IN THE HIGH COURT OF DELHI AT NEW DELHI.
WP(C) No. 7870/2002
RESERVED ON: 07-05-2004
DATE OF DECISION: 12-05-2004
Har Prasad Arya .....Petitioner
Through: Mr.A.Asthana,Advocate .
Union of India & Ors. ...... Respondent
Through: Mr.A.K.Singh, Advocate.
Hon'ble Mr.Justice Pradeep Nandrajog
1. Whether reporters of local papers may be allowed to see the judgment?y
2. To be referred to the Reporter or not?y
3. Whether judgment should be reported in Digest?y
PRADEEP NANDRAJOG, J.
1. Petitioner prays that respondent No.2 i.e. the National Productivity Council be directed to pay to him wages in the scale of Rs.1640-2900 w.e.f. 1.1.1986 and in the pay scale of Rs.5500-9000 w.e.f. 1.12.1996. Basis for the said claim is that for the post held by the petitioner i.e. 'Projectionist' under Doordarshan, Akashwani, Songs and Broadcasting division of Government of India said pay scales were being followed.
2. Petitioner was employed as a staff car driver under respondent No.2. On 30.12.1996 he was promoted on officiating basis to the post of Projectionist. His pay was fixed in the scale of Rs.1200-2040. On 21.1.1998 petitioners services were confirmed as a Projectionist w.e.f. 31.12.1997 in the pay scale of Rs.1200-2040.
3. At the time petitioner was appointed as a Projectionist under the respondent, Projectionists in Doordarshan, Akashwani Drama and Song Department of Ministry of Broadcasting were getting wages in the scale of Rs.1640-2900 w.e.f. 1.1.1986.
4. With the implementation of the recommendations of the 5th Pay Commission, scale of Projectionists under Doordarshan, Akashwani, Drama and Song Department under the Ministry of Information and Broadcasting were replaced by the scale of Rs.5500-9000. As far as the respondent was concerned, scale of Projectionist working under it was replaced with the scale of Rs.4000-6000.
5. Averments of the petitioner as made in paras 6 and 7 of the writ petition which constitute the fulcrum of the petition be noted. The same reads as under:-
"6. The National Productivity Council is a corporate body established under the ministry of Industry have framed their service Rules applicable w.e.f. 1.4.1994 specifying, the grades, categories of Posts and Scales of pay in NPC vide Appendix-I appearing on pages 91 to 95 (Copy of the Appendix-I annexed as Annexure.P5). Wherein the post of projectionist appears at S.No.25 and falls in pay scale Rs.1200-30-1560-EB-40-2040 which is in contravention of the pay scale 1640-60-2600-75-2900 (unrevised applicable to the post of projectionist which is a cadre post in Doordarshan, Akashwani, Drama & Songs Deptt. Under the Ministry of Information and Broadcasting, Govt. of India. Thus the grades and scales of pay are discriminating, arbitrary, illegal and ultravires of the spirit of the Constitution of India.
7. The pay scales stand revised as per Fifth Central Pay Commission's recommendations and the petitioner has been placed in Grade S-7, wherein the Pay Scale of Rs.1200-2040 has been revised to the Pay scale of Rs.4000-6000 for the post of Projectionists in NPC whereas as per the Ministry of Information & Broadcasting circular the scale of pay at S.No.10(S-10) existing scales from 1.1.86 i.e. Rs.1640-60-2600-75-2900 has been replaced as Rs.5500-175-9000 for projectionist post. (Copy of the Circular annexed as Annexure.P.6) This difference in the pay scales for the same post of Projectionists in the Office of Respondent No.2 and the offices under the Ministry of Information and Broadcasting, Govt. of India is discriminating, arbitrary, unjust and against the spirit of the Constitution of India. It would not be out of place to mention that the post of Projectionists is the only post in the entire National Productivity Council all over the country on which the petitioner is working and whereas under the Ministry of Information & Broadcasting the Projectionist is a cadre post on which employees are working in Doordarshan, Akashwani and Songs and Drama Deptts. And all such employees are governed by the revised pay scale of Rs.5500-9000 as per recommendations of the Fifth Central Pay Commission."
6. Response of the respondent to the writ petition stands crystalised in para 1 of the preliminary submission. For facility of reference same be noted. It reads as under:-
"1. The entire case of the petitioner is that the recommendation of the Fifth Central Pay Commission as applicable in Doordarshan, Akashwani, Songs and Drama Division under Ministry of Information and Broadcasting, Government of India be applied in the office of Respondent No.2 and the petitioner be given benefit of it. Respondent No.2 respectfully submits that the recommendations of the Fifth Central Pay Commission as referred to by the petitioner in the petition are applicable to the post of Projectionists in the Government departments like Doordarshan, Akashwani, Song & Drama Division under the Ministry of information and Broadcasting, Government of India. There keeping in view nature of work, work of Projectionists involve more skill and higher responsibility. The same cannot be applied to the post of Petitioner as the same does not involve similar higher skill and responsibility. This petition is misconceived and is liable to be dismissed with costs."
7. Further averments in response to paras 6 and 7 of the writ petition in the counter affidavit be noted. The same reads as under:-
"6. Para No.6 of the Petition as far as it relates to Constitution of the Respondent No.2 needs no reply. However, it is emphatically denied that the post of Projectionist with the Respondent No.2 which falls in the pay scale of Rs.1200-30-1560-EB-40-2040 is in contravention of the pay scale of Rs.1640-60-2600-75-2900 to the post of Projectionist which is a cadre post in Doordarshan, Akashwani, Song & Drama Division under Ministry of Information and Broadcasting, Government of India. It is denied that the grades and scales of pay are discriminatory, arbitrary, illegal and ultra vires of the spirit of the Constitution. It is submitted that the post of the Projectionist is not a cadre post with the Respondent No.2 and there is no cadre of the nature as mentioned in the para under reply with them. It is further submitted that the higher scale in Doordarshan, Akashwani, Song & Drama Division of Ministry of Information and Broadcasting, Government of India are provided for Projectionist working with them as their work involves more skill, specilisation and higher responsibility. The work with Respondent No.2 is fully different in character. The Projectionists are appointed in other department of Government of India on the basis of higher qualification, skill and experience as they have to deal with more sensitive and responsible work. Moreover the scale of pay in Doordarshan is Rs.1640-2000-2900 whereas at NPC the same is Rs.1200-2040. The petitioner at the time of promotion as Projectionist was working as staff car driver. He did not make any request or demand to change the scale to make it equivalent to other Government departments. Even otherwise no parity can be drawn with the scales operative in Doordarshan qua that of Respondent No.2. The scales of Doordarshan or Ministry of Information and Broadcasting, Government of India are not applicable to the present petition and Respondent No.2. The job description and requirement of projectionist with Respondent No.2 is of much lower level in comparison to department like Doordarshan, Akashwani etc and that is why the petitioner who was working as staff car driver was adjusted and promoted to the post of Projectionist.
Respondent No.2 respectfully submits that there is no work of Projectionist with Respondent No.2 at present and as such they are contemplating to abolish the said post as the same is no more required. The petitioner is still working as staff car driver with Respondent No.2 and not performing the duties of the Projectionist,
7. Para No.7 of the Petition as far as it relates to records needs no reply. However, it is submitted that any circular of Ministry of Information and Broadcasting is not applicable upon Respondent No.2 which is under the Ministry of Industry. The difference in the pay scale for the post of Projectionist in the office of Respondent No.2 and the office under the Ministry of Information and Broadcasting, Government of India is on account of work being assigned to them. Projectionist in Doordarshan, Akashwani, Song & Drama Deptt. of Ministry of Information and Broadcasting, Government of India are much more educated, qualified, experienced, skilled and are involved in more serious work of higher responsibility in comparison to the petitioner. That is the reason that in the Ministry of Information and Broadcasting it is a cadre post while with Respondent No.2 there is only one post of Projectionist. The recommendation of Ministry of Information and Broadcasting have not bearing with Respondent No.2 as there work of Projectionist involves, better performance, high skill and more responsibility."
8. While responding to the averments of the respondent in the counter affidavit, response of the petitioner in the rejoinder affidavit to the preliminary submission made by the respondent reads as under:-
"1. That the petitioner was appointed on a permanent post of Projectionist after conducting an interview and was selected by the Departmental Promotion Committee out of 4-5 candidates who appeared before the Interview Board and consequently office order No.65-96/Part-II (File No.25158) by the Dy. Director (pers.) NPC dated 30.12.1996 was issued promoting the petitioner. The recommendations of the Fifth Central Pay Commission are applicable to the posts of Projectionist in the Central Government Departments like Akashwani Doordarshan, Songs and Drama Division under the Ministry of Information and Broadcasting and Ministry of Defence. At the time of promoting the petitioner to the post of Projectionist no concept of specialized or extra skill or a sense of higher responsibility was spelled out or explained verbally and/or in writing. No such parameters were laid down at the time of promotion of the petitioner to the post of Projectionist relating to degree of skill or of responsibility. No clarification were every sought by the Respondent No.2 from any of the Departments like Ministry of Information & Broadcasting, Ministry of defence, regarding the parameters of qualification for the Projectionist. And at the time of revision of Pay Scale and applicability of Fifth Central Pay Commission, the respondent No.2 i.e. NPC is trying to find lame excuses which are not maintainable."
9. Crux of the case of the petitioner is that since the petitioner is employed as a Projectionist he must get the same wages as are paid to Projectionist under Doordarshan, Akashwani and the Song and Drama Division of Ministry of Information and Broadcasting.
10. Principle that an employer cannot discriminate in the matter pertaining to wages in respect of the same category of workman is based on the doctrine of equal pay for equal work which flows out of Article 14 of the Constitution of India. Article 14 prohibits discrimination. Equals cannot be treated unequally.
11. The principle of equal pay for equal work is not an abstract doctrine. It needs to be applied in cases where it is established that for the same nature of work, the employer is discriminating in the payment of wages. Merely because nomenclature of the post is the same is not the determinative factor. Qualitative and quantitative similarity in the work being performed forms the basis on which equal pay for equal work principle has to be applied.
12. 1982(3) SCR 298 Randhir singh Vs. U.O.I. & Ors. raised the issue whether drivers in the Delhi Police force could be paid lesser wages than counterparts in service of Delhi Administration and Central Government. Holding that it stood established that the drivers in the Delhi Police force performed, qualitatively and quantitatively, identical duties as their counterparts, directions were issued to pay to the petitioners wages in the scale of pay in which other drivers doing identical work being paid their wages.
13. In 1985(Supply) SCR 101 P.Savita Vs. U.O.I., noting that there was no qualitative and quantitative difference in the work performed by Senior Draftsman, the Supreme Court held that it was impermissible to have two categories of pay scale to the post of Senior Draftsman.
14. Petitioner is an employee of respondent No.2 which is an independent body. Principle of equal pay for equal work would apply to employment under the same employer. It cannot be attracted where the employer is different. Be that as it may, petitioner had to aver and establish that qualitatively and quantitatively he was performing the same duties and functions as were being performed by the Projectionists under Doordarshan, Akashwani, Song and Drama Division of Ministry of Information and Broadcasting.
15. I have noted the averments of the respondent in response to the writ petition. In the counter affidavit, respondent has categorically averred that under Doordarshan, Akashwani, Song and Drama Division of the Ministry of Information and Broadcasting, work of Projectionists involves more skill and higher responsibility. It is categorically stated that under the respondent, person working as a Projectionist need not have similar higher skill and even the responsibility is less. It is further averred by the respondent that under Doordarshan, Akashwani, Song and Drama Division of the Ministry and Information and Broadcasting, Projectionists are specialists in the job. Under the respondent the requirement is at a much lower level. Respondent has averred that the petitioner was a Staff Car Driver and was promoted as a Projectionist. This shows that under the respondent no skill or specilisation is needed.
16. Response of the petitioner in the rejoinder has been noted by me. Petitioner has not disputed the said assertion of the respondent. Surprisingly to get over the problem, petitioner states that it was never indicated to him that he had to specialise or acquire extra skill or that he had to shoulder higher responsibility. Petitioner alleges in the rejoinder that no such parameters were laid down when he was promoted. Petitioner has completely mis-understood the issue involved. It is not a case where lower salary is being paid because petitioner is not upto the mark. Stand of the respondent is that petitioner cannot equate himself with projectionist with other departments where the work involved requires skill, specialisation and higher care.
17. Petitioner having failed to establish that qualitatively and quantitatively he performs identical duties as are performed by Projectionist in the other departments, claim for equal pay must fail as petitioner had failed to establish 'equal work'.
18. Writ petition is dismissed. No costs.
PRADEEP NANDRAJOG, J.
May 12, 2004