IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No.: 2221/2008 Decided on: 10.3.2009 Madhu Sankhyayan. …Petitioner. Versus State of Himachal Pradesh and another. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the petitioner : Mr. R.S. Gautam, Advocate. For the Respondents : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. A.G. and Mr. Vikas Rathore, Dy. A.G. Rajiv Sharma, J. (Oral) The petitioner was appointed as a Tourist Information-cum-Liaison Officer on a maximum remuneration of Rs. 700/- per month. This was revised on 17.5.1990 to Rs. 1500/- consolidated. The petitioner is claiming pay scale of the post of Tourist Development Officer i.e. Rs. 2200-4000 on the principle of “equal pay for equal work”. The petitioner has not placed on record copy of the Recruitment and Promotion Rules of the post of Tourist Development Officer. There is no tangible evidence on record to establish that the duties being discharged by the Tourist Information-cum-Liaison Officer and Tourist Development Officer are the 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes 2 same. In order to claim “equal pay for equal work”, the petitioner has to establish by leading tangible evidence that the Recruitment and Promotion Rules, qualifications and duties discharged by the incumbent are same or similar. Prima facie these ingredients are absent in this petition. Their Lordships of the Hon’ble Supreme Court in U.P. State Electricity Board and another versus Aziz Ahmad, 2009 (1) Scale 689 have held that the plea of ‘equal pay for equal work’ has to be examined with reference to Article 14 of the Constitution of India, the burden is upon the petitioners to establish their right to equal pay, or the plea of discrimination, as the case may be. Their Lordships have held as under: “7. In our considered opinion the aforesaid findings are incorrect and cannot be upheld. The burden to prove a particular fact is always on the person who alleges the same. In the present case it was the contention of the respondent-workman, who claimed that the job requirements, nature and responsibilities of the post of Boiler Mistry/Fitter are identical and similar with that of the Boiler Overhauling Mechanic. The burden, therefore, was on the workman to prove and establish the aforesaid facts by leading cogent and reliable evidence. He was required to place documentary evidence in support of the same. 15. The Tribunal as also the High Court while affirming the award changed the rule of the game by placing the entire burden of proof on the management that the posts are not identical. Whether the aforesaid posts are identical and whether the persons holding the post of Boiler Overhauling Mechanic, Boiler Mistry or Fitter are doing identical or similar nature of work and discharge the same functions and responsibilities are required to be adjudicated upon and decided by making an analysis of their nature of duties, responsibilities, pay scales and other factors which are required to be considered for deciding such 3 an issue. This Court in a number of decisions has laid down the guiding factors and principles as to how the issue with regard to equation of posts is to be considered and analyzed. In Secy.,Finance Deptt. v. W.B. Registration Service Assn., 1993 [Supp (1) SCC 153] this Court enumerated the factors to be taken into consideration for job evaluation: "12. We do not consider it necessary to traverse the case law on which reliance has been placed by counsel for the appellants as it is well settled that equation of posts and determination of pay scales is the primary function of the executive and not the judiciary and, therefore, ordinarily courts will not enter upon the task of job evaluation which is generally left to expert bodies like the Pay Commissions, etc. But that is not to say that the Court has no jurisdiction and the aggrieved employees have no remedy if they are unjustly treated by arbitrary State action or inaction. Courts must, however, realise that job evaluation is both a difficult and time consuming task which even expert bodies having the assistance of staff with requisite expertise have found difficult to undertake sometimes on account of want of relevant data and scales for evaluating performances of different groups of employees. This would call for a constant study of the external comparisons and internal relativities on account of the changing nature of job requirements. The factors which may have to be kept in view for job evaluation may include (i) the work programme of his department (ii) the nature of contribution expected of him (iii) the extent of his responsibility and accountability in the discharge of his diverse duties and functions (iv) the extent and nature of freedoms/limitations available or imposed on him in the discharge of his duties (v) the extent of powers vested in him (vi) the extent of his dependence on superiors for the exercise of his powers (vii) the need to co-ordinate with other departments, etc. We have also referred to the history of the service and the effort of 4 various bodies to reduce the total number of pay scales to a reasonable number. Such reduction in the number of pay scales has to be achieved by resorting to broadbanding of posts by placing different posts having comparable job charts in a common scale. Substantial reduction in the number of pay scales must inevitably lead to clubbing of posts and grades which were earlier different and unequal. While doing so care must be taken to ensure that such rationalisation of the pay structure does not throw up anomalies. Ordinarily a pay structure is evolved keeping in mind several factors, e.g., (i) method of recruitment, (ii) level at which recruitment is made, (iii) the hierarchy of service in a given cadre, (iv) minimum educational/technical qualifications required, (v) avenues of promotion, (vi) the nature of duties and responsibilities, (vii) the horizontal and vertical relativities with similar jobs, (viii) public dealings, (ix) satisfaction level, (x) employer's capacity to pay, etc. We have referred to these matters in some detail only to emphasise that several factors have to be kept in view while evolving a pay structure and the horizontal and vertical relativities have to be carefully balanced keeping in mind the hierarchical arrangements, avenues for promotion, etc. Such a carefully evolved pay structure ought not to be ordinarily disturbed as it may upset the balance and cause avoidable ripples in other cadres as well. It is presumably for this reason that the Judicial Secretary who had strongly recommended a substantial hike in the salary of the Sub-Registrars to the Second (State) Pay Commission found it difficult to concede the demand made by the Registration Service before him in his capacity as the Chairman of the Third (State) Pay Commission. There can, therefore, be no doubt that equation of posts and equation of salaries is a complex matter which is best left to an expert body unless there is cogent material on record to come to a firm conclusion that a grave error had crept in while fixing 5 the pay scale for a given post and Court's interference is absolutely necessary to undo the injustice." Accordingly, there is no merit in the petition and the same is dismissed. There will, however, be no order as to costs. 10.3.2009 (Rajiv Sharma ), J. *awasthi*