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Judgment
Mir Dara Sheko, J—The writ application is directed for non-consideration of the representation dated 11th December, 2014 filed by some employees including the petitioner working as cook before the respondents for enhancement of scale of pay at par with the cooks working under Andaman Public Works Department, Raj Niwas and Secretariat in terms of the judgement and order dated 25th July, 1997 passed by the Central Administrative Tribunal in O.ANo.113/A&N/1994 Annexure-5).
The fact of the writ petition, in short, is that the petitioner Shri M. Ganeshan was appointed as Job Boy (Trainee) on contract basis under the respondents (ANIIDCO Limited) and after getting time to time extension, under letter dated 17th May, 1994, he was asked to report for duty as Assistant Cook on contract basis. Thereafter, the service of the petitioner was brought under Temporary Status Scheme vide order No. 673 dated 12th February, 1996 and by an order no. 733 dated 29th October, 1999 the service of the petitioner was regularized to the post of Assistant Cook since when he had been discharging his duties to the satisfaction of the respondent Nos. 2 i.e. ANIIDCO Limited and after discharging several years of service, he was promoted under order No. 667 dated 28th September, 2012 to the post of Cook on regular basis in the scale of pay of Rs. 5200-20200 plus grade pay of Rs. 2000/-.
The grievance is, since the petitioner has been discharging his duties with full ability as Cook with utmost satisfaction of his superior like the cooks working under Andaman Public Works Department, Raj Niwas and in the Secretariat, his scale of pay should be at par with the cooks of those establishments on the principle of equal pay for equal work, meaning thereby, the petitioner claims entitlement for the scale of pay of Rs. 5200-20200 plus grade pay Rs. 2400/- on and from the date of appointment in the post of Cook instead of Rs. 5200-20200 plus grade pay of Rs. 2000/- which is being enjoyed by him.
The gist of the opposition set out by the respondents is that the ANIIDCO Ltd. is a Government Company registered under section 617 of the Companies Act, 1956 which is guided and controlled by its own Bye-laws and the corporation is not a department of Andaman and Nicobar Administration. It is contended, since the corporation has a different cadre posts from Job Boy to Chef i.e. from Job Boy to the post of Assistant Cook, Cook, Senior Cook, Saus Chef and finally Chef are the respective promotional posts preceded by respective feeder posts with different scale of pay and since the corporation has been running commercial hotel as is opened to all including to the government departments, and, since the corporation having better promotional avenue than the cooks working directly under the Andaman and Nicobar Administration, the writ petition is liable to be dismissed.
The point is at issue as to whether the petitioner being an employee of the ANIIDCO Ltd. discharging his duties as Cook is entitled to get the pay and allowances at par with the Cook working directly under the Andaman and Nicobar Administration, more precisely to say, under Andaman Public Works Department, Secretariat or Raj Niwas.
Mr. Gopala Binnu Kumar, learned advocate for the petitioner cited the example that a group of workmen working under the ANIIDCO Ltd. on contract basis by filing WP No. 081 of 2009 put forward the issue that once they were regularized then why they would not be entitled to 1/30th of the basic pay with proportionate Dearness Allowance and other benefits like other department of the Andaman and Nicobar Administration in terms of the circular dated 7th June, 1988 issued by the Ministry of Personnel, Public Grievances and Pension, Department of Personnel & Training, North Block, New Delhi on the proposition of the judgment of the Hon''ble Supreme Court passed on 17th January 1986 in the case of Surinder Singh and Another Vs. Engineer-in-chief, C.P.W.D. and Others, AIR 1986 SC 584 : (1986) 52 FLR 216 : (1986) LabIC 551 : (1986) 1 LLJ 403 : (1986) 1 SCALE 83 : (1986) 1 SCC 639 : (1986) 1 SCR 83 : (1986) 2 UJ 31 . This court in the said W.P. No. 081 of 2009 allowed the petitioners of said proceeding to the benefit 1/30th of basic pay with proportionate D.A. as per the circular dated June, 07, 1988, which was upheld in FMA No. 005 of 2011 by the Division Bench. Mr. Kumar, also referred to the case of Arindam Chattopadhyay and Others Vs. State of West Bengal and Others, (2013) 4 AD 388 : AIR 2013 SC 1535 : (2013) LabIC 1919 : (2013) 2 LLN 1 : (2013) 3 SCALE 508 : (2013) 4 SCC 152 : (2013) 2 SCC(L&S) 178 : (2013) 2 SCT 651 : (2013) AIRSCW 1815 : (2013) 2 Supreme 478 and Union of India (UOI) Vs. Atul Shukla He further argued that when the petitioner being a permanent cook has been discharging the same works of cook and serving food like the cook working under Andaman and Nicobar Administration in the Andaman Public Works Department, Secretariat and Raj Niwas then the doctrine of equal pay for equal work should be applied not to debar the petitioner and all cooks so working under ANIIDCO Ltd. from enjoying same pay and grade pay.
Mrs. Anjili Nag, learned advocate for the respondents replied that the respondents-corporation is not a department under Andaman and Nicobar Administration. The same is merely a government company registered under section 617 of the Companies Act, 1956 which is controlled by its own bye-laws. She further submitted that since the ANIIDCO Ltd. has been running commercial hotel which is opened to all including the government departments for holding meeting, conference etc., in lieu of charges and since the promotional avenue of the cooks of different cadres are also governed by their own scheme which is in want of or not available in any department under the Andaman and Nicobar Administration, and since ANIIDCO Ltd. has been earning money by running such commercial hotel by utilizing the service of the cooks of different cadres, whereas in the case of the department of Administration there is no scope of earning profits by utilizing service of its cooks, the writ petition is liable to be dismissed. It is further submitted that though the judgement of the Hon''ble Division Bench under reference was not challenged that remain prevalent and binding for the issue on particular fact decided in that case, which cannot be equated or matched with the avenue of cadre posts of cooks of different stage with different scale of pay with different nomenclature as available from their own Recruitment Rules and the judgment of O.A. No. 113/A&N/1994 which has been made basis of their writ petition is of no help to the writ petitioner.
It is obvious that the doctrine of equal pay for equal work is to be followed everywhere provided the employees of the same status and category are working in the same and identical umbrella. In the case reported in Arindam Chattopadhyay and others v. State of West Bengal and others (supra) is not applicable in the case in hand, since a dispute about two sets of employees of the same department discharging similar responsibilities was at issue, where the plea of temporary or casual or permanent or full-timer was negated. In the case in hand the fact and issue to be determined are distinguishable.
Mrs. Nag to justify her submission and distinguish the claim of the writ petition relied upon the following cases.
"1. Associate Banks Officers'' Association Vs. State Bank of India and Others, AIR 1998 SC 32 : (1998) 79 FLR 576 : (1997) 8 JT 422 : (1997) 6 SCALE 394 : (1998) 1 SCC 428 : (1998) SCC(L&S) 293 : (1997) 4 SCR 475 Supp : (1998) 1 UJ 107 ;
State of Haryana and Another Vs. Haryana Civil Secretariat Personal Staff Association, AIR 2002 SC 2589 : (2002) 94 FLR 851 : (2002) 5 JT 189 : (2002) LabIC 2630 : (2002) 5 SCALE 138 : (2002) 6 SCC 72 : (2002) 1 SCR 118 Supp : (2002) 3 SCT 674 : (2002) 3 SLJ 205 : (2002) AIRSCW 2896 : (2002) 4 Supreme 605 ;
Government of West Bengal Vs. Tarun K. Roy and Others, (2003) 9 JT 130 : (2004) 1 LLJ 421 : (2004) 1 SCC 347 : (2004) SCC(L&S) 225 ; and,
U.P. State Sugar Corpn. Ltd. and Another Vs. Sant Raj Singh and Others, AIR 2006 SC 2296 : (2006) 11 JT 545 : (2006) 3 LLJ 509 : (2006) 6 SCALE 205 : (2006) 9 SCC 82 : (2006) SCC(L&S) 1610 : (2006) 3 SCR 636 Supp : (2007) 1 SLJ 84 : (2006) AIRSCW 3013 : (2006) 6 Supreme 174 ."
Mr. Kumar invited my attention to the order No. 859 dated 19th January, 2009 circulated by the ANIIDCO Ltd. a document annexed with the affidavit in reply which relates to the revision of pay of the employees working under the ANIIDCO Ltd. consequent on the revision of pay scale of the Central Government Employees by which Mr. Kumar tries to impress upon that on principle the doctrine of equal pay for equal work is to be considered, as, even during revision of pay scale of the Central Government employees, the respondent-corporation had enhanced the pay scale of the employees of ANIIDCO Ltd. On looking to such document, I find the name of the petitioner in serial No. 10 while he was holding the post of Assistant Cook under the respondent No. 2 and although by such order, his pay scale was changed but the grade pay i.e. Rs. 1900/- as was prevalent as per the recruitment rules for the post of Assistant Cook in ANIIDCO Ltd. was not changed.
On scrutiny of the materials supplied along with the affidavit-in-opposition by the respondents, I find that the recruitment rules of the ANIIDCO Ltd. has not only made the separate scale of pay with respective grade pay for the post of different cadres of Cooks but also have made different nomenclature viz Job Boy, whose appointment is done 100% by direct recruitment who must have qualification of standard 10th with two years experience in the work of Job Boy in any reputed hotel and from that post gradually he becomes Assistant Cook then the Cook and thereafter Senior Cook after it Sous Chef and finally Chef. In all such promotional posts no further educational qualification is required save and except experience qualifying for the promotional post mentioned in the Recruitment Rules.
The petitioner could not produce any such avenue of promotion maintained under the Andaman and Nicobar Administration which can be semblanced with the cadre of the posts of cook maintained by the ANIIDCO Ltd. to creep into the doctrine of equal pay for equal work.
It has not gone out of notice that according to the recruitment rule, or, bye-laws, as the case may be, by which the ANIIDCO Ltd. is governed, the Directors of Board of the ANIIDCO Ltd. take the decision and not the Andaman and Nicobar Administration. Therefore when the establishment being a government company run by its own bye laws providing promotional avenue with respective scale of pay for different category of cooks even upto two senior posts than the post of cook held by the petitioner, the writ court should not impose anything which is stranger to the bye laws.
It is incumbent upon the petitioner that while the petitioner has claimed the benefit of scale of pay with grade pay at par with the cooks of the department of Andaman Public Works Department, Secretariat and Raj Niwas then, he ought to have annexed their recruitment rules and all other relevant documents to show parity with their recruitment rules and duties, responsibilities etc by which the writ court may have the opportunity to compare. On the contrary, while the petitioner has based upon the judgement of the tribunal delivered in O.A. No. 113/A&N/1994 where the petitioner''s of that case being the Cook under Andaman Public Works Department, shortly known as ''APWD'', were given the benefit sought for by making them at par with the Cooks/Assistant Cooks of Raj Niwas and Secretariat, in disposing of that case the Tribunal observed as follows:
"It appears that regarding the petitioner''s the Assistant cook-cum-bearer is recruited 100% by promotion from Work Charged Belders working with cook bearers and having not less 3 years'' experience as such. The promotion is on the basis of seniority-cum-fitness. The qualifications prescribed are that the candidates must be able to cook food and serve them. There is also a trade test prescribed for preparation of meals of various kinds and names of various kinds of dishes and its method of preparation. The period of probation is fixed for one year.
For the post of Cook-cum-bearer, according to the recruitment rules, recruitment is made 50% by direct recruitment and 50% by promotion. For the direct recruits, the qualifications prescribed are that they must be able to cook and serve food well and at least 3 years experience in the profession. Regarding promotes, however, promotion has to be made from Assistant cook-cum-bearer who has put in at least 2 years'' service in the Deptt. Therefore, for the promotes, the total number of years of experience is 2 years as Asst. Cook-cum-bearer after appointment in the feeder grade and minimum 3 years before being promoted as Assistant Cook-cum-bearer. In other words, without completing minimum 5 years'' experience in the profession, one cannot be promoted as Cook-cum-bearer.
As compared to these, Assistant Cook in the Raj Niwas/Secretariat, according the recruitment & promotion rules, is recruited 100% through direct recruitment. There is no pre-requisite condition of having any specific years of experience in cooking. For the higher post of Cook in the Raj Niwas/Secretariat, recruitment is made through direct recruitment only but for this minimum 5 years cooking experience is required."
The above quoted portions observed by the Tribunal in allowing the prayer of the petitioner''s of that O.A., has no match with the role or activity in the cadre posts held by the Cooks of different status under the respondent No. 2. The case of Associate Banks Officers'' Association v. State Bank of India and others (supra) went up to the Hon''ble Supreme Court with the claim for parity in all terminal benefits, medical benefits extra increments like other instrumentalities of the state so on and so forth on the principle of equal pay for equal work wherein the Hon''ble Supreme Court held that "unless there such identifiable discrimination, the doctrine of equal pay for equal work should not be applied and mere difference is not discrimination."
There was a dispute whether the employees of the Subsidiary Banks are to be treated as the employees of the State Bank of India or not on the plea that the works done by those employees of the Subsidiary Banks are the same and similar like the employees of the State Bank of India. It was held that "in view of the clear provisions of Section 50, it is not possible to come to a conclusion that the employees of the subsidiary banks are, for all practical purposes, employees of the State Bank of India. Even dehors Section 50, looking to the scheme of the State Bank of India (Subsidiary Banks) Act, 1959, it is quite clear that each of the subsidiary banks is set up as a separate bank. Each subsidiary bank has its own capital structure, its own operations. Each of the banks has its own staff with its own terms and conditions of service. Therefore, the employees of the subsidiary bank cannot be treated as the employees of the State Bank of India. The employees of the subsidiary banks are not entitled to claim the same benefits as the employees of the State Bank on the ground that they are, in effect, the employees of the State bank of India". It is needless to mention that service rendered or duties performed by the employees of the Subsidiary Banks were no less than the regular employees of the State Bank of India.
From the paragraph 18 of the judgement of the Tribunal passed in O.A. No. 113/A&N/1994 (supra), submission made from the Andaman and Nicobar Administration was that for both "Cooks and Assistant Cooks in Raj Niwas or Secretariat, minimum educational qualification is having passed 5th standard and the recruitment rules and promotional rules of the petitioner are totally silent on this. From the observation of the Tribunal in the said paragraph 18, it appears "moreover, it is noticed that in the recruitment and promotional rules for Cooks and Assistant Cooks of Secretariat/Raj Niwas it is specifically laid down that educational qualification relaxable for otherwise deserved candidates".
From the recruitment rules followed in ANIIDCO Ltd., as I am told, was never challenged which, accordingly, is still prevalent and is bound to be followed so long it is there. I have already discussed about requirement of educational qualification and the mode of recruitment since entry level as a Cook in the name of the post of Job Boy whose promotional avenue comes upto Chef having scale of pay with grade pay at different stage according to the said recruitment rules followed by the respondents.
In the case of U.P. State Sugar Corporation Limited and another v. Sant Raj Singh and Others (supra), Their Lordships held that "the doctrine of equal pay for equal work, as adumbrated under Article 39(d) of the Constitution of India read with Article 14 thereof, cannot be applied in a 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 categories of employees." Therefore, in view of the case of U.P. State Sugar Corporation, the status of the Cooks like the petitioner can be well classified and differentiated with the Cooks working under APWD, Secretariat and Raj Niwas. Therefore, only the service by cooking food and serving of food do not fulfill the criteria to get the real essence of the slogan of "equal pay for equal work". It requires something more.
In the case of Government of West Bengal v. Tarun Kumar Roy and others (supra), Their Lordships held that "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. The holders of a higher educational qualification can be treated as a separate class. Such classification, it is trite, is reasonable. Employees performing the similar job but having different educational qualification can, thus, be treated differently."
In the case of State of Haryana and Another v. Haryana Civil Secretariat Personal Staff Association (supra), Their Lordships held that "It is to be kept in mind that the claim of equal pay for equal work is not a fundamental right vested in any employee though it is a constitutional goal to be achieved by the Government. Fixation of pay and determination of parity in duties and responsibilities is a complex matter which is for the executive to discharge. While taking a decision in the matter several relevant factors, some of which have been noted by this Court in the decided case, are to be considered keeping in view the prevailing financial position and capacity of the State Government to bear the additional liability of a revised scale of pay, It is also to be kept in mind that the priority given to different types of posts under the prevailing policies of the State Government is also a relevant factor for consideration by the State Government. In the context of complex nature of issues involved, the far reaching consequences of a decision in the matter and its impact on the administration of the State Government courts have taken the view that ordinarily courts should not try to delve deep into administrative decisions pertaining to pay fixation and pay parity. That is not to say that the matter is not justiciable or that the courts cannot entertain any proceeding against such administrative decision taken by the government. The courts should approach such matters with restraint and interfere only when they are satisfied that the decision of the government is patently irrational unjust and prejudicial to a section of employees and the government while taking the decision has ignored factors which are material and relevant for a decision in the matter. Even in a case where the court holds the order passed by the government to be unsustainable then ordinarily a direction should be given to the State Government or the authority taking the decision to reconsider the matter and pass a proper order. The court should avoid giving a declaration granting a particular scale of pay and compelling the government to implement the same. As noted earlier, in the present case ''the High Court has not even made any attempt to compare the nature of duties and responsibilities of the two sections of the employees, one in the State Secretariat and the other in the Central Secretariat. It has also ignored the basic principle that there are certain rules, regulations and executive instructions issued by the employers which govern the administration of the cadre."
The writ petitioner equally did not place all the relevant papers specially of the Andaman and Nicobar Administration so that the writ court could have compared the materials of both sides to come to a conclusion about the impugned disparity in the pay and allowance, or even to hold about otherwise maintainability of the claim of the writ petitioner.
On the contrary, the argument appears to me much more appealing, that ANIIDCO Ltd. has been appointing the Cook on different cadres according to its need for maintaining "commercial hotels" running under it and to maintain those commercial hotels, service of the cooks so appointed by them are utilized. So the basic difference on this issue is that by utilizing service of cooks working under the Andaman Public Works Department, Secretariat and Raj Niwas, there is no question of earning profitable money by the Administration whereas in case of maintaining the commercial hotels on taking service of the Cook like the petitioner and others ANIIDCO Ltd. has been earning profitable money. Had the ANIIDCO Ltd. been absolutely controlled by the Andaman and Nicobar Administration, like Andaman Public Works Department, Secretariat and Raj Niwas etc. in that event the writ petitioner obviously would have a very good case.
Mrs. Nag also submitted that even the pay and allowance to the petitioner, more precisedly to say to the employees like petitioner under ANIIDCO Ltd., are borne by ANIIDCO Ltd. itself and not paid from the exchequer of the Andaman and Nicobar Administration.
In view of above, as I find basic difference in establishment, mode of recruitment, qualification for recruitment, trade test etc as observed by the Tribunal, avenue of promotional scope, nomenclature with defined duties, and vital difference in the matter of running commercial hotel by utilizing service of the cook like the petitioner, or alternatively the petitioner, being not a part of the same cadre like the cooks working directly under Andaman and Nicobar Administration, cannot equate himself to be treated at par with the cooks of APWD or Secretariat or Raj Niwas for the purpose of pay and allowances or other service conditions to come under the doctrine of equal pay for equal works and the petitioner is to remain restricted within the scale of pay and allowance with grade pay so long the Recruitment Rules of ANIIDCO Ltd. are in force or the Board of Directors to take any otherwise decision.
Therefore, the case of Union of India v. Atul Shukla (Supra) or the examples as set out by Mr. Kumar referring the judgement of Central Administrative Tribunal, Single Bench and Division Bench (Supra) facts in issue of which are different than the fact under challenge being found of no help to the petitioner, it is answered that in the available facts and circumstances there is no violation of Articles 14 and 16 of the Constitution of India.
The writ petition stands dismissed.
No order as to costs.