Shyamal Saikia and Others vs State of Assam and Others

K. Lahiri, J.—By this application under Article 226 of the Constitution of India, the Petitioners, Library Attendants of the Gauhati High Court, for short "the LAS" assail the impugned order dated November 13, 1981 passed by the Government of Assam regretting their inability to revise the scales of pay of the Library Attendants at par with the Lower Division Assistants, on the grounds that the principle of equal pay for equal work were violated and that the impugned order has violated the mandates of Articles 14, 16, 39(d) and 229(2) of the Constitution of India. The Petitioners have heavily relied on the law laid down by the Supreme Court in Randhir Singh Vs. Union of India (UOI) and Others, One of the main; thirsts of the Petitioners is that the then Hon''ble Chief Justice on perusal of the report of the Registrar and upon due assessment of their work in the High Court based on the principles of ''equal pay for equal work'', asked the Registrar to move the Government to revise the scales of pay of the Library Attendants to bring the same at par with those of the Lower Division Assistants, for short "the LDA''s"; the Petitioners assent the Government had no jurisdiction to pass over the assessment under the recommendation made by the Chief Justice and the refusal to revise the scales of pay of the Petitioners is violative of the constitutional mandates contained in Articles 14, 16 and 19 as well as the Directive Principles of Article 39(d) of the Constitution. The Petitioners pray that the Respondents be directed to fix their scales of pay at par with "the LDA''s."

"Equal pay for equal work" is not a catch phrase or an empty alogan. The expression, at the first blush, appear to be exciting and comforting but they are powerful responses for the conscience. The collocation of the words are our constitutional goal attainable through constitutional remedies by the enforcement of the constitutional rights guaranteed by and under the Constitution. It is proclaimed in Article 39(d) of the Constitution, as a Directive Principle, the constitutional target of "Equal pay for equal work for both men and women". Articles 14 and 16 guarantee respectively the fundamental right'' to equality before law and equality of opportunity in the matter of public employment. The Directive Principle has to be read into the fundamental rights, and should be trusted tools for the interpretation of fundamental rights. The equality clauses should be useful and must mean something to the citizens. The Rules aforesaid have been enunciated by the Supreme Court in Randhir Singh (supra). After threadbare discussions of the Articles, the preamble to the Constitution, the meaning of the word "Socialist" and various other authorities, their Lordships held:

Construing Articles 14 and 16 in the light of Preamble and Article 39(d), we arc of the view that the principle of "equal pay for equal work" is deducible from those Articles and may be properly applied to classification or irrational classification, though those drawing the different scales of pay do identical work under the same employer.

It follows, therefore, that the unequal scales of pay based on (1) no classification, or (2) irrational classification is volatile of Articles 14 and 16 provided those drawing the different scales of pay do similar work under the same employer. Indeed, the employer is the best person to judge or Assess whether the employees are performing ''identical work'' and, therefore, entitled to equal scales of pay. The term "identical" in the context means, kindred, akin, equivalent, comparable, analogous or cognate work. In Randhir Singh (supra), the rule of equal pay for equal work was applied to the drivers in the Delhi Police Force performing similar functions and duties as other, drivers in the service of the Delhi Administration and the Central Government. The argument advanced by the Union was that the Drivers of Delhi Police Force and the other Drivers belong to different departments and the duties and responsibilities were of different in nature, and therefore, the principle of equal pay for equal work could not be applied was rejected by the Supreme Court. Their Lordships directed the Respondents to fix the scales of pay of the Petitioners and Driver-Constables of the Delhi Police Force at least at par with those of the Drivers of the Railway Protection Force and the petition was allowed.

Let us turn to the facts of the instant case. The Petitioners are Library Attendants of the High Court. Since 1961. the scales of pay of "the LDA''s" and the Library Attendants, i.e. "LDA''s", was same and it was reflected in the High Court Services (Appointment, Condition of Service and Conduct) Rules 1961 and later in the Schedule to the Rules of 1967. There were revisions of the pay scales from time to time but the scales of the LDAs and the LAS remained identical, with same benefits of increments. Later No. 1964 there was only one category of "post of Lower Division Assistants including Library Attendants". The post was designated in Schedule I of the High Court Rules as "(3) Lower Division Assistant including Library Attendants." The higher post to ''''the Lower Division Assistants Including Library Attendant" were the posts of assistant Librarian, Upper Division Assistant, Commissioner of Affidavits, Editor of Paper Books. Court Officer, Accountant, Cashier, Keeper of Records and Translators. It is thus seen that since 1960 there was only one Category of posts styled as, "Lower Division Assistant including Library Attendants." The post is in the ministerial establishment of the High Court (Non-Gazetted) Class III. No one, who is not a graduate of a recognised university, is allowed to appear in the competitive examination for appointment to the High Court Ministerial Service Class III except as a salaried Typist-vide Rule 7(3)(II)(i). However, the Chief Justice may on special or general order condone the requisite qualification for appointment to the posts. It is thus seen that there is only one Category of post of LDAs including "the LAs" and the requisite qualifications for appointment were the same. Taking into consideration the workload, the nature and character of their work, the LDAs and LAs were Bill along given the same scales of pay. By their letter dated October 10, 1977, the Govt. of Assam informed all concerned that they had considered the question of improvement of the pay scales of "the LDAs of the Assam Secretariat" and careful consideration they decided that the scales of pay applicable to "the LDAs" of the High Court should be raised to Rs. 325-15-400-EB-16-56O-EB-18-650/- w.e.f. October 1, 1977, Accordingly, the pay scales, of the Lower Division Assistants of the High Court was raised at par with "the LDs" of the Assam Secretariat but "the LAs" who were holding the same post with that of the LDAs did not get the benefit of the increase. The Petitioners made a representation to the Registry of the High Court who rejected their representation in 1978. without placing the same before the Hon''ble Chief Justice and without assigning any reason. The decision was given without hearing the Petitioners. Being aggrieved, they made a representation to the then Chief Justice who heard the Petitioners and found anomalies and asked the Registrar to submit his report as to whether the Petitioners were entitled to the revised scales of pay granted by the Government to "the LDAs" of the High Court. On scrutiny of the entire records the Registrar submitted his report stating, inter alia, that since the creation of the post of "the LAs", they were getting the same pay scale as was applicable to the LDAs. The scales of pay of the Petitioners were the same with those of the LDAs until the order of the Government dated October 10, 1977. The Registrar did not find any reason as to why ''the LAs" should not get the increased scales of pay granted to "the LDAs". The Registrar took into consideration the nature and character of the work of the LAs and submitted that they bore responsibilities is no way inferior to those of the LDAs, the post of LDA including LA had the same status, no post was inferior to the other. The Registrar recommended that the LAs should gat the revised pay scales granted to "the LDAs". On due consideration of the report, the then Chief Justice by his order dated 18.8.79 held the opinion that the Government should be moved to revise the pay scales of "the LAs" to bring the same at par with that of "the LDAs", Accordingly, the Registrar wrote to the Government for revision of the pay scales of the LAs of the High Court and, Inter alia, stated

The Hon''ble Chief Justice has been pleased to direct that the pay scale of the Library Attendants should be the same as that of the Lower Division Assistants, namely Rs. 325/- to Rs. 650/- P.M.

Several reminders were sent to implement the order of the Chief Justice who is the appointing authority of "all appointments to the service of the High Court, vide Rule 6 of the Gauhati High Court (The High Court of Assam, Nagaland, Meghalaya, Manipur and Tripura), Appointment, Condition of Service and Conduct) Rules, 1967. So the appointing authority recommended the revision of the pay scale considering the nature and character of the work of the LAs of the High Court. Petitioners 2 and 3 were appointed as LAs on 9.9.72 and 12.7.69 respectively but Petitioner No. 1 was appointed as LA w.e.f. 11.7.81. In the meantime the Govt. wanted certain a in formation from the Asstt. Registrar, Gauhati High Court as to the promotional posts of the LAs together with the pay scales of the posts. It was in August, 1981. Indeed at the time the pay scales of LDA was made higher and naturally it was considered to be higher promotional post in view of the impugned order of the Government dated 10.10.77. As the pay scale of the LAs remained at Rs. 275-475/-, the Assistant Registrar informed that at the relevant time the next promotional posts of LAs wire either the post of LDAs or the post, of Asstt. Librarian, subject to the fulfilment of the requisite qualification. On receipt of the letter, the Government regretted their inability to revise the pay scale of ''the LAs'' on the ground that the next promotion of an LA was the post of LDA or Asstt. Librarian and the said posts had higher scales of pay.

There is no sembiance of doubt that since 1962, the High Court and the Government considered that the LDAs and the LAs of the High Court should get the same scales of pay on the principle of equal pay for equal work. Since 1964 there was only one post in the High Court designated as Lower Division Assistants including Library Attendants and the LDAs including LAs enjoyed the same scales of pay on the basis of equal pay for equal work. Until the Govt. by their unilateral action raised the scales of pay of the LDAs, the status of the LDAs and the LAs was the same. There was no question of getting promotion from LA to LDA. In fact, along with raising the pay scale of "LDAs" there should have been proportionate revision of pay scales of other ministerial staff of the High Court and it appears that their cases were completely overlooked. Indeed, the post of Asstt. Librarian was a promotional post when the pav scale of LDAs and LAs was the same. In view of the withholding of the increase in the pay scale of the LAs, the Asstt. Librarians were getting higher scales of pay and it was a promotional post at all relevant time when the enquiries were made. However, the crucial question was whether on the revision of pay scales of the LDAs, the pay scales of the LAs, who were all along treated at par insofar as status, pay scale, qualification and quantum of work, were concerned, should have been altered and raised or not. When "the appointing authority". namely, the Chief Justice held that the employees under him did equal work and should get equal pay, we feel that no other outside agency can nullify the conclusion and hold to the contrary. Any such contrary opinion or conclusion of such agency must be held arbitrary and perverse, unless strong reasons are coming In fact in many respects, as is revealed from the records placed at our disposal, we find that the work done by "the LAs" are more rigorous and need more expertise than that of the LDAS. In any view of the matter the Petitioners rightly contended that when the Chief Justice, the appointing authority, bad made the recommendation for revision of pay scale of "the LAs" that is, their scales of pay should be at par with the LDAs and the Govt. could not have violated the mandates of Articles 14, 16 and 39(d) and 229(2) of the Constitution in turning down the recommendation of the Chief Justice. When the employer opines that the employees were doing equal work and they were entitled to equal pay, as held by the Supreme Court in Randhir Sirgh (supra), the principles enunciated were violated in not granting the Petitioners the scales of pay as desired by the Chief Justice.

The Respondents justify the impugned order for withholding the increase which can be gathered from the affidavit filed by Respondents 1, 2 and 3 in sub-paragraph 2 of paragraph 8 of their affidavit which reads as under:

The Petitioner begs to state that although the pay scale was identical, the nature and the duties of the Library Attendant are quite distinct from that of the Lower Division Assistant. A Library Attendant is required to con-fine his duties in the Library itself wherein he is to assist the Librarian to sort out the books and to maintain it properly. But the Lower Division Assistant has much more responsibility including the correspondence with the file works and therefore both the posts cannot be equated on the same fooling. As the posts are different, it is respectfully submitted that the question of discrimination and/or violation of the principles of natural justice does not arise in the frets and circumstances of the case.

It will be seen that the said affirmation is neither based on knowledge nor was it based on any records and/or information derived by the deponent from any source whatsoever. It was just a statement unsupported by any affirmation. Only the first sub-paragraph 8 was stated to be matters of record which was true to the information derived by the deponent which he believed to be true and the rest of the statements were his "humble submissions", It is, therefore, scan that the justification for refusal us referred in sub-para 2 of para 8 of this affidavit is not based on any material but was merely submission. The submissions go counter to the statement of fact which we find from the records of the High Court. The assertion that the nature of the duties were different and that LDAs had much more responsibilities than those of the LAs go counter to the records placed at our disposal. Neither the posts were different at all relevant time nor the nature of the work and the responsibility were different. The consideration that the posts of LDA was a promotional post for LA was a misconception and irrational conclusion. The post of LDA was never a promotional post for LA on any date prior to 1.10.77. This happened due to the unilateral action of the Govt. in merely revising the pay scales of LDAs and passing over the claims of the LAs. Indeed, when the clarification was called for by the Govt., the LDAs were baving scale of pay and naturally the post having a higher scale of pay became temporarily a promotional post for the LAs. However, the situation was the product of fortuitous increment and it, cannot be treated as a condition of service of the Petitioners either in law or in fact. The letter of the Asstt. Registrar stating the situation as it existed after 1.10.77 could not and should not be taken as a handle to deprive the person performing equal work from getting equal pay. From 1962 till 1977 the LAs and LDAs were getting the same pay scales. Since 1964 till 1.10.77 they were holding the same post. The posts had equal status, equal pay scales and equal responsibility as revealed from the records of the case. It was just a fortuitous circumstances that the scale of pay of the Asstt. Librarian was also not taken into consideration, and it continued to remain stationary as fixed in August, 1974.

We find from the records that the then Chiff Justice expressed that the revision of the pay scales of the LAs of the High Court was necessary and the Government should be moved, accordingly. The order was rendered on the report of the Registrant based on the records and assessment of the work of The LDAs and the LAs. The order of the Chief Justice was for revision of the pay scales of the LAs to bring the same as par with the revised pay scales of the LDAs. In our opinion the Respondents were to follow the principles of equal PAY For equal work as recommended by the Chief Justice, the appointing authority and should have revised the pay scales accordingly. There are positive and affirmative materials to show that the nature, character and quality of the work of the LAs are the same, if not more onerous than that of a LDA. Under the circumstances we are of the firm opinion that the Petitioners are entitled to get equal scales of pay with those of the LDAs, We hold that the considerations which played in the mind of the Govt. that the post of LDA was a promotional post for the LA was irrational and relevant consideration, more so, in view of the specific order of the Chief Justice.

We hold that the impuged order is vocatives of Articles 14 and 16 of the Constitution and is against the Directive principles contained in Article 39(d) of the Constitution. On the facts and circumstances of the case we are also incited to Held that the impugned Government letter is violative of The provisions of Article 229(2) of the Constitution. The conditions of service of a High Court employees is regulated by the Rules framed by the High Court in the manner prescribed. The tact that the LAs enjoyed the scale of pay at par with the LDAs since 1962. was a condition of service. This position cold not have been altered by the impugned letter of The Govt.

In the result, we allow this writ petition and direct the Respondents to fix the pay scales of the Petitioners at least at par with that of the Lower Division Assistants. However, in so far as Petitioners 2 and 3 are concerned they should get the revised scale of pay on and from 1.10.77 wheress Petitioner No. 1, Shri Shyamal Saikia shall be entitled to his revised scale of pay from his date of appointment, i.e., on and from 11th July, 1981. In view of the fact that the Petitioners are lowly paid employees and they are fighting the litigation for over one and a half year, while accepting their petition, we also award a cost of Rs. 200/ to each of them, payable by Respondent No. 1

Before parting with the records we would observe that the doctrine of "Separation of Powers" is particularly associated with the name of Montesquieu who in 1748 published his "De 1'' Espirit des Lois" ("The Spirit of the Laws") and stated as follows:

When the legislative and executive power are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty if the judiciary power be not separated from the legislative and executive... There would be an end of everything, were the same man or body, whether of the nobles or of the people to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.

Our Constitution-makers also envisaged political liberty in the Preamble to the Constitution and made all provisions for separation of the judiciary from the executive to grant political liberty. What, otherwise, was the necessity to incorporate Article 50 in the Constitution? It is true that the doctrine of separation of powers, as adopted in America did not appeal to our mentors. But the concept of independence of judiciary which pervade British Constitution was not given a go-bye when the Republican India bad its first written constitution. What do otherwise, the provisions of Articles 124(b), 141, 144 Articles 217 (Proviso), 218 etc. indicate ? In the cortext of the present case attention roust also be specifically directed to Articles 229. More than once the apex Court has held and reiterated that the independence of judiciary is a basic structure of our Constitution. The latest view of the Court dealing with its synodrone is manifested in S.P. Gupta Vs. President of India and Others, The least we can say on the subject in the case is when the affirmative recommendation of the Chief Justice of this Court is ignored by the Government it obviously generates the feeling of regret and disparagement impairing the efficacy and efficiency of the judicial organ of the State due to failure by the holders of power in the executive branch of the Government to honour its Constitutional obligations.