indu Mehta Vs. State of Punjab and Another - Court Judgment

CWP No.3659 of 1993 -:

1. :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.3659 of 1993 Date of decision: August 30, 2013. Indu Mehta ... Petitioner v. State of Punjab and another ... Respondents CORAM: HON'BLE MR. JUSTICE DR. BHARAT BHUSHAN PARSOON Present: Shri Gagandeep Singh Wasu, Advocate, for Shri Hawa Singh Hooda, Senior Advocate for the petitioner. Shri Yatinder Sharma, Additional Advocate General, Punjab. Dr. Bharat Bhushan Parsoon, J.The petitioner seeks issuance of a writ in the nature of mandamus directing the respondents for releasing the grade pay of Rs.2,400-4,000 to him with effect from 20.8.1987, averring, that on the analogy of 'equal pay for equal work', she is entitled for the said grade of pay. Facts of the case Stand of the petitioner 2. To understand the controversy in the present petition, following facts are needed to be gone through.

3. The petitioner was initially appointed on ad hoc basis as Chemist in the Excise Section of Food & Drugs Excise Laboratory, Punjab, Chandigarh on 11.4.1969. Later on, she was selected as Senior Analytical Assistant by the Punjab Public Service Commission on regular basis and was appointed to the said post vide Kadyan Vinot Kumar 2013.09.06 10:22 I attest to the accuracy and integrity of this document Chandigarh CWP No.3659 of 1993 -:

2. :- appointment letter dated 16.10.1970 (Annexure P-1). A little later, i.e., on 16.9.1972, as a temporary measure, she was appointed as Analyst with a condition that she could be reverted to her original post without any notice or assigning any reason vide order (Annexure P-2). When she was continuing as Analyst on purely temporary basis, the Punjab Civil Services (Revised Pay) Rules, 1988 (hereinafter called the Rules) came into effect with effect from 1.1.1986. Yet, another notification was issued by the respondent- State on 20.8.1987 (Annexure P-3) whereby the petitioner along with three other Analysts, for purposes of testing drugs (other than those specified in Schedule-C of the Drugs & Cosmetics Rules, 1945) and cosmetics, was declared as a Government Analyst.

4. Some time later, vide notification dated 20.1.1989, amendment was brought about in the Rules whereby, 2nd Schedule of the Rules was revised. Relevant portion of 2nd Schedule of the Rules, extracted from para 6 of the petition, is reproduced as under:- Sr.not Post Existing scale (in Revised scale (in Remarks Rupees) Rupees) 1.

2. 5.

3.

4. 20 Govt. Analyst, Punjab 400-1250 To be notified - Chandigarh (pre1.1.1978) 5. Revised scale of pay of Government Analyst, Punjab Chandigarh, as per this amendment in the 2nd Schedule of the Rules, was to be notified later on.

6. This revised scale by way of amendment in the 2nd Schedule pertaining to Part 'B' of the Rules was notified on 21.8.1990, relevant extract of such notification as culled out from the writ petition, is reproduced as under:- Sr.not Post Existing scale Revised scale Remarks 1.

2. (in Rupees) (in Rupees) 5.

3.

4. 20 Govt. Analyst, Punjab 400-1250 2,400-4,000 - Chandigarh (ONE (before POST) 1.1.1978) 940- 1775 (w.e.f. 1.1.1978) Kadyan Vinot Kumar 2013.09.06 10:22 I attest to the accuracy and integrity of this document Chandigarh CWP No.3659 of 1993 -:

3. :- 7. Taking shelter in notification dated 20.8.1987 (Annexure P-3) and drawing support from notifications of 20.1.1989 as also of 21.8.1990 (Annmexure P-4), the petitioner claims her entitlement to pay scale of Rs.2,400-4,000 with effect from 1.1.1980. It is claimed that since she was performing duties of Government Analyst in pursuance of notification dated 20.8.1987 (Annexure P-3), she is entitled to the revised scale of pay viz. Rs.2,400-4,000, which pay scale was applicable to the only one post of Government Analyst Punjab, incumbent of which post was working as such and was much senior to them all. It is claimed that denial of equal pay scale with similarly situated Government Analyst, Punjab was arbitrary.

8. In short, as per the petitioner, following questions are to be answered in this writ petition:- (i) Whether action of official respondents in not releasing the pay scale of Rs.2,400-4,000 to the petitioner with effect from 1.1.1986 is arbitrary and as such is violative of Articles 14 and 16 of the Constitution of India?.; and, (ii) Whether the Government is under statutory obligation to release the above mentioned pay grade to the petitioner?. Stand of the respondents 9. This petition has met with a tough contest from the respondents. It is averred that in the entire State of Punjab, there is only one post of Government Analyst, Punjab at Chandigarh and that the said post is meant for a direct recruit, who is appointed through Punjab Public Service Commission. It is further explained that incumbent to the said post was recruited through the said Commission in the year 1980. It is, thus, explained that the highest promotional post is that of Government Analyst, Punjab. It was further pleaded that after revision of pay scale, pay scale of Government Analyst, Punjab was Rs.2,400-4,000 whereas that of Public Analyst was Rs.3000-4500, and further that the post on which Kadyan Vinot Kumar 2013.09.06 10:22 I attest to the accuracy and integrity of this document Chandigarh CWP No.3659 of 1993 -:

4. :- the petitioner was working, was that of Analyst in the pay scale of Rs.1,500-2,640.

10. Even on the pedestal of qualifications, it was claimed that the petitioner was not qualified to be appointed to the post of Government Analyst, Punjab. In short, it was canvassed that neither the petitioner was eligible to be appointed as Government Analyst, Punjab not she had been so appointed and, thus, was not entitled for the scale of pay applicable to the post of Government Analyst, Punjab.

11. In addition, it was claimed that even duties of Government Analyst, Punjab were different from that of Public Analyst, Punjab and, thus, there was no parity between the two posts. Prayer for dismissal of the writ petition has been made.

12. Learned counsel for the parties have been heard while perusing the paper book with their able assistance. Discussion follows:- 13. During the course of arguments, it has not been disputed that Government Analyst, Punjab is the highest post in the hierarchy. Details of category of posts with number of sanctioned posts, are being tabulated hereunder with the respective pay scales, such posts carry and as to what is the mode of recruitment of such posts:- S.not Name of category not of Pay scale (Rs.) Mode of posts recruitment 1 Government Analyst, Punja”

2400. 4000 Direct recruitment 2 Public Analyst, Punja”

3000. 4500 By promotion 3 Dy. Chemical Examine”

2100. 3700 -do- 4 Assistant Chemical Examiner or 3/2 2000-3500 -do- Distt. Public Analyst 5 Analyst/Chemis”

1500. 2640 -do- 6 Senior Analytical Assistan”

1410. 2460 -do- 7 Junior Analytical Assistant 1350-2640 By direct 5 appointment 14. From the captioned tabulation, it further transpires that post of Government Analyst, Punjab is the sole one and mode of recruitment of the same is also direct i.e. through Public Service Kadyan Vinot Kumar 2013.09.06 10:22 I attest to the accuracy and integrity of this document Chandigarh CWP No.3659 of 1993 -:

5. :- Commission. It is thus not a promotional post.

15. Contention of counsel for the petitioner is that she is neither asking for placement on equal pedestal with incumbent of the post of Government Analyst, Punjab, who is far ahead of her in seniority having been recruited directly to the said post through Public Service Commission in the year 1980, but her claim is limited to the same pay scale on the premise of similarity of functions performed by her and by the incumbent of the post of Government Analyst, Punjab. In this regard, support has been sought from State of Punjab and another v. Surjit Singh and others, (2009) 9 SCC 514.

16. Learned counsel for the respondents relying on this verdict itself has urged that doctrine of 'equal pay for equal work' is not a theory of mechanical application. It is contended that grant of benefit under such doctrine depends upon multiple factors which include not only equal work but equality even in source and manner of appointment as also complete identity of functions etc. It is thus urged that this doctrine has no universal application as fact situations are entirely different in different case. It is thus urged that there is no parity among the posts as also in functional requirements thereof i.e. of the post held by the petitioner and one of the Government Analyst, Punjab. It is further claimed that in addition, there are number of divergent aspects which include mode of recruitment and disparity in qualifications and experience etc. prescribed, for these two categories of posts.

17. Rival claims of the parties are to be evaluated on the canvass of facts interfaced with law relied upon by the parties. In para 19 of State of Punjab and another v. Surjit Singh and others, (supra), referring to State of Haryana v. Tilak Raj 2003 (6) SCC 123.it has been observed by the Hon'ble Apex Court as under:- “...The principle of equal pay for equal work is not always easy to apply. It has been held that there are inherent difficulties in comparing and evaluating the work of different persons in different organisations or even in the same organisation. It has been held that this is a concept which requires, for its applicability, Kadyan Vinot Kumar 2013.09.06 10:22 I attest to the accuracy and integrity of this document Chandigarh CWP No.3659 of 1993 -:

6. :- 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. It has been held that the problem about equal pay cannot be translated into a mathematical formula.”

18. It was further observed in this authority by Hon'ble Supreme Court of India as under:- “...A mere nomenclature designating a person as say a carpenter or a craftsman is not enough to come to the conclusion that he is doing the same work as another carpenter or craftsman in regular service. The quality of work which is produced may be different and even the nature of work assigned may be different.”

. x x x “...In any event, the party who claims equal pay for equal work has to make necessary averments and prove that all things are equal. Thus, before any direction can be issued by a court, the court must first see that there are necessary averments and there is a proof. If the High Court is, on the basis of material placed before it, convinced that there was equal work of equal quality and all other relevant factors are fulfilled it may direct payment of equal pay from the date of the filing of the respective writ petition.”

19. In Government of West Bengal Versus Tarun K. Roy and others (2004) 1 Supreme Court Cases 347 in para 14, the Hon'ble Apex Court has observed as under: “Article 14 read with Article 39 (d) of the Constitution of India envisages the doctrine of equal pay for equal work. The said doctrine, however, does not contemplate that only because the nature of the work is same, irrespective or an educational qualification or irrespective of their source of recruitment or other relevant considerations the said doctrine would be automatically applied. The holders of a higher educational qualification can be treated as a separate class. Such classification, it is trite, is reasonable. Employees performing the similar job but having different educational qualification can, thus, be treated differently.”

20. In this very judgment, in para 20, it has been observed Kadyan Vinot Kumar 2013.09.06 10:22 I attest to the accuracy and integrity of this document Chandigarh CWP No.3659 of 1993 -:

7. :- further as under: “Question of violation of Article 14 of the Constitution of India on the part of the State would arise only if the persons are similarly placed. Equality clause contained in Article 14, in other words, will have no application where the persons are not similarly situated or when there is a valid classification based on a reasonable differentia. The doctrine of equal pay for equal work, therefore, is not attracted in the instant case.”

21. When the law on this aspect is evaluated and apprised for its application to the facts and circumstances of this case, it is found as under: Hierarchy of Posts 22. It may also be seen that Government Analyst, Punjab is a post meant for a direct recruit incumbent whereof holds the profile responsibility of overall in-charge as head in the hierarchy of said posts.

23. Looking the entire matter from yet another angle, the petitioner is working as Analyst in the grade pay of Rs.1,500-2,640. Next promotion from this post is that of District Public Analyst/Assistant Chemical Examiner in the pay scale of Rs.2,000- 3,500 and yet next promotion thereafter is of Deputy Chemical Examiner in the pay scale of Rs.2,100-3,700. The petitioner thus is far far behind in the ladder and is no match to the present incumbent of the post of Government Analyst, Punjab. Qualifications and Experience 24. The petitioner is also not qualified to hold such post. Qualifications prescribed for the post of Government Analyst, Punjab are as under:- “a) Graduate in medicine or science or pharmacy of Pharmaceutical Chemistry of a (University established in India by the law or has on equivalent qualification recognised and notification by the Central Govt. for such purpose) and has had not less than five years post-graduate experience in the testing of drugs in a laboratory under the control of (i) a Govt. Analyst Kadyan Vinot Kumar 2013.09.06 10:22 I attest to the accuracy and integrity of this document Chandigarh CWP No.3659 of 1993 -:

8. :- appointed under this Act or (ii) the head of an Institution or testing laboratory approved for the purpose by the appointing authority; b) Possesses a post-graduate degree in medicine or science of pharmacy or Pharmaceutical Chemistry of (a University established in India by the law or has an equivalent qualification recognised and notified by the Central Govt. for such purpose) or possesses the Associateship Diploma of the Institution of Chemists (India) obtained by passing the said examination with “Analysis of Drugs and Pharmaceuticals”. as one of the subject and has had after obtaining the said post-graduate degree or diploma not less than three years experience in the testing of drugs in a laboratory under the control of (i) a Govt. Analyst appointed under the Act or (ii) the head of an Institution or testing laboratory approved for the purpose by the appointing authority.”

25. It thus transpires that in addition to the requisite educational qualifications, appointee to the post of Government Analyst, Punjab should also have at least 5 years post-graduate experience in the testing of drugs in a specified laboratory, as described under the relevant Rules.

26. Although, the petitioner holds a Masters degree in Chemistry and had undergone two months' training in microbiological methods of testing at Central Drugs Laboratory, Calcutta but she does not possess requisite 5 years post-graduate experience in the testing of drugs in terms of the Rules and, thus, is not even qualified to hold the said post. Source of Recruitment 27. It is also to be noticed that the petitioner, to claim the post of Government Analyst, Punjab, is also required to compete for the said post on vacancy of such post having been advertised for direct recruitment and it is through process of selection by the PPSC. Functions 28. If we analyze the claim of the petitioner, she was only notified as Government Analyst for a limited purpose with limited functions to perform. This notification is under Section 20 of the Drugs and Cosmetics Act, 1940. This arrangement was limited for Kadyan Vinot Kumar 2013.09.06 10:22 I attest to the accuracy and integrity of this document Chandigarh CWP No.3659 of 1993 -:

9. :- the purpose of testing drugs other than those specified in Schedule-C of the Drugs and Cosmetics Rules, 1945.

29. It may be noticed further that she is not the only one but there are four others who had also been so notified to meet the exigencies of administration. It is clear from the said notification that this step, inter-alia, had been taken to release the pressure on the sole incumbent of the post of Government Analyst, Punjab for the purpose of visiting courts of other States for giving evidence to prove their reports given as Government Analyst, Punjab. This arduous duty was becoming increasingly difficult.

30. Four more persons were notified along with the petitioner for meeting exigencies of frequent visits as witnesses to different courts, as also to cope up with the testing of number of samples received for testing of drugs specified in the notification. They all are senior to her and thus have a better claim than her. However, but understanding their respective placement in the hierarchy knowing well their educational qualifications and experience, they have not aspired for grant of such relief as has been claimed by the petitioner.

31. On the functional pedestal, for performance of their respective duties, distribution of work is done by the Government Analyst, Punjab among other scientists holding different functional designations. Government Analyst, Punjab may do so either by district-wise or by subject wise or by such other means of distribution of work. Reports of all the Analysts, after analysis of samples, are to be forwarded to the concerned quarters again through head of the department who is at the top of the hierarchy, i.e., Government Analyst, Punjab. Conclusion 32. Viewed from all angles, it is, thus, clear that merely by virtue of allotment of part of work of Government Analyst, Punjab Kadyan Vinot Kumar 2013.09.06 10:22 I attest to the accuracy and integrity of this document Chandigarh CWP No.3659 of 1993 -:

10. :- under the notification to the petitioner, she has not become equal to Government Analyst, Punjab and has not achieved similarity either of functions or of duties. The petitioner cannot be taken to have been promoted on the solitary post of Government Analyst, Punjab enjoying the pay scale of Rs.2,400-4,000. not only this, there is a great difference of duties of the petitioner and that of incumbent of the post of Government Analyst, Punjab but even when considered on various parameters, viz, mode of recruitment, educational qualifications, training, experience, etc., the case of the petitioner seeking equal pay on the non-existent premise of equal work, has no merit.

33. Before parting with the judgment, it may also be noticed that during pendency of this petition, a major development took place. The solitary post of Government Analyst, Punjab fell vacant. Thus, to meet exigencies of administration, the petitioner has further been ordered though temporarily to man the vacant post of Government Analyst, Punjab in her own pay scale as an internal Analyst with a condition that she would not be entitled to any benefit of pay, seniority or promotion etc. on the basis of this entirely temporary arrangement, which is to continue till regular appointment is made. All conditions mentioned in the said order have been accepted by the petitioner. Thus, acceptance of conditions mentioned in order dated 17.3.1999 and her moving to the post of Government Analyst, Punjab as a purely temporary arrangement and that too in her own pay scale of internal Analyst, further goes to show that the petitioner has conceded the fact that scale of pay of Government Analyst, Punjab and of the posts below the said post, even of one which was occupied by the petitioner at the time filing of the present petition, is different.

34. No case of equal pay has been made out as there is no parity of qualifications, experience, training course undertaken, functions performed, etc. Kadyan Vinot Kumar 2013.09.06 10:22 I attest to the accuracy and integrity of this document Chandigarh CWP No.3659 of 1993 -:

11. :- 35. It may thus be noticed that both the questions posed from the side of the petitioner in para 8 of the judgment are thus to be answered against the petitioner. It is so done.

36. For the aforesaid reasons, the petition, being devoid of merit, is dismissed. [Dr. Bharat Bhushan Parsoon]. August 30, 2013. Judge kadyan Kadyan Vinot Kumar 2013.09.06 10:22 I attest to the accuracy and integrity of this document Chandigarh