Orissa University of Agriculture & Technology & Anr Vs. Manoj K. Mohanty
 Insc 239 (17
V. Patil & Arijit Pasayat. Shivaraj V. Patil J.
respondent was appointed as a Typist against the vacancy of Junior Assistant on
his application by the order dated 20.7.1990 on a consolidated salary of Rs.
530/- per month temporarily until further orders.
father was serving as a Lecturer in Statistics in the appellant-University. He
died in harness on 27.6.1971. It is the further case of the respondent that
although in the appointment order it was mentioned as Typist, he was working as
Junior Assistant in the Examination Section of the College of Engineering and
Technology; two certificates dated 4.12.1993 and 25.3.1996 were given to him by
Dean which bear the testimony of his working as Junior Assistant; though he had
been serving for more than five years, his services were not regularized,
instead appellants absorbed some of his juniors; by the order dated 26.3.1996,
he was appointed for a period of 59 days w.e.f. 27.3.1996 to 24. 5.1996 with a
break of one day. Under the circumstances, he filed writ petition in the High
Court seeking regularization of his services as a Junior Assistant w.e.f.
appellants filed counter-affidavit in the High Court resisting his claim
contending that he was not appointed on regular basis; he has to go through the
process of recruitment test/interview and after he becomes successful, then
only he can be appointed on regular basis.
High Court observing that the respondent has been working as Junior Assistant
since 21.7.1990 on a consolidated pay; the Dean of the College has certified
that he is sincere and hard-working; he has served for more than five years and
that posts of Junior Assistant are lying vacant, directed the appellants to
take appropriate decision to consider the question of appointing him on regular
basis. The High Court disposed of the writ petition on 11.9.1997 in the
following terms:- "6. In the result, by modifying the impugned order dated
26.3.1996 at Annexure-6, we direct that the petitioner may not be disengaged
from service till appropriate decision is taken by the opp. Parties. We pass
this order in view of the admitted position that the post against which the
petitioner has been continuing as Junior Assistant is available and the said
post is also required for the purpose which necessitated petitioner's
parties are further directed to pay the petitioner regular scale of pay
admissible to Junior Assistant from the month of September, 1997.
writ application is accordingly disposed." Aggrieved by the direction to
pay the respondent regular scale of pay admissible to Junior Assistant from the
month of September, 1997, the appellants filed a review application on
20.4.1998 seeking review of the order dated 11.9.1997 passed in the writ
petition. The High Court dismissed the review application on 3.2.1999 observing
that there was delay in filing the same and that no explanation was given for the
delay in filing the review application, but the High Court proceeded to
consider the merits of the contentions raised in greater details than the
consideration made in the original order disposing of the writ petition. We are
of the opinion that certain observations made while disposing of review
petition were unnecessary and at any rate they cannot alter the legal position
having impact and bearing on the facts of the case. Hence, aggrieved by the
orders of the High Court made in the writ petition and review application,
these appeals are filed challenging their correctness and validity.
Court on 15.7.1999 issued notice confining it to the question as to whether the
respondent was entitled to the grant of regular pay-scale w.e.f. September,
1997. In the meanwhile, the operation of the impugned order to the extent it
directed the appellants to pay regular pay-scale w.e.f. September,1997 was
learned Counsel for the appellants urged that the respondent was appointed on a
consolidated salary of Rs.530/- per month temporarily until further orders;
he goes through the process of regular recruitment and his services are
regularized, he is not entitled for regular pay-scale w.e.f. September, 1997.
to him, the High Court committed serious error in giving direction to give
respondent regular pay-scale w.e.f. September, 1997; there was no legal basis
for giving such direction; when the respondent was appointed on temporary basis
on a consolidated salary, it was not open to him to claim regular pay- scale.
The learned counsel further contended that the High Court was not right in
directing the appellants to pay regular scale of pay admissible to Junior
Assistant from the month of September, 1997 without examining the facts and
position of law stated by this Court as regards 'equal pay for equal work'.
learned counsel for the respondent made submissions supporting the impugned
order. He submitted that the respondent has been working since five years prior
to filing of the writ petition; vacancies in the post of Junior Assistant are
available; the respondent is discharging the duties of Junior Assistant and is
doing the same/similar work as is being done by regularly appointed Junior
Assistants; he is entitled for regular pay-scale and the High Court was right
in giving direction to give him regular pay- scale w.e.f. September, 1997.
not in dispute that the respondent was appointed as Typist on consolidated
salary of Rs.530/- per month temporarily until further orders against the post
of Junior Assistant. This fact is evident from the very appointment order dated
20.7.1990. The services of the respondent had not been regularized.
appointment was not made through the process meant for regular recruitment. The
only question that is to be considered in these appeals is whether the
directions given by the High Court to give regular pay- scale to the respondent
w.e.f. September, 1997 is justified and sustainable. The relevant averments in
this regard are contained in para 7 and 8 of the writ petition, which read thus:-
"7. That similarly while extracting from him the work of a Junior
Assistant the inaction in allowing him the scale of pay of Junior Assistant
also violates the principle of equal pay for equal work.
That in such background, it is most humbly submitted that instead of
regularizing his services, the authorities have been passing orders engaging
the petitioner in the spells of 89 days, 59 days and 44 days with one day
break. This clearly amounts to unfair labour practice. Even on the break-days,
the petitioner has been made to work. The last such 59 days' appointment has
been made on 26.3.1996.
of the last appointment order is filed herewith as Annexsure-5. The petitioner
has again submitted a representation during January, 1996 for regularization of
his services and for allowing him equal pay for equal work.
commendatory certificates by opp. Party No. 3, till date no progress has been
made and the petitioner apprehends that at any moment his services may be
dispensed with. Copy of the representation is filed herewith as
Annexure-6." In the counter filed on behalf of the appellants in para 5
meeting the averments made in paras 7-9 of writ petition, it is stated thus:-
"5. That in reply to the averments made in paragraphs 7 to 9, it is
submitted that the prescribed rate of wage attached to the posts on
consolidated basis as per Govt. in Labour Employment Department circular the
amount of Rs. 910/- per month in respect of both the posts of Typist/Junior Assistant
are allowed to the persons continuing on such contracted basis.
instant case, the Petitioner has not been deprived of getting the wage of Rs.
910/- per month at par with rates approved by the Government in Labour and
Petitioner has been engaged on consolidated pay on casual basis, casual workers
are dis-engaged when there is no work to provide them. Accordingly, at times
the petitioner is allowed engagement to meet the urgent need of work with
necessary break. The engagement of the persons for a period of 89 days, 59 days
and 44 days on adhoc basis, consolidated pay and casual basis respectively are
made by the University from time to time as per Circular No. 21133 dt. 15.7.1995,
a copy of which is annexed herewith as Annexure-A." The High Court before
directing to give regular pay-scale to the respondent w.e.f. September, 1997 on
the principle of `equal pay for equal work' did not examine the pleadings and
facts of the case in order to appreciate whether the respondent satisfied the
relevant requirements such as the nature of work done by him as compared to the
nature of work done by the regularly appointed Junior Assistants, the
qualifications, responsibilities etc. When the services of the respondent had
not been regularized, his appointment was on temporary basis on consolidated
pay and he had not undergone the process for regular recruitment, direction to
give regular pay-scale could not be given that too without examining the
relevant factors to apply the principle of `equal pay for equal work'. It is
clear from the averments made in the writ petition extracted above, nothing is
stated as regards the nature of work, responsibilities attached to the
respondent without comparing to the regularly recruited Junior Assistants. It
cannot be disputed that there was neither necessary averments in the writ
petition nor any material was placed before the High Court so as to consider
the application of principle of `equal pay for equal work'.
Court in Union of India and Ors. vs. Pradip Kumar Dey [(2000) 8 SCC 580], after
referring to various decisions dealing with the similar question in para 8 has
held thus:- "In our considered view, the Division Bench of the High Court
was not right and justified in straightaway giving direction to grant pay scale
to the respondent when there was no material placed before the Court for
comparison in order to apply the principle of "equal pay for equal
work" between the Radio Operators of CRPF and the Radio Operators working in
civil side in the Central Water Commission and the Directorate of Police
Wireless. In the absence of material relating to other comparable employees as
to the qualifications, method of recruitment, degree of skill, experience
involved in performance of job, training required, responsibilities undertaken
and other facilities in addition to pay scales, the learned Single Judge was
right when he stated in the order that in the absence of such material it was
not possible to grant relief to the respondent. No doubt, the Directorate of
CRPF made recommendations to the Pay Commission for giving higher pay scales on
the basis of which claim is made by the respondent for grant of pay scale.
factual statements contained in the recommendation of a particular department
alone cannot be considered per se proof of such things or they cannot by
themselves vouch for the correctness of the same. The said recommendation could
not be taken as a recommendation made by the Government.
otherwise a mere recommendation did not confer any right on the respondent to
make such a claim for writ of mandamus." Before giving such direction. the
High Court also did not keep in mind as to what would be its implications and
impact on the other employees working in the appellant-University. From the
averments made in the writ petition extracted above, it is clear that no
details were given and no material was placed before the High Court for
comparison in order to apply the principle of `equal pay for equal work'. This
Court in State of Haryana & Ors. vs. Jasmer Singh & Ors. [(1996) 11 SCC
77] observed that the principle of `equal pay for equal work' is not always
easy to apply. There are inherent difficulties in comparing and evaluating work
done by different persons in different organizations or even in the same
in another decision in State Bank of India & Anr. vs. M.R.Ganesh Babu &
Ors [(2002) 4 SCC 556], a Bench of three learned Judges of this Court, while
dealing with the same principle, in para 16 has expressed that:- "The
principle of equal pay for equal work has been considered and applied in many
reported decisions of this Court.
principle has been adequately explained and crystallized and sufficiently
reiterated in a catena of decisions of this Court. It is well settled that
equal pay must depend upon the nature of work done. It cannot be judged by the
mere volume of work; there may be qualitative difference as regards reliability
may be the same but the responsibilities made a difference. One cannot deny
that often the difference is a matter of degree and that there is an element of
value judgment by those who are charged with the administration in fixing the
scales of pay and other conditions of service. So long as such value judgment
is made bona fide, reasonably on an intelligible criterion which has a rational
nexus with the object of differentiation, such differentiation will not amount
to discrimination. The principle is not always easy to apply as there are
inherent difficulties in comparing and evaluating the work done by different
persons in different organizations, or even in the same organization.
in pays scales of persons holding same posts and performing similar work on the
basis of difference in the degree of responsibility, reliability and
confidentiality would be a valid differentiation. The judgment of
administrative authorities concerning the responsibilities which attach to the
post, and the degree of reliability expected of an incumbent, would be a value
judgment of the authorities concerned which, if arrived at bona fide,
reasonably and rationally, was not open to interference by the court." In
the absence of necessary averments and materials placed on record, there was no
scope to give direction as is done by the High Court in the impugned order. The
burden was on the respondent to establish that he has a right to equal pay on
the principle of `equal pay for equal work' relying on Article 14 of the
Constitution. That having not been done, the respondent was not entitled for
the direction to get regular pay- scale w.e.f. September, 1997. This being the
position, it is unnecessary to examine the other contentions urged and
decisions cited by the learned counsel for the respondent.
view of what is stated above, we find it difficult to sustain the direction
given by the High Court in the impugned order to grant regular pay-scale to the
respondent admissible to Junior Assistant from the month of September, 1997.
Hence, we set aside the said direction and allow the appeals to that extent
with no order as to costs.