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2008 DIGILAW 1168 (ORI)

PADMAJA PANDIT v. STATE OF ORISSA

2008-12-18

B.N.MAHAPATRA, L.MOHAPATRA

body2008
JUDGMENT : B.N. Mahapatra, J. - In the present Writ Petition challenge has been made to the legality of the order and Judgment dated 18.12.2002 passed in O.A. No. 389/c/ 98 (Annexure-9) by which the Orissa Administrative Tribunal, Cuttack Bench, Cuttack (hereinafter referred to as 'the Tribunal') has held that the Petitioners who were recruited to the post of junior lecturers and taking classes in degree course are not entitled to get salary at par with lecturers of degree course, on the ground that the findings arrived at by the Tribunal are not sustainable in law and liable to be set aside. 2. Shorn of unnecessary details, the short facts leading to the present case are that Petitioner No. 1-Padmala Pandit passed M.A. from Utkal University in 1089 in first division securing 60% marks in Economics. She has also done M. Phil in Berhampur University in 1990 securing 59.1% marks. Petitioner No. 2-Chandan Das passed M.A. in English in Utkal University securing 63.5% marks in 1988 and did M. Phil in Utkal University securing 66.5% marks. Pursuant to an advertisement dated 26.10.1991 published by Orissa Public Service Commission (hereinafter referred to as 'OPSC') for recruitment to the posts of Junior Lecturers, Petitioners applied for the same. They being found suitable in the process of selection as conducted by the OPSC were appointed as Junior Lecturers on 17.11.1992 and 15.12.1992 respectively. While the Petitioners were continuing as Junior Lecturers, they were asked to take up classes of +3 courses. However, they have not been paid salary, which the lecturers of +3 courses, i.e., degree course were getting., Being aggrieved, Petitioners approached the Tribunal stating that since they were discharging higher duties and responsibilities by taking classes of degree courses they were entitled to draw scale of pay at par with lecturers of degree course. Learned Tribunal vide its Order Dated 18.12.2002 dismissed the original application. Hence, the present Writ Petition. 3. Mr. A.K. Mishra, Learned senior Counsel for the Petitioners vehemently argued that since the services of the Petitioners were required for discharging the duties of lecturers in degree classes, the Petitioners are entitled to get the same scale of pay that the lecturers in degree classes were entitled to get. He emphatically argued that there is no exception to the doctrine of equal pay for equal work. He emphatically argued that there is no exception to the doctrine of equal pay for equal work. It was further submitted that a candidate in order to be eligible for the post of lecturer is required to possess 48% marks, which has subsequently been enhanced to 55% on 10.06.1997 with M.Phil degree. The Petitioners having that qualification were otherwise eligible for the post of lecturer in OES-II, but due to non-filling of the posts in spite of the fact that such posts were vacant, Petitioners were deprived of the chance to be absorbed in the said posts. Relying on Annexures-4, 5 & 6 he submitted that the Petitioners were taking classes in degree as well as +2 courses. It was further argued that on 11.09.2000 a communication was made by the Government under Annexure-8 wherein it was pointed out that the lecturers of junior colleges may be instructed to take +3 classes. Referring to the UGC guidelines, he further submitted that the Petitioners have possessed the qualification, which is required for the post of a lecturer and the Petitioners having discharged the duties of lecturers they were entitled to get the same scale of pay that of the lecturer of a government college was entitled to. In support of his contention, Learned Counsel has relied upon a decision of the Hon'ble Apex Court in Selva Raj v. Lt. Governor of Is-land, Port Blair and Ors. AIR 1999 (86) 838. 4. Per contra, Mr. Mohapatra, Learned Counsel appearing for the State submitted that Learned Tribunal has considered all the aspects of the case of the Petitioners and has rightly dismissed the original application which needs no interference by this Court. The main thrust of his argument was that separate rules and guidelines were prescribed governing recruitment and service conditions of junior lecturers and that of lecturers of degree courses. According to the service conditions, the salary was paid to the Petitioners. They were not entitled to get the salary at par with the lecturers of degree courses merely because they were taking classes in degree courses in addition to the classes in +2 courses. The doctrine of equal pay for equal work has no application in the present case. Virtually, Mr. Mohapatra, Learned Counsel for the State has supported the order of the Learned Tribunal. 5. The doctrine of equal pay for equal work has no application in the present case. Virtually, Mr. Mohapatra, Learned Counsel for the State has supported the order of the Learned Tribunal. 5. the Learned Tribunal is also of the view that the doctrine of 'equal pay for equal work' is not applicable to the case of the Petitioners. While dismissing the Petitioners' case the Learned Tribunal has further held that the cadre to which the applicants belong is different from that of the lecturers teaching in +3 classes and also different sets of rules are prescribed for their recruitment and service conditions are also different. 6. Thus, the stand taken by the Petitioners that they are entitled to get salary at par with lecturers of degree courses by application of the doctrine of 'equal pay for equal work' has been seriously objected to by the Opposite Parties. 7. On the rival contentions of the parties, the following question falls for consideration by this Court. i) Whether the Petitioners, who had been recruited to the posts of lecturers in +2 courses and were discharging the responsibility of lecturers by taking classes in +3 course in addition to taking classes in +2 course, are entitled to the scale of pay equivalent to that of the lecturers of degree courses by application of doctrine of 'equal pay for equal work'? 8. It is not in dispute that the Petitioners were recruited by OPSC to the post of junior lecturers in +2 courses and were shouldering the higher responsibilities by taking classes in degree courses. Petitioners acquired qualification before 31.12.1993, which was required for a candidate to be recruited to the post of a lecturer as prescribed by the UGC. Even though there were vacancies for the post of lecturers in Graduation courses, no advertisement was made to fill up those posts by the Opposite Parties. On the other hand, Petitioners were forced to take classes in +3 courses. Even though there were vacancies for the post of lecturers in Graduation courses, no advertisement was made to fill up those posts by the Opposite Parties. On the other hand, Petitioners were forced to take classes in +3 courses. Annexure- 8, which is a copy of the letter bearing No. 11.HE.JAP-28/2000.50070(60)/ HE dated 11.09.2000 of the Government of Orissa in Department of Higher Education, addressed to all the principals of the Government Colleges reads as follows: XX XX I am directed to say that it has come to the notice of Government that Junior Lecturers in some colleges have refused to take +3 classes and have given notice to dissociate themselves from Degree level duties including engagement at Degree Classes. The concerned Junior Lecturers may be duly instructed to take +3 Classes and Co- operative with the College Administration. However, draft charges against those Junior Teachers, who disobey your orders may be framed and submitted for suitable action immediately. xx xx xx The above letter shows that the Government required the services of the junior lecturers for taking classes in degree courses and in the event, any junior lecturer disobeys the direction given in above letter, charges would be framed against such lecturer for suitable action Immediately. Annexure-4 issued on 15.01.1998 by the Principal of the Revenshaw Morning College, Cuttack reveals that Petitioner No. 1 has been teaching in +2 and degree classes since 05.12.1992. Annexure-5 dated 08.01.1998 issued by Principal, J.K.B.K. Government College, Cuttack reveals that Petitioner No. 2 was serving with effect from 02.01.1992 to 26.10.1993 and during his incumbency in the college he was assigned pre-degree /degree classes and engaged accordingly. Annexure-6 dated 07.01.1998 issued by the Principal in-charge of Sailabala Women's College certifies that the Petitioner No. 2 has been teaching in +2 and degree classes since 26.10.1993. Annexure-7 is a letter dated 03.09.1994 from the Deputy Secretary to Government in Higher Education Department to the General Secretary, Orissa Government College Teachers' Association. Paragraph 3 of the said letter says that it has been decided in principle that existing Junior Lecturers in Government Colleges who have been regularly recruited through the OPSC will be given U.G.C. scale of pay subject to their possessing the qualifications and fulfilling the criteria prescribed in the U.G.C. Regulations and guidelines for appointment of Lecturers. Paragraph 3 of the said letter says that it has been decided in principle that existing Junior Lecturers in Government Colleges who have been regularly recruited through the OPSC will be given U.G.C. scale of pay subject to their possessing the qualifications and fulfilling the criteria prescribed in the U.G.C. Regulations and guidelines for appointment of Lecturers. It is nobody's case that Petitioners do not possess qualification as required under U.G.C. regulations and guidelines. 9. The argument of Mr. Mohapatra that the junior lecturers and the lecturers for degree courses are recruited under separate procedure and service conditions with separate scale of pay for which the Petitioners are not justified in claiming the scale of pay at par with lecturers of degree courses is certainly not tenable for the simple reason that in spite of separate procedure for recruitment and service conditions prescribed for them, the Opposite Party-employer compelled the Petitioners to take classes in degree courses. Moreover, even though vacancy existed during the relevant period for the post of the lecturers in degree courses, the same were not filled up by the employer and the Petitioners were forced to take classes in degree courses and shoulder higher responsibility. 10. The Constitutional Scheme postulates equal pay for equal work. The doctrine of equal work is enshrined under Article 39(d) of the Constitution which reads as follows: 39. Certain principles of policy to be followed by the State.- The State shall, in particular, direct its policy towards securing: xx xx xx (d) that there is equal pay for equal work for both men and women; xx xx xx Article 14 of the Constitution declares that there should be equality before law and equal protection of law. 11. In Dhirendra Chamoli and Another Vs. State of U.P. the Hon'ble Supreme Court has held as under: This argument lies ill in the mouth of the Central Government for it is an all too familiar argument with the exploiting class and a welfare State committed to a socialist pattern of society cannot be permitted to advance such an argument. It must be remembered that in this country where there is so much unemployment, the choice for the majority of people is to starve or to take employment on whatever exploitative terms are offered by the employer. It must be remembered that in this country where there is so much unemployment, the choice for the majority of people is to starve or to take employment on whatever exploitative terms are offered by the employer. The fact that these employees accepted employment with full knowledge that they will be paid only daily wages and they will not get the same salary and conditions of service as other class IV employees, cannot provide an escape to the Central Government to avoid the mandate of equality enshrined in Article 14 of the Constitution. This Article declares that there should be equality before law and equal protection of law and implicit in it is the further principle that there must be equal pay for equal work of equal value It makes no difference whether they are appointed in sanctioned posts or not. So long as they are performing the same duties, they must receive the same salary and conditions of service as Class IV employees. 12. In Surinder Singh and Another Vs. Engineer-in-chief, C.P.W.D. and Others the Supreme Court has held as under: ...The Central Government, the State Governments and likewise, all public sector undertakings are expected to function like model and enlightened employers and arguments such as those which were advanced before us that the principle of equal pay is an abstract doctrine which cannot be enforced in a Court of law should ill-come from the mouths of the State and State Undertakings.... 13. In Selva Raj (supra), the Hon'ble Supreme Court held as under: It is not in dispute that the Appellant looked after the duties of Secretary (Scouts) from the date of the order and his salary was to be drawn against the post of secretary (Scouts) under GFR. 77. Still he was not paid the said salary for the work done by him as Secretary (Scouts). It is of course true that the Appellant was not regularly promoted to the said post. It is also true as stated in the counter affidavit of Deputy Resident Commissioner. Andaman & Nicobar Administration that the Appellant was regularly posted in the pay scale of 1200-2040 and he was asked to look after the duties of Secretary (Scouts) as per the order aforesaid. It is also true as stated in the counter affidavit of Deputy Resident Commissioner. Andaman & Nicobar Administration that the Appellant was regularly posted in the pay scale of 1200-2040 and he was asked to look after the duties of Secretary (Scouts) as per the order aforesaid. It is also true that had this arrangement not been done, he would have to be transferred to the interior islands where the post of PST was available, but the Appellant was keen to stay in Port Blair as averred in the said counter. However in our view these averments in the counter will not change the real position. Fact remains that the Appellant has worked on the higher post though temporarily and in an officiating capacity pursuant to the aforesaid order and his salary was to be drawn during that time against the post of Secretary (Scouts). It is also not in dispute that the salary attached to the post of Secretary (Scouts) was in the pay scale of 1640-2900. Consequently, on the principle of quantum merit the Respondents authorities should have paid the Appellant as per the emoluments available in the aforesaid higher pay scale during the time he actually worked on the said post of Secretary (Scouts) though in an officiating capacity and not as a regular promotee. This limited relief is required to be given to the Appellant only on this ground. 14. In view of the above, we are not inclined to accede to the view given by the Learned Tribunal. We are of the considered opinion that the Petitioners are entitled to get salary equal to that of the lecturers in +3 courses on application of doctrine of 'equal pay for equal work' to the extent they rendered their services in higher class, i.e., +3 courses. 15. Substantial posts to which the Petitioners were recruited are the posts of Junior Lecturers to take classes in +2 courses. It is not the case of the Petitioners that they were recruited to the post of Junior Lecturers but were forced to take classes only in +3 courses and not in +2 courses. Their case is that in addition to classes they took in +2 courses, they also took classes in +3 courses. It is not the case of the Petitioners that they were recruited to the post of Junior Lecturers but were forced to take classes only in +3 courses and not in +2 courses. Their case is that in addition to classes they took in +2 courses, they also took classes in +3 courses. In such fact situation, they are entitled to get differential amount of salary on the basis of number of classes taken by the Petitioners in higher classes, i.e., +3 courses. It is thus made clear that each one of them is not entitled to equal amount and that would depend on number of classes each of them took in +3 courses. 16. In the above facts and circumstances, we direct the Opposite Parties to pay the differential amount of salary to the Petitioners as indicated above within a period of three months from the date of production of certified copy of this order. 17. The Writ Petition is disposed of accordingly. L. Mahapatra, J. 18. I agree.