High Court · 2012

(A.K.Goel, CJ) This appeal has been preferred against order of learned Single Judge dismissing the writ petitions of the appellants seeking direction for higher scale of pay for the period from the date of their appointments (which are not on record) upt o 30.12.1993. The claim was based on circular dated 12.06.1981 issued by the Dir ector of Public Instructions, Assam. Learned Single Judge held that the circular relied upon was non-existent and thu s claim of the appellants could not be upheld. The finding recorded is as follow s : (cid:28)As per the impugned order, the aforesaid purported circular dated 12.6.81 is a non-existent circular. In this regard, necessary verification was made and on su ch verification, it has been found that no such circular was ever issued. In the counter affidavit filed by the Director of Secondary Education, it has been sta ted that no Director of Public Instruction by the name Shri S. Dutta, M.Sc. BT w as in existence when the purported circular dated 12.6.81 was issued in his name . If that be so, on the face of it, the said circular letter is a fictitious one . In the said circular letter dated 12.6.81, another circular has been referred to which is dated 23.8.79. According to the impugned order, the said circular le tter is dated 20.3.79 and not 23.8.79. That circular was issued not pertaining t o general teachers but was issued altogether in a different context. However, on the basis of a wrong interpretation given to the said circulars, some teachers working in the intermediate scale of pay started claiming graduate scale of pay and eventually the fictitious circular letter dated 12.6.1981 was shown issued. In paragraph 5 of the impugned order, it has been specifically stated that the p urported circular letter dated 12.6.81 is a manufactured one. It has been assert ed through reports etc. received from the Director of Elementary Education that no such circular was ever issued from the Directorate. This aspect of the matter has been further discussed in paragraphs 6 & 7 of the impugned order, in which it has been mentioned that no such order was issued by the Government upgrading the intermediate teachers as graduate teachers entitling them to graduate scale of pay. Even otherwise also, the petitioners having not been appointed as Assistant Teac hers in the graduate scale of pay, they cannot claim the said scale unless they are appointed to the said scale. Admittedly, all the petitioners were appointed in the intermediate scale of pay but they started claiming graduate scale of pay on the basis of the aforesaid manufactured circular and also some of the orders passed by the subordinate officers on the basis of the aforesaid orders passed by this Court. This court never issued any direction for providing graduate scal e of pay to the Assistant Teachers enjoying intermediate scale of pay. Only dire ction was to examine the case of the petitioners. However, some of the subordina te officers misusing their power and position provided graduate scale of pay to some teachers, which eventually gave rise to the situation in which the other te achers also started claiming graduate scale of pay. (cid:29) We have heard learned counsel for the appellants. Learned counsel for the appellants fairly state that since the existence of Circ ular dated 12.06.1981 could not be established, the claim on that basis could no t be substantiated. He, however, submitted that Hindi qualification was recogniz ed as equivalent to graduate and since all graduates were discharging same dutie s as Assistant Teachers working in graduate scale, irrespective of the nature of appointment, all the appellants should have been held entitled to the same scal e having regard to the fact that same scale had become effective after 31.12.199 3. We are unable to accept the submission. In absence of appointment to the particu lar scale and in absence of any illegality in such scale being given, claim for higher scale cannot be accepted. Mere fact that all teachers may be graduates an d may claim to be doing same duties does not entitle them to parity of pay. Thos e appointed as Assistant Teachers in graduate scale and those appointed as Assis tant Teachers in intermediate scale of pay are separate classes. In State of Har yana v. Charanjit Singh, (2006) 9 SCC 321, it was observed : (cid:28)19. Having considered the authorities and the submissions we are of the view th at the authorities in the cases of Jasmer Singh, (1996) 11 SCC 77, Tilak Raj, (2 003) 6 SCC 123, Orissa University of Agriculture & Technology, (2003)5 SCC 188, and Tarun K. Roy, (2004) 1 SCC 347, lay down the correct law. Undoubtedly, the d octrine of (cid:28)equal pay for equal work (cid:29) 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 eq ual value. The principle of (cid:28)equal pay for equal work (cid:29) has no mechanical applica tion in every case. Article 14 permits reasonable classification based on qualit ies or characteristics of persons recruited and grouped together, as against tho se who were left out. Of course, the qualities or characteristics must have a re asonable 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 st agnation or resultant frustration for lack of promotional avenues is also an acc eptable reason for pay differentiation. The very fact that the person has not go ne through the process of recruitment may itself, in certain cases, make a diffe rence. If the educational qualifications are different, then also the doctrine m ay 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 b asis of merit with due regard to seniority a higher pay scale granted to such pe rsons who are evaluated by the competent authority cannot be challenged. A class ification based on difference in educational qualifications justifies a differen ce 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 w ork as another carpenter or craftsman in regular service. The quality of work wh ich is produced may be different and even the nature of work assigned may be dif ferent. It is not just a comparison of physical activity. The application of the principle of (cid:28)equal pay for equal work (cid:29) requires consideration of various dimen sions of a given job. The accuracy required and the dexterity that the job may e ntail 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 make a difference. Thus norm ally the applicability of this principle must be left to be evaluated and determ ined by an expert body. These are not matters where a writ court can lightly int erfere. 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 fo r 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, o n basis of material placed before it, convinced that there was equal work of equ al 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 t hese 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. (cid:29) We, thus, do not find any ground to interfere with the view taken by the learned Single Judge.