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2016 DIGILAW 263 (JK)

Ab. Rashid Khan v. State of J&K

2016-05-12

ALI MOHAMMAD MAGREY, N.PAUL VASANTHAKUMAR

body2016
JUDGMENT : N. PAUL VASANTHA KUMAR, J. 1. This writ petition is filed praying for directing the respondents to fix the pay of the petitioners retrospectively in the pay scale of 4000-6000 as paid to the Lift Operators working in other Government departments like Civil Secretariat, Estates etc. The case of the petitioners is that petitioner No. 1 was appointed as Lift Operator vide Order No. 1019, dated 30.12.1988 in the grade of Rs. 630-940 (pre-revised) and petitioner No. 2 was also appointed as Lift Operator vide Order No. 349, dated 27.08.1993 in the pay scale of 750-940 (pre-revised). It is further stated that petitioners are trained Lift Operators having vast experience and are posted in the High Court. According to the petitioners, Lift Operators working in other Government Departments are being paid higher pay scale of Rs. 4000-6000. The petitioners, as stated, are making representations from 2003 for grant of higher pay grade of Rs. 4000-6000 and on no action having taken, the petitioners filed the present writ petition with the aforesaid prayer. 2. In the objections filed by the 1st respondent, it is stated that petitioners are the employees of the High Court and the 1st respondent was not associated in their selection. It is further stated that petitioners are working under the control of the Registrar General. The petitioners have made representations to the Registrar General, therefore, the relief claimed against respondent No. 1 is not maintainable. In effect, the reply of 1st respondent is that no proposal was made by the High Court for up-gradation of the pay scale. 3. Respondent No. 2, Registrar General, has filed reply by stating that initially three posts of Lift Operators were created by the Government in the grade of Rs. 900-1830 (revised 1200-2040) vide Govt. Order No. 975-Ld(A) of 1988, dated 20.09.1988 and after creation of the said posts, a request was made by the High Court to the Commissioner-Cum-Secretary to Government Finance Department in the year 1988 that the posts created may be downgraded as they would create administrative complicacies. In pursuance of the proposal of the High Court, the Government vide order dated 1189-LD(A) of 1988 dated 20.12.1998 downgraded the said three posts of Lift Operators from the pay scale of Rs. 900-1830 to Rs. 630-940, due to which the petitioners are being paid the lower pay scale as compared to other departments. 4. In pursuance of the proposal of the High Court, the Government vide order dated 1189-LD(A) of 1988 dated 20.12.1998 downgraded the said three posts of Lift Operators from the pay scale of Rs. 900-1830 to Rs. 630-940, due to which the petitioners are being paid the lower pay scale as compared to other departments. 4. It is not in dispute that petitioners are fully qualified for the post of Lift Operators and the Lift Operators working in other Government departments were paid Rs. 900-1830 and are being paid higher pay scale of Rs. 4000-6000 as compared to the petitioners who are being paid in the lower pay scale. Since the pay scale has been downgraded on the request of the High Court, the respondent No. 1 cannot re-fix the pay scale in the higher grade unless a proposal is made to the Government for up-gradation of the pay scale of the petitioners. 5. Learned counsel for the petitioners contends that petitioners are discharging the duties as Lift Operators and are entitled to get equal pay as is being paid to the Lift Operators in other Government Departments in terms of Article 39(a) of the Constitution of India and denying the equal pay for equal work is in violation of Article 14 of the Constitution of India. Denial of equal pay for equal work is violative of Article 14, 16 and 39(d) of the Constitution of India as held by the Hon'ble Supreme Court in the judgment reported in AIR 1982 SC 879 (Randhir Singh v. Union of India). In the said judgment, it is held that claiming equal pay for equal work is constitutional right as guaranteed under Article 14 and 16 of the Constitution of India. In the decision reported in AIR 1987 SC 2049 (Bhagwan Dass & Ors. v. State of Haryana & Ors.), the Hon'ble Supreme Court in paragraphs 11 and 13 has held thus:- "11......once the nature and functions and the work are not shown to be dissimilar the fact that the recruitment was made in one way or the other would hardly be relevant from the point of view of "equal pay for equal work" doctrine...... 13. ......the contention that the Scheme is a temporary Scheme and the posts are sanctioned on an year to year basis having regard to the temporary nature of the Scheme. 13. ......the contention that the Scheme is a temporary Scheme and the posts are sanctioned on an year to year basis having regard to the temporary nature of the Scheme. We are unable to comprehend how this factor can be invoked for violating equal pay for equal, work doctrine. Whether appointments are for temporary periods and the Schemes are temporary in nature is irrelevant once it is shown that the nature of the duties and functions discharged and the work done is similar and the doctrine of equal pay for equal work is attracted......" 6. The said doctrine would apply on the premise of similar work as held by the Hon'ble Supreme Court in the decision reported in AIR 1988 SC 1504 (Jaipal v. State of Haryana). The only requirement is that Court should be satisfied with regard to the similarity of the work and other relevant factors from clear and acceptable material as held by the Hon'ble Supreme Court in the decision reported in 1989 Suppl (1) SCC 205 (All India Sainik Schools Employees' Assn. v. Sainik Schools Society). 7. In (1998) 4 SCC 291 (Selvaraj v. Lt. Governor of Island, Port Blair & Ors.) the Hon'ble Supreme Court considered the very issue. In paragraph No. 3 it is held thus:- "3. 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 Rs. 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. 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." In AIR 1999 SC 1356 (Alvaro Noronha Ferreira v. Union of India), the principle of equal pay for equal work was considered in respect of District Judges in Goa and Delhi. In paragraph 11 Hon'ble the Supreme Court held thus:- "11. The parameters for invoking the said principles would include, inter alia, nature of the work and common employer. There can be no two views that the nature of work of District and Sessions Judges is the same though in some areas pendency of cases would be higher than others. Differences in the backlog are not uncommon even in two different stations of the same Territory, nay, in two different courts of the same station. Such lopsidedness is hardly the ground to conclude that the nature of work done by one judicial officer at one place is different from other. The duty hours would be substantially the same, the powers to be discharged are in no way different, whether they are District Judges in Goa or in Delhi. It would be a futile exercise to make an endeavour for drawing a distinction between the work pattern at the two different places, for such differences are discernible everywhere. But that would not make the nature of work different. It would be a futile exercise to make an endeavour for drawing a distinction between the work pattern at the two different places, for such differences are discernible everywhere. But that would not make the nature of work different. It was not necessary to cast the burden of proof on the appellants to establish the pendency of litigation or the norms fixed for disposal of cases by the Delhi Court to enable comparison between the nature of duties and the responsibilities carried by the officers of the Delhi Territory and the Goa Territory". 8. In (2001) 8 SCC 322 (Dwarika Prasad Tiwari v. M.P. State Road Transport Corporation & Anr.) Hon'ble the Supreme Court held that period for which the appellants discharged the duties or discharging the duties attached to a higher post, they should be paid emoluments as attached to that post. 9. In JT 2001 (9) SC 646 : (2002) 1 SCC 261 (Jaswant Singh v. Punjab Poultry Field Staff Association & Ors.), in paragraph Nos. 11 and 12 Hon'ble the Supreme Court held thus:- "11. The High Court's decision in Gobind Singhs case did not direct the promotion of Gobind Singh. What was directed was the payment of salary and allowances of the post of chick-sexer since Gobind Singh had been discharging the duties of that post. Therefore, while the appellants promotion to the post of chick-sexer cannot be upheld, given the fact that the appellant had discharged the duties of a chick-sexer, he was at least entitled to the pay and other allowances attributable to that post during the period he carried out such duties. 12. We accordingly allow the appeal in part. While upholding the order of the High Court, setting aside the order of the appellants promotion, we direct the respondent authorities to pay the appellant for the period he rendered service as a chick-sexer at the scales of pay together with all allowances to which chick-sexers were entitled at the relevant time............" In the decision reported in (2006) 9 SCC 321 (State of Haryana & Ors. v. Charanjit Singh & Ors.), it was held that equal pay for equal work principle is applicable if everything is identical. The Hon'ble Supreme Court in the decision reported in (2008) 1 SCC 586 (Union of India v. Dineshan K.K.), in paragraph 12, held thus, "12. v. Charanjit Singh & Ors.), it was held that equal pay for equal work principle is applicable if everything is identical. The Hon'ble Supreme Court in the decision reported in (2008) 1 SCC 586 (Union of India v. Dineshan K.K.), in paragraph 12, held thus, "12. The principle of equal pay for equal work has been considered, explained and applied in a catena of decisions of this Court. The doctrine of equal pay for equal work was originally propounded as part of the directive principles of the State policy in Article 39(d) of the Constitution. In Randhir Singh v. Union of India (1982) 1 SCC 618 ) a Bench of three learned Judges of this Court had observed that principle of equal pay for equal work is not a mere demagogic slogan but a constitutional goal, capable of being attained through constitutional remedies and held that this principle had to be read under Articles 14 and 16 of the Constitution. This decision was affirmed by a Constitution Bench of this Court in D.S. Nakara v. Union of India, (1983) 1 SCC 305 ). Thus, having regard to the constitutional mandate of equality and inhibition against discrimination in Articles 14 and 16, in service jurisprudence, the doctrine of equal pay for equal work has assumed status of a fundamental right." None of the respondents have argued as to why the petitioners are not entitled to get equal pay for equal work. In view of the above, 2nd respondent is directed to send a proposal to the 1st respondent for up-gradation of the pay scale of the petitioners at Rs. 900-1830 (pre-revised) to Rs. 4000-6000, as the existing posts were downgraded erroneously, from the date of their appointment within a period of three weeks and the 1st respondent is directed to upgrade the pay scale of the petitioners and pass orders within a period of one month from the date of receipt of the proposal from respondent No. 2. No costs.