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2014 DIGILAW 251 (ORI)

Kamalakanta Sahoo v. State of Orissa

2014-04-11

B.R.SARANGI

body2014
JUDGMENT Dr. B.R.SARANGI, J. : The petitioners who are the job contract Safei Moharirs have filed this application seeking for a direction to the opposite parties to pay the same scale of Rs. 2,750/- as is allowed to Munsarims Grade-III and similar other job contract employees and further to quash the order No. NGE (C)-III-26/2009-14705/R and DM dated 13.04.2010 of the Govt. of Orissa, Revenue and Disaster Management Department rejecting to fix pay of Rs. 2750/- and to consider them as Class-III (Group-C) employees. They further claim that as they are doing the same type of job like the Munsarims Grade-III, therefore, they should be declared as Class-III employees instead of Class-IV employees and to pay 'equal pay for equal work' since they were originally declared as Class-III employees under the Civil Services (Classification, Control and Appeal) Rules, 1962, in short OCS (CCA) Rules. 2.The facts leading to filing of this writ petition are that the petitioners and many others were appointed as Safei Moharirs as per Rule 588 of Bihar and Orissa Technical Rules, 1927 and they are discharging their duties and responsibilities as prescribed under Rule 587 of the aforesaid Rules which consists of making out fair copies of the Record of Rights and Judgments in different cases. After the Munsarims prepared the Records of Rights, the Safei Moharirs prepare the required number of copies for communication to different Officers. In O.C.S. (C.C.A.) Rules, 1962 the Safei Moharirs were kept under Class-III category but subsequently by an amendment, the same was deleted and they were classified as Class-IV although their nature of work continued to be the same. It is stated that since Safei Moharirs undertake ministerial/clerical work the post could not have been kept in Class-IV category and they could not have been denied the same scale of pay as is allowed to the similar job contract employees of their counter parts. It appears that the petitioners and other Safei Moharirs have been working since more than 25 years in the Settlement organization with a very low salary without any promotional avenue and at the same time they are denied the same scale of pay which is being paid to their counter parts. It appears that the petitioners and other Safei Moharirs have been working since more than 25 years in the Settlement organization with a very low salary without any promotional avenue and at the same time they are denied the same scale of pay which is being paid to their counter parts. The duties of the Safei Moharirs is available in the Settlement Manual under Rules 587 and 588 of the Technical Rules and as such no Safei Moharir will be appointed until he has been examined and passed in hand writing. Safei Register of approved candidates will be maintained and the Safei section will be under the control of Safei Supervisor who will be assisted by one or more head moharir and a staff of Safei Munsarims and Moharir. Each Safei Munsarim will be in charge of a Halka of 22 of 25 moharirs paid at a contract rate. The Halkas will be divided into three groups, one group of Halka will write only the copies for the Collector, the 2nd group will write only the copies for the land lords (Maliki copies) and the 3rd group will write only the copies for the Rayat (Rayati copies). The recess Officers or Section Officers will himself arrange which collectorate Halka shall supply records to each Maliki Halka and each Maliki Halka shall supply records to each Rayati Halka. He will note his orders in the order book of the Section. Though the Settlement Organization is continuing in the State of Orissa, but its employees have been allowed to continue on ad hoc or on job contract basis. 3.During 1974, the Government intended to create 2000 number of permanent posts with regard to job contract establishment and on the report as submitted by the Mathew's Committee an attempt was made by the State Government to regularize the job contract employees into regular establishment. But as it appears Safei Moharir is a Class-III post under the O.C.S. (CCA) Rules, 1962. The scale of pay as prescribed on 06.07.1949 indicates that the Tarmir Moharirs, Munsrims and Safei Moharirs have been granted scale of pay Rs. 34-1-39-EB-1-44 as found against Serial Nos. 25, 28 and 29 respectively vide Annexure-3. Subsequently, vide order dated 15.11.1961 the scale of pay of Tarmir Moharirs, Munsarims and Safei Moharirs have been changed. The scale of pay as prescribed on 06.07.1949 indicates that the Tarmir Moharirs, Munsrims and Safei Moharirs have been granted scale of pay Rs. 34-1-39-EB-1-44 as found against Serial Nos. 25, 28 and 29 respectively vide Annexure-3. Subsequently, vide order dated 15.11.1961 the scale of pay of Tarmir Moharirs, Munsarims and Safei Moharirs have been changed. Amin and Munsarims have been categorized as Grade-I, Grade-II and Grade-III with scale of pay 95/-, 79/- and 70/- as mentioned in Serial No. 2 respectively whereas Safei Moharir has also been classified as Grade-I, Grade-II and Grade-III with scale of pay 65/-, 55/- and 50/- respectively as indicated in Serial No. 5 in Annexure-4. By issuance of such letter on 15.11.61 there is a disparity of scale of pay of Amin/Munsarims vis-a-vis Safei Moharirs. This disparity of pay has been brought to the notice of the authority and Government after careful consideration have decided that the existing pay of various categories of job contract employees under the Revenue and Excise Department was revised by virtue of which Amin/Munsarim Grade-I, Grade-II and Grade-III who were getting fixed scale of pay 95/- 79/- and 70/- revised to 243/-, 240/- and 240/- respectively as indicated in Serial No. 3 and so far as Safei Moharir/Hukabila Moharir Grade-I, Grade-II and Grade-III are concerned who were getting fixed pay of Rs. 65/-, 55/- and 50/- respectively, their scale was revised to fixed pay of Rs. 200/-, 200/- and 200/- respectively vide Annexure-5 dated 13.03.1975. The pay disparity continued even though the Safei Moharirs were discharging the same nature of work with that of the Munsarims. On 24.10.1987 the pay scale of Safei Moharirs was revised to Rs. 578/- whereas the scale of Amin and Munsarims were revised to Rs. 649/-, 637/- and 625/- respectively for Grade-I, Grade-II and Grade-III. On 21.12.1991 the pay scale of Safei Moharir was revised to Rs. 762/- whereas the pay of Amin and Munsarim was revised to 830/-, Rs. 815/- and 80/- respectively for Grade-I, Grade-II and Grade-III. 4.Being aggrieved by such fixation, the Orissa State Safei and Munsarim Moharir Association, Cuttack filed an appeal on 29.01.1994 before the Government for revision of their pay. On consideration of the same, on 24.02.1994 the Government directed the Director of Land Records and Surveys, Orissa to give his views vide Annexure-6. 815/- and 80/- respectively for Grade-I, Grade-II and Grade-III. 4.Being aggrieved by such fixation, the Orissa State Safei and Munsarim Moharir Association, Cuttack filed an appeal on 29.01.1994 before the Government for revision of their pay. On consideration of the same, on 24.02.1994 the Government directed the Director of Land Records and Surveys, Orissa to give his views vide Annexure-6. When the Director was in seisin over the matter on 08.02.1995 the pay scale of Munsarim was revised from 800-1150 to Rs. 825-1200/- vide Annexure-7. The Director of Land Records and Surveys, Orissa Pursuant to Annexure-6 dated 24.02.1994 wrote letters to All Settlement Officers/Charge Officers, of Orissa seeking for their views. On receipt of the said views, he has furnished a report vide Annexure-8 on 26.6.1995. The views of the Director in paragraphs-1, 3, 4 and 5 of the said report as follows : 1. The Safei Moharirs of settlement organization copy out the 2nd, 3rd and 4th copies of R.O.Rs. from the first copy prepared by the Amins/Munsarims. They also prepared certified copies of orders passed in appeal cases for supply to parties on copy application. The out-turns has been fixed at 150 plots per day for preparing copies of R.C.R. which is about 15 pages. The copyists of Registration wing copy out the Registered deeds with fixed out turn of 14 pages per day. Thus, nature of work done by both the categories i.e. Safei Moharirs and copyists is more or less incidental. 3. In the Orissa Civil Services (C.C.A.) Rules, 1962 the Safei Moharirs and copyists have been treated as Class-III employees. 4. No minimum qualification has been prescribed to hold the post of Safei Moharirs. But it is ascertained from the settlement officers and charge offices that graduates, intermediates and matriculates are working as Safei Moharirs. 5. The J.C. Safei Moharirs are getting as consolidated pay of Rs. 762/- per month which is applicable to Class-IV employees viz. Peons, Choukidars, Chainmen, process servers, etc. whereas the copyists are enjoying the time scale of pay of Rs. 950/-, 1500/-. This appears to be unjustified and unreasonable in view of the fact that principle of 'equal pay for equal work' has not been followed in this case. The nature of work done by the Safei Moharirs is quite different from those of class-IV employees. whereas the copyists are enjoying the time scale of pay of Rs. 950/-, 1500/-. This appears to be unjustified and unreasonable in view of the fact that principle of 'equal pay for equal work' has not been followed in this case. The nature of work done by the Safei Moharirs is quite different from those of class-IV employees. 5.In paragraph-6 of such recommendation, it has been suggested that the pay of the Safei Moharirs needs to be revised and fixed at Rs. 800/- at par with the minimum of the pay fixed for the Munsarims Grade-III. On the basis of such suggestion made by the Director, the Government in Revenue and Excise Department after careful consideration allowed the revised fixed pay to all job contracts Safei Moharirs with effect from 01.01.1998 revising existing pay of Rs. 762/- to 800/- vide Annexure-11. On the basis of such revision of scale of pay fixing to Rs. 800/- the same has been acted upon and the benefit of the revised pay has been extended to the Safei Moharirs. When the implementation of the Orissa Revised Scale of Pay Scheme, 1998 was introduced, the Government decided that existing fixed pay of various job category employees under the Revenue Department both in Settlement and Consolidation Organization should be revised with effect from 01.01.1996. Accordingly, the Amin and Munsarim Grade-III employees those who were getting fixed pay of Rs. 825/- were allowed to get fixed pay of Rs. 2750/- whereas Safei Moharirs were allowed to Rs. 2605/- which has been indicated in letter dated 17.05.1999 vide Annexure-12. By virtue of this, there is again pay disparity created. Vide Annexure-11 dated 18.03.1998, it is decided to grant fixed pay of Rs. 800/- at par with minimum pay fixed for Safei Moharirs Grade-III and in effect the same has been implemented. While revising the scale of pay pursuant to Orissa Revised Scale of Pay Rules, 1998, the Munsarim Grade-III employees have been allowed to draw Rs. 2750/- while the Safei Moharirs have been allowed to draw Rs. 2605/-. Being aggrieved by such fixation, the petitioners filed Original Application before the Orissa Administrative Tribunal bearing O.A. No. 34-C/1999 ventilating their grievances and on consideration of the same the learned Tribunal disallowed the O.A. stating that there is no scope for grant of relief sought for. 2750/- while the Safei Moharirs have been allowed to draw Rs. 2605/-. Being aggrieved by such fixation, the petitioners filed Original Application before the Orissa Administrative Tribunal bearing O.A. No. 34-C/1999 ventilating their grievances and on consideration of the same the learned Tribunal disallowed the O.A. stating that there is no scope for grant of relief sought for. Against the said order dated 29.03.2000 passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 34-C/1999, the petitioners filed writ petition bearing No. 12443/2004. Considering the contentions raised by the parties, this Court disposed of the aforesaid writ petition directing the State Government to consider the claims of the Safei Moharirs with regard to fixation of their scales of pay at Rs. 2750/- and modified the order passed by the Tribunal and further directed the State Government to take a decision as early as possible preferably within a period of four months. The order of this Court on 11.08.2009 passed in W.P.(C) No. 12443/2004 having not been complied with within the time frame, the petitioners filed contempt bearing No. CONTC No. 479/2010 and when this Court issued notice on the contempt application, opposite party No. 1 without considering the fact in proper perspective mechanically passed an order that the petitioners and other similar job contract Safei Moharirs are not entitled to fixed pay of Rs. 2750/- as demanded by, or to being considered as Class-III (Group-'C') employees vide impugned order dated 13.04.2010 in Annexure-14. Hence this application. 6.On being noticed, opposite party No. 6 filed its counter affidavit justifying the order passed by opposite party No. 1. Though opposite party No. 1 has been impleaded as party, no counter affidavit has been filed on this behalf justifying the impugned order in Annexure-14. On the contrary, the Assistant Settlement Officer, who is opposite party No. 6 to the writ petition has filed counter affidavit with his self appraisal contrary to the records available and reason assigned in disposal of case of Safei Moharir by the opposite party No. 1 in Annexure-14. In the counter affidavit some new reasons have been incorporated beyond the reasons assigned in the impugned order justifying the same and stated that the learned Tribunal is justified in passing the impugned order, the same should not be interfered with. 7.Mr. In the counter affidavit some new reasons have been incorporated beyond the reasons assigned in the impugned order justifying the same and stated that the learned Tribunal is justified in passing the impugned order, the same should not be interfered with. 7.Mr. N.C.Panigrahi, learned Senior Counsel appearing for the petitioners states that by passing the impugned order depriving the benefit admissible to the petitioners is hit by principle of equal pay for equal work and such order has been issued with a haste when the opposite party received the notice of contempt and order itself is an outcome of biased mind and moreso, the impugned order is also hit by principle of estoppel. Apart from the same, it is stated that the writ petition is maintainable when the impugned order emanates from an order passed by this Court in W.P.(C) No. 12443/2004 disposed of on 11.08.2009. For implementation of this order the learned Tribunal has no jurisdiction. Therefore, this application has been filed to implement the order of this Court passed earlier. To substantiate his contention, Mr. N.C.Panigrahi, learned Senior Counsel for the petitioners relies upon the case of Babu Lal, Convenor and another v. New Delhi Municipal Committee and another, AIR 1994 SC 2214 and Nehru Yuva Kendra Sangathan v. Rajesh Mohan Shukla & Ors., AIR 2007 SC 2509 . So far as consideration of equal pay for equal work and so far as maintainability of writ petition is concerned he relies upon the case of Promotee Telecom Engineers Forum and others v. D.S.Mathur, Secretary, Department of Telecommunications, (2008) 11 SCC 579 and so far as contempt is concerned he relies upon M.L. Sachdev v. Union of India and another, AIR 1991 SC 311 . 8.Mr. B.Senapati, learned Additional Government advocate vehemently opposes the contentions raised by the learned counsel appearing for the petitioners and stated that the writ petition is not maintainable due to availability of alternative remedy to approach the Orissa Administrative Tribunal against the impugned order. In compliance to the order passed by this Court when the Secretary to Government has disposed of the grievance made by the petitioners, it gives a fresh cause of action, therefore, this Court has no jurisdiction to entertain the writ petition. In compliance to the order passed by this Court when the Secretary to Government has disposed of the grievance made by the petitioners, it gives a fresh cause of action, therefore, this Court has no jurisdiction to entertain the writ petition. So far as grant of "equal pay for equal work" is concerned, he relies upon the counter affidavit filed by the Assistant Settlement Officer and states that the same question has been considered in the earlier application which has been annexed to the counter in O.A.No. 34-C/1999 disposed of on 29.03.2000. Therefore, the benefit is not admissible to the petitioners and accordingly the authority is justified in rejecting the claim made by the petitioners. 9.In view of the above contentions of the parties and after going through the records now, the questions that arise for consideration are (i) whether the present writ petition is maintainable in this present form before this Court and (ii) whether the petitioners are entitled to get "equal pay for equal work" which they were getting pursuant to the suggestions made by the Director in Annexure-8 which has been implemented vide Annexure-11. (i) Maintainability of the writ petition 10.On the factual matrix available, it is admitted by the parties that on the basis of the suggestion given by the Director in Annexure-8 the Government has allowed the revised fixed pay to all job contract Safei Moharirs under the Revenue and Excise Department in both Settlement and Consolidation organizations with effect from 01.01.1998 by revising the existing fixed pay from Rs. 762/- to 800/- which is at par with minimum pay fixed for Munsarim Grade-III and the said benefit granted to the petitioners has been acted upon and the petitioners were receiving the said benefits and as such benefit has been extended considering the nature of work discharged by them which was akin to the batch of Munsarim Grade-III people when the Orissa Revised Scale of Pay Rules, 1998 came into force the Munsarim Grade-III scale has been revised from Rs. 825/- to Rs. 2750/-. Rs. 825/- scale of pay was admitted to the Grade-III Amins whereas Munsarims Grade-III were getting Rs. 800/-, therefore, the suggestion of the Director for the Safei Moharirs Scale of pay of Rs. 762/- needs to be revised and fixed at Rs. 800/- at par with minimum pay fixed by Munsarim Grade-III. 825/- to Rs. 2750/-. Rs. 825/- scale of pay was admitted to the Grade-III Amins whereas Munsarims Grade-III were getting Rs. 800/-, therefore, the suggestion of the Director for the Safei Moharirs Scale of pay of Rs. 762/- needs to be revised and fixed at Rs. 800/- at par with minimum pay fixed by Munsarim Grade-III. But in Annexure-12 the Safei Munsarims have been allowed to draw Rs. 2605/- fixed salary. Due to such disparity scale which is contrary to the suggestion given by the Director which has been implemented in Annexure-11 by giving pay parity then the petitioners approached the Tribunal in O.A. 34 (C)/1999, the same has been disallowed against which W.P.(C) No. 12443 of 2004 was filed and after due adjudication, this Court directed the State Government to consider the claims of Safei Moharir with regard to fixation of their scale of pay at Rs. 2750/- by modifying the order of Tribunal fixing a time limit to take a decision within a period of four months. Since the order of this Court dated 11.08.2009 passed in W.P.(C) No. 12443 of 2004 has not been complied with, CONTC No. 479/2010 was filed and on receipt of the notice from this Court in the matter of contempt, the impugned order was passed. The impugned order also indicates that in pursuance of the order dated 11.08.2009 passed by the Orissa High Court in W.P. (C) No. 12443 of 2004, the case of the petitioners and others senior job contract Safei Moharirs of Consolidation and Settlement Officers were considered. Therefore, the impugned order under Annexure-14 emanates from the order of this Court passed in W.P.(C) No. 12443 of 2004 on 11.08.2009. Hence, the Orissa Administrative Tribunal cannot adjudicate of an order which emanates from the order passed by this Court and more so the contempt proceeding is still pending for consideration. Therefore, the impugned order under Annexure-14 emanates from the order of this Court passed in W.P.(C) No. 12443 of 2004 on 11.08.2009. Hence, the Orissa Administrative Tribunal cannot adjudicate of an order which emanates from the order passed by this Court and more so the contempt proceeding is still pending for consideration. In Promotee Telecom Engineers Forum and Others (supra), the apex Court referring to paragraph-14 of the said judgment stated as follows : "Accordingly, the learned counsel pointed out that the representations were disposed of and, therefore, there was no question of any contempt having been committed and if the petitioners felt aggrieved, they ought to have challenged the orders passed by the Department disposing of the representations by way of an original application before the Central administrative Tribunal as it amounted to a fresh cause of action." To the above contention of the parties the apex Court held in paragraph 20 of the judgment as follows : "We are not impressed at all by the contention of the learned counsel appearing on behalf of the respondent that since the respondent has passed the orders disposing of the representations of the petitioners, the only way left for the petitioners was to challenge the same by way of an independent original application before the Tribunal. Their rights had already been crystallized by various orders passed by the Tribunals and the Courts which fact is not denied by the respondent. On the top of it, the petitioners were again required to come before this Court by way of an interim application being IA No. 16 and that has resulted in denial of the fruits of the orders which were passed in their favour by the Tribunals and the Courts. Under such circumstances, to push them again to file original application challenging the obviously erroneous orders passed by the respondent disposing of the representations of the petitioners would be a travesty of justice. 11.The case in hand is similar to the case decided by the apex Court in Promotee Telecom Engineers Forum and others (supra). The petitioners are fighting for their rights for the last two decades when their rights have been considered by the authority and crystallized by revising and allowing fixed pay of Rs. 11.The case in hand is similar to the case decided by the apex Court in Promotee Telecom Engineers Forum and others (supra). The petitioners are fighting for their rights for the last two decades when their rights have been considered by the authority and crystallized by revising and allowing fixed pay of Rs. 800/- at par with minimum pay fixed for Munsarim Grade-III by issuing Annexure-11, the same has been again disturbed vide Annexure-12 creating disparity and while issuing impugned order, the issue in question for consideration has not been taken into account. Passing remark has been made that the revision of pay Rs. 800/- with effect from 01.01.1998 had become infructuous. The concept of revision of pay granted to the employees like that of petitioners with effect from 01.01.1998 became infructuous is absolutely a misconceived notion of the authority while considering the representation in compliance to the order passed by this Court on 11.08.2009. The impugned order has resulted in denial of the fruits of the orders which were passed in favour of the petitioners in Annexure-11 which has been acted upon. Denial of same at a subsequent stage without any rhyme and reasons is hit by the principle of estoppel. Therefore, in such circumstances in the name of fresh cause of action pursuant to impugned order to push the petitioners again to file O.A. challenging the so-called order passed by the respondent in disposing of the representation would be a travesty of justice. Therefore, even though the forum is available to challenge the impugned order by approaching Tribunal in the name of fresh cause of action, this Court is not inclined to relegate the petitioners to approach the Orissa Administrative Tribunal to assail a wrong order while disposing the representation in compliance to the order passed by this Court in W.P.(C) No. 12443 of 2004 on 11.08.2009. Hence, the writ petition is maintainable. (ii) Grant of equal pay for equal work 12.The real controversy with regard to grant of "equal pay for equal work" is to be taken into consideration. The Black's Law Dictionary 6th Edition states 'equal' as follows : "Federal law which mandates same pay for all persons who do some work without regard to sex, age, etc. For work to be "equal" within meaning of Act, it is not necessary that jobs be identical but only that they be substantially equal. The Black's Law Dictionary 6th Edition states 'equal' as follows : "Federal law which mandates same pay for all persons who do some work without regard to sex, age, etc. For work to be "equal" within meaning of Act, it is not necessary that jobs be identical but only that they be substantially equal. Usery v. Richman, C.A.N.D., 558 F. 2d 1318, 1320. 29 U.S.C.A. 206". 13.Applying the meaning of "equal" to the principle of equal pay it means that men and women in the same employment must be paid at the same rate for like work or work rated as equivalent or of equal value. They are in the same employment, if they work at the same establishment (or if one works at an establishment that includes the other's) and they work for the same or an associated employer. The establishments must also be those at which the terms and conditions of employment are observed generally or for employees of the relevant description. "Like work" is work that is broadly similar, where any differences between the man's work and the women's are not of practical importance, work is rated as equivalent when the employer has undertaken a study to evaluate his employee' jobs in terms of the skill, effort, and responsibility demanded of them and the woman's job is given the same grade as the man's. Therefore, pay for all persons who do same work without regard to sex, age, etc. entitled to equal pay. For work to be "equal" within meaning of Act, it is not necessary that jobs be identical but only that they be substantially equal. 14.Now coming to the meaning of "equal pay for equal work". The equal pay directive makes clear that equal work embraces work of equal value as well as work which is the same. Pickstone v. Freemans Ple, (1987) 3 All ER 756, 761. (CA) (E.E.C. Treary, Art. 119). The principle of 'equal pay for equal work' is expressly recognized by all socialist systems of law, e.g., Section 59 of the Hungarian Labour Code, para 2 of Section 111 of the Czenchoslovak Code, Section 67 of the Bulgarian Code, Section 40 of the Code of the German Democratic Republic, para 2 of Section 33 of the Rumanian Code. The principle of 'equal pay for equal work' is expressly recognized by all socialist systems of law, e.g., Section 59 of the Hungarian Labour Code, para 2 of Section 111 of the Czenchoslovak Code, Section 67 of the Bulgarian Code, Section 40 of the Code of the German Democratic Republic, para 2 of Section 33 of the Rumanian Code. The preamble to the Constitution of the International Labour Organization recognizes the principle of 'equal remuneration for work of equal value' as consisting one of the means of achieving the improvement of conditions "involving such injustice, hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperiled." Article 39(d) proclaims "equal pay for equal work for both men and women" as a Directive Principle of State Policy. 'Equal pay for equal work for both men and women' as a Directive Principle of State Policy, means equal pay for equal work for everyone and as between the sexes. Randhir Singh v. Union of India, AIR 1982 SC 879 (para 8) (Constitution of India, Art. 39 (d). Paying Amins a lesser salary than that of the senior Ballifs though both do the same work offends the principle of equal pay for equal work. (1984) I. MLJ 128. "Equal pay for equal work" does not mean that all members of a cadre must receive the same pay packet irrespective of their seniority, source of recruitment, educational qualifications and various other incidents of service. State of A.P. v. G.Sreenivasa Rao, (1989) 2 SCC 290 . The principle of "equal pay for equal work" is a facet of the principle of equality in the matter of employment guaranteed under Articles 14 and 16 of the Constitution of India. The right to equality can only be claimed when there is discrimination by the State between two persons who are similarly situated. The said principle cannot be invoked in cases where discrimination sought to be shown is between acts of two different authorities functioning as State under Article 12 of the Constitution. (para 7) UT, Chandigarh v. Krishan Bhandari, (1996) 11 SCC 348 , 351. The said principle cannot be invoked in cases where discrimination sought to be shown is between acts of two different authorities functioning as State under Article 12 of the Constitution. (para 7) UT, Chandigarh v. Krishan Bhandari, (1996) 11 SCC 348 , 351. It is the duty of the employees seeking parity of pay under Article 39(d) of the Constitution of India to prove and establish that he had been discriminated, as the question of parity has to be decided on consideration of various facts and statutory rules etc. See Union of India & Anr. v. Mahajabeen Akhtar, (2008) 1 SCC 368 ; Union of India v. Dinesh K.K., (2008) 1 SCC 586 ; and Union of India and another v. Hiranmoy Sen and others, (2008) 1 SCC 630 . Doctrine of equal pay for equal work has assumed the status of fundamental right in service jurisprudence, State of Kerala v. B.Ranjith Kumar, (2008) 12 SCC 219 . Therefore, incapacity of an institution to pay cannot be a ground of denial of equal pay for equal work, vide Haryana State Minor Irrigation Tubewells Corporation v. G.S.Uppal, (2008) 7 SCC 375 . The burden of establishing right and parity in employment is only on person claiming such right as held in Uttar Pradesh State Electricity Board and another v. Aziz Ahmad, (2009) 2 SCC 606 . 15.Applying the said principle, the apex Court in Nehru Yuva Kendra Sangathan v. Rajesh Mohan Shukla and others (supra) held that "once the deputationists are discharging the same duties and are being paid salary and other allowances then there is no reason to deny the same benefits to those who are discharging the same duties and functions. Those deputationists now absorbed obtained the order from this Court but the direct recruits did not approach this Court, they were treated as a class apart because of their source of recruitment. Once these persons are already working for more than two decades discharging the same functions and duties then we see no reason why the same benefit should not be given to the respondents. Once these persons are already working for more than two decades discharging the same functions and duties then we see no reason why the same benefit should not be given to the respondents. Looking to the nature and duties of these respondents we are of opinion that there is no reason to treat them differently." 16.Considering on the touch stone of the aforesaid decision, it appears that Safei Moharirs having been discharging the similar nature of work as stated above with that of the Munsarims, they have been granted equal pay in Annexure-3 categorizing them in Class-III under OCS (CCA) Rules, 1962. Subsequently fixation of pay created disparity under Annexures-4 and 5 resulting in grievance made vide Annexure-6 and on consideration of the materials available views has been sought for from the Director of Land Records and Surveys, Orissa, who in Annexure-8 considering various angle has suggested that the pay of Safei Moharirs to be revised and fixed at Rs. 800/- at par with minimum pay fixed for Amins/Munsarims Grade-III and on such suggestion, the Government acted upon the same allowing revised fixed pay of all job contract Safei Moharirs working under the Revenue and Excise Department both in Settlement and Consolidation Organization with effect from 01.01.1998 by giving revised pay scale Rs. 800/- with existing fixed pay 762/- vide Annexure-11. The said revised fixed pay has also been acted upon and the benefit has been extended to the petitioners. Therefore, the benefit of "equal pay for equal work" is admissible to the petitioners in conformity with the nature of work discharged by them at par with Munsarim Grade-III. Denial of such benefit by impugned order in Annexure-14 without assigning any cogent reason is not tenable. The observation in the impugned order that the job requirement of the Safei Moharirs is distinctly different from that of Munsarim Grade-III and also general Moharir Grade-III and is not comparable without taking into consideration the nature of work done by that class of people long since amounts to non-application of mind by opposite party No. 1 and I am of the considered view that this impugned order has been passed just to wriggle out of the rigorous of contempt proceeding initiated against the opposite parties due to non-compliance of the order dated 11.08.2009 passed in W.P.(C) No. 12443 of 2004. 17.Referring to M.L.Sachdev (supra) in which direction given to the Union of India to constitute Monopolies and Restrictive Trade Practices Commission was not complied with even by date to which time was extended and no extension of time sought before expiry of extended date and even after service of notice in contempt proceeding, the apex Court held Union of India represented through the Secretary guilt of contempt. Applying the same analogy in the present context while disposing of the writ petition this Court fixed a time limit to consider the claims of Safei Moharirs with regard to fixation of their scale of pay at Rs. 2750/- by modifying the order of Tribunal within four months. Due to non-compliance thereof contempt was filed thereby on receipt of notice the impugned order was passed under Annexure-14, after expiry of four months period without asking for extension of time for compliance of order for which the opposite party has already violated the order and committed the contempt of Court. But Mr. N.C.Panigrahi, learned Senior Counsel appearing for the petitioners states that he is not keen to pursue the contempt proceeding against the opposite party in view of the fact that when a question of petitioner's livelihood is at stake, he only pursues his remedy to grant "equal pay for equal work" by fixing scale of pay of the Safei Moharirs at Rs. 2750/-. It is further argued that these class of people have been working for long more than two decades with this consolidated amount without having any future prospect or the future career. Neither they have been given promotion nor any financial benefits. Since their counter parts Munsarim Grade-III, who have been allowed to get the scale at Rs. 2750/-, therefore, the petitioners should not be discriminated. 18.In view of the aforesaid facts and circumstances, this Court is of opinion that the impugned order passed under Annexure-14 is devoid of merit and accordingly, the same is quashed. This Court directs the opposite party to pay the Safei Moharirs the scale of pay at Rs. 2750/- at par with their counterparts the Munsarim Grade-III from the date such scale was given to the Munsarim Grade-III within a period of three months from the date of communication of this order. The writ petition is allowed accordingly. Petition allowed.