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2016 DIGILAW 453 (GUJ)

Nikunj I. Desai v. Surat Municipal Corporation

2016-02-25

J.B.PARDIWALA

body2016
JUDGMENT : J.B. Pardiwala, J. 1. By this writ application under Article 226 of the Constitution of India, the applicants serving as 'Junior Chemists' with the Surat Municipal Corporation, have prayed for the following reliefs: "7. The petitioner respectfully prays that, on the basis of the facts and circumstances as mentioned hereinabove and which may be urged at the time of hearing, the Honorable Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction to the respondent authorities and may be pleased to:- (A) direct the respondent authorities to remove anomaly in the pay-scale prevailing in the cadre of Junior Chemist and Chemist and further be pleased to declare and hold that the Junior Chemists serving under the respondent Surat Municipal Corporation are entitled and eligible for the pay-scale of Rs. 5500-9000 at par with Chemist on the basis of the principle of equal pay for equal work, and (B) direct the respondent authority to pay to the petitioners the pay-scale of Rs. 5500-9000, as being paid to the Chemist, from their respective dates of confirmation in the Corporation, with all consequential benefits, and (C) Award the cost of this petition, and (D) Pending admission and final disposal of this petition, the Honorable Court may be pleased to direct the respondent authority to consider the case of the petitioners for removal of pay anomaly prevailing in the pay-scale of Junior Chemist and Chemist, and/or (E) grant any other relief or pass any other order which the Honorable Court may consider as just and proper in the fact and circumstances of the case." 2. The facts of this case may be summarized as under: 2.1 The writ applicants are at present working as the 'Junior Chemists' in the Water Works Department (Hydraulic) of the Surat Municipal Corporation. They all were appointed in accordance with the Resolution dated 29th July, 2005 which provides for the mode of recruitment on the post of the Junior Chemist. 2.2 It is the case of the writ applicants that they were appointed after following due process of law, and upon completion of the training period, were put in the pay scale of Rs. 3050 - 4590/-, which came to be revised as Rs. 5200 - 20200/- (Grade Pay of Rs. 1900/-) in view of the Sixth Pay Commission. 2.2 It is the case of the writ applicants that they were appointed after following due process of law, and upon completion of the training period, were put in the pay scale of Rs. 3050 - 4590/-, which came to be revised as Rs. 5200 - 20200/- (Grade Pay of Rs. 1900/-) in view of the Sixth Pay Commission. The writ applicants are seeking pay parity with the Chemists serving with the Surat Municipal Corporation. It appears that prior to the recruitment of the writ applicants herein on the posts of Junior Chemists, the Surat Municipal Corporation had recruited Chemists pursuant to the advertisement which was issued in the year 1989. The recruitment on the posts of Chemists was in accordance with the Resolution of the Corporation dated 2nd April, 1981. It is the case of the writ applicants that there are different water works under the control of the Surat Municipal Corporation where the process of water purification at the treatment plants is being undertaken so as to provide potable water to the city of Surat. The persons working as the Junior Chemists and Chemists under the Corporation have the duty at such different water works in different shifts and shoulder the responsibility of monitoring the water quality and water purification. They have to collect the water samples from different areas of the Surat city randomly, and then test such samples at the laboratory in order to maintain the quality of water. It is the case of the writ applicants that from the date of joining of the service, they are performing the very same duties, simultaneously with the persons working as Chemists in the Corporation. The nature of work, their duties and responsibilities, functions and educational qualifications as well as the mode of recruitment to the posts of Junior Chemist and Chemist are the same. 2.3 Their grievance is that despite similarity in all respects, they are being paid the pay scale of Rs. 3050 - 4590/-, whereas the persons working in the same Corporation on the posts of Chemists are being paid the pay scale of Rs. 5500 - 9000/-. 2.4 The similarities of both the cadres on the following aspects as pointed is as under: "Educational qualification: Chemist : B.Sc. (Chemistry) Jr. Chemist: B.Sc. (Chemistry) Mode of recruitment: Chemist : Direct recruitment through selection Jr. 5500 - 9000/-. 2.4 The similarities of both the cadres on the following aspects as pointed is as under: "Educational qualification: Chemist : B.Sc. (Chemistry) Jr. Chemist: B.Sc. (Chemistry) Mode of recruitment: Chemist : Direct recruitment through selection Jr. Chemist: Direct recruitment through selection Recruitment Rules: Chemist : Resolution dated 2.4.1981 B.Sc. (Chemistry) 3 years experience of Laboratory work Jr. Chemist: Resolution dated 29.7.2005 B.Sc. (Chemistry) 2 years experience of Laboratory work Feeder cadre and promotional cadre: Chemist : NIL Jr. Chemist: NIL Nature of work, duties, responsibility: Chemist and Jr. Chemist both Treating surface water of Tapi River, Pre-chlorination, Chemical treatment followed by coagulation, flocculation, sedimentation, filtration and post chlorination so as to provide potable water. Operation of water treatment plant, quality monitoring and chemical analysis of water." 2.5 It is their case that several representations were preferred with the Corporation in this regard, but till this date, no decision has been taken. Hence, this petition. 3. In response to the notice issued by this Court, Mr. Vishwas Shah, the learned counsel has appeared on behalf of the Corporation respondent. He has opposed this writ application vehemently. He has placed reliance on the following averments made in the affidavit-in-reply filed on behalf of the Surat Municipal Corporation duly affirmed by the Deputy Commissioner inter alia stating as under: "5. I state and submit that petitioners - Jr. Chemists having entered service with open eyes and being fully aware about the conditions of service are estopped in haw to contend to the contrary. The prayers as sought in the petitioner is alien to Service Jurisprudence and such mandamus as sought is clearly not permissible in law. 6. I state and submit that as far as Chemists are concerned there is resolution of 02.04.1981 which governs the field and requires B.Sc. (Chem) and three years work experience of Laboratory whereas for the petitioners - Junior Chemists in question, the resolution is of the 29.07.2005 which requires B.Sc. (Chem) and two years work experience in Laboratory. Thus in nutshell the eligibility posts which petitioner claims to be inter changeable is not the same but different and distinct. Thus both the posts are different and distinct. The copy of resolution of 1981 and 2005 of respondent Corporation are annexed herewith and marked as Annexure A (colly). 7. (Chem) and two years work experience in Laboratory. Thus in nutshell the eligibility posts which petitioner claims to be inter changeable is not the same but different and distinct. Thus both the posts are different and distinct. The copy of resolution of 1981 and 2005 of respondent Corporation are annexed herewith and marked as Annexure A (colly). 7. Pursuant to the public advertisement in the year 2005, the post of Junior Chemists were filled in the pay scale of Rs. 3050-4590/- and they were also required to sign acceptance letter as per the procedure. Thus petitioner once having signed the acceptance letter are now precluded in law to take contra stand. Thus in light of the aforesaid both the posts Chemists and Jr. Chemists are different and distinct like chalk and cheese and submissions to the contrary by the petitioners are misconceived and ill founded. 8. I state and submit that the post of Chemists and Jr. Chemists are not interchangeable and office order dated 30.04.12 is only for administrative convenience, i.e. not in nature of transfer but work distribution only. 9. I state and submit that reliance placed by petitioners about Laboratory Technicians is not sound because factually Laboratory Technicians are having higher qualifications i.e. B.Sc. (Chem)/Microbiology) or M.Sc. (Organic Chem/Micro Biology) along with certified Laboratory Technician course and computer course of Dept. of Electronics Accreditation of Computer (CCC) then Jr. Chemists and hence the said example cannot be cited to strengthen their case, on the other hand it weakens the case of the petitioners - Jr. Chemists. In any view of the matter, the case cited by petitioners cannot be pressed into service to better their case as both are different and distinct. 10. I state and submit that Corporation works as per its statute in vogue and rules thereunder and resolutions passed from time to time in accordance with the law and it is not the case of the petitioners that Corporation is violating any law in their case and hence writ application of this nature is otherwise not maintainable." 4. The writ applicants have filed affidavit-in-rejoinder to the affidavit-in-reply of the Corporation inter alia stating as under: "3. I say that, petitioners are not disputed the fact the posts of Junior Chemists were filled in the year 2005-06 by way of public advertisement with the pay scale of 3050-4590. The writ applicants have filed affidavit-in-rejoinder to the affidavit-in-reply of the Corporation inter alia stating as under: "3. I say that, petitioners are not disputed the fact the posts of Junior Chemists were filled in the year 2005-06 by way of public advertisement with the pay scale of 3050-4590. The advertisement publishes qualification, experience, age criteria, compensation, etc for the said post. Only after acceptance of appointment letter and consequently performing duties, it has been experienced that petitioners, thought having same nature of work responsibilities, liabilities, educational qualifications, etc, are being paid not only less than that of the Chemist but also what is being paid to other employees of Class-III and IV who are having similar or less education qualification then Junior Chemist. This aspect has neither been considered by Corporation even after several representations and recommendation by concerned department nor dealt with in reply except stating that both the posts are different. 4. I say that, the respondent claims that both posts are different, whirs the concerned department state that not only the nature of work but responsibilities, liabilities, educational qualifications, of chemist and Jr. Chemist are same with pay discrimination? At the time of recruitment of Chemist in 1989 the scope of work was very modest which include only disinfection by chlorination as Surat Municipal Corporation was supplying only 180 MLD of water and main source were Tube wells. The Tube well has natural introduction of Water Treatment Plants (WTP) in 1997 the scope of work and complexity of operation and maintenance increased gradually. The rapid urbaniszation compelled Surat Municipal Corporation to built new WTPs to meet ever increasing demand of potable water. The expanding structure and functions of Hydraulic Department generated demand to make new recruitment. The Junior Chemist were recruited in 2005-06 with pay scale 3050-4590 and given exactly the same scope of work of the Chemist right from day one which include treating surface water of Tapi river, pre-chlorination, chemical treatment followed by coagulation and flocculation, sedimentation, filtration and post chlorination. Apart from operation of water treatment plant, quality monitoring and chemical analysis of water are major responsibilities of Junior Chemist. Sr. Apart from operation of water treatment plant, quality monitoring and chemical analysis of water are major responsibilities of Junior Chemist. Sr. No. Year Water supply (MLD) Modality of Treatment (Technology) 1 1984 180 Tube wells + chlorination 2 1997 300 Tube wells & rapid gravity sand filter + chlorination 3 2005 628 Pre chlorination + rapid gravity sand filter + post chlorination 4 2015 1300 Pre chlorination + rapid gravity sand filter + post chlorination 5. I say that, after having experience about discrimination meted out to petitioners, it was also learnt by petitioners that in past such kind of discrimination or pay anomaly prevailing qua other posts was considered and accepted by respondent by removing it qua those posts. It is further humbly submitted that the objective to site the example of laboratory technicians was not to compare the pay anomaly but to demonstrate that respondent has made such errors in the past regarding pay anomaly of laboratory technicians and has rectified the pay anomaly by way of resolution. 6. I say that, the respondent has failed to appreciate the fact that present petitioners are not only performing the same duties are being performed by Chemist, their responsibilities are day to day increasing because of new developing area of Surat city and its population as their work is related to water being provided to people of City. In support of the say of petitioners, reliance has been placed on the office order dated 30.4.2012, which shows that Chemists and Jr. Chemist are being treated equally so far work is concerned. In support of this, petitioners craves leave to prefer to and rely upon one more of his order dated 25.4.2015 issued by the respondent authority, which would go to show that work such as maintaining quality of water, testing, monitoring, water treatment plant operation etc is being given to the present petitioners, Chemists and Lab. Technicians whereas pay scale of Rs. 3050-4590 is being paid to the petitioners as against the pay scale of Rs. 5500-9000 (as per the fifth pay commission) is being paid to the Chemist, which is nothing but clear discrimination and violation of article 39(d), 14and 16 of the Constitution of India, which requires interference by this Honorable Court. A copy of the said order dated 25.4.2015 is annexed herewith and marked as Annexure-I to this rejoinder. 7. 5500-9000 (as per the fifth pay commission) is being paid to the Chemist, which is nothing but clear discrimination and violation of article 39(d), 14and 16 of the Constitution of India, which requires interference by this Honorable Court. A copy of the said order dated 25.4.2015 is annexed herewith and marked as Annexure-I to this rejoinder. 7. I say that, the respondent has made a comparison about the education qualifications & work experience of Chemist and Junior Chemist as prescribed in the resolutions dated 02.04.1981 and 29.07.2005. Sr. No. Designation Experience Resolution 1 Chemist 3 years G.R. No. 2 dt 02.04.81 2 Jr. Chemist 2 years G.R. No. 589 dt. 29.07.05 I further say that, Jr. Chemist after joining the services were given 3 years additional intense training with a fixed pay as shown in table below before they were given pay scale of 3050-4500. Sr. No. Year Fixed pay per month 1 First Rs. 3000/- 2 Second Rs. 3500/- 3 Third Rs. 4000/- So far as training is concerned, Junior Chemists still scores over Chemist which equates their total experience to 5 years. It is inappropriate on the part of respondent to compare that post of chemist is different and distinct. 8. I say that, the corporation works as per its statute in vogue and rules made there under and resolutions passed from time to time but it has no moral right to enforce discriminatory policy as stated in Article 14 and 16 of the Constitution of India. Here the action of the respondent violates the fundamental rights of the petitioners." 5. Mr. Vishwas Shah, the learned counsel appearing for the Corporation submitted that the two posts are independent and distinct. He submitted that assuming for the moment that there is some similarity in the nature of duty and function that by itself would not be sufficient to apply the doctrine of "equal pay for equal work". He has disputed the assertion made on the part of the writ applicants that they are performing the same nature of duties as being performed by the Chemists. He has disputed the assertion made on the part of the writ applicants that they are performing the same nature of duties as being performed by the Chemists. In support of his submissions, he has placed reliance on the following decisions: (1) State of West Bengal v. Subhas Kumar Chatterjee and others [ (2010) 11 SCC 694 ] (2) S.C. Chandra and others v. State of Jharkhand and others [ (2007) 8 SCC 279 ] (3) State of Haryana and another v. Haryana Civil Secretariat Personal Staff Association [ (2002) 6 SCC 72 ] 6. Ms. Pandya, the learned counsel appearing for the writ applicants have also relied upon the following decisions of the Supreme Court: (1) State of Punjab and another v. Surjit Singh and others [ (2009) 9 SCC 514 ] (2) State of Haryana and others v. Charanjit Singh and others [ (2006) 9 SCC 321 ] 7. Let me first look into the decisions relied upon by Ms. Pandya in support of her submissions. 8. In State of Punjab (supra), after considering the various decisions on the issue, the Supreme Court in paras 8, 16, 17 and 38 observed thus: "8. Before us, the learned counsel urged that on analysis of the decisions rendered by this Court, the following legal positions emerge. We would deal with them in seriatim and as put forward by the learned counsel. (1) Mode and manner of selection can be a ground of classification. In S.C. Chandra v. State of Jharkhand [ (2007) 8 SCC 279 ] it has been held: "27. Thus, in State of Haryana v. Tilak Raj it was held that the principle can only apply if there is complete and wholesale identity between the two groups. Even if the employees in the two groups are doing identical work they cannot be granted equal pay if there is no complete and wholesale identity e.g. a daily-rated employee may be doing 9 the same work as a regular employee, yet he cannot be granted the same pay scale. Similarly, two groups of employees may be doing the same work, yet they may be given different pay scales if the educational qualifications are different. Also, pay scale can be different if the nature of jobs, responsibilities, experience, method of recruitment, etc. are different. XXX XXX XXX 30. Similarly, two groups of employees may be doing the same work, yet they may be given different pay scales if the educational qualifications are different. Also, pay scale can be different if the nature of jobs, responsibilities, experience, method of recruitment, etc. are different. XXX XXX XXX 30. In State of U.P. v. Ministerial Karamchari Sangh the Supreme Court observed that even if persons holding the same post are performing similar work but if the mode of recruitment, qualification, promotion, etc. are different it would be sufficient for fixing different pay scale. Where the mode of recruitment, qualification and promotion are totally different in the two categories of posts, there cannot be any application of the principle of equal pay for equal work." In a given case, mode of selection may be considered as one of the factors which may make a difference. [(See State of Haryana v. Charanjit Singh [ (2006) 9 SCC 321 Para 15)]. (2) Daily wager working for a long time should be granted pay on the basis of the minimum of a pay scale. Reliance in this behalf has been placed on Secretary, State of Karnataka & Ors. v. Uma Devi (3) & Ors. [ (2006) 4 SCC 1 ]. It was furthermore urged that this Court should follow the principle laid down by the Constitution Bench in Uma Devi as such a relief had been granted by it in respect of daily wagers of the Commercial Taxes Department. The learned counsel submitted that this Court lately, although made a distinction between a direction to regularize the employees who had been working for some time, but keeping in view the constitutional mandate contained in Article 39A of the Constitution of India directed grant of a salary on a scale of pay, particularly in cases where the conduct of the State had been found to be unreasonable, unjust and prejudiced." "16. In our constitutional scheme, the doctrine of 'equal pay for equal work' has a definite place in view of Article 39(d) of the Constitution of India read with Article 14 thereof. Although as an abstract principle the existence of the applicability of the said doctrine cannot be ignored, the question which arises for our consideration is as to whether the said doctrine could have been mechanically applied as has been done by the High Court in the instant case. 17. Although as an abstract principle the existence of the applicability of the said doctrine cannot be ignored, the question which arises for our consideration is as to whether the said doctrine could have been mechanically applied as has been done by the High Court in the instant case. 17. We must also place on record the fact that in different phases of development of law by this Court, relying on or on the basis of the said principle, a clear cleavage of opinion has emerged. Whereas in the 1970s and 1980s, this Court liberally applied the said principle without insisting on clear pleadings or proof that the person similarly situated with others are equal in all respects; of late, also this Court has been speaking in different voices as would be evident from the following. This has been noticed specifically by a Division Bench of this Court in S.C. Chandra & Ors. v. State of Jharkhand & Ors. [ (2007) 8 SCC 279 ], wherein it was held: "21. Learned counsel for the appellants have relied on Article 39(d) of the Constitution. Article 39(d) does not mean that all the teachers working in the school should be equated with the clerks in BCCL or the Government of Jharkhand for application of the principle of equal pay for equal work. There should be total identity between both groups i.e. the teachers of the school on the one hand and the clerks in BCCL, and as such the teachers cannot be equated with the clerks of the State Government or of BCCL. The question of application of Article 39(d) of the Constitution has recently been interpreted by this Court in State of Haryana v. Charanjit Singh wherein Their Lordships have put the entire controversy to rest and held that the principle, "equal pay for equal work" must satisfy the test that the incumbents are performing equal and identical work as discharged by employees against whom the equal pay is claimed. Their Lordships have reviewed all the cases bearing on the subject and after a detailed discussion have finally put the controversy to rest that the persons who claimed the parity should satisfy the court that the conditions are identical and equal and same duties are being discharged by them. Their Lordships have reviewed all the cases bearing on the subject and after a detailed discussion have finally put the controversy to rest that the persons who claimed the parity should satisfy the court that the conditions are identical and equal and same duties are being discharged by them. Though a number of cases were cited for our consideration but no useful purpose will be served as in Charanjit Singh all these cases have been reviewed by this Court. More so, when we have already held that the appellants are not the employees of BCCL, there is no question seeking any parity of the pay with that of the clerks of BCCL." "38. We would, however, before parting make an observation that the submission of the learned counsel that only because some juniors have got the benefit, the same by itself cannot be a ground for extending the same benefit to the respondents herein. It is now well known that the equality clause contained in Article 14 should be invoked only where the parties are similarly situated and where orders passed in their favour is legal and not illegal. It has a positive concept." 9. In Charanjit Singh (supra), the Supreme Court in para 19 observed as under: "19. Having considered the authorities and the submissions we are of the view that the authorities in the cases of Jasmer Singh, Tilak Raj, Orissa University of Agriculture and Technology and Tarun K. Roy, lay down the correct law. Undoubtedly, the doctrine of "equal pay for equal work" is not an abstract doctrine and is capable of being enforced in a Court of law. But equal pay must be for equal work of equal value. The principle of "equal pay for equal work" has no mechanical application in every case. Article 14 permits reasonable classification based on qualities or characteristics of persons recruited and grouped together, as against those who were left out. Of course, the qualities or characteristics must have a reasonable relation to the object sought to be achieved. In service matters, merit or experience can be a proper basis for classification for the purposes of pay in order to promote efficiency in administration. A higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues is also an acceptable reason for pay differentiation. In service matters, merit or experience can be a proper basis for classification for the purposes of pay in order to promote efficiency in administration. A higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues is also an acceptable reason for pay differentiation. The very fact that the person has not gone through the process of recruitment may itself, in certain cases, make a difference. If the educational qualifications are different, then also the doctrine may have no application. Even though persons may do the same work, their quality of work may differ. Where persons are selected by a Selection Committee on the basis of merit with due regard to seniority a higher pay scale granted to such persons who are evaluated by competent authority cannot be challenged. A classification based on difference in educational qualifications justifies a difference in pay scales. A mere nomenclature designating a person as say a carpenter or a craftsman is not enough to come to the conclusion that he is doing the same work as another carpenter or craftsman in regular service. The quality of work which is produced may be different and even the nature of work assigned may be different. It is not just a comparison of physical activity. The application of the principle of "equal pay for equal work" requires consideration of various dimensions of a given job. The accuracy required and the dexterity that the job may entail may differ from job to job. It cannot be judged by the mere volume of work. There may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities made a difference. Thus normally the applicability of this principle must be left to be evaluated and determined by an expert body. These are not matters where a writ court can lightly interfere. Normally, a party claiming equal pay for equal work should be required to raise a dispute in this regard. In any event the party who claims equal pay for equal work has to make necessary averments and prove that all things are equal. Thus, before any direction can be issued by a Court, the Court must first see that there are necessary averments and there is a proof. In any event the party who claims equal pay for equal work has to make necessary averments and prove that all things are equal. Thus, before any direction can be issued by a Court, the Court must first see that there are necessary averments and there is a proof. If the High Court, is on basis of material placed before it, convinced that there was equal work of equal quality and all other relevant factors are fulfilled it may direct payment of equal pay from the date of the filing of the respective Writ Petition. In all these cases, we find that the High Court has blindly proceeded on the basis that the doctrine of equal pay for equal work applies without examining any relevant factors." 10. Relying on the decision of Charanjit Singh (supra), more particularly, the observations made in para 19, Ms. Pandya submitted that if the facts are clear and there is no ambiguity, then it would be open for the Court to ask the authorities concerned to make payment on the basis of the doctrine of "equal pay for equal work". 11. Let me now look into the decisions relied upon by Mr. Shah in support of his submissions. 12. In State of Haryana (supra), the Supreme Court observed in para 8 as under: "8. From the discussions in the impugned judgment it is clear to us that the High Court has ignored certain settled principles of law for determination of the claim on parity of pay scale by a section of government employees. While making copious reference to the principle of equal pay for equal work and equality in the matter of pay, the High Court overlooked the position that the parity sought by the petitioner in the case was with employees having only the same designation under the Central Government. Such comparison by a section of employees of State Government with employees of Central Government based merely on designation of the posts was misconceived. The High Court also fell into error in assuming that the averment regarding similarity of duties and responsibilities made in the writ petition was un-rebutted. The appellants in their counter affidavit have taken the specific stand that no comparison between the two sections of employees is possible since the qualifications prescribed for the P.A.s in the Central Secretariat are different from the P.A.s in the State Civil Secretariat. The appellants in their counter affidavit have taken the specific stand that no comparison between the two sections of employees is possible since the qualifications prescribed for the P.A.s in the Central Secretariat are different from the P.A.s in the State Civil Secretariat. Even assuming that there was no specific rebuttal of the averment in the writ petition that could not form the basis for grant of parity of scale of pay as claimed by the respondent. The High Court has not made any comparison of the nature of duties and responsibilities, the qualifications for recruitment to the posts of P.A.s in the State Civil Secretariat with those of P.A.s of the Central Secretariat." 13. In S.C. Chandra (supra), the Supreme Court in paras 21, 27, 35 and 36 observed as under: "21. Learned counsel for the appellants have relied on Article 39(d) of the Constitution. Article 39(d) does not mean that all the teachers working in the school should be equated with the clerks in the BCCL or Government of Jharkhand. For application of the principle of equal pay for equal work. There should be total identity between both groups i.e. the teachers of the school on the one hand and the clerks in BCCL, and as such the teachers cannot be equated with the clerks of the State Government or of the BCCL. The question of application of Article 39(d) of the Constitution has recently been interpreted by this Court in State of Haryana and Ors. v. Charanjit Singh and Ors. [ (2006) 9 SCC 321 ] wherein their Lordships have put the entire controversy to rest and held that the principle, 'equal pay for equal work' must satisfy the test that the incumbents are performing equal and identical work as discharged by employees against whom the equal pay is claimed. Their Lordships have reviewed all the cases bearing on the subject and after a detailed discussion have finally put the controversy to rest that the persons who claimed the parity should satisfy the Court that the conditions are identical and equal and same duties are being discharged by them. Though a number of cases were cited for our consideration but no useful purpose will be served as in Charanjit Singh (supra) all these cases have been reviewed by this Court. Though a number of cases were cited for our consideration but no useful purpose will be served as in Charanjit Singh (supra) all these cases have been reviewed by this Court. More so, when we have already held that the appellants are not the employees of BCCL, there is no question seeking any parity of the pay with that of the clerks of BCCL. 27. Thus, in State of Haryana v. Tilak Raj, (2003) 6 SCC 123 , it was held that the principle can only apply if there is complete and wholesale identity between the two groups. Even if the employees in the two groups are doing identical work they cannot be granted equal pay if there is no complete and wholesale identity, e.g., a daily rated employee may be doing the same work as a regular employee, yet he cannot be granted the same pay scale. Similarly, two groups of employees may be doing the same work, yet they may be given different pay scales if the educational qualifications are different. Also, pay scale can be different if the nature of jobs, responsibilities, experience, method of recruitment, etc. are different. 35. In our opinion fixing pay scales by Courts by applying the principle of equal pay for equal work upsets the high Constitutional principle of separation of powers between the three organs of the State. Realizing this, this Court has in recent years avoided applying the principle of equal pay for equal work, unless there is complete and wholesale identity between the two groups (and there too the matter should be sent for examination by an expert committee appointed by the Government instead of the Court itself granting higher pay). 36. It is well settled by the Supreme Court that only because the nature of work is the same, irrespective of educational qualification, mode of appointment, experience and other relevant factors, the principle of equal pay for equal work cannot apply vide Government of West Bengal v. Tarun K. Roy and others, (2004) 1 SCC 347 ." 14. In State of West Bengal (supra), the Supreme Court observed in paras 14, 30 and 31 as under: "14. This Court time and again cautioned that the court should avoid giving a declaration granting a particular scale of pay and compel the Government to implement the same. In State of West Bengal (supra), the Supreme Court observed in paras 14, 30 and 31 as under: "14. This Court time and again cautioned that the court should avoid giving a declaration granting a particular scale of pay and compel the Government to implement the same. Equation of posts and equation of salaries is a matter which is best left to an expert body. Fixation of pay and determination of parity in duties and responsibilities is a complex matter which is for the executive to discharge. Even the recommendations of the Pay Commissions are subject to acceptance or rejection, the Courts cannot compel the State to accept the recommendations of the Pay Commissions though it is an expert body. The State in its wisdom and in furtherance of its valid policy may or may not accept the recommendations of the Pay Commission. [See : Union of India v. Arun Jyoti Kundu [ (2007) 7 SCC 472 ] and State of Haryana and Anr. v. Haryana Civil Secretariat Personal Staff Assn. [ (2002) 6 SCC 72 ]. It is no doubt, the constitutional courts clothed with power of judicial review have jurisdiction and the aggrieved employees have remedy only if they are unjustly treated by arbitrary State action or inaction while fixing the pay scale for a given post." "30. Yet another question that arises for our consideration is whether a writ of mandamus lies compelling the State to act contrary to law? The State Government having accepted the recommendations of the successive Pay Commissions gave effect to those recommendations by framing statutory rules being ROPA Rules and scales of the employees have been accordingly fixed. The respondents did not challenge the vires of the said Rules under which they were entitled to only a particular scale of pay. The State Government is under obligation to follow the statutory rules and give only such pay scales as are prescribed under the statutory provisions. Neither the Government can act contrary to the rules nor the Court can direct the Government to act contrary to rules. No Mandamus lies for issuing directions to a Government to refrain from enforcing a provision of law. No court can issue Mandamus directing the authorities to act in contravention of the rules as it would amount to compelling the authorities to violate law. Such directions may result in destruction of rule of law. 31. No Mandamus lies for issuing directions to a Government to refrain from enforcing a provision of law. No court can issue Mandamus directing the authorities to act in contravention of the rules as it would amount to compelling the authorities to violate law. Such directions may result in destruction of rule of law. 31. In the instant case, the impugned order of the High Court virtually compelled the State to give pay scales contrary to statutory rules under which pay scales of the employees are fixed. The decision of the Chief Engineer being contrary to ROPA Rules, 1998, cannot be enforced even if such a decision was taken under the directions of the Administrative Tribunal. The orders of the Tribunal as well as of the High Court suffer from incurable infirmities and are liable to be set aside." 15. What is discernible from a conspectus of the authorities relied upon by both the sides is that the principle of "equal pay for equal work" has no mechanical application in every case of similar work. The quality of work performed by the different sets of persons holding the different jobs will have to be evaluated. There may be differences in the educational or technical qualifications which may have a bearing on the skill which holders bring to their job although the designations of the job may be the same. Article 14 read with Article 39(d) envisages the doctrine of "equal pay for equal work". 16. The only question that falls for my consideration in this writ application is whether I should direct the Corporation to put the Junior Chemists at par with the Chemists so far as the pay scale is concerned. 17. I am of the view that ordinarily, the Court in exercise of the writ jurisdiction under Article 226 of the Constitution of India, should not take upon itself the task of determining or deciding the pay parity. The fixation of an appropriate pay scale should be left to the experts. 18. In such circumstances, I propose to dispose of this writ application with a direction to the Corporation to constitute a committee of experts consisting of the following: (I) The Municipal Commissioner of Surat, (II) A responsible officer of the Finance Department of the Corporation, (III) The Head of Department of Hydraulic (Water Works), (IV) The Chairman of the Standing Committee - Surat Municipal Corporation. 19. 19. I take notice of the fact, as pointed out by Ms. Pandya, the learned counsel appearing for the writ applicants, that the Head of Water Works Department (Hydraulic) did recommend the case of the writ applicants serving as the Junior Chemists so far as the pay parity is concerned. The Head of Department (Hydraulic) would be in a position to explain to the other members of the Committee as regards the nature of duties, responsibilities, functions, etc. 20. The Committee shall look into the issue keeping in mind the decisions of the Supreme Court relied upon by both the sides and take an independent decision so far as the claim put forward by the writ applicants is concerned within a period of three months from the date of receipt of the writ of this order. If any additional material is required in this regard from the writ applicants, the same shall be provided if they are called upon to provide the same. I deem it appropriate to observe that for better adjudication of the dispute, the Committee may hear two writ applicants authorized in that behalf to make good their case for pay parity. The writ applicants shall decide inter se who should represent the case before the Committee at the earliest. 21. With the aforesaid observations and directions, this application is disposed of. Direct service is permitted.