DR. RAMESH CHandRA PandA, MEMBER (A):
1. Smt. K. Jayalakshmi, the applicant herein, who was appointed on the post of Dark Room Assistant on 22.03.1995 in the pay scale of Rs.1150-25-1500. She was promoted as Plate Maker which she joined on 17.03.2006 in the pre-revised pay scale of Rs.4000-6000. It is the case of the applicant that on the recommendation of the Internal Departmental Committee, the pay scales of Dark Room Assistant were revised to the pay scale of Rs.1200-30-1440-EB-30-1800 in all other Departments of the Government of India, whereas no such recommendations were ever received in the SSB Department through Cabinet Secretariat. The 5th Central Pay Commission (CPC) recommended Rs.3050-75-4900 and Rs.4000-6000 as replacement scales for the above two pay scales (Rs.1150-1500 and Rs.1200-1800). As the applicant did not get the revised pay scales, she submitted her representation dated 10.10.2001 (Annexure-A3) claiming that she should be granted the revised pay scale of Rs.4000-6000 the replacement scale of Rs.1200-1800. It is her case that the said pay scale she is getting in the promoted post as Plate Maker. She, therefore, submitted one more representation to correct her pay anomaly and bring in pay parity as Dark Room Assistant with her counterparts in other Departments of the Government. She was informed vide OM dated 17.11.2007 (Annexure-A7) that her pay scale of Rs.1150-25-1500 was attached to the Dark Room Assistant as per the then existing Recruitment Rules and the replacement scale being Rs.3050-4490 she was allowed the said pay scale in the 5th CPC. She was informed again the same stand in another OM dated 04.01.2008. The applicant terms the above approach to be a callous attitude and inaction on the part of the respondents as the pay anomaly was not corrected right at the stage of her appointment as Dark Room Assistant and her pay was not revised to Rs.1200-1800. Therefore, claiming her pay anomaly to be corrected at par with her counterparts as Dark Room Assistant, she is before the Tribunal under Section 19 of the Administrative Tribunals Act, 1985 with the following prayers:-
“(i) to direct the respondents to grant the pay scale of Rs.1200-1800/- w.e.f. 31.10.1989 with all consequential benefits including arrears thereof;
(ii) to direct the respondents to grant the pay scale of Rs.4000-6000/- w.e.f. 1.1.1996 on notional basis and from 1.9.1997 on actual basis with all consequential benefits including arrears thereof;
(iii) to direct the grant @18% interest on the arrears;
(iv) to direct the respondents to amend the Recruitment Rules, if required for grant of the legitimate claim of the applicant for grant of the pay scale of Rs.1200-1800 w.e.f. 31.10.1989 and Rs.4000-6000/- w.e.f. 1.1.1996 and bring it at par with the RRs applicable to the staff of the Government Printing Press being similarly situated alternatively to quash the relevant portion of RRs applicable as on 31.10.1989;
(v) to grant the cost of the instant application;
(vi) to grant any such further and other reliefs as may be deem fit and proper in the matter.”
2. Shri H. K. Gangwani, learned counsel for the applicant would submit that the applicant is similarly situated as those of the persons working in the post of Dark Room Assistant in the Government of India Press. She is, therefore, entitled to the same pay scales as applicable to her counterparts w.e.f. 30.10.1998. He further contends that the respondents have admitted that applicant suffers from gross injustice in the sense that inaction on their part to amend the Recruitment Rules applicable at that point of time by replacing the then pay scale to Rs.1200-1800, has eventually led the applicant to get the old pay scale. His contention is that by not amending the Recruitment Rules governing the applicant it has created two class of employees with the same duties, functions and responsibilities. He relied on the judgment of this Tribunal in the matters of Binu M. Mathews and another Versus Union of India and others (OA NO.1494/2009) decided on 22.1.2010. This, he terms, as invidious discrimination in pay scales. In order to avoid the hostile discrimination between the two sets of employees, Shri H. K. Gangwani submits that the Tribunal’s interference is required to correct the anomalous position by allowing the OA with appropriate directions.
3. The respondents, on receipt of the notice from the Tribunal have entered appearance and submitted their reply affidavit on 10.02.2009 through Shri Rajesh Katyal, learned Senior Central Government Counsel. It is contended that the Internal Departmental Committee recommended the revision of the pay scales of the Dark Room Assistant to Rs.1200-30-1450-EB-1800 w.e.f. 31.10.1989 but as the Recruitment Rules applicable for the applicant was far different from the other Recruitment Rules of the Dark Room Assistant Government of India Press, it was decided to continue with the then pay scale for the applicant. However, he hastens to add that the recommendations of the 6th CPC has been received, as per which, the Pay Band of Dark Room Assistants has been revised w.e.f. 1.1.2006 in the corresponding Pay Band of Rs.5200-22200 + Grade Pay of Rs.1900. Shri Katyal’s contention is that the pay parity has been maintained between the Dark Room Assistant of Government of India Press and the SSB during the 6th CPC as various pay scales have been clubbed. Further he contends that the Recruitment Rules, Educational Qualification and Experience meant for the Dark Room Assistants worked under the Government of India Press and in the SSB Printing Press are different and, therefore, different pay structure would be admissible. He, therefore, argues that revision of the pay of the applicant at par with the Dark Room Assistants in the Government of India Press would not be admissible w.e.f. 31.10.1989. In support of his contentions, Shri Katyal placed his reliance on the judgment of Hon’ble Apex Court in M.P. Rural Agriculture Extension Officers Association Versus State of M.P. and another reported in AIR 2004 SC 2020; and Sohan Singh Sondhi Versus Punjab State Electricity Board, Patiala (AIR 2007 SC 2713).
4. Having considered the contentions of the rival parties, we have perused the pleadings. It is trite law that pay parity and equal pay for equal work can be best judged by the executive and the judicial interference is rather limited. In this context, we refer to the judicial precedents and place our reliance on the judgments of Hon’ble Supreme Court of India. In S.C. Chandra and Others Versus State of Jharkhand and Others [2007-8-SCC-279], the Honourable Supreme Court has exhaustibly dealt with the issue of pay parity and powers of the Courts and Tribunal to interfere in the matters of pay fixation and if so on what grounds. It is appropriate for us to take extract of the relevant paragraphs of the said judgment
“15. The principle of equal pay for equal work was propounded by this Court in certain decisions in the 1980s, e.g. Dhirendra Chamoli and another vs. State of U.P. (1986) 1 SCC 637, Surinder Singh vs. Engineer-in-Chief, C.P.W.D. (1986) 1 SCC 639, Randhir Singh vs. Union of India (1982) 1 SCC 618 etc. This was done by applying Articles 14 and 39(d) of the Constitution. Thus, in Dhirendra Chamoli's case (supra) this Court granted to the casual, daily rated employees the same pay scale as regular employees.
16. It appears that subsequently it was realized that the application of the principle of equal pay for equal work was creating havoc. All over India different groups were claiming parity in pay with other groups e.g. Government employees of one State were claiming parity with Government employees of another State.
17. Fixation of pay scale is a delicate mechanism which requires various considerations including financial capacity, responsibility, educational qualification, mode of appointment, etc. and it has a cascading effect. Hence, in subsequent decisions of this Court the principle of equal pay for equal work has been considerably watered down, and it has hardly ever been applied by this Court in recent years.
18. Thus, in State of Haryana vs. Tilak Raj (2003) 6 SCC 123, it was held that the principle can only apply if there is complete and wholesale identity between the two groups. Even if the employees in the two groups are doing identical work they cannot be granted equal pay if there is no complete and wholesale identity, e.g., a daily rated employee may be doing the same work as a regular employee, yet he cannot be granted the same pay scale. Similarly, two groups of employees may be doing the same work, yet they may be given different pay scales if the educational qualifications are different. Also, pay scale can be different if the nature of jobs, responsibilities, experience, method of recruitment, etc. are different.
19. In State of Haryana and others vs. Charanjit Singh and others (2006) 9 SCC 321, discussing a large number of earlier decisions it was held by a three-Judge Bench of this Court that the principle of equal pay for equal work cannot apply unless there is complete and wholesale identity between the two groups. Moreover, even for finding out whether there is complete and wholesale identity, the proper forum is an expert body and not the writ court, as this requires extensive evidence. A mechanical interpretation of the principle of equal pay for equal work creates great practical difficulties. Hence in recent decisions the Supreme Court has considerably watered down the principle of equal pay for equal work and this principle has hardly been ever applied in recent decisions.
20. In State of Haryana and another vs. Tilak Raj and others (2003) 6 SCC 123, the Supreme Court considered the doctrine of equal pay for equal work in the context of daily wagers of the Haryana Roadways. After taking note of a series of earlier decisions the Supreme Court observed:
"A scale of pay is attached to a definite post and in case of a daily wager, he holds no post. The respondent workers cannot be held to hold any posts to claim even any comparison with the regular and permanent staff for any or all purposes including a claim for equal pay and allowances. To claim a relief on the basis of equality, it is for the claimants to substantiate a clear cut basis of equivalence and a resultant hostile discrimination before becoming eligible to claim rights on a par with the other group vis-Ã -vis an alleged discrimination. No material was placed before the High Court as to the nature of duties of either categories and it is not possible to hold that the principle of 'equal pay for equal work' is an abstract one.
'Equal pay for equal work' is a concept which requires for its applicability complete and wholesale identity between a group of employees claiming identical pay scales and the other group of employees who have already earned such pay scales. The problem about equal pay cannot always be translated into a mathematical formula".
21. In State of U.P. and others vs. Ministerial Karamchari Sangh, AIR 1998 SC 303, the Supreme Court observed that even if persons holding the same post are performing similar work but if the mode of recruitment, qualification, promotion etc. are different it would be sufficient for fixing different pay scale. Where the mode of recruitment, qualification and promotion are totally different in the two categories of posts, there cannot be any application of the principle of equal pay for equal work.
22. In State of Haryana vs. Jasmer Singh and others AIR 1997 SC 1788, the Supreme Court observed that the principle of equal pay for equal work is not always easy to apply. There are inherent difficulties in comparing and evaluating the work of different persons in different organizations. Persons doing the same work may have different degrees of responsibilities, reliabilities and confidentialities, and this would be sufficient for a valid differentiation. The judgment of the 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 interference by the court.
23. In Federation of All India Customs and Excise Stenographers (Recognized) and others vs. Union of India and others AIR 1988 SC 1291, this Court observed:
"In this case the differentiation has been sought to be justified in view of the nature and the types of the work done, that is, on intelligible basis. The same amount of physical work may entail different quality of work, some more sensitive, some requiring more tact, some less, it varies from nature and culture of employment. The problem about equal pay cannot always be translated into a mathematical formula".
24. It may be mentioned that granting pay scales is a purely executive function and hence the Court should not interfere with the same. It may have a cascading effect creating all kinds of problems for the Government and authorities. Hence, the Court should exercise judicial restraint and not interfere in such executive function vide Indian Drugs and Pharmacheuticals Ltd. vs. Workmen, Indian Drugs and Pharmaceuticals Ltd. (2007) 1 SCC 408.
25. There is broad separation of powers under the Constitution, and the judiciary should not ordinarily encroach into the executive or legislative domain. The theory of separation of powers, first propounded by the French philosopher Montesquieu in his book and the Spirit of Laws' still broadly holds the field in India today. Thus, in Asif Hameed vs. State of Jammu and Kashmir, [AIR 1989 SC 1899] a three Judge bench of this Court observed (vide paragraphs 17 to 19):
"17. Before adverting to the controversy directly involved in these appeals we may have a fresh look on the inter se functioning of the three organs of democracy under our Constitution. Although the doctrine of separation of powers has not been recognized under the Constitution in its absolute rigidity but the constitution makers have meticulously defined the functions of various organs of the State. Legislature, executive and judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another. The Constitution trusts to the judgment of these organs to function and exercise their discretion by strictly following the procedure prescribed therein. The functioning of democracy depends upon the strength and independence of each of its organs. Legislature and executive, the two facets of people's will, they have all the powers including that of finance. Judiciary has no power over sword or the purse nonetheless it has power to ensure that the aforesaid two main organs of State function within the constitutional limits. It is the sentinel of democracy. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The expanding horizon of judicial review has taken in its fold the concept of social and economic justice. While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the self imposed discipline of judicial restraint.
19. When a State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the constitution and if not, the court must strike down the action. While doing so the court must remain within its self-imposed limits. The court sits in judgment on the action of a coordinate branch of the Government. While exercising power of judicial review of administrative action, the court is not an appellate authority. The constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers."
26. In our opinion fixing pay scales by Courts by applying the principle of equal pay for equal work upsets the high Constitutional principle of separation of powers between the three organs of the State. Realizing this, this Court has in recent years avoided applying the principle of equal pay for equal work, unless there is complete and wholesale identity between the two groups (and there too the matter should be sent for examination by an expert committee appointed by the Government instead of the Court itself granting higher pay).
27. It is well settled by the Supreme Court that only because the nature of work is the same, irrespective of educational qualification, mode of appointment, experience and other relevant factors, the principle of equal pay for equal work cannot apply vide Government of West Bengal vs. Tarun K. Roy and others (2004) 1 SCC 347.
28. Similarly, in State of Haryana and another vs. Haryana Civil Secretariat Personal Staff Association (2002) 6 SCC 72, the principle of equal pay for equal work was considered in great detail. In paragraphs 9 and 10 of the said judgment the Supreme Court observed that equation of posts and salary is a complex matter which should be left to an expert body. The Courts must realize that the job is both a difficult and time consuming task which even experts having the assistance of staff with requisite expertise have found it difficult to undertake. Fixation of pay and determination of parity is a complex matter which is for the executive to discharge. Granting of pay parity by the Court may result in a cascading effect and reaction which can have adverse consequences vide Union of India and others vs. Pradip Kumar Dey (2000) 8 SCC 580.”
5. Guided by the law laid in various judgments of the Hon'ble Apex court cited in the above judgment, we would like to identify the principles which run through those judgments on the pay parity controversy. Those are as follows:-
(a) pay scale fixation is purely executive function and courts and Tribunals should not direct in fixing pay scales;
(b) the principle of equal pay for equal work should not be applied unless there is a complete and wholesale identity between the two groups;
(c) even to find out the wholesale and complete identity, the best forum is an expert body like Pay Commission;
(d) the Pay Commission which goes into at great depth on the pay anomalies and the issues of pay parity undertake in depth examination from various angles with full facts on the issues, is the appropriate authority to decide such matters;
(e) it is the claimants of equality to substantiate the basis of equivalence and resultant discrimination;
(f) even if the persons holding same post doing similar work but if the mode of recruitment, qualification, promotion etc. are different, pay parity would not be admissible; and
(g) persons doing the same work in different organizations may have different responsibilities, reliability, confidentiality which are sufficient reasons for pay disparity;
6. Keeping in mind the well settled position as narrated above, we note that the Recruitment Rules under which the applicant is governed, is the SSB (Printing Press Service (Amendment) Rules and admittedly there is only one post of Dark Room Assistant in SSB against which the applicant was selected. It is seen that the educational and other qualifications required for direct recruits are different from the eligibility and educational qualification meant for the Dark Room Assistants working under the Government of India Press. In SSB, there is no requirement of Diploma in Printing Technology and the eligibility for Dark Room Assistants is Matriculation with work experience for 3 years whereas the educational qualification and other requirements as Dark Room Assistants in the Government of India Press is Diploma in Printing Technology from a recognized Institute with two years experience in operation of processing Camera. Thus, the eligibility criteria of the Dark Room Assistants which the applicant belongs being in the SSB and being different from those of the Dark Room Assistants working in the Government of India Press, wholesale parity cannot be claimed to be there for extending the pay parity to the applicant.
7. Considering the above facts and circumstances of the case, we are of the considered opinion that the pay parity and equal pay for equal work as claimed by the applicant in the post of Dark Room Assistant w.e.f. 31.10.1989 will not be admissible. Thus, finding no merits in the applicant’s case, the OA is dismissed. There will however be no order as to costs.