Yatinder Mohan Dua and Others vs Delhi University and Another

Valmiki J Mehta, J.—Petitioners by this writ petition seek the relief of being granted the pay scale of Rs. 1400-2300/- from the original date of their appointments. Petitioners on their original appointments were granted a pay scale of Rs. 1200-1560-2040/-. Petitioners seek the benefit of the higher pay scale by seeking to place reliance upon the letter of the UGC of September, 1990 besides also by claiming that Prof. Abhai Mansingh Committee which made its recommendation on 16.10.1996 wrongly placed petitioners in para 4B of the report instead of para 6C. Petitioners additionally claim that their posts were equivalent to data entry operators of respondent no. 1-University and which is said to be admitted by the respondent no. 1/University in its letter dated 29.6.1999. Petitioners state that they have wrongly been denied the higher pay scale of Rs. 1400-2300/- from inception and they have been granted the same only from 3.6.1997 and that petitioners should have got this higher pay scale from their dates of appointment during September to November, 1990 so far as petitioner nos. 1 to 6 are concerned and so far as petitioner no. 7 is concerned w.e.f. his date of appointment on 19.12.1991. An entitlement in law for a person to claim higher pay scale can be basically on two grounds. First ground is that the service rules of the organization with which a person is working provides for a specific pay scale and which is denied to the employees. The second reason for claiming of the higher pay scale can be on the basis of application of doctrine of ''equal pay for equal work''. In the present case, petitioners claim the higher pay scale of Rs. 1400-2300/- as being paid to the data entry operators essentially on the ground of application of doctrine of ''equal pay for equal work''. Though this doctrine is not specifically invoked as per the averments made in the writ petition, however, the writ petition makes averments with respect to qualifications of petitioners who are appointed as junior technical personal assistants being equal to the qualifications required of data entry operators and the consequent entitlement of the petitioners to the higher scale of pay.

(i) With respect to the contention urged on behalf of the petitioners that petitioners would get benefit of letter of September, 1990 of UGC filed as Annexure A to the writ petition, that argument purely and simply on the basis of the language of the letter itself is liable to be rejected because the letter of September, 1990 of UGC only applied to data entry operators appointed in the computer centre of the respondent no. 1-University and not to other persons in other departments. As will be seen later the qualification and scope of work of data entry operators were different than junior technical personal assistants such as the petitioners. Also, Entry 5 of the Annexure to the letter of September, 1990 of UGC refers to the data entry operator as equivalent to senior technical assistant and technical assistant posts, and which posts are higher than the posts of junior technical personal assistants of the petitioners. When we refer to the advertisement No. 6/1989 pursuant to which petitioners were appointed as junior technical personal assistants in pay scale of Rs. 1200-1560-2040/-, it is seen that the post of a technical assistant is higher than the post of a junior technical personal assistant because technical assistant in this advertisement on being appointed was to be granted the pay scale of Rs. 1400-2300/-. Therefore, on the basis of the letter of UGC of September, 1990 and entry 5 of the annexure thereto it can safely be held that the same cannot help the petitioners because petitioners are junior technical personal assistants, and thus placed at a scale lower to the scales of technical assistants as per the subject advertisement No. 6/1989 pursuant to which petitioners were appointed. Accordingly, no reliance can be placed by the petitioners on this letter of the UGC of September, 1990 to claim benefit of the higher pay scale of Rs. 1400-2300/-. The following averments made in the counter-affidavit of respondent no. 1 show valid reasons for not treating petitioners as technical persons:-

5-6. Para no. 5 and 6 are matter of record. It is stated that a number of inter-disciplinary Departments were established in the South Campus in the eighties. Each Department had to be provided with some secretarial assistance to enable the Head of the Department to perform his duties. To meet the requirements, some post of Junior Technical Personal Assistant were created in the pay scale of Assistant (UDC). Knowledge of Computer operation was stipulated as typewriters were being replaced by computers gradually and it was considered advisable to recruit persons with basic knowledge of computer operations. The petitioners were recruited not for any technical job but only for discharging functions otherwise being discharged by Assistant (UDC)/Stenographers. Since the duties to be performed by them are the same/similar as that of Assistants/Stenographers, they were granted the pay scale of Assistants and rightly so.

(ii) In this regard, it is also relevant to note that in the additional affidavit which has been filed by the UGC dated 21.8.2008 it is specifically mentioned that qualifications which were prescribed for the post of a technical assistant (computer) in the computer centre at the time of appointment to the post was diploma in engineering or electronics or B.Sc. in science or mathematics or statistics or computer science. Therefore such technical assistants (computer) who had the pay scale of Rs. 1400-2300/- cannot be compared to the petitioners appointed as junior technical personal assistants and who only had to be graduates with knowledge of typing and computer operation. Having a general knowledge of typing and computer operation is totally different from having extensive knowledge of computer operation which is required in a computer centre and therefore petitioners who are essentially equivalent to UDCs cannot claim equivalence with a higher post of a technical assistant which had different qualifications for appointment. Not only the qualifications were different surely before the doctrine of ''equal pay for equal work'' comes in it is necessary that the scope of duties of two appointees have to be more or less identical. Surely scope of junior technical personal assistants who were appointed in the scale of UDCs in general departments are totally different from specialized jobs which are performed by data entry operators and computer operators in a computer centre by the respondent no. 1/University. Specialized qualifications and doing specialized work in a computer centre cannot be equated to general qualification of a graduate and who works in general administrative departments/offices of the respondent no. 1/University. Therefore, there is justification for the respondents to deny the petitioners benefit of doctrine of ''equal pay for equal work'' including on the ground that the nature and scope of work of petitioners were different than data entry operators in the computer centre. The following averments made in the additional affidavit dated 21.8.2008 are accordingly taken note of for denying the claim of the petitioners:-

The posts in Computer Centre of the University like Technical Assistant (Computers) are very different from the post of Junior Personal Technical Assistant (JPTA) in terms of their nomenclature, qualification and nature of duties and the technical nature of the job. The lowest post in the computer centre is that of Technical Assistant (Computer). The pay scale of the Technical Assistant (Computer) at the relevant time was Rs. 1400-2300 (pre-revised)/ Rs. 4500-7000/- and the qualifications prescribed for the said post was "Diploma in Engineering or Electronics or B.Sc. in Science/Mathematics/Mathematics Statistics/Computer Science". It would be seen that qualifications prescribed for the post of Technical Assistant (Computer) was much higher as compared to the qualification prescribed for the post of Junior Technical Personal Assistant. The post of Technical Assistant (Computer) in the Computer Centre being a Technical position, qualifications such as Diploma in Engineering was prescribed and rightly so, having regard to the nature of duties to be performed by them and having regard to the qualifications prescribed, a higher pay scale of Rs. 1400-2300/ Rs. 4500-7000 (revised) was prescribed for the said post. Subsequently with effect from 3.6.1997, the qualifications for the post of Technical Assistant (computer) was further revised as "graduation in science with minimum 50% mark with at least 2 years experience of using Micro/Mini/Works Station Computer system with Generic Software under Popular Operating System". The above said revised qualification prescribed is also different from the qualification prescribed for the post of Junior Technical Personal Assistant and was higher in comparison to qualifications prescribed for the post of Junior Personal Technical Assistant. Apart from the fact that the qualifications are not same and are indeed not comparable, the nature of duties is also different. Whereas the duties of a Junior Technical Personal Assistant is administrative/ministerial in nature, similar of that of Assistant (UDC), duties to be performed by a Technical Assistant in the Computer Center is qualitatively different and are technical in nature which requires higher skills and abilities. There is no indeed comparison between the two.

So far as the challenge which is led by the petitioners to the report of the Prof. Abhai Mansingh Committee which placed the petitioners in para 4(B) instead of para 6(C), the argument raised is once again misconceived for the reason that the committee was constituted with respect to computer operators in the science department of the respondent no. 1/University. The science department had computer staff which was treated as a technical side due to the type of work performed by them on the computers. It was also found that these computer operators in science department had not received promotions for 20 years and therefore various aspects including this aspect were considered for granting a higher scale of pay to the computer operators in science department. Surely, once there are no relevant service rules which specifically deny entitlement to grant of a particular pay scale, it is open to an employer such as the respondent no. 1 to create avenues for promotion and higher pay scale to those persons who had stagnated for as many as 20 years in the same post. It is like an assured career promotion or one time upward movement scheme. These persons who were granted benefits as per the committee report were differently placed than the petitioners because petitioners had only just some years back and that too with open eyes took up appointments as junior technical personal assistants in the pay scale of Rs. 1200-1560-2040/-. Petitioners in terms of the committee report got benefit of a higher pay scale of Rs. 1400-2300/- purely as personal cases w.e.f. 3.6.1997 in view of the resolution of the respondent no. 1/University, however, such an act of the University cannot mean that the University can be forced to grant the higher pay scale of Rs. 1400-2300 from the original dates of appointments of the petitioners from September to November, 1990 so far as petitioner nos. 1 to 6 are concerned and December, 1991 so far as petitioner no. 7 is concerned.

(i) Reliance placed by the petitioners upon the letter of the respondent no. 1/University dated 29.6.1999 cannot help the petitioners because a letter written by the University cannot mean that it is the legal position applicable for the doctrine of ''equal pay for equal work'' to be enforced although the requisite elements of the doctrine do not exist. Before the doctrine of ''equal pay for equal work'' is enforced inter alia there is required fulfillment of the crucial elements of equivalence in qualifications of two posts, more or less identical work being performed in two posts and hierarchy and structure of promotions being similar. These essential criteria are not found for giving petitioners equivalence to data entry operators in the computer center or science department.

(ii) Also, if after all the one Joint Registrar who signed on behalf of the respondent no. 1/University in the letter dated 29.6.1999 was correct, then, nothing prevented the University by its executive council from accepting its letter dated 29.6.1999, but this stand admittedly has not been accepted by the University, and which obviously was not accepted by the executive council of the University because there really is no equivalence between a junior technical personal assistant and a data entry operator and this was made abundantly clear by the committee when it granted benefit of the higher pay scale on acceptance by the executive council of the University purely as personal to the petitioners and without laying down a general principle, by stating that so far as future appointments of junior technical personal assistants are concerned they will continue to be appointed on the core pay scale of the junior technical personal assistants and not the pay scale of a technical assistant or a data entry operator. Therefore, reliance placed by the petitioners upon the letter of one Joint Registrar dated 29.6.1999 is misconceived and accordingly rejected. The following averments made in the counter-affidavit of respondent no. 1 show the difference in the posts and qualifications of the two posts of junior technical personal assistants (UDCs) and the technical assistant (computer) and accordingly the valid basis to deny equivalence claimed by petitioners to technical assistants:-

12-25. In reply to paras 12 to 25 it is denied that the petitioners were entitled to the benefit of para 6-C or that they were entitled to the benefit of para 4-B or that there was any mistake committed by the Committee or the University or that there is any such admission. It is stated that when these petitioners made a representation to the vice-chancellor, the Vice Chancellor requested the Director, SDC, to examine as to how best the JTPAs could be helped. At this stage, the office suggested that the post of JTPA may be redesignated to that of Technical Assistant (Computer). Though the UGC scale of pay ( Rs. 1350-2200) was less than that of University Technical Assistants, yet the Vice Chancellor has approved the proposal to place the JTPAs as Technical Assistants in the University Scale, i.e. Rs. 1400-2300 as a special case. In fact the JTPAs have not fulfilled the qualification for the post of Technical Assistant as recommended by Professor Abhaiman Singh Committee. Instead of appreciating the gesture shown by the Vice Chancellor, it is unfortunate that the JTPAs have preferred to allege that it is an admission on the part of the University that there was a mistake committed earlier if the intention of the University was to fill up the post of Technical Assistant (Computer) with equivalent rank earlier the University would have filled up the posts in the grade of Rs. 1400-2300 for which the qualification is B.Sc. Degree with Science, and none of the petitioners fulfil this qualification. When they did not have the requisite qualification in 1990 for the post of Technical Assistant, they cannot make a claim for the scale of pay of the post of Technical Assistant. Further, had the University advertised the post in the pay scale of Rs. 1400-2300, the University could have attracted better candidates than the petitioners and perhaps the petitioners would not have been selected at all. It is denied that there was any mistake committed by the University or by Professor Abhaiman Singh.

Accordingly, there is no basis whatsoever for the petitioners to claim invocation and application of the doctrine of ''equal pay for equal work'' for being granted a pay scale of Rs. 1400-2300/- from the commencement of their appointments, more so because with open eyes they accepted a specific pay scale of Rs. 1200-1560-2040/- from inception and for a post which was advertised as a post at one step lower than a technical assistant. There is no basis for claiming equivalence to a data entry operator by the petitioners who were only junior technical personal assistants for the reasons as stated above. In view of the above, there is no merit in the writ petition and the same is therefore dismissed, leaving the parties to bear their own costs.