Sudhir Singh and Another vs State of Jammu & Kashmir and Another

S.K. Gupta, J.—In pursuance of Advertisement Notice No. 3/1997 dated 29.04.1997, petitioners, possessing the prescribed academic and

technical qualifications required for the post of Computer Assistant, alongwith other candidates applied for the same and had participated in the

selection process. The petitioners, vide State Pollution Control Board Order No. 74 of 1999 dated 29.04.1999 and State Pollution Control Board

Order No. 64 of 1999 dated 20.04.1999, came to be appointed to the posts of Computer Assistants (State Cadre) in the pre-revised pay scale

of Rs. 1400-2600.

Petitioners further claimed to have worked efficiently on entire computer operating system ranging from MS DOS, MS-Windows,

3.1/Windows-95, Novel Netware and Application Software Packages, having worked at various places on contractual basis and gained good

experience before taking up this job with the State Government. It is further contended that respondent No. 1 appointed Computer Operators in

the pay scale of Rs. 2000-3200 (pre-revised) with qualification of 10 + 2 and diploma in Computers after their selection in pursuance of

advertisement notice No. 3/1996 dated 24.12.1996 issued by the J&K Service Selection Board, whereas the qualification prescribed for the post

of Computer Assistant which the petitioners at present are holding is graduation with diploma in Computers. Petitioners also claimed that the

persons appointed in different departments of the State Government with lesser academic qualification are placed in higher grade than those of

petitioners. That there is anomaly in their pay-scales and grades with their counter parts in other department of the State Government and the writ

petitioners are, thus, discriminated on unreasonable and unjustifiable grounds.

To press their claim to be entitled to 'equal pay for equal work', the petitioners represented to the Government that they being more qualified

than the requisitioned qualification in the advertisement notice with vast experience in computer knowledge and its application have not been

granted the pay scale to which they are entitled to. As regards the nature of job being attended to by the petitioners, they have placed on record

the job description with the writ petition as annexure 'J'. It is further submitted that above Computer Assistant, the next higher post is Computer

Analyst for which the qualification though prescribed is M.C.A. but the said qualification is not considered exactly equivalent to B.E. The B.Es.

have sound knowledge both in software and hardware, whereas the M.C.A. have only the knowledge of software aspect. The competent authority

while fixing the pay structure has not taken note of the fact that it commensurates with the qualification and job description. That the job performed

by the petitioners as compared to the Computer Operators in the Forest Department is far more superior and specialized. Persons designated as

Computer Analyst in the Administrative Secretariat of Forest Department are paid the salary in the pay scale of Rs. 2000-3200 (pre-revised),

which is not a uniform classification of posts in respect of parity and pay grades. The petitioners submitted that jobs attended to by them are similar

to the jobs attended to by the persons designated by different names as Computer Assistant/Computer Operator/Data Entry Operator by the

Government but there exist disparity in the pay structure and inaction on the part of the government in not adopting a uniform policy in this matter

smacks of arbitrariness and is irrational, unjust and prejudicial to the petitioners. Even higher qualification of the petitioners has not been given

proper weight-age while putting them in the pay scale. Petitioners, therefore, claim to be entitled to higher grade of Rs. 2000-3200 (pre-revised)

as is being paid to similarly placed persons in other departments of the government and, thus, seek a mandamus in directing the respondents to pay

accordingly.

Refuting the allegations made in the writ petition, the respondents in their counter affidavit submitted that the posts of Computer Assistants

advertised by the J&K Service Selection Board in pursuance of requisition by respondent No. 2 in the pay scale of Rs. 1400-2600 (pre-revised)

were filled up by making the appointment of petitioners alongwith others sub-stantively. After having been selected by the J&K Service Selection

Board, the petitioners when appointed, accepted the pay scale of the post. In such event, the petitioners, according to the respondents, cannot

claim higher scale of pay based on their qualification. The nature of job in different departments is different and so is the pay structure. In

advertisement notice issued by the J&K Service Selection Board, the qualification was prescribed for the post of Computer Assistant and the

petitioners do not possess any additional qualification than the one prescribed for the post. Further contention of the respondents is that higher

qualification is not a ground to entitle a person for higher scale of pay. The petitioners are only entitled to the pay scale which is attached to the

post held by them. The pay scale of Computer Operator in the Forest Department does not bind respondent No. 2 in respect of pay scale for

Computer Assistant in the department. Further plea put across by the respondents is that the petitioners, having participated in the process of

selection knowing fully well the pay scale attached to the post and accepted the appointment, cannot claim higher scale of Computer Operator in

Forest Department. In fact, the higher pay scale claimed by the petitioners is only of a promotional post (Computer Analyst) and, therefore, are not

entitled to it. For Computer Analyst, the prescribed qualification is M.C.A. The specific need of the Pollution Control Board has been kept in mind

while prescribing the qualification and pay scale for the post created for the department. The post of Computer Analyst is different than the post of

Computer Assistant, the pay scale would be different for different posts. The petitioners only possess the qualification which is prescribed for the

post requisitioned by respondent No. 2 and advertised by J&K Service Selection Board. That different nature of job, duties and responsibilities

are carried by different posts holders in Computer Application. Petitioners perform particular nature of job for which they were selected and

accepted the pay scale attached to the post. Graduation is the qualification prescribed for Computer Assistant whereas for the post of Computer

Analyst the qualification is Master Degree in the relevant discipline, so, the petitioners cannot be said to possess qualification higher than the one

prescribed for Computer Analyst. There is no such post of Computer Operator existing which prescribes qualification as 10 + 2 in the Pollution

Control Board-respondent No. 2. Respondents also stated that the pay scale of the petitioners is in accord with the qualification and nature of job,

they are performing. The comparison for the purpose of claim of parity of pay claimed by the petitioner based on higher qualification and nature of

job is misconceived and of no avail in the case.

I have heard the arguments advanced by the learned counsel appearing for the respective parties and also perused the record meticulously.

Since the plea of 'equal pay for equal work' has to be examined with reference to Article 14, the burden is upon the petitioners to establish their

rights to equal pay or plea of discrimination as the case may be. So far as the qualification prescribed in the advertisement notice, issued by the

J&K Service Selection Board, dated 29.04.1997 inviting applications for the posts of Computer Analyst and Computer Assistant, in its entries

Nos. 29 & 30, is M.C.A. having experience in Computer Application in the pay scale of Rs. 2000-3200 (pre-revised) and graduate with Diploma

in Computer in the pay scale of Rs. 1400-2600 (pre-revised) respectively. This clearly shows that the post of Computer Analyst is entirely

different than the post of Computer Assistant so there cannot be equal pay for different posts. The petitioners do not possess the qualification

prescribed for Computer Analyst with higher pay scale of Rs. 2000-3200 (pre-revised) so the nature of work, difference in degree of

responsibility and reliability being different, afford valid ground to give them different pay scales. The petitioners cannot be said to possess an

additional qualification than the one prescribed for the post of Computer Assistant in which they were selected and appointed in the department by

respondent No. 2. Even assuming that the petitioners possess higher qualification that itself does not entitle them to a higher scale of pay than the

one attached to the posts held by them as Computer Assistant. When different posts have been classified, carrying different pay scales advertised

in the notice and petitioners participated in the selection of particular post and then appointed to the post carrying a particular pay scale, they are

not entitled to claim the pay scale of the other post being a promotional post of higher grade merely on the ground that they possess additional

qualification than the one prescribed for the post on which they were appointed after selection. The post of Computer Assistant is different from

the post of Computer Analyst prescribing different qualification and specifying different pay scales as is clearly borne out from the advertisement

notice issued by the J&K Service Selection Board dated 29.04.1997.

There is no material placed on record by the petitioners to prove that the job attended to by them is more specialized and superior in nature than

that of Computer Operator in the Forest Department or Computer Operator under the same employer.

Mr. Jalali, learned counsel appearing for the petitioners, vehemently urged that the petitioners are claiming the grade higher than that of the post

of Computer Assistant on the ground of their qualification prescribed for the post, as against the post of Computer Operator in the Forest

Department which carries the higher scale with less qualification prescribed. Whereas, respondents on the other hand submitted that the nature of

job and responsibilities in different departments is different and their pay structure is, accordingly, fixed. It was further stated that additional

qualification does not in any manner qualify a person for higher scale of pay and in these circumstances the petitioners are entitled to get only the

pay scale attached to the post of Computer Assistant held by them.

In case of Union of India and Others Vs. Pradip Kumar Dey, , the Apex Court has pointed out with emphasis after considering various

judgment as under:-

This Court also said that the judgment of an 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 authorities concerned, which, if arrived at bona fide, reasonably and

rationally was not open to interfere by the Court.

It is well settled that for want of parity of scale as claimed by the petitioners, the Court has to make comparison of the nature of duties,

responsibilities and qualification for recruitment to the post of Computer Assistant in the Pollution Control Board and the Computer Operator in the

Forest Department.

It is not in dispute that the parity sought by the petitioners in the case is with the employees of the Forest Department not having the same

designation. Mr. Jalali fell in error in assuming that the averment regarding similarity of duties and responsibilities made in the writ petition was

unrebutted. Respondents have taken specific stand that there is no comparison as the nature of job in the different department is different.

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. 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. Before giving a declaration granting a particular scale of pay

and compelling the Government to implement the same, the Court is required to make an attempt to compare the nature of duties and

responsibilities of two sections of employees, one in the Pollution Control Board and the other in the Forest Department of the State. The Court is

also required to adhere to the basic principle that there are certain rules, regulations and instructions issued by the employer which govern the

administration of the cadre.

It may further be pointed out that the relevant criteria is the nature of work. It can not 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 make a difference. One cannot

deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration

in fixing the scales of pay and other conditions of service.

There are inherent difficulties in comparing and evaluating the work done by different persons in different organizations, or even in the same

organization. It may also be noted that differentiation in pay scale of persons holding different designations and performing similar work on the basis

of difference in the degree of responsibility, reliability and confidentiality would be a valid differentiation. It would be, thus, evident that emphasizes

are upon the similarity of scale, effort and responsibility when performed under similar conditions. But one cannot ignore and overlook the reality

that it is not a matter of assumption but one of proof. The petitioners in this case have failed to establish that their duties, responsibilities and

functions are similar to those of Computer Operators in the Forest Department for want of any material placed on record. One has to examine the

duties, responsibilities and functions, whether they are similar to those of Computer Operators in the Forest Department. Undoubtedly, where

employees are equal in every respect i.e., educational qualifications, duties and measure of responsibility, doctrine of 'equal pay for equal work'

can not be disregarded merely on the ground that the employee: had accepted the job at lower grade.

In the above view of the matter, I am of the considered opinion that in the absence of material relating to other comparable employees as to

qualification, method of recruitment, degree of skill, experience involved in the performance of job, responsibilities undertaken and facilities in

addition to pay scale, the petitioners are not entitled to claim pay scale equal to the pay scale of Computer Operators in the Forest Department

and is thus not possible to grant relief to the petitioners.

It has also been observed by the Apex Court in case of V. Markendeya and Others Vs. State of Andhra Pradesh and Others, , that principle

of 'equal pay for equal work' is applicable among equals, it can not be applied to unequals. Relief to an aggrieved person seeking to enforce the

principle of 'equal pay for equal work' can be granted only after it is demonstrated before the court that discrimination is practised by the State in

prescribing two different scales for the two classes of employees without there being any reasonable classification for the same.

I do not find that by the aforesaid classification, different treatment to two sections of employees was given and they were discriminated, in

violation of the equality guaranteed under Articles 14 & 16 of the Constitution of India.

In the background aforesaid, I do not find any justification for allowing the petitioners the benefit of higher grade on the principle of 'equal pay

for equal work' as claimed in the writ petition.

The petition, therefore, is without any merit and is, accordingly, dismissed.