. Union of India (UOI) and Others, the Supreme Court again emphasized:

...The nature of work may be more or less the same but scale of pay may vary based on academic qualification or experience which justifies classification. The principle of ''equal pay for equal work'' should not be applied in a mechanical or casual manner. Classification made by a body of experts after full study and analysis of the work should not be disturbed except for strong reasons which indicate the classification made to be unreasonable. Inequality of the men in different groups excludes applicability of the principle of ''equal pay of equal work'' to them.

In U.P. State Sugar Corpn. Ltd. and Another Vs. Sant Raj Singh and Others, the Apex Court opined that the doctrine of equal pay for equal work as adumbrated in Article 39(s) of the Constitution of India read with Article 14 thereof cannot be applied in a vacuum. The Constitutional scheme postulates equal pay for equal work for those who are equally placed in all respects. Possession of a higher qualification has all along been treated by this Court to be a valid basis for classification of two cadres of employees.

As per settled law there should be complete and total identity between two posts or cadres for the application of principles for equal pay for equal work. Application of principle for equal pay for equal work requires consideration of various dimensions of a given post. In the facts of this case mere interchangeable of a post is not sufficient to attract the principles of equal pay for equal work especially when there are differences in qualifications requisite for the recruitment including experience. In any event, the classification cannot be considered arbitrary so as to attract judicial interference. In State of Haryana Vs. Surinder Kumar and others, ; M.P. Rural Agriculture Extension Officers Association Vs. State of M.P. and Another, ; State of Tamil Nadu and Another Vs. M.R. Alagappan and Others, etc., ; State of West Bengal and others Vs. Deb Kumar Mukherjee and others, interchangeability of the two sets of employees was not found conclusive. The claims based on the principle of ''equal pay for equal work'' was negated as there were other distinguishing factors in the two sets of employees."

We are of the view that the order of the Central Administrative Tribunal is well founded, consequently, we dismiss this petition and uphold the order of Tribunal.