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State of U.P. & Ors Vs. J.P. Chaurasia & Ors [1988] INSC 306 (27 September 1988)

Shetty, K.J. (J) Shetty, K.J. (J) Oza, G.L. (J)

CITATION: 1989 AIR 19 1988 SCR Supl. (3) 288 1989 SCC (1) 121 JT 1988 (4) 53 1988 SCALE (2)827

CITATOR INFO : R 1989 SC 29 (3) R 1989 SC 30 (3) F 1989 SC1256 (8) R 1989 SC1287 (8) F 1989 SC1308 (12) D 1990 SC 334 (40,41) F 1990 SC 883 (9) RF 1990 SC2021 (7) F 1992 SC 126 (7) RF 1992 SC1203 (11)

ACT:

Allahabad High Court Officers and staff (Conditions of Service and Conduct) Rules 1975: Rule Whether it is permissible to have two pay scales in the same cadre for persons having same responsibilities-Whether that is violative of constitutional right of "equal pay for equal work".

% Articles 14 and 39(d)--'Equal pay for equal work'-- Concept of--Whether permissible to have two pay scales in same cadre for persons having same duties and responsibilities--Question of pay and equation of posts-- Must be left to the Executive Government--To be determined by expert bodies like Pay Commission.

HEAD NOTE:

Prior to 1955, the Bench Secretaries in the Allahabad High Court were on a higher pay scale than that of the Section Officers. In 1965, the State Government appointed a Pay Rationalisation Committee to consider the duties and responsibilities of different categories of posts and recommend changes. The Committee recommended for the Bench Secretaries a pay-scale lower than that of the Section Officers. The Bench Secretaries made a representation to the Government that they be put at par with the Section Officers if not on a higher scale.

The Government appointed Pay Commission (l971-72). The Pay Commission did not accept the claim of the Bench Secretaries. The Bench Secretaries again moved the Government reiterating their demand, whereupon an "Anomalies Committee" was constituted. The Committee rejected the claim of the Bench Secretaries for placing them at par with the Section Officers, but suggested that ten posts of Bench Secretaries be upgraded. The Government accepted the recommendation and issued orders upgrading ten posts of Bench Secretaries to be called Bench Secretaries grade I, giving the nomenclature of Bench Secretaries grade Il to the rest of Secretaries. The Bench Secretaries grade II moved the High Court under Article 226 of the Constitution, challenging the bifurcation of their cadre into grade I & grade 11. The High Court quashed the notification which created Bench Secretaries grade 1. The State of l,'.P., aggrieved by the decision of the High Court, appealed to this Court.

PG NO 288 PG NO 289 Two questions arose for consideration (i) whether the Bench Secretaries were entitled to pay-scales admissible to Section officers, and (11) whether the creation of two grades with different pay scales in the cadre of Bench Secretaries doing the same or similar work was violative of the "equal pay for equal work".

Allowing the appeal, the Court,

HELD:(I) It requires of duties and responsibilities of the respective posts. Functions of two posts may appear to be the same or similar, but there may be a difference in the performance. Quantity of work may be the same but quality may be different. The equation of posts of equation of pay must be determined by expert bodies, like pay commissions.

If there is any determination by a Commission or Committee, the Court should normally accept it and not tinker with it unless it is shown to be made with extraneous consideration.

[298G-H;299A-B] The Bench Secretaries were paid more emoluments than the section Officers, but it was not known on what basis and how they were treated superior to Section Officers. The Successive Pay Commission and the Pay Rationalisation Committee found no support to their superior claim. The Court could not go against that opinion. The Bench Secretaries could as of right the pay scale admissible to the Section Officers. [299C-D]

(2) The second question formulated affected the civil services in general. All the Bench Secretaries concerned were indisputably having the same duties. They had been bifurcated into two grades with different pay scales-grade I with higher pay scale and grade II-which was said to offend the constitutional principle of "equal pay for equal work".

[299E-G] Article 39(d) of the Constitution, which proclaims "equal pay for equal work" and other like provisions in the Directive Principles, are rooted in Social Justice, intended to bring about a socio-economic trans-formation in society.

In matters of employment, it must be ensured that there is no exploitation of the poor and ignorant. It is the duty of the State to see that the under-privileged or weaker section get their dues. Against this background the principle of "equal pay for equal work" has to be construed. This principle has no mechanical application in every ca8e of similar work. It has to be read into Article 14 of the Constitution, which permits reasonable classification founded on different basis. [303C-E] PG NO 290 The classification can be based on some qualities or characteristics of persons grouped together and not in others left out. Those qualities or characteristics must have a reasonable relation to the object to be achieved. In service matters, merit or experience could be the proper basis for classification to promote efficiency. It cannot be denied that the quality of work performed by persons of longer experience is Superior to the work of new-comers. Higher pay scale to avoid stagnation or resultant frustration for lack of promotional evenues is common in career service. Entitlement to higher pay-scales depends upon seniority-cum-merit or merit-cum seniority. The differentiation so made in the same cadre will not amount to discrimination. Classification based on experience is a reasonable classification having a rational nexus with the object thereof. To hold otherwise, would be detrimental to the interest of the Service itself. [303F-H; 304A-B] The Bench Secretaries might do the same work, but their quality of work might differ. The Rule framed by the Chief Justice of the High Court make a proper classification for the purpose of entitlement to higher pay scale. The High Court overlooked the criterion provided under the Rules.

Merit governs the grant of higher pay scale. Classification made under the Rules could not be said to be violative of the right to have equal pay for equal work. [305A-C] Randhir Singh v. Union of India & Ors., [1982] 3 SCR 298;Ram Chandra v. Union of lndia, [1984] 2 SCC 141; P. Savita v. Union of India, [1985] Suppl. (1) SCR 101; Dhirendra Chamoli & Anr. v. State of U.P., [1986] 1 SCC 637; Surinder Singh v. Engineer-in-Chief, CPWD, [1986] 1 SCC 639; R.D. Gupta & Ors. v. Lt. Governor of Delhi, [1987] 4 SCC 505; Bhagwan Das & Ors. v. State of Haryana, [1987] 4 SCC 634; National Museum Non-Gazetted Employees Association & Anr. v. Union of India, (WP No. 1230 of 1987 disposed of by the Supreme Court on 10.2.1988); Jaipal & Ors. v. State of Haryana, (WP No. 455 and connected petitions of 1987 disposed of by the Supreme Court on 2.6.1988); Y.K. Mehta v. Union of India, (W P No. 1239 of 1979 and connected petitions disposed of bay supreme Court on 26.8.1988); Keshavananda Bharati v. State of Kerala, [1973] 4 SCC 225 at para 712; All India Customs and Central Excise Stenographers (Recognised) and Others v. Union of India & Ors., [1988] (2) Judgments Today SC p. 519, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 56 of 1987.

From the Judgment and Order dated 6.11.85 of the Allahabad .RM60 PG NO 290 PG NO 291 High Court in W.P. (C) No. 4211 of 1983.

Gopal Subramanium and Mrs. S. Dikshit for the Appellants.

Vijay Hansaria and Sunil K. Jain for the Respondents.

The Judgment of the Court was delivered by JAGANNATHA SHETTY, J. This appeal by special leave is from a judgment of the High Court of Allahabad dated November 6, 1985 passed in Civil Misc. Writ Petition No. 4211 of 1983. The appeal raises a question of considerable importance. The question is whether it is permissible to have two pay scales in the same cadre for persons having same duties and having same responsibilities. The High Court has answered the question in the negative. It is said that it would be violative of the Constitutional right of "equal pay for equal work".

The facts are not in dispute. They will be found correctly stated in the judgment under appeal and may briefly be stated thus:

Prior to 1965, in the High Court of Allahabad, Bench Secretaries were on a higher pay scale than that of Section Officers. They were in the pay scale of Rs. 160-320 as against the pay scale of Rs. 120-300 to Section Officers. In 1965 the State Government appointed a Pay Rationalisation Committee with wide ranging reference. The Committee was asked to consider the duties and responsibilities of different categories of posts. It was required to consider and recommend changes to reduce the number of then existing pay scales. It was also asked to recommend as far as possible equal emoluments for identical duties and responsibilities. The Committee submitted a detailed report, in which Bench Secretaries became casualties. The Committee recommended for them a pay scale slightly lower than that of Section Officers. Rs. 150-350 was recommended for Bench Secretaries as against Rs.200-400 for Section Officers. The State Government accepted the recommendations. Subsequently, these pay scales were raised to Rs. 200-450 and Rs.5 15-715 respectively.

Being dissatisfied with the down grading, the Bench Secretaries made representation to the Government. They demanded that they should at least be put at par with Section Officers if not on higher scale. The High Court supported their case but half-heartedly. The High Court suggested "that in view of financial exigencies the Government may grant for the time being pay scale to 10 PG NO 292 Bench Secretaries as admissible to Section Officers." When this matter was pending consideration, the Government appointed the Pay Commission (1971-72) headed by Shri Ali Zahir. On February 1, 1973, the Pay Commission submitted its report. The report did not accept the claim of Bench Secretaries for giving them pay scale equal to Section Officers or Private Secretaries. The report was in fact very much against them. The following remarks of the Pay Commission would be pertinent:

"9 Bench Secretaries (Sakna Suchiv) A memorandum from the Bench Secretaries given to us states that the post which are at present in the scale of Rs. 100-450 are of a great responsibility for which experience and special qualifications are required. They have claimed that their duties are equivalent to Private Secretaries of Hon'ble Judges and have demanded the same pay scale which is given to Private Secretaries and the Section Officers. The Registrar of the High Court while forwarding the memorandum has suggested that they should also be given the same pay scale which is given to Superintendents i.e. Rs.515-40-715 or to the Section Officers i.e. Rs.350-750. It is not necessary to emphasise that in comparison to Bench Secretaries, the Section Officers of the secretariat has to bear more responsibilities in their Section and have to control over its subordinates. Section Officers have to prepare a lengthy and original notes in complicated and important matters. Therefore, the responsibilities of the two posts cannot be said to be equal. Keeping in view the present scale of pay. the pay scale recommended by the Pay Rationalisation Committee, the nature of duties and responsibilities and the fact that every Hon'ble Judge will have one Private Secretary in the scale of Rs.500-1,000 we feel that the Bench Secretaries cannot be given the same scale of pay which is being given to Superintendents or the Section Officers. Since the Bench Secretaries are promoted from Upper Division Assistants, they should feel satisfied if they are placed in a scale of pay a little above the Upper Division Assistants. Therefore, we have recommended for them a pay scale of Rs.400-15-475-20-575-25-750." It will be seen that the Pay Commission refused to equate Bench Secretaries with Section Officers in view of their differential duties. It was found that the nature PG NO 293 of work of Section Officers was quite different and more onerous than that of Bench Secretaries. Section Officers have to bear more responsibilities in their Sections. They have to exercise control over their subordinate. They have to prepare lengthy original notes in complicated matters.

The Commission, therefore, recommended Rs.400-750 for Bench Secretaries and Rs.500- 1,000 to Section Officers.

The Bench Secretaries again moved the Government reiterating their demand. The Government appears to have received several such representations against the report of Ali Zahir Commission. To consider all such grievances. a Committee called the "Anomalies Committee was constituted.

As the name itself suggests, the Committee was required to examine and remove anomalies in the recommendations of Pay Commission. The Committee appears to have made some patch work. So far as Bench Secretaries are concerned, the Committee suggested:

"(1) For this post the recommendations made by the Pay Commission need not have any amendments.

(2) It should be appropriate for the Bench Secre-taries to accept 10 promotional posts in the pay scale of Rs.500- 1,000 as recommended by the Pay Commission." The Anomalies Committee also thus rejected the claim of Bench Secretaries for placing them at par with Section Officers. It however, suggested that ten posts of Bench Secretaries should be upgraded and placed in the pay scale of Rs.500-1,000 The Government accepted that recommendation and issued an order dated July 2,1976 The order inter alia states:

Judicial (High Court) Section, Lucknow dated 2nd July, 1976.

Sub: Implementation of decision and proposals of Sub Committee of the Cabinet constituted to consider the anomalies pointed out in the pay scales recommended by the U.P. Pay Commission ( 1971-73) and its way of removal and other connected matters PG NO 294 Sir, In continuation of office memorandum No.P.C. 395- x-89(M)/74 dated 18th March, 1976 of the Finance (Pay Commission) Section on the above subject, I have been directed to say that the Governor has been pleased to sanc- tion the pay scales mentioned in Column 3 to 10 post holders under you mentioned in column 2 in the table given below w.e.f. 1st October, 1975 with this condition that as a result of sanction of this scale, the number of total posts in the concerned cadre will not increase:

Sl. Name Pay No. of No. of No. of Pay No.Of Scale Permanent Temporary Posts Scale Post Post Posts in higher scale 1. 2. 3. 4. 5. 6. 7.

1. Bench Rs.400- 15-48 3 10 Rs.500-25- Secre- 475-EB--20- 700-EB-40- tary 575-EB-25- 900-EB-50- 750 1000

2. The basic pay in the pay scale mentioned in aforesaid column 7 of the concerned employee will be fixed according to the guiding principles of para 4 under fundamental rule 22 of the Financial Handbook Part II Volume 2-4 and the appointments in the pay scale of Rs.500-1000 will be made according to seniority subject to unfit.

3. In this connection, I have also been directed to say that the nomenclature of posts of 10 Bench Secretaries appearing in column 5 of the said table shall be Bench Secretaries Grade I and the nomenclature of rest Bench Secretaries of equal pay scale will be Bench Secretaries Grade II and the posts of Bench Secretaries Grade I and Grade II will be of the same duties and responsibilities.

Sd/- (Ramesh Chandra Deo Sharma) PG NO 295 Joint Secretary" It was then the turn of Bench Secretaries Grade II, They complained that there was no valid reason to give higher pay scale only to ten Bench Secretaries and step-motherly treatment to the rest of their colleagues. The High Court as usual supported their claim, but the Government did not.

In order to give effect to the said Government order the Chief Justice framed rules called the Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976 ("The Rules ). The Rules were framed in exercise of the powers conferred by Article 229(2) of the Constitution and brought into force from July 13,1976.

There under Bench Secretaries Grade I and Grade II were classified as Class II and Class III posts respectively.

Rule 8(E) provides procedure for appointment of Bench Secretaries Grade II. It is by selection through competitive examination to be conducted by appointing authority.

Permanent Upper Division Assistants and permanent Lower Division Assistants having not less than ten years service are made eligible for selection. Preference shall however, be given to candidates possession a Law Degree. Rule 16 provides that the posts of Bench Secretaries Grade I shall be filled up by promotion from amongst permanent Bench Secretaries Grade II. Rule 18 deals with method of selection for all promotional posts. It shall be made by selection committee appointed by the Chief Justice. The criterion of selection shall be merit with due regard to seniority. The entitlement to higher pay scale of Grade I Bench Secretary was therefore, not on the basis of seniority alone, but on the basis of selection by merit-cum-seniority.

In 1979, the State Government appointed another Pay Commission. That Pay Commission also did not disturb the categorisation of Bench Secretaries into Grade I and Grade II.It however, gave marginal benefits by increasing the number of posts of Grade I from 10 per cent to 30 per cent of the total cadre strength. The reason given by the Pay Commission is as follows:

"Bench Secretary 26.38 Fifty two posts of Bench Secretaries are in the pay scale of Rs.400-750 and ten posts in the scale of Rs.500 1,000. For appointment on these posts a limited competitive examination is held from amongst Upper Division Assistants, PG NO 296 Lower Division Assistants with ten years of service preferably Law Graduates. We have received a representation stating that the Bench Secretaries play a very important role in smooth running of the proceedings of the Court. The minimum pay scales of the Bench Secretaries is comparatively higher than the pay scale of Upper Division Assistants though they are appointed through a competitive examination. It is limited to only Upper Division Lower Division Assistants of the High Court.

Keeping in view the fact that vacancies in Upper Division/Lower Division Assistants are filled up by promotion from Routine Grade Assistants, it is clear that this is a second promotion for those who come directly from Lower Division Assistants and a third promotion for those who are promoted first to Upper Division Assistant and then a Bench Secretary. Even then we give importance to the fact that only best from Upper Division/Lower Division Assistants are preferred for the post. The work of the Bench Secretary is of a great importance. We, therefore, recommend:

"(1) 30% of the total posts of Bench Secretaries in the pay scale of Rs.770-1000;and (2) Two posts in the scale of Rs.1420-1900 as is admissible to Assistant Secretaries of the Secretariat." Finally the Bench Secretaries Grade I moved the High Court on judicial side with an application under Article 226 of the Constitution. They challenged the validity of bifurcation of one cadre into Grade I and Grade II. The sheet-anchor of their case was that in the same category of posts with similar duties and responsibilities there cannot be two grades with different pay scales. It would be violative of principles of equal pay for equal work. It was also contended that Bench Secretaries was a well recognised class that existed over the years and indeed superior to Section Officers. Rejection of their demand for equating at least with Section Officers would be ignoring that historical fact. The High Court accepted all these contentions and granted the relief prayed for.

As to the Pay Commission recommendations the High observed:

"Rejection of petitioner's demand for equating them PG NO 297 at least with Section Officers by comparing them with absence of administrative control exercised by Section Officer in the Secretariat was ignoring history of Bench Secretaries being a different class both before and after independence and the nature of duties performed by them . " As to the decision of the Anomalies Committee the High Court remarked:

"Curiously enough when Anomaly Committee redressed the wrong by granting pay scale equivalent to Section Officers, it created an artificial division by drawing a line between first ten and others. A Bench Secretary or for that matter any officer who puts in longer years of service gets more salary than his juniors but if a senior performing the same duty as his juniors is put in different higher scale then it results in invidious classification in the same group. And that violates the concept of equality which visualises that whatever condition are guaranteed and secured by law to one shall be guaranteed to owners who are of the same group or class. It only denies enactment of a rule or law which attempts to deal differently with persons situated similarly. The Government order by which the classification was done itself provided that duty and responsibility of Bench Secretary of Grade II be the same as of Grade I shall be seniority. No other basic or qualification or test or be it was laid down. The effect of the order was that those who were senior entered into an altogether different Grade. That is senior Bench Secretary although doing the same work as his junior became entitled to higher grade. And that clearly violated the principle of equal pay for equal work." In support of these conclusions the High Court relied upon two decisions of this Court:

[i] Randhir Singh v. Union of India, [1982] 3 SCR 298 and

[ii] P. Savita v. Union of India, [1985] Suppl. 1 SCR 101.

With regard to rule framed by the Chief Justice for the purpose of promotion to Bench Secretary Grade I, thee High Court said:

"Rules were made not because the Court agreed with the classification of Bench Secretaries in Group I and Group II PG NO 298 but because of the Government order dated July 2, 1976. The vice is not in the method of selection but in creation of two different groups without any intelligible differentia.

If Bench Secretaries of Group I would have been required to do any work different than Bench Secretaries Grade II, it could be described as promotional avenue. Promotion from one post to another is associated with advancing to a higher office, climbing one more ladder in service career. But the different grade for persons of same even on seniority cum merit with same work and responsibility cannot amount to promotion." With these conclusions, the High Court quashed a part of the notification dated July 4, 1976 which created Bench Secretaries Grade I. The High Court did not quash the Rules relating to promotion to that cadre. The High Court directed that all Bench Secretaries irrespective of their grades should be given the pay scale admissible to Bench Secretaries Grade I with effect from October 1, 1975.

The State of U.P. being aggrieved by the decision has appealed to this Court.

On the submissions made by counsel on both sides, two questions arise for our consideration:

(i) Whether Bench Secretaries in the High Court of Allahabad are entitled to pay scale admissible to Section Officers?; and

(ii) Whether the creation of two Grades with different pay scales in the cadre of Bench Secretaries who are doing the same or similar work is violative of the right to have "equal pay for equal work"?

The first question regarding entitlement to the pay scale admissible to Section Officers should not detain us longer. The answer to the question depends upon several factors. It does not just depend upon either the nature of work or volume of work done by Bench Secre-taries. Primarily it requires among others. evaluation of duties and responsibilities of the respective posts. More often functions of two posts may appear to be the same or similar, but there may be difference in degrees in the performance. The quantity of work may be the same, but quality may be different that cannot be determined by PG NO 299 relying upon averments in affidavits of interested parties.

The equation of posts or equation of pay must be left to the Executive Government. It must be determined by expert bodies like Pay Commission. They would be the best judge to evaluate the nature of duties and responsibilities of posts.

If there is any such determination by a Commission or Committee, the court should normally accept it. The court should not try to tinker with such equivalence unless it is shown that it was made with extraneous consideration.

In the present case, it is true that at one time, Bench Secretaries were paid more emoluments than Section Officers.

But it is not known on what basis they were paid in the higher pay scale and treated as a superior class to Section Officers. The Successive Pay Commissions and even Pay Rationalisation Committee, however, found no support to their superior claim. The Commissions and Committee have evaluated the respective duties and responsibilities of the two posts. It was found that the Section Officers perform onerous duties and bear greater responsibilities than Bench Secretaries. We cannot go against that opinion and indeed, we must accept that opinion. The Bench Secretaries, therefore, cannot claim as of right the pay scale admissible to Section Officers.

The second question formulated earlier needs careful examination. The question is not particular to the present case. It is pertinent to all such cases. It is a matter affecting the civil services in general. The question is whether there could be two scales of pay in the same cadre of persons performing the same or similar work or duties.

All Bench Secretaries in the High Court of Allahabad are undisputedly having same duties. But they have been bifurcated into two grades with different pay scale. The Bench Secretaries Grade 1 are in a higher pay scale than Bench Secretaries Grade II. The entitlement to higher pay scale depends upon selection based on merit cum seniority.

Can it be said that it would be violative of the right to equality guaranteed under the Connstitution? It was argued for the respondents that it offends the constitutional principle of "equal pay for equal work".

Several decisions of this Court were relied upon in support of the proposition.

"Equal pay for equal work for both men and women" has been accepted as a "constitutional goal" capable of being achieved through constitutional remedies. In Randhir Singh v. Union of India & Others [I982] 3 SCR 298 Chinnappa Reddy, J. said (at 304):

PG NO 300 "It is true that the principle of `equal pay for equal work' is not expressly declared by our Constitution to be a fundamental right. But it certainly is a constitutional goal. Art.39(d) of the Constitution proclaims `equal pay for equal work for both men and women' as a Directive Principle of State Policy. `Equal pay for equal work for both men and women' means equal pay for equal work for every one and as beween the sexes.Directive Principles,as has been pointed out in some of the judgments of this Court have to be read into the fundamental rights as a matter of interpretation. Art. 14 of the Constitution enjoins the State not to deny any person equality before the law or the equal protection of the laws and Art. 16 declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointments to any office under the State. These equality clauses of the Constitution must mean something to every one. To the vast majority of the people the equality clauses of the Constitution would mean nothing if they are unconcerned with the work they do and the pay they get. To them the equality clauses will have some substance if equal work means equal pay." The learned Judge however, observed that a differential treatment in appropriate cases can be justified when there are two grades based on reasonable grounds:

"It is well known that there can be and there are different grades in a service, with varying qualification for entry into a particular grade, the higher grade often being a promotional avenue for officers of the lower grade.

The higher qualifications for the higher grade, which may be either academic qualifications or experience based on length of service reasonably sustain the classification of the officers into two grades with different scales of pay. The principle of equal pay for equal work would be an abstract doctrine not attracting Art. 14 if sought to be applied to them." In Randhir Singh, the petitioner was a driver-constable in the Delhi Police Force under the Delhi Administration. It was found that the petitioner and the other drivers in the Delhi Police Force per- formed the same functions and duties as other drivers in the service of the Delhi Administration and the Central Government. Indeed, by reason of their investiture with the 'powers, functions and privileges of PG NO 301 a police officer', their duties and responsibilities were found to be more arduous. It was also admitted by the Delhi Administration in that case that the duties of driver constable of the Delhi Police Force were onerous. Therefore, learned Judge said that there was no reason for giving them lower scale of pay than other drivers. It was directed that the driver constables of Delhi Police Force should be given the scale of pay at least on par with that of drivers of the Railway Protection Force. The principle enunciated in Randhir Singh was followed in Ramachandra v. Union of India, [1984] 2 SCC 141 and P. Savita v. Union of India, [1985] Supp. I SCR 10l. In the former, the arbitrary differential treatment in the pay scale accorded to some professors was struck down. The petitioners therein were holding the posts of Professors in the Indian Veterinary Research Institute under the Indian Council of Medical Research. The pay scale of professors underwent revision. The new recruits got the benefit of revision of scales, but not the petitioner. He was allowed to continue in the old scale. He challenged that discrimination in this Court as being violative of the right to have equal pay for equal work. This Court accepted the contention and observed (page 163):

"The case in hand is a glaring example of discriminat- tory treatment accorded to old, experienced and highly qualified hands with an evil eye and unequal hand and the guarantee of equality in all its pervasive character must enable this Court to remove discrimination and to restore fair play in action. No attempt was made to sustain the scales of pay for the post of Professor on the doctrine of classification because the classification of existing incum- bents as being distinct and separate from newly recruited hand with flimsy change in essential qualification would be wholly irrational and arbitrary. The case of the petitioners for being put in the revised scale of Rs. 1100-1600 from the date on which newly created posts of Professors in sister disciplines in IVRI and other institutes were created and filled-up in revised scale is unanswerable and must be cunceded " In P. Savita v. Union of lndia, the artificial division of senior draftsmen in the Ministry of Defence Production with unequal scales of pay for the same work was struck down.

In Dhirendra Chamoli and Anr. v. State of U.P., [1986] 1 SCC 637, this Court found fault with the Central Government for not giving the casual workers engaged in Nehru Yuvak the same salary and conditions of service as enjoyed by class IV employees regularly appointed against sanctioned posts. It was observed (at 628):

PG NO 302 "It must be remembered that in this country where there is so much unemployment,the choice for the majority of people is to starve or to take employment on whatever exploitative terms are offered by the employer. The fact that these employees accepted employment with full knowledge that they will be paid only daily wages and they will not get the same salary and conditions of service as other class IV employees, cannot provide an escape to the Central Government to avoid the mandate of equality enshrined in Art. 14 of the Constitution. This article declares that there shall be equality before law and equal protection of the law and implicit in it is the further principle that there must be equal pay for work of equal value. These employees who are in the service of the different Nehru Yuvak Kendras in the country and who are admittedly performing the same duties as Class IV employees, must therefore get the same salary and conditions of service as Class IV employees. It makes no difference whether they are appointed in sanctioned posts or not. So long as they are performing the same duties, they must receive the same salary and conditions of service as class IV employees." In Surinder Singh v. Engineer-in-Chief, CPWD, [1986] 1 SCC 639, the case of poor daily wage workers employed for serveral years by the Central Public Works Department CPWD came up for consideration before this Court. They demanded parity in their wages, and allowances with those of regular and permanent employees of the Department on the basis of performing similar work. This Court while granting relief to the workmen observed (at 642) :

"The Central Government, the State Government and likewise, all public sector undertakings are expected to function like model and enlightened employers and arguments such as those which were advanced before us that the principle of equal pay for equal work is an abstract doctrine which cannot be enforced in a court of law should ill come from the mouths of the State and State Undertakings." PG NO 303 The right to have equal pay for equal work was also accepted-by this Court in R. D. Gupta and Others v. Lt. Governor of Delhi, [1987] SCC 505; Bhagwan Dass and Others v. State of Haryana, [1987] 4 SCC 634; National Museum Non- Gazetted Employees Association and Anr. v. UOI, WP No. 1230 of 1987 disposed of dt. 10.2.1988; Jaipal and Ors. v. State of Haryana, WP No. 455 and connected petitions of 1987 of DD 2.6.1988 and Y.K. Mehta v. UOI, WP No. 1239 of 1979 and connected petitions DD 26.8.1988.

Article 39(d) of the Constitution proclaims "equal pay for equal work" . This article and other like provisions in the Directive Principles are "conscience of our Constitution." They are rooted in social justice. They were intended to bring about a socio-economic transformation in our society. As observed by Hegde and Mukherjee, JJ. in Keshavananda Bharati v. State of Kerala, [1973] 4 SCC 225 at para 712: "The Constitution seeks to fulfil the basic needs of the common man and to change the structure of society." In the words of Shelat and Grover, JJ (at para 596): "The dominent objective in view was to ameliorate and improve the lot of the common man and to bring about a socio economic justice." In matters of employment the Government of a socialist State must protect the weaker sections. It must be ensured that there is no exploitation of poor and ignorant. It is the duty of the State to see that the under- privileged or weaker sections get their dues. Even if they have voluntarily accepted the employment on unequal terms, the State should not deny their basic rights of equal treatment. It is against this background that the principle of "equal pay for equal work has to be construed in the first place. Second, this principle has no mechanical application in every case of similar work. It has to be read into Art. l4 of the Constitution. Art. l4 permits reasonable classification founded on different basis. It is now well established that the classification can be based on some qualities or characteristics of persons grouped together and not in others who are left out. Those qualities or charcteristics must, of course, have a reasonable relation to the object sought to be achieved. In service matters, merit or experience could be the proper basis for classification to promote efficiency in administration. He or she learns also by experience as much as by other means.

It cannot be denied that the quality of work performed by persons of longer experience is superior than the work of newcomers. Even in Randhir Singh 's case, this principle has been recognised. O. Chinnappa Reddy, J. observed that the classification of officers into two grades with different scales of pay based either on academic qualification or experience on length of service is sustainable. Apart from that, higher pay scale to avoid stag PG NO 304 nation or resultant frustration for lack of promotional avenues is very common in career service. There is selection grade for District Judges. There is senior time scale in Indian Administrative Service. There is super time scale in other like services. The entitlement to these higher pay scales depends upon seniority-cum-merit or merit-cum- seniority. The differentiation so made in the same cadre will not amount to discrimination. The classification based on experience is a reasonable classification. It has a rational nexus with the object thereof. To hold otherwise, it would be detrimental to the interest of the service itself.

In All lndia Customs and Central Excise Stenographers Recognised) and Others v. Union of India and Others, [1988] 2 Judgments Today SC p. 5 19, Sabyasachi Mukherjee, J. said:

"There may be qualitative difference as regards relia- bility and responsibility. Functions may be the same but the responsibilities make 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 emphasise that equal pay for equal work is a concomitant of Article 14 of the Constitution. But it follows naturally that equal pay for unequal work will be a negation of that right." And said:

"The same amount of physical work may entail different quality of work, some more sensitive. some requiring more tact, some less--it varies from nature and culture of employment. The problem about equal pay cannot always be translated into a mathematical formula. If it has a rational nexus with the object to be sought for, as reiterated before a certain amount of value judgment of the administrative authorities who are charged with fixing the pay scales has to be left with them and it cannot be interfered with by the Court unless it is demonstrated that either it is irrational or based on no basis or arrived mala fide either in law or in fact." PG NO 305 In the present case, all Bench Secretaries may do the same work, but their quality of work may differ. Under the rules framed by the Chief Justice of the High Court, Bench Secretaries Grade I are selected by a Selection Committee.

The selection is based on merit with due regard to seniority. They are selected among the lot of Bench Secretaries Grade II. When Bench Secretaries Grade II acquire experience and also display more merit, they are appointed as Bench Secretaries Grade I. The rules thus make a proper classification for the purpose of entitlement to higher pay scale. The High Court has completely overlooked the criterion provided under the Rules The merit governs the grant of higher pay scale and that merit will be evaluated by a competent authority. The classification made under the Rules, therefore, cannot be said to be violative of the right to have equal pay for equal work.

After the argument was concluded in this appeal, counsel on both sides brought to our attention that the State Government has granted uniform pay scale of Rs.1600- 2950 to both the grades of Bench Secretaries with effect from January 1, 1986. We may make it clear that this decision of ours shall not affect the Bench Secretaries to get that pay scale accordingly with effect from January 1, 1986.

In the result, we allow the appeal and set aside the judgment of the High Court.

S.L. Appeal allowed.

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