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2025 DIGILAW 264 (GAU)

H. Pangnyei K v. State of Nagaland

2025-02-17

KAKHETO SEMA

body2025
JUDGMENT : KAKHETO SEMA, J. Heard Ms. H. Zeliang, learned counsel for the petitioners and Ms. Inaholi, learned Government Advocate for the State respondents. 2. The present writ petition has been filed for a direction to the State respondents to grant the minimum scale of pay to the petitioners. 3. That the petitioner No.1 was appointed as a fixed pay work-charged labour on 21/07/1991 at PHG Phomching under the establishment of the Executive Engineer, Public Works Department (R&B), Mon Division, Mon, Nagaland. The petitioner has been continuously serving the department for over 31 years and is presently paid the revised fixed pay of Rs. 5250/- p.m. 4. That the petitioner No.2 was appointed as a fixed pay work-charged labour on 21/06/1992 at PHG Phomching under the establishment of the Executive Engineer, Public Works Department (R&B), Mon Division, Mon, Nagaland. The petitioner has been continuously serving the department for over 30 years and is presently paid the revised fixed pay of Rs. 5250/- p.m. 5. That the petitioner No.3 was appointed as a fixed pay work-charged labour on 10/05/2001 at PHG Phomching under the establishment of the Executive Engineer, Public Works Department (R&B), Mon Division, Mon, Nagaland. The petitioner has been continuously serving the department for over 21 years and is presently paid the revised fixed pay of Rs. 5250/- p.m. 6. That the petitioner No.4 was appointed as a fixed pay work-charged labour on 20/04/1994 at PHG Phomching under the establishment of the Executive Engineer, Public Works Department (R&B), Mon Division, Mon, Nagaland. The petitioner has been continuously serving the department for over 29 years and is presently paid the revised fixed pay of Rs. 5250/- p.m. 7. That the petitioners had individually submitted their representations dated 25/04/2023 & 02/06/2023, to the Chief Engineer, PWD (R&B), Kohima, Nagaland, seeking for grant of the minimum scale of pay. However, the representations submitted by the petitioners have not evoked any response from the authorities, therefore, the present writ petition. 8. Ms. H. Zeliang, the learned counsel for the petitioner has submitted that the petitioners have been diligently and sincerely discharging the duties and responsibilities as that discharged by the regular Grade-IV employees in the department and therefore, the petitioners are entitled to the minimum scale of pay as that paid to the regular Grade-IV employees. 8. Ms. H. Zeliang, the learned counsel for the petitioner has submitted that the petitioners have been diligently and sincerely discharging the duties and responsibilities as that discharged by the regular Grade-IV employees in the department and therefore, the petitioners are entitled to the minimum scale of pay as that paid to the regular Grade-IV employees. The petitioners has however been discriminated by the authorities by paying only a meagre fixed pay of Rs. 5250/- p.m. despite continuously serving the department for 21 to 31 years. 9. In support of her submission, the learned counsel for the petitioners has relied in the case of State of Punjab & Ors. -versus- Jagjit Singh & Others , reported in 2017 (1) GLT (SC) 47 and also the judgment & order dated 20/01/2023 passed by the Division Bench of this Court in W.A No. 25/2022. 10. Ms. Inaholi, the learned Government Advocate on the other hand has submitted that the petitioners have not been able to substantiate that the petitioners are discharging similar duties and responsibilities as that discharged by the regular Grade- IV employees nor they possesses the same and the equivalent qualifications as that of the other regular Grade-IV employees. The learned Government Advocate submits that having failed to discharge such responsibilities, the minimum scale of pay as paid to the regular Grade-IV employees cannot be paid to the petitioners on the principles of equal pay for equal work. Making the above submission, the learned Government Advocate submits that the law laid down in Jagjit Singh (supra) cannot be applied to the facts of the instant case. In support of her submission, the learned Government Advocate has relied in the case of Steel Authority of India Limited & Others -versus- Dibyendu Bhattacharya , reported in (2011) 11 SCC 122 11. Heard the learned counsel for the parties. 12. In the present case, the petitioners, have filed the petition seeking for grant of minimum scale of pay as paid to the regular Grade-IV employees. However, the petitioners besides making a bare statement, that they discharges the same works, duties and responsibilities as that discharged by the regular Grade-IV employees has not made any averments in the writ petition nor there is any record to substantiate that the petitioners are performing the same and/or the identical works as discharged by those in the same/corresponding post. However, the petitioners besides making a bare statement, that they discharges the same works, duties and responsibilities as that discharged by the regular Grade-IV employees has not made any averments in the writ petition nor there is any record to substantiate that the petitioners are performing the same and/or the identical works as discharged by those in the same/corresponding post. The burden of establishing right and parity in employment is on the petitioners claiming such a right and not on the State respondents and if the petitioners have failed to discharge such responsibilities, the petitioners cannot claim the minimum scale of pay invoking the principle of equal pay for equal work. In the present case, the petitioners have not been able to discharge the responsibilities and in that view of the matter no direction can be given to the State respondents to pay the minimum scale of pay to the petitioners. 13. In the case of Dibyendu Bhattacharya (supra), the Hon’ble Supreme Court while discussing the principle of equal pay for equal work/parity in pay has held as under; “19. In State of Haryana & Anr. v. Tilak Raj this Court held as under: (SCC p. 127, paras 11-12) "11….To claim a relief on the basis of equality, it is for the claimants to substantiate a clear cut basis of equivalence and a resultant hostile discrimination before becoming eligible to claim rights on a par with other group vis-a-vis an alleged discrimination........ 12. ‘Equal pay for equal work’ is a concept which requires for its applicability complete and wholesome identity between a group of employees claiming identical pay scales and the other group of employees who have already earned such pay scales. The problem about equal pay cannot always be translated into a mathematical formula." 22. It is the duty of an employee seeking parity of pay under Article 39(d) of the Constitution of India to prove and establish that he had been discriminated against, as the question of parity has to be decided on consideration of various facts and statutory rules, etc. The doctrine of “equal pay for equal work” as enshrined under Article 39 (d) of the Constitution read with Article 14 thereof, cannot be applied in a vacuum. The constitutional scheme postulates equal pay for equal work for those who are equally placed in all respects. The doctrine of “equal pay for equal work” as enshrined under Article 39 (d) of the Constitution read with Article 14 thereof, cannot be applied in a vacuum. The constitutional scheme postulates equal pay for equal work for those who are equally placed in all respects. The Court must consider the factors like the source and mode of recruitment/appointment, the qualifications, the nature of work, the value thereof, responsibilities, reliability, experience, confidentiality, functional need, etc. In other words, the equality clause can be invoked in the matter of pay scales only when there is wholesome/wholesale identity between the holders of two posts. The burden of establishing right and parity in employment is only on the person claiming such right. 26. In Union of India & Ors. v. S.L. Dutta . , Union of India & v. N.Y. Apte, State of U.P. v. J.P. Chaurasia and Kshetriya Kisan Gramin Bank v. D.B. Sharma, this Court held that the determination that two posts are equal or not, is a job of the Expert Committee and the court should not interfere with it unless the decision of the Committee is found to be unreasonable or arbitrary or made on extraneous considerations. More so, it is an executive function to fix the service conditions etc. and lies within the exclusive domain of the rule making authority. 27. In S.C. Chandra v. State of Jharkhand, this Court held:( SCC p.293, para 35) "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. Realising 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........" 30. In view of the above, the law on the issue can be summarised to the effect that parity of pay can be claimed by invoking the provisions of Articles 14 and 39(d) of the Constitution of India by establishing that the eligibility, mode of selection/recruitment, nature and quality of work and duties and effort, reliability, confidentiality, dexterity, functional need and responsibilities and status of both the posts are identical. The functions may be the same but the skills and responsibilities may be really and substantially different. The functions may be the same but the skills and responsibilities may be really and substantially different. The other post may not require any higher qualification, seniority or other like factors. Granting parity in pay scales depends upon the comparative evaluation of job and equation of posts. The person claiming parity, must plead necessary averments and prove that all things are equal between the concerned posts. Such a complex issue cannot be adjudicated by evaluating the affidavits filed by the parties. 31. The onus to establish the discrimination by the employer lies on the person claiming the parity of pay……….” 14. In Jagjit Singh (supra) referred to by the learned counsel for the petitioner, the Hon’ble Supreme Court after having traversed the legal parameters with reference to the application of the principle of equal pay for equal work, in relation to temporary employees (daily wage employees, adhoc appointees, employees appointed on casual basis, contractual employees and the like) has held that the sole factor that requires the determination of the Court is, whether the employees concerned (before this Court) were rendering similar duties and responsibilities as were being discharged by regular employees holding the same/corresponding post and it is only after a proper appraisal of the facts therein that the Supreme Court has held that there is no room for any doubt that the duties and responsibilities discharged by temporary employees in the said appeals were the same as were being discharged by regular employees and held entitled to draw wages at the minimum of the pay scale (at the lowest grade, in the regular pay scale) as extended to regular employees holding the same post. In the present case, no averments has however been made by the petitioners, in the writ petition, to substantiate that they discharges the same and identical works as rendered by the regular Grade-IV employees. That being so the pay parity cannot be extended to the petitioners on the principle of equal pay for equal work. This Court is accordingly of the considered view that the law laid down in the Jagjit Singh (supra) has no application to the facts and circumstances of the present case. 15. That being so the pay parity cannot be extended to the petitioners on the principle of equal pay for equal work. This Court is accordingly of the considered view that the law laid down in the Jagjit Singh (supra) has no application to the facts and circumstances of the present case. 15. In the light of the discussions made above and the law laid down by the Hon’ble Apex Court, this Court cannot issue any directions to the State respondents to pay the minimum scale of pay to the petitioners as paid to the regular Grade-IV employees. The respondent No. 2, 3 & 4 shall however minutely examine the case of the petitioners and take a decision as to whether the petitioners are discharging the same nature of works, duties and responsibilities as discharged by the regular Grade-IV employees and/or by those in the same/corresponding post for granting the minimum scale of pay to the petitioners within a period of 60(sixty) days from the date of passing of the order. Any decision taken by the State respondents, shall be a reasoned decision, after proper application of mind and shall be forthwith communicated to the petitioners. 16. Writ petition disposed.