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Himachal Pradesh High Court · body

2004 DIGILAW 141 (HP)

HARI NAND v. STATE OF H. P.

2004-07-02

BAKHSHISH KAUR, D.S.AMIST

body2004
ORDER Mrs. Justice Bakhshish Kaur, J. (Retd.) Chairman: The applicant is matriculate and was initially appointed class IV as contingent paid employee in the year 1979 in Deen Dayal (Ripon) Hospital. Subsequently, in the year 1980 he was appointed class IV on regular basis in the scale of Rs. 300-430 later revised on 1st January, 1996 as Rs. 1200-2100. 2. In July, 1981 the respondents orally directed him to work in the Mass miniature Radiology of T.B., wing and he was assured that in the due course he would be issued written orders, since then he had been working and as such gained sufficient experience. The work and the duty discharged by the applicant are identical to that of Radiographer, therefore, he is entitled to the scale enjoyed by a regular Radiographer on the principle of equal pay for equal work. The applicant has therefore filed this original application. 3. The respondents have whemently denied that he was ordered to perform the duties of a radiographer in T.B., clinic, in fact he remained posted as class IV in the said clinic. His regular appointment was as class IV servant. He had passed matriculation examination in March, 1982. Inter alia, it is pleaded, that the applicant had worked in Mass Miniature Radiography of T.B. wing as class IV and was never directed to handle the X-ray machine in the Dark Room independently. Nor he had any capability to handle such equipments/machinery. 4. The applicant in the rejoinder has reiterated the plea taken in the application. 5. We have heard the Ms. Sulochana Dogra, advocate on behalf of the original counsel for the applicant and Mrs. Abhilasha Kumari, learned Additional Advocate General for respondents. 6. Ms. Sulochana Dogra learned Counsel on behalf of original counsel for the applicant had laid stress on Annexure A-1 to Annexure A-11 and the certificate, annexure A-14 issued by the Radiologist to make out a case that the applicant had been discharging the duties of a radiographer, therefore he is entitled to the pay scale of a radiographer on the doctrine of equal pay for equal work. Annexure A-13 is an application for training of a radiographer course in respect of the applicant Shri Hari Nand Sharma. 7. Annexure A-13 is an application for training of a radiographer course in respect of the applicant Shri Hari Nand Sharma. 7. Whether the issuance of the certificates Annexures A-1 to A-11, A-13 and A-14 are sufficient proof to establish the fact that the applicant had been performing the duties of a radiographer? 8. It is admitted fact that the engagement of a person, whether a doctor, radiographer or class IV servant working in the radiology department do get exposed to certain level of radiation and the exposure of radiation is monitored on the basis of monthly dose report by Bhabha Atomic Research Centre. And a certificate to this effect is issued as Annexure A-1 to A-11 which would indicate radiation exposure dose and the badges worn by all the workers, even by the class IV servant present in the dark room. When the radiologist busy with the equipment in respect of radiography, seeks the assistance of a class IV employee or any person present in the dark room whether said person should assume the status of a doctor? Certainly not similarly, if any employee intends to go for a training of a-radiographer course and applies for the same, in routine his application is forwarded to the quarters concerned, whether this fact alone would be sufficient to hold that the applicant had achieved the status of a radiographer. No such record to show that he has actually undergone the training of a radiographer has been produced by nor any certificate issued by the competent authority for the training of the applicant has been placed on record. 9. In our opinion the applicant cannot drive any benefit from a certificate Annexure A-14 issued by the Radiologist. It is in the following terms:- "This is to certify that Sh. Hari Nand Shanna who is working as distt. T.B. Centre in X-Ray Section for the test seven years has acquired a good knowledge in dark room Technique and Mass Miniature Radiography." 10. In this certificate the applicant has been described as a Class IV servant who has been attached in X-ray section. According to the doctor he had acquired knowledge in the dark room technique and Mass Miniature radiography. In a way it is a recommendation so that it is beneficial to the person whose name has been forwarded for training of a radiographer course. According to the doctor he had acquired knowledge in the dark room technique and Mass Miniature radiography. In a way it is a recommendation so that it is beneficial to the person whose name has been forwarded for training of a radiographer course. The respondents in their reply have specifically mentioned that the doctor concerned i.e. the radiologist who has issued the said certificate Annexure A-14 was asked by respondent No. 3 as to under that circumstances she had issued this certificate to which she had stated that as the applicant had told her that he had applied for the training of a radiographer course, therefore such a certificate will be useful for getting selected to undergo for the radiographer course. As already pointed out above, the applicant had not produced any certificate that he had obtained training of a radiographer course. Presumably he would not had been selected for the said course/training and for that reason he has not been able to produce the same. 11. The learned Counsel for the applicant has placed reliance on a decision rendered by the Honble High Court of Himachal Pradesh, Shimla in CWP No. 139/88 "Ravinder Singh v. State of Himachal Pradesh and another, decided on July 11, 1988, wherein a reference has been made to a few cases in which a question of applicability of doctrine of equal pay for equal work was considered. Thus in the light of the observation of this decision/order the writ petition was allowed. It was a case of daily rated beldar who had been discharging the function/duty of a daily rated clerk, therefore, he was held entitled to the payment of deferential wages i.e. to say the sum equivalent to difference between the daily rated beldar and daily rated clerk for the period mentioned therein. The facts of this case are different therefore not covered. 12. In service jurisprudence the expression "pay" and "pay scale" are conceptually different connotations as observed by the Honble Judges of Honble Supreme Court of India in "State Bank of India v K.P. Subhaiah and others, 2004 Supreme Court Cases (L&S) 149" SC Under para 15 at page 156 it is further observed that "pay is necessarily in consideration for the services rendered by an employee and is the remuneration which is payable to him. Remuneration is the recurring payment for services rendered during the tenure of employment. Remuneration is the recurring payment for services rendered during the tenure of employment. Pay and salary are essential not interchangeable concepts. Their meanings vary depending upon the provisions providing for them. 13. In the M.P. Rural Extension Officers Association v. State of Madhya Pradesh and another. (SC) 2004(3) SLR 305, it was observed that matriculate village level workers who were re-designated as Rural Agriculture Extension Officer are not entitled to the same pay scale available to the similar employees who were graduate. A reference has been made to Meya Ram Kanozia v. All India Institute of Medical Science, 1989(2) SLR 37 (SC) (Para 8) it read as under:- "While considering the question of application of the principle of "equal pay for equal work" it has to be borne in mind that it is open to the State to classify employees on the basis of qualification, duties and responsibilities of the posts concerned. If the classification has reasonable nexus with the objective sought to be achieved, efficiency in the administration, the State would be justified in prescribing different pay scale but if the classification does not stand the test of reasonable nexus and the classification is founded on unreal, and unreasonable basis it would be violative of Articles 14 and 16 of the Constitution. Equality must be among the equals. Unequal cannot claim equality." 14. It is also well settled that equal pay must depend upon the nature of work which can be judged by mere volume of work. There may be a qualitative difference as regard to reliability and responsibility in concerned. Functions may be the same but responsibility would make the difference whether the name of Class IV servant and that of the radiographer or a doctor/radiologist and their responsibility can be said to be the same or at par. The doctrine of "equal pay for equal work" cannot be applied merely on the basis of designation or nature of work. In the case of the applicant method, of recruitment, degree of still, experience involved and responsibility undertaken have to be looked into and in the absence of these facts he cannot derive any benefit for Annexure A-1 to A-11, A-13 and A-14 for the purpose of making a case of equal pay for equal work. 15. For the aforesaid reasons, there being no worth is this original application the same is dismissed with no order as to costs.