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1996 DIGILAW 1091 (ALL)

O R VERMA v. STATE OF U P

1996-09-24

B.S.CHAUHAN

body1996
DR. B. S. CHAUHAN, J. The instant writ, petition has been filed by the petitioners for quashing the notification dated 17. 12. 1989 contained in Annexure`s 3a and 3b to the writ petition and for a further direction to the respondents to pay the petitioners the pay-scale of Rs. 1400-2300, which is being paid to the Food In spectors working in the Central Govern ment and in Delhi Administration. As the petitioners are Food Inspectors under the State of U. P. and they have filed this petition claiming the equal pay for equal work. 2. The specific averment of the petitioners is that nature of work, duty and responsibility of the petitioners are by all means, identical to that of the Food Inspec tors of the Central Government. 3. The respondents have filed the counter affidavit wherein they have ad mitted the specific averment of the petitioners regarding the nature of work, duty and responsibility of the petitioners as under: "that in reply to the contents of paragraph 23 of the writ petition it is submitted that both the posts are identical in the State as well as in the Central having same qualifications, duties and powers and governed by the same Act. It is further submitted that the Director Central Medical and Health recommended that the same salary, i. e. Rs. 1400-2300 should be given to the State Government Food Inspectors. That in reply to the contents of paragraph 34 of the writ petition are only admitted to the extent that the petitioners working is identical and they possess the same qualification as to the Central Government. " 4. Heard Shri K. N. Tripathi, learned Senior Advocate for petitioners and learned Standing Counsel for the respondents. . 5. As the respondents themselves have admitted the claim of the petitioners regarding the nature and responsibility of the work saying that it is similar to that performed by the Food Inspectors of the Central Government, the findings of fact can be recorded easily that the petitioners are performing the same work and carry the same responsibility which the Food Inspec tors of the Central Government perform. 6. 6. Shri K. N. Tripathi has relied upon the judgment o f the J. & K. High Court contained in Annexure 7 to the writ peti tion, where the Food Inspectors working under the State had been given the same pay- scale as is being paid to the Food In spectors of the Central Government. Moreover, there is a report of the Samta Samiti in favour of the petitioners wherein it has been recommended that the petitioners wherein it has been recom mended that the petitioners be paid the pay scale of Rs. 1400-2300 and not Rs. 1200-2040 as it would be discriminatory and violative of the mandate of the constitutional provisions. 7. Moreover, in the rejoinder affidavit the petitioners have annexed the notifica tion dated 10. 2. 93 by virtue of which the Sanitary Inspector of the Nagar Palika and Nagar Mahapalika have also been paid the pay scale of Rs. 1400-2300 and thus, the petitioners, claim that they are entitled for the same pay scale. 8. Learned Standing Counsel referred to and placed reliance upon the cases in K. Vasudevan Nair v. Union of India Secretary Madras Civil Audit and Accounts Associa tion and another, (1992)2 SCC 1 , wherein the Supreme Court declined to interfere with the pay fixed by their respective employers. The said authorities are not ap plicable in the present case as in the said cases the parties could not place sufficient material before the Apex Court to prove their cases. 9. The apex Court considered the case of State of Punjab v. Surendar Kumar, AIR 1992 SC1593 and held as under: "that decision is of no assis tance. . . . . . . . . . . Wherein the question of absorption or regularisation. . . . . . . . . . . . is not in issue. . . . . . in such a situation during the period such an employment subsists, the employer is bound to pay to such an employee according to the minimum of the pay scale prescribed for the post, the duties of which such an employees is discharging. " 10. Reference/reliance may also be placed on the judgment of Babu Lal and another Vs. N. DM. C. &anr. , 1994suppl. (2) SCC 633 and Kshatrapal Sharma & Ors. v. Lt. Governor. , 1993, Suppl. (3) SCC 206. " 10. Reference/reliance may also be placed on the judgment of Babu Lal and another Vs. N. DM. C. &anr. , 1994suppl. (2) SCC 633 and Kshatrapal Sharma & Ors. v. Lt. Governor. , 1993, Suppl. (3) SCC 206. In the case of the State of West Bengal & Ors. v. Bari Narayan Bhowal (1994)4 SCC 79, the Supreme Court observed as under: ". . . . the principle of equal pay for equal work can be enforced only after the persons claiming satisfy the court that not only the nature of work is identical but in all respects they belong to the same class and there is no apparent reason to treat equals and unequal unless a very clear case is made out and the court is satisfied that the scales provided to a group of persons on the basis of material produced before it amounts to dis crimination without there being any justification, the court should not take upon itself the respon sibility affixation of scales of pay. " 11. However, it is settled law that the mere designation of the claimant, cannot be conclusive for decision on the issue of parity in pay (Municipal Commissioner, Calcutta v. Pijush Kanti Dash & Anr. , 1996 (7) SCC 266 : 1992 (2) LBESR 56 (SC ). 12. However, in the case of Satish Kumar v. Jalandhar Improvement Trust & Anr. , 1996 (7) SCC 266 , the Apex Court has observed as under: "under these circumstances, the doctrine of equal pay for equal work envisaged in Article 39 (d) of the Constitution has no application. It would apply only when a person is discharging the same duty but is being paid the same pay for the same work. . . . . . unequal cannot be made equals for paying equal pay for equal work. " 13. In the instant case as the respon dents have themselves admitted that the petitioners are doing the same work and carry the same responsibility and the educa tional qualification etc. are also the same, the aforesaid judgments of the Apex Court are distinguishable. 14. . . unequal cannot be made equals for paying equal pay for equal work. " 13. In the instant case as the respon dents have themselves admitted that the petitioners are doing the same work and carry the same responsibility and the educa tional qualification etc. are also the same, the aforesaid judgments of the Apex Court are distinguishable. 14. Thus, in view of the above, the only inescapable conclusion, one is bound to reach is that the petitioners are entitled to the parity of the treatment with the Food Inspectors of the Central Government and Delhi Administration and they are entitled for the same pay-scale, i. e. 1400-2300. 15. Hence the writ petition is allowed. The respondents are directed to pay the petitioners the pay-scale of Rs. 1400-2300 and such confirment shall be made within a period of two months from the date of receipt of a certified copy of this order. 16. However, it is clarified that the said pay -scale is to be given from today. Petition allowed. .