P.T. Kaneriya and 34 vs State of Gujarat and 2

C.L. Soni, J.—The petitioners have filed this petition under Article 226/227 of the Constitution of India seeking direction against the respondents to fix their salaries as Wireless Operators in the pay scale of Rs. 350-560 under the Old Rules of 1975 and in the pay scale of Rs. 1200-2040 under the new Rules of 1987 and to pay the arrears to all the petitioners with interest and also to award all other consequential benefits with further direction to the respondents to take only 8 hours work from them and to grant weekly off as well as benefits of national and other public holidays and to pay the petitioners for the additional work which they have taken from the petitioners on weekly holidays, national and other public holidays and also for a period more than eight hours a day. The case of the petitioners is that the respondents wanted to fill up the post of Wireless Operators and for the said purpose, names from the Employment Exchange as well as from the Social Welfare Board were called for. From the names called for, the respondents issued call letters for interview to the candidates including the petitioners. During the interview, the candidates who were found suitable were issued appointment orders. One of such appointment order in respect of petitioner No. 2 dated 28.2.1984 is placed on record wherein it is specifically stated that the petitioner No. 2 has been appointed as wireless operator with other terms and conditions stated in the order. Salary of wireless operator is also mentioned and it is further provided that the candidate would not be entitled to any other benefits. It is the case of the petitioners that the petitioner No. 2 and all other petitioners have been performing their duties as wireless operators after they were appointed for the said post. It is the further case in the petition that the minimum qualification for the post of wireless operator is SSC Pass. All the petitioners have passed SSC Examination and are eligible and qualified for the post of wireless operator. Many of the petitioners are even graduate and some of them are double graduate as well as post graduate. It is further case of the petitioners that though all the petitioners are appointed to the post of wireless operators and though they are working as wireless operators, they have not been paid the salary as wireless operators by the respondents. It is further averred that the respondent State Government has issued Rules known as Gujarat Civil Services (Revision of Pay) Rules, 1975 wherein at page 37, serial no. 42, under the head of "Forest Department", pay scale of wireless operators have been mentioned as Rs. 350-560 and under the new Gujarat Civil Service (Revision of Pay) Rules, 1987, pay scale of wireless operators came to be revised from 350-560 to Rs. 1200-2040. It is the further case of the petitioners that they are entitled to the pay scale of Rs. 350-560 which has been revised to Rs. 1200-2040 from the date of coming into force of the said Rules of 1987. However, the respondent authorities have not paid the pay scale to the petitioners and the petitioners have been paid salary in the pay scale of Rs. 210-270, revised to Rs. 800-1150 under the Rules of 1987. Such an action of the respondents of paying the lower pay scale is arbitrary, capricious, unreasonable and violative of the fundamental rights of the petitioners guaranteed under Article 14, 19 and 21 of the Constitution of India.

The petitioners have made further grievance that the petitioners are not given other usual benefits which are given to the other confirmed employees such as Forest Guard. The petitioners have pointed out that in other departments of the State of Gujarat, Wireless operators are getting the pay scale of Rs. 350-560 under the old Rules of 1975 which are revised to Rs. 1200-2040 under the Rules of 1987 and the petitioners are therefore entitled to the pay scales similar to the wireless operators in the other departments of the State of Gujarat as the petitioners are performing similar functions and discharging similar duties.

The petition is opposed by respondents by filing reply dated 10th March, 2000 inter-alia stating that for effective and speedy communication, wireless network was proposed to be installed in Gir area and for its maintenance, personnel were required for operating. This Wireless Radio telephone does not require any special or technical skill as it involves receiving and relaying messages in common language which is subject to a limited field. It is further stated that this job can be done by any ordinary staff and, therefore, looking to the nature of the job and its simplicity, it was thought that existing cadre of forest Guards will suffice for this purpose and there was no need for raising a separate cadre of personnel with different pay scale for maintaining Wireless Radio Telephones. Therefore, while notifying the post, no special recruitment rules, no separate pay scale was mentioned for this post because recruitment of Wireless operators was to be done in the cadre of Forest Guards for which recruitment rules and pay scale were already existing. It is further averred that as per the Resolution of the Government of Gujarat, Agriculture and Forest Department dated 31.12.1983, 30 posts of wireless operators in the pay scale of Rs. 210-4.250-270 were sanctioned and the same were to be filled up before 28.2.1984. It is further stated by the deponent that the minimum qualifications laid down were the same as are in the case of Forest Guards. The pay scale of Rs. 210-4-250-5-270 was specifically mentioned at Sr. No. 5 which is the pay scale of Forest Guard. Educational qualification, physical standard of chest and height, walking test were the internal part of eligibility. The nature of job of Wireless Operator does not require the eligibility of physical standard of walking test. That the same was included which shows that it was basically for recruitment in the cadre of Forest Guards designated as Wireless Operators with future possibility of internal change from field to wireless and vice versa. It is further stated that the nature of duty simply involves relaying and receiving the messages in simple conversational languages. While denying the averments made in para 6 of the petition, the deponent has stated that the minimum qualification is passing of Gujarati Standard VIII. With reference to para 7 of the petition, the deponent has stated that the petitioners have been appointed to the post of wireless operators (Guards) in the pay scale of Rs. 210-4-250-5-270 shown at Sr. NO. 67 of GCS (ROP) Rules, 1975. This pay scale is shown in their appointment orders, hence, their demand of higher pay scale of Rs. 330-560 is not tenable. Moreover, the post of wireless operators in the forest Department is neither sanctioned by Government in separate pay scale nor it is shown in the GCS Pay Rules (ROP) 1987. All the petitioners, have given their option to accept the revised pay scale of Rs. 825-1200 against the old pay scale of Forest Guard of Rs. 210-270 and local Audit Fund Authorities have also verified their pay fixation and admitted the same. It is stated that the Pay Verification Party had strongly objected to the use of designation other than that of forest guard because in their list, there was no such category. Accordingly, the cadre of wireless operators was identified as the cadre of forest guards having the same pay scale. Hence the pay verification of these forest guards (Wireless) has been done in the cadre and pay scale of Forest Guards proving that wireless operators are recognized and identified in the cadre of forest guards only and the same has been accepted by all the forest guards (Wireless Operators). It is further stated in the reply that the cadre of wireless operator is recognized by the State Government in the separate cadre of technical nature for which separate Recruitment Rules have been framed like Recruitment Rules of the Police Department from which it can be seen that there is vast difference in the educational qualification and technical qualification for eligibility for this cadre. Nature of work, communication in code language form part of specialized professional working whereas in the forest department, wireless sets working in ordinary task involving communication of messages in simple language for which no training of course is imparted. It is stated that the job of forest wireless operators is quantitatively different from the type of job performed by the State cadre of Wireless Operators. It is further stated that there is no separate cadre of wireless operator, their names are being included in the gradation of list of forest guards and they will be entitled for promotion as forester.

Petitioners have filed rejoinder pointing out that when there was existing cadre of forest guard, there was no need for raising separate cadre of personnel with different pay scale for maintaining wireless radio telephones. Petitioners have also denied that while notifying the post of wireless operators, no special recruitment rules, no separate pay scale were mentioned for this post because recruitment of wireless operators was to be done in the cadre of forest guards. Petitioners have further stated that the minimum qualification required for the post of wireless operator is SSC whereas for the post of forest guard, same is 7th Standard pass, therefore, it is not correct that the recruitment of the petitioners is basically in the cadre of forest guard. Petitioners have also stated that the wireless operators have never been included in the gradation list of forest guards and the department has made separate gradation list for the post of forest guards and wireless operators. Petitioners have also denied that the wireless operators have been transferred to the post of forest guard and they are performing their duties as such and forest guards have been transferred as wireless operators and they are performing duties as wireless operators. The petitioners have stated that in ROP Rules, 1975 at Sr. No. 42, post of wireless operator is mentioned and there the pay scale was revised from 160.225 to Rs. 350-560 whereas the post of Forest Guard was mentioned at Sr. NO. 67 having the pay scale revised from Rs. 100-110 to Rs. 210-270. Petitioners have also denied that the petitioners have given option to accept the pay scale of Rs. 825-1200 against the old pay scale of Rs. 210-270. Petitioners have denied that the duty of wireless operator is fixed for 8 hours a day and also denied that the benefits of holidays and Sundays are given to them.

It appears that on behalf of the respondents, one more affidavit in reply is filed dated 15.9.2000 pointing out the qualification of wireless operator as per the Gujarat Police Manual, 1975 (containing the Rules under the Bombay Police Act, 1951, the Bombay Police (Extension and Amendment) Act, 1959 and also pointing out that none of the petitioners have technical qualification. It is also pointed out that as per letter dated 3.3.1983 of the Chief Conservator of Forest addressed to the Additional Chief Secretary, Agriculture and Forest Department, Sachivalaya, Gandhinagar, the recruitment of the petitioners is made as per Forest Guard Recruitment Rules. It is further pointed out that in the police department, constable is being posted for the post of helper and operator by giving necessary training as wireless operator and for that, special allowance of Rs. 10.00 is also being given. On the same basis, in Forest Department, Guards can be posted as operator and no separate rules are necessary for the guards recruitment but can be recruited as per Guard Recruitment Rules. It is further pointed out that none of the petitioners is possessing requisite qualification of SSC and they are recruited as such under the Forest Guard Recruitment Rules and, therefore, they cannot claim pay scale or status of wireless operator.

I have heard learned advocates for the parties. Shri Pathak, learned advocate appearing for the petitioners submitted that the appointment order issued to the petitioners is for the post of wireless operator and simply because the pay scale of Rs. 210-270 is mentioned in the appointment order, the same would not make appointment of the petitioner in the cadre of forest guard. Mr. Pathak submitted that in the appointment order, it is clearly stated that the appointee shall not be entitled to any other benefits of any other cadre. Such clause goes to show that the appointment of the petitioners was purely made for the post of wireless operator and such appointment cannot be treated to have been made in any other cadre. Mr. Pathak submitted that not only the ROP Rules, 1975 but in the Rules for forest department, at page 699, wireless operator is shown as separate cadre carrying the pay scale of Rs. 350-560 whereas the cadre of Guard (Bit Guard) is shown separately carrying the pay scale of Rs. 210-270. He submitted that if such are the different cadres and if the appointment of the petitioners is in the cadre of wireless operator, it cannot be said that since the pay scale of Rs. 210-270 is mentioned in the appointment order, appointment of the petitioners are to be taken in the cadre of Bit Guard or Forest Guard. Mr. Pathak submitted that all the petitioners are holding requisite qualification for the post of wireless operators and their appointments were also made after following due process of selection and, therefore, they cannot be denied the pay scale of Rs. 350-560 meant for the post of wireless operator. Mr. Pathak submitted that by order dated 28.4.2000, this Court put six queries to the respondents. However, the respondents have not satisfactorily replied to any of the queries of this Court. Mr. Pathak submitted that if the appointment of the petitioners was in fact in the cadre of Bit Guard, it was not necessary to ask for option from the petitioners for the cadre of Bit Guard. Mr. Pathak submitted that the petitioners have refused such options. He took the Court through call letters and appointment orders to point out that the process for selection and ultimate appointment order was for the post of wireless operator and since there are no other benefits made available to the petitioners as per the condition of appointment order, the petitioners are entitled to draw the pay scale of wireless operator Mr. Pathak submitted that the nature of duty and duty hours of the wireless operator are different than that of the Bit Guard. Mr. Pathak submitted that simply because the petitioners have accepted the appointment letter containing pay scale of Rs. 210-270, the petitioners cannot be denied the actual pay scale meant for the post of wireless operator because any contract contrary to the statutory provisions is always void and, therefore, pay scale contained in the appointment order of the petitioner for wireless operator being contrary to the ROP Rules, the petitioners are not bound by the pay scale prescribed therein on their acceptance of the appointment order. Mr. Pathak ultimately submitted that for all purpose, appointment of the petitioner was in the cadre of wireless operator and therefore, petitioners are entitled to the pay scale of Rs. 350-560 for the post of wireless operator and urged to allow the petition as prayed by the petitioners. In support of his submissions, Mr. Pathak relied on the decision in Western India Match Company Ltd. Vs. Workmen, .

As against the above arguments, learned AGP Mr. Rahul Dave appearing for the respondents submitted that in forest departments, nowhere any such technical person is needed to operate wireless network. Learned AGP Mr. Dave submitted that the appointment of the petitioners is simply for the purpose of transmission of message which any ordinary man can handle and such task is to assist the forest guard in various area. Mr. Dave submitted that there are no recruitment rules for the appointment of wireless operator meant for assisting forest guard and, therefore, appointment of the petitioners cannot be termed in the cadre of wireless operator as per the ROP Rules which is being followed by the State in other departments of the State. Mr. Dave submitted that the petitioners are appointed to discharge special functions and do simple duty of transmission of messages to assist the forest guard and since special task force was required for wireless network, the State Government approved separate set up by Resolution dated 31.12.1983 with 30 posts of operators in the pay scale of Rs. 210-270 with one post of helper in the pay scale of Rs. 210-270; six posts of jeep driver in the pay scale of Rs. 260-400; 1 post of technical assistant and one post of electronic engineer. Mr. Dave submitted that the sanctioning of such posts is under the Special Scheme for wireless network in the Gir Forest and such post could not be compared with the post found in different cadres in the ROP Rules. Mr. Dave submitted that for filling up the above specially sanctioned post by the State Government, there are no separate recruitment rules and, therefore, all such posts cannot be taken to be the post described in the ROP Rules or the Rules for filling up the post in the Forest Department. Mr. Dave submitted that after the Court passed order dated 28.4.2000 raising six different queries, the respondents have filed reply dated 15.9.2000 and pointed out that the eligibility and qualification for the post of wireless operators followed by the State Government in other departments are not the same qualification required of the petitioners for filling up the post of wireless operators in the forest department. He submitted that as per the qualification, special training and special skill are required for the post of wireless operators in other departments of the State Government and, therefore, the petitioners are not justified in comparing their position with the other wireless operators in the different departments of the State Government. Mr. Dave submitted that the nature of duty of the petitioners and other wireless operators in the different departments of the State Government are different and the petitioners cannot compare their duties with those wireless operators working in the other departments of the State Government. Mr. Dave submitted that the options were asked from the petitioners to see that they may get further benefits available in the cadre of forest guard as in the appointment letters of the petitioners, it is stated that the petitioners are not entitled to any other benefits of any other cadre. Therefore, options were asked for from the petitioners for the benefit of the petitioners and about sixteen petitioners have already accepted for option for the post of Forest Guard. These 16 petitioners are petitioner No. 1, 6, 7, 8, 9, 14, 12, 16, 19, 22, 23, 24, 33, 35, 31 as per the list supplied by the learned advocate for the petitioner. Mr. Dave submitted that though initially there was separate list maintained for the post of wireless operator, but thereafter list of forest guard and operator is combined and such is for the benefit of the petitioners. Mr. Dave submitted that the post of wireless operator (Guard) clearly falls in item No. 67 of the ROP 1975 Rules which is carrying the pay scale of Rs. 210-270 and, therefore, such post was part of the ROP Rules and the pay scale stated in the appointment order of the petitioner was the pay scale of wireless operator meant for the Guard. Mr. Dave submitted that since the post held by the petitioners are the posts of operator in wireless network specially sanctioned by the Government vide resolution dated 31.12.1983, and simply because the nomenclature of the post offered to the petitioners was stated to be the wireless operator, that would never become the posts of wireless operator but they remained to be the post of operator (guard) with the pay scale of Rs. 210-270 as found sanctioned with other posts in the said Government Resolution and the petitioners having accepted such post with the pay scale of Rs. 210-270 and continued to draw the salary in such pay scale for more than three to four years, it is not open for the petitioners to demand the pay scale of Rs. 350-560 as it has never been sanctioned by the State Government in the said special set up approved vide said resolution. Mr. Dave submitted that it was for the State Government to decide set up of the post and to fix the pay scale looking to the nature of work to be taken from the post created in the special set up. Therefore, petitioners cannot claim as a matter of right that they are entitled to the pay scale equivalent to the post of wireless operator in other departments of the State Government. Mr. Dave submitted that considering the nature of work for the post of petitioners and also considering the circumstances under which the special set up was created by the State Government for wireless network in the Gir Area, it cannot be said that any fundamental right of the petitioner has been violated Mr. Dave submitted that in absence to the challenge to the Government Resolution dated 31.12.1983 approving special set up for the post in question with other posts for wireless network in the forest area, the petitioners cannot claim parity of pay scale with the wireless operators in the other departments of the State Government. Mr. Dave submitted that the petitioners have not to perform duty of wireless operator like wireless operators in other departments of the State Government. He pointed out that the physical fitness of the petitioners was one of the criteria, such was meant for helping out forest guards as no technical qualification like regular wireless operator in other departments of the State Government was required and called for from the petitioners. Mr. Dave, therefore, urged to dismiss this petition. In support of his submissions, Mr. Dave relied on the decisions in Mew Ram Kanojia Vs. All India Institute of Medical Sciences and Others, ; Municipal Commissioner, Calcutta Municipal Corporation and others Vs. Pijush Kanti Das and another, ; Steel Authority of India Ltd. and Others Vs. Dibyendu Bhattacharya, .

Having heard the learned advocates for the parties and having perused the record of the case, it appears that there are no recruitment rules for the post of wireless operator in the Forest Department. Learned advocate for the petitioners has pointed out that the information booklet of Gujarat Forest Service at page 699 contains information of different posts with different pay scale. It is true that for the post of wireless operator, the pay scale prescribed is Rs. 350-560. However, the moot question is whether the appointment of the petitioners was in the cadre of wireless operator carrying the pay scale of Rs. 350-560 or not.

In reply affidavit filed by Shri B.P. Pati, Deputy Conservator of Forest, Wild Life Division, Sasan Gir dated 10th March, 2000, it is stated that the petitioners have been appointed on the post of wireless operators Bit Guards in the pay scale of Rs. 210-270 which is found at Sr. No. 67 of the ROP Rules, 1975. It is further stated that the cadre of wireless operator carrying the pay scale of Rs. 350-560 is technical cadre requiring different technical qualification and the petitioners do not possess such technical qualification. It is specifically stated that the job of the petitioners can be done by any ordinary staff. It is stated that looking to the simplicity in the nature of job of notified post, no separate recruitment rules, no separate pay scale was mentioned as the recruitment was to be made in the cadre of forest guard.

9.1 Now, with the stand taken in the reply, if the resolution of the State Government dated 31.12.1983 is considered, it is found that separate fund was ear-marked for wireless network and for undertaking such activity of wireless network, the Government sanctioned special set up with different posts including 30 posts of operator carrying pay scale of Rs. 210-270. In this resolution, nomenclature given to 30 posts is of ''operator'' and not as wireless operator. Other posts are of helper, jeep driver, technical assistant and electronic engineer with their respective pay scale as fixed in the said resolution. Their pay scales do not match with the post found in the ROP Rules, 1975 and with the information booklet of the Forest Department and, therefore, what clearly appears is that the Government wanted to have separate establishment for wireless network with the posts of electronic engineer, technical assistant, jeep driver, helper and operator with the pay scales provided in the Resolution dated 31.12.1983. Therefore, post of operators found in such special set up cannot be equated with the post of wireless operators found in other Departments of the State Government. When the appointments of the petitioners were not pursuant to any recruitment rules for wireless operators and not intended to be for the post of wireless operators described in ROP Rules, 1975 or the forest booklet, the petitioners cannot demand pay scale of Rs. 350-560 meant for wireless operators in other departments of the State Government especially when the petitioners have accepted such appointment and drawn pay in the pay scale of Rs. 210-270.

In further reply dated 15th September, 2000 filed by the respondents after the court passed order dated 28.4.2000 raising different queries, the respondents have come out with the educational and technical qualifications for wireless operators as per the Gujarat Police Manual, 1975 and specifically stated that none of the petitioners have any such qualification required for wireless operator. It is clearly stated in the said reply that the recruitment of the petitioners was made by following the procedure required for recruitment for the post of forest guard. At this stage, it is required to be noted that more than 16 petitioners have opted for forest guard. It appears that the department wanted to confer benefits available to the post of forest guard and, therefore, petitioners were called upon to opt for the post of forest guard so that they could be given the benefits which are otherwise not available as per one of the conditions provided in the order of appointment of the petitioners. Therefore, for all purposes, posts held by the petitioner are the post of operator as described in Government Resolution dated 31.12.1983 with the pay scale of Rs. 210-270 and keeping this in mind, they were offered to opt to come in the cadre of forest guard so that their future prospects may not be marred and they could be given all the benefits available in the cadre of forest guard. Since the posts held by the petitioners and the post of wireless operators in other departments of the State Government are distinct and of separate category, no parity for the pay scale of such posts could be claimed by the petitioners only because the nomenclature of the post given in the appointment order of the petitioner is wireless operator.

In the case of Western India Match Co. Ltd. (supra), relied on by Mr. Pathak, Hon''ble Supreme Court found that the agreement denying benefits to the employees was inconsistent with the Standing Orders and in that context, Hon''ble the Supreme Court has observed that while the Standing Orders are in force, it is not permissible to the employer to seek statutory modification thereof so that there may be second set of Standing Orders for some employees and another for the rest of the employees. Ratio of this decision of Hon''ble the Supreme Court will have no application to the facts of the present case.

In Mewa Ram Kanojia (supra) relied on by Mr. Dave, Hon''ble the Supreme Court held and observed in para 5 and 7 as under:

While considering the question of application of principle of ''Equal Pay for Equal Work'' it has to be borne in mind that it is open to the State to classify employees on the basis of qualifications, duties and responsibilities of the posts concerned. If the classification has reasonable nexus with the objective sought to be achieved, efficiency in the administration, the State would be justified in prescribing different pay scale but if the classification does not stand the test of reasonable nexus and the classification is founded on unreal, and unreasonable basis it would be violative of Arts. 14 and 16 of the Constitution. Equality must be among the equals, Unequals cannot claim equality.

Even assuming that the petitioner performs similar duties and functions as those performed by an Audiologist, it is not sufficient to uphold his claim for equal pay. As already observed, in judging the equality of work for the purposes of equal pay, regard must be had not only to the duties and functions but also to the educational qualifications, qualitative difference and the measures of responsibility prescribed for the respective posts. Even if the duties and functions are of similar nature but if the educational qualifications prescribed for the two posts are different and there is difference in measure of responsibilities, the principle of ''Equal Pay for Equal Work'' would not apply.

In Steel Authority of India Ltd. And Ors. (supra) relied on by Mr. Dave, Hon''ble the Supreme Court has held and observed in para 26 and 27 as under:

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 Articles 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 responsibilities 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 posts. The person claiming parity, must plead necessary averments and prove that all things are equal between the concerned posts. Such a complex issue cannot be adjudicated by evaluating the affidavits filed by the parties. The onus to establish the discrimination by the employer lies on the person claiming the parity of pay. The expert committee has to decide such issues, as the fixation of pay scales etc. falls within the exclusive domain of the executive. So long as the value judgment of those who are responsible for administration i.e. service conditions etc., is found to be bona fide, reasonable, and on intelligible criteria which has a rational nexus of objective of differentiation, such differentiation will not amount to discrimination. It is not prohibited in law to have two grades of posts in the same cadre. Thus, the nomenclature of a post may not be the sole determinative factor. The courts in exercise of their limited power of judicial review can only examine whether the decision of the State authorities is rational and just or prejudicial to a particular set of employees. The court has to keep in mind that a mere difference in service conditions does not amount to discrimination. Unless there is complete and wholesale/wholesome identity between the two posts they should not be treated as equivalent and the Court should avoid applying the principle of equal pay for equal work.

In State of Haryana and Others Vs. Jasmer Singh and Others, , Hon''ble the Supreme Court held and observed in para 5 and 8 as under:

The principle of ''equal pay for equal work is not always easy to apply. There are inherent difficulties in comparing and evaluating work done by different persons in different organisations, or even in the same organisation. The principle was originally enunciated as a part of the Directive Principles of State Policy in Article 39(d) of the Constitution. In the case of Randhir Singh Vs. Union of India (UOI) and Others, , however, this Court said that this was a constitutional goal capable of being achieved through constitutional remedies and held that the principle had to be read into Articles 14 and 16 of the Constitution. In that case a Driver-constable in the Delhi Police Force under the Delhi Administration claimed equal salary as other Drivers and this prayer was granted. The same principle was subsequently followed for the purpose of granting relief in Dhirendra Chamoli and Another Vs. State of U.P., and Jaipal and Others Vs. State of Haryana and Others, . In the case of Federation of All India Customs and Central Excise Stenographers (Recognised) and others Vs. Union of India and others, , however, this Court explained the principle of ''equal pay for equal work'' by holding that differentiation in pay-scales among government servants holding same posts and performing similar work on the basis of difference in the degree of responsibility, reliability and confidentiality would be a valid differentiation. In that case different pay-scales fixed for Stenographers (Grade-I) working in the Central Secretariat and those attached to the heads of subordinate offices on the basis of a recommendation of the Pay Commission was held as not violating Article 14 and as not being contrary to the principle of ''equal pay for equal work''. This Court also said that the judgment of administrative authorities concerning the responsibilities which attach to the post, and the degree of reliability expected of an incumbent, would be a value judgment of the concerned authorities which, if arrived at bona fade, reasonably and rationally, was not open to interference by the Court.

It is, therefore, clear that the quality of work performed by different sets of persons holding different jobs will have to be evaluated. There may be differences in educational or technical qualifications, which may have a bearing on the skills, which the holders bring to their job although the designation of the job may be the same. There may also be other considerations which have relevance to efficiency in service which may justify differences in pay-scales on the basis of criteria such as experience and seniority, or a need to prevent stagnation in the cadre, so that good performance can be elicited from persons who have reached the top of the pay-scale. There may be various other similar considerations which may have a bearing on efficient performance in a job. This Court has repeatedly observed that evaluation of such jobs for the purposes of pay-scale must be left to expert bodies and, unless there are any mala fides, its evaluation should be accepted.

In State of Madhya Pradesh and Others Vs. Ramesh Chandra Bajpai, , Hon''ble the Supreme Court held and observed as under in para 14 and 15:

In paragraph 6 of the impugned order, the Division Bench of the High Court observed that the rules governing and regulating the service of respondent make a distinction between Physical Training Instructor and teacher in the matter of status and pay scale, but proceeded to sustain the direction given by the learned single judge mainly on the premise that the orders passed in the cases of other Physical Training Instructors have not been assailed. The Division Bench also relied upon the ratio of judgment of this Court in Ramamohana Rao (supra) case and observed that the nature and duties of the Physical Training Instructors are at par with those of teachers.

In our view, the approach adopted by the learned Single Judge and Division Bench is clearly erroneous. It is well settled that the doctrine of equal pay for equal work can be invoked only when the employees are similarly situated. Similarity in the designation or nature or quantum of work is not determinative of equality in the matter of pay scales. The Court has to consider the factors like the source and mode of recruitment/appointment, qualifications, the nature of work, the value thereof, responsibilities, reliability, experience, confidentiality, functional need, etc. In other words, the equality clause can be invoked in the matter of pay scales only when there is wholesale identity between the holders of two posts.

In the case of Steel Authority of India Ltd. and Others Vs. Dibyendu Bhattacharya, , Hon''ble the Supreme Court held and observed in para 22 and 31 as under:

It is the duty of an employee seeking parity of pay under Article 39(d) of the Constitution of India to prove and establish that he had been discriminated against, as the question of parity has to be decided on consideration of various facts and statutory rules etc. The doctrine of ''equal pay for equal work'' as enshrined under Article 39 (d) of the Constitution 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. The Court must consider the factors like the source and mode of recruitment/appointment, the qualifications, the nature of work, the value thereof, responsibilities, reliability, experience, confidentiality, functional need, etc. In other words, the 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 burden of establishing right and parity in employment is only on person claiming such right.

The onus to establish the discrimination by the employer lies on the person claiming the parity of pay. The expert committee has to decide such issues, as the fixation of pay scales etc. falls within the exclusive domain of the executive. So long as the value judgment of those who are responsible for administration i.e. service conditions etc., is found to be bonafide, reasonable, and on intelligible criteria which has a rational nexus of objective of differentiation, such differentiation will not amount to discrimination. It is not prohibited in law to have two grades of posts in the same cadre. Thus, the nomenclature of a post may not be the sole determinative factor. The courts in exercise of their limited power of judicial review can only examine whether the decision of the State authorities is rational and just or prejudicial to a particular set of employees. The court has to keep in mind that a mere difference in service conditions does not amount to discrimination. Unless there is complete and wholesale/wholesome identity between the two posts they should not be treated as equivalent and the Court should avoid applying the principle of equal pay for equal work.

In the present case, the source of appointment of the petitioners is found in the resolution dated 31.12.1983 passed by the State Government. By the said resolution, special set up with different posts for activity of wireless network in the forest area was established. The stand of the Government authorities in their replies is very clear that the duties performed by the petitioners are not of any technical nature and qualifications required for the post held by the petitioners were also not like technical qualifications required for the post of wireless operator which are found in regular set up in the different departments of the Government. In my view, posts held by the petitioners are totally distinct and different in nature than the post of wireless operator in different departments of the State Government.

In view of the above, the petitioners are not justified in claiming pay scale of Rs. 350-560 at par with the pay scale of wireless operators in other departments of the State.

So far as the other relief as regards holidays duty hours prayed by the petitioners are concerned, the respondents have stated in their reply affidavit that the duty hours of the petitioners are fixed for eight hours and the benefit of holidays and Sundays are given to them as and when required and they are also given benefit of casual leave and such other benefits like other forest guard. In view of the above stand taken by the respondents in the reply and in view of the nature of the post held by the petitioners, it is for the respondents to look into the grievances of the petitioners. In the facts of the case, such grievance in the present petition cannot be considered under Article 226 of the Constitution of India. For the reasons stated above, this petition is required to be dismissed. Accordingly it is dismissed. Interim relief, if any, stands vacated. However, the respondents are directed to look into the grievances of the petitioners in respect of other relief as regard duty hours, holidays etc. Rule is discharged.