Judgment:
HON'BLE Dr.K.B.S.RAJAN, JUDICIAL MEMBER
1. This Review Application has been filed by the Applicant in OA No. 632 of 07 seeking review of order dated 23-10-2008. In fact, against the above order the applicant moved the High Court in W.P. No. 28197 of 2009 but the High Court had relegated the applicant to the remedy of review before this Tribunal.
2. Earlier, the applicant moved the Tribunal in OA No. 391 of 1991 claiming that the pay scale of Tool Room Assistant should be as for Group C post since the Tribunal allowed the same by order dated 23-07-1992. However, later, when the matter was taken up with the Apex Court in the case of Union of India vs P.V. Hariharan (1997) 3 SCC 569 wherein the Apex Court has clearly held that classification of posts cannot dictate the terms of pay scale for a particular post. The said judgment inter alia reads as under:-
4...... The pay scale of Tool Room Assistant in IFP is Rs 800-1150. In other words, the maximum of the said pay scale is not "over Rs 1150" so as to fall within Group C. The post properly fell under Group D because it carried a pay, the maximum of which was "Rs 1150 or less". "Over Rs 1150" means Rs 1151 and above. "Rs 1150" cannot be characterised as "over Rs 1150". The said post, therefore, properly fell under Group D and not under Group C. Assuming that the said post was mentioned under Group C, it may be -- or may not be -- an error. What is material is that the classification cannot result in change of pay scale from Rs 800-1150 to Rs 1150-2900. This is simply unimaginable. Pay scales are what are prescribed for each post by the Government which is very often done on the basis of recommendations of a Pay Commission or a similar expert body. Classification of posts has nothing to do with fixation of pay scales; it only classifies posts into several grounds based upon the pay scales already fixed. Classification and prescribing pay scales for several posts are two different and distinct functions. The Tribunal's order is, in our opinion, wholly unsustainable in law. The reasons given in support of the impugned order are ambiguous and vague. The impugned order of the Tribunal is accordingly set aside. Shri Nambiar, learned counsel for the respondents, however, submitted that the respondents had also raised the plea of "equal pay for equal work" on the basis of the pay scale granted to Tool Room Assistants in the CIFNET, but that the Tribunal has not dealt with it. We, therefore, remit the matter to deal with the said ground according to law and pass final orders in the original application.
3. Before parting with the appeal, a word of caution has been administered by the Apex Court over the avoidable interference by the Tribunals in matters of fixation of pay scales for which expert bodies like pay commissions are constituted and limited the scope of judicial intervention in respect of fixation of pay scale stating, "Unless a clear case of hostile discrimination is made out, there would be no justification for interfering with the fixation of pay scales."
4. The matter was, in pursuance of the direction of the Apex Court vide para 4 of the judgment in Hariharan, decided by the Tribunal vide order dated 23-10-1997 holding as under:-
"2. When the application came up today for fresh disposal, the learned counsel on either side stated that it would be appropriate if the applicants make a representation in regard to their grievances about pay scale, to the first respondent and the Tribunal gives a direction to first respondent to consider the representation and to give a speaking order to the applicants within a stipulated time. In view of the submission made by the learned counsel on either side we dispose of this application with a direction to the applicants to make a detailed representation to first respondent projecting their grievances in regard to the pay scale within a period of three weeks from today and with a direction to the first respondent that if such a representation is made by the applicants within the said period the same shall be considered and disposed of by the first respondent communicating a speaking order within a period of four months from the date of receipt of the representation."
5. The above order gave a latitude to the applicant to move representations before the Administrative Authorities and not finding any joy in the same, the applicant had moved OA No. 632 of 2007 which had been dismissed by order dated 23-11-2008, and this Review (after an attempt before the High Court) has been filed by the applicant.
6. The spinal ground for review is that the Tribunal has assumed that this OA is 'a successor in nature' of the earlier OA 391/91, whereas, the same is not, inasmuch as, the earlier OA revolved around classification of the post as Group C while the present one is based on the recommendations of the V Pay Commission in para 43.14 which reads as under:-
"Pay scales of posts requiring recruitment qualification of matriculation, ITI Certificate etc have been rationalized and they are proposed to be placed as far as possible in the scale of Rs.950-1500 which is being replaced by the scale of Rs.3050-4590."
7. The review applicant also contended in the review application that in fact the hostile discrimination lies in the admitted position that whereas in respect of posts (such as Artisans, Blacksmiths and Carpenters) tenable by candidates holding qualification less than SSLC higher pay scale has been prescribed, for the post of Tool Room Assistant wherein the qualification requirement is SSLC, the pay scale provided for is lower than that for the above categories of persons.
8. After issue of notice to the respondents, who had filed their reply stating that the scale of pay of Rs 800 - 1150 (attached to the Tool Room Assistant) was consistent with the recommendations of the 5th CPC. Therefore, no discrimination is meted out to the applicant while implementing the recommendations of the 5th Pay Commission.
9. Counsel for the applicant argued exactly on the above lines and submitted that there being hostile discrimination within the same department, the pay scale of the applicant who holds the post of Tool Room Assistant should be suitably revised.
10. Counsel for the respondents has invited the attention of the Tribunal to para 7 of the Counter (extract of which is given in 8 above) and stated that the review application has no merit.
11. Arguments were heard and documents perused. The review has been sought on the main ground that the 5th Pay Commission has recommended higher pay scales commensurate with qualifications, but the same has not been considered by the Tribunal. Another ground for review is that hostile discrimination has been meted out to the applicant inasmuch as higher pay scale for certain trades like Artisan, Blacksmith, Carpenter etc. have been recommended for and accepted by the Government while these posts have lower educational qualification requirements whereas for the post of Tool Room Assistant though qualification requirement is S.S.L.C the pay scale is lower than that of other trades cited above.
12. Argument of the counsel for the applicant centered around equal pay for equal work. The doctrine of equal pay for equal work has been dealt with by the Apex Court in a catena of decisions and some of the important observations made by the Apex Court in this regard are itemised as hereunder :-
(a) The principle "equal pay for equal work" is not a fundamental right but a constitutional goal.
- State of West Bengal v. West Bengal Minimum Wages Inspectors Association, (2010) 5 SCC 225
(b) It is dependent on various factors such as educational qualifications, nature of the jobs, duties to be performed, responsibilities to be discharged, experience, method of recruitment, etc. Comparison merely based on designation of posts is misconceived. Courts should approach such matters with restraint and interfere only if they are satisfied that the decision of the Government is patently irrational, unjust and prejudicial to any particular section of employees.
- State of West Bengal v. West Bengal Minimum Wages Inspectors Association, (2010) 5 SCC 225 (c) The evaluation of duties and responsibilities of different posts and determination of the pay scales applicable to such posts and determination of parity in duties and responsibilities are complex executive functions, to be carried out by expert bodies. Granting parity in pay scale depends upon comparative job evaluation and equation of posts.
- State of West Bengal v. West Bengal Minimum Wages Inspectors Association, (2010) 5 SCC 225 Also see - State of Haryana v. Charanjit Singh (2006) 9 SCC 321
(d) only if there was wholesale identity between the holders of the two posts, equality clause can be invoked, not otherwise.
- Union Territory Administration, Chandigarh v. Manju Mathur(2011) 2 SCC 452, based on State of M.P. v. Ramesh Chandra Bajpai
(e) the mere fact that at an earlier point of time, two posts were carrying the same pay scale does not mean that after the implementation of revision in pay scales, they should necessarily have the same revised pay scale.
-State of West Bengal v. West Bengal Minimum Wages Inspectors Association, (2010) 5 SCC 225
(f) it is only when the High Court is convinced on the basis of material placed before it that there was equal work and of equal quality and that all other relevant factors were fulfilled, it may direct payment of equal pay from the date of filing of the respective writ petition.
-State of Haryana v. Charanjit Singh (2006) 9 SCC 321
13. The above decisions of the Apex Court define as well as confine the parameters prescribed for judicial bodies in interfering with fixation of pay scales of the employees.
14. A reference to the approach by the Pay Commissions in respect of Workshop Staff right from 3rd Pay Commission would be appropriate at this juncture. The 3rd Pay Commission in Chapter 19 of its recommendations has co-related the pay scales with the character of the job requirements, namely, unskilled, semi-skilled, skilled and highly skilled. At that point of time Tool Room Assistants were placed in the category of semi-skilled. Para 12 of the 3rd Pay Commission recommendations dealt with the revision of the pay scales for semi-skilled workers and the same reads as under :-
12. Coming to the semi-skilled level, we have kept in view the demand of the NFIR that in the revised pay structure the maximum of the semi-skilled scale should not be restricted to the minimum of the skilled scale. It has been argued by them that there is no similar restriction on the maximum of the unskilled or skilled grades. Further, outside the workshop, the operating and other categories corresponding to the semi- skilled grades in workshops have avenues of promotion to higher grades which reach beyond the equivalent of the minimum of the skilled scale. On the considerations set out above, we recommend one scale to replace the present six semi-skilled scales as shown below :-
| Existing Scale Rs. | Proposed Scale Rs. |
| 75-95 | |
| 75-110 | |
| 80-110 | 200-280 |
| 85-110 | |
| 95-110 | |
| 85-128 |
The employees on the existing scale of Rs.75-95 in Defence Establishment and in other departments should be allowed to proceed beyond the maximum of Rs.240, applicable to non-workshop staff in the scale of Rs.75-95, only subject to their passing the prescribed trade tests of the standard applicable for getting into the existing workshop scale of Rs.85-110 on the corresponding grade. We further recommend that in view of the complaint of the Defence Employees' Organisations that some of the workers borne on the scales of Rs.85-110 and Rs.85-128 are doing work which is regarded as "Skilled" in other departments, the posts on these scales should, where necessary, be re-classified after proper evaluation so as to fit these posts into the semi-skilled or lower skilled categories, as the case may be.
15. Para 11.19 and 11.20 of the 4th Central Pay Commission Recommendations deal with semi-skilled workers and the same are as under :-
11.19 We have received several suggestions from federations/associations of workshop employees regarding reduction in the number of scales of pay and their improvement. It has also been represented that as all jobs in workshops need a certain minimum amount of skill, the present system of employing workers at the unskilled level is not justified and that the lowest scale of pay to workshop staff should be that of a semi-skilled worker. The suggestion requires creation of a category of basic trademen in workshops replacing the unskilled and semi-skilled employees. Having regard to the need for skill formation and work requirement in different departmental production units and ordnance factories, we do not think it is possible to dispense with recruitment at the unskilled level. It will take some time for an unskilled worker to acquire some skill before he could be considered as semi-skilled. No change is therefore called for in this respect. The well established system of categorisation of workshop staff into unskilled, semi-skilled, skilled, highly skilled and master craftsmen, may continue. Merger of the two highly skilled grades, which has been suggested, is not justified having regard to work requirements and may also adversely affect the promotion prospects of workshop staff at the skilled level. We are therefore unable to accept the suggestion.
11.20 The scale of Rs.225-308 was suggested as an interim arrangement by the Third Pay Commission for the then existing scales of Rs.100-130 and Rs.100-142 pending re-classification of the posts into semi-skilled or skilled. But posts in this scale are still continuing. We recommend that different ministries/departments should review the posts and suitably re-classify them at the appropriate level and adopt one of the standard scales for the workshop staff. Pending such review, the posts in the existing pay scale of Rs.225-308 should be given the revised scale of pay recommended by us.
16. Insofar as 5th Pay Commission recommendations are concerned, the applicant has relied upon para 43.14 already extracted above.
17. It is evident from the aforesaid recommendations that the Pay Commissions have adopted for determination of pay scales a procedure co-related with the character of the trade as well as qualifications. Mere equation of qualifications cannot by itself justify equal pay for two posts. Similarly, the Apex Court in the case of Federation of All India Customs and Central Excise Stenographers Vs. Union of India (1988) 3 SCC 91 has held that equal quantity of work also cannot dictate the terms of pay scales of two posts. Wholesale identity of the work both qualitative, quantitative coupled with qualification requirements and job evaluation arrived at by any expert body alone could determine fixation of pay scales. The Apex Court has also clearly held that even if the Tribunal has to deal with the matter relating to pay scales, all the materials should be made available for consideration. As held in the case of Aziz Ahmed (2009 2 SCC 606) the burden of establishing the right to invoke the doctrine of equal pay for equal work is on the persons claiming such right and such a right could be claimed only when adequate materials are placed for comparing two posts from various angles, one of them being educational qualifications.
18. In Randhir Singh Vs. Union of India (1982) 1 SCC 618 the Apex Court has discussed about the authority which has to deal with the cases of "equal pay for equal work".
19. In State of Madhya Pradesh Vs. Pramod Bhartiya (1993 1 SCC 539) the Apex Court has held as under:-
2. In Randhir Singh Chinnappa Reddy, J. speaking for the Bench of three learned Judges said:
"We concede that equation of posts and equation of pay are matters primarily for the Executive Government and expert bodies like the Pay Commission and not for courts but we must hasten to say that where all things are equal that is, where all relevant considerations are the same, persons holding identical posts may not be treated differentially in the matter of their pay merely because they belong to different departments. Of course, if officers of the same rank perform dissimilar functions and the power, duties and responsibilities of the posts held by them vary, such officers may not be heard to complain of dissimilar pay merely because the posts are of the same rank and the nomenclature is the same.
20. This decision has been followed in the case of Union of India Vs. S.K.Sareen (1998 1 SCC 177) and referred to by the Apex Court in the case of State of Haryana Vs. Haryana Civil Secretariat Personnel Staff Association (2002 6 SCC 72). Even in the latest case of Uttar Pradesh State Electricity Board Vs. Aziz Ahmed already referred to above the Apex Court has borrowed its observations in Pramod Bhartiya vide para 14 of the said judgment.
21. The order of this Tribunal (under review) has been decided with particular reference to the law laid down by the Apex Court in Pramod Bhartiya's case.
22. In view of the above, it cannot be stated that the Tribunal has not analyzed the issue fully.
23. We, therefore, find no merit in the R.A which accordingly stands dismissed.