^s^^i^ (2-.. BEFORE HON'BLE STATE ADMINISTRATIVE TRIBUN&L AT JABALPUR "i ^ CASE NO.O.A. /l 9 93 i' K/ . APPLICANTS 1. M.R.K.KHOKHAR Assistant Chemist Department of Geology and Mining Jabalpur 2. SHRAD GUPTA '- - 3. ALOK PANDEY 4. GIRVAR PRASAD RATHORE .5. MANOHAR IAL CHUBANI 6. RAJ M&NI PftNDEY 7. MAHESH KUMAR VERI4A 8. AtlUL JHA 9. KRISHK& KISHORE SAH&Y 10. VINOD KU'MAR SHARM& 11. SMT. MEERA VfiIRAGft.DE 12. SMT. SHASHIKAIA PAWAR 13. KU. KALPANA JOSHI Assistant Chemist Departinent of Geology and Mining Ralpur 14. Ku. Sheeba Lai Assistant Chemist Laboratory Departraent of Gsology and Mining Jagflalpur 15. S.R.GOLE 16. MASARRAT KHAN 17. H.K.KETAM 18. D.S.PANDEY 19. SMT. KIRAN MISHPA %y Assistant Chemist Department of Geology and Hining Jabalour o o ^- • '?•• ^ I;.; ^' r :\J' g'! o State of M.P. Through the Secretary Department of Mining Resources Bbopal 2. Director Geology and Mining Ralpur APPLICATION 'U/S 19 OF ADMINISTRATIVE TRIBUNAL ACT 1985 HiGH COURT OF CHHATTISGARH : BiLASPUR S'.HQLE BENCH : HON'BLE MANINDRA MOHAN SHRn/ASTAVA.J WRiT PETiTION (Si N0.2304(2005 PETiTiONERS: ? -~ M.R.K. Khokharandbuiers versus RESPONDEFiiTS: State of ivi.P. and others .^°^s^t F^T^^-a s^-»a ;& s-""i-a sy"& ;-y ^ifes* «^ik;^s~^a~T~^ ^»g.i 'ftW as it I..T ,n,fas fh ruK i-KUriiUURii^wifcN 1 ur uKUcK UN a' Jul-'f 2u1u Sd/- Macindra Mohac Judge '-1 'S- rf-n St 3T^E E - £*SB E A. ^t F^S £ HiGri CGURT OF CHHATTJSGARH : BiLASPUR Sinsie Beneh; Hon'Bte Shri Fvianindra Mohan Snrivastava, *i, SwSTdl3^a 3^u^*talfE~^?^?*»p*.F ^»T?L'^ ^ S.^^ f^ff^fi. jS SS^^\^1#^ WKIt FcitiiUN iSi Nu.Z3u4/^uu& TiTiONERS RESPONDENT M.R.K. Khokhar and others versus titate OT M.i-. ana otners ivis. ivtOriSits L^iihstrif CvunsGl Torttis pstitionsr NG.IU. Shrl J.N.Nande. counsel for other Detltioners. Shi-i Vir.od Tekam, PaneS Lawyer for the State. ORDER (Passed on ..SOA.uuiy, 2010) Petltioners before this Court are Assistant Chemists in the seivice ot' Ciepartment OT ^eOiOgv 'dud FvliniHy. t nu Ct&im OT tne peuuoner in the petitiori is ror yrant or sarne pay scaie wnicn nas Deen granteci to Assistant ijnernists 'working in the service of Central Governrnent in the uepartrnent of Geoioyica! aurvey. 2. Submission of iearned counsei for the Detitloners is that thoush the Dav scaie of Assistant Chemists working in Geoioyicai Survey Department of Centrai Government is Rs.2000-60-2300-E.B.-75-3200-10-3500, tne petitioners are gettlng a iovrer pay scaie of Rs.1400-23'W. It is argueu that after suumission of 4 Psy Commission rcpQrt, thc th°" ©ovornmsntof M.P« declsr^d thsit th6 recornrnenuations of the Founh Pay Cotrirnission applicabie to the Central uovemrnent ernpioyees are equaiiy appiicaDie 10 ine otate uoverrinieni erfjployees. It is submittod that th©Styte Governr^ent haviny sccepted in princlpie, the recon'irnenuations of Fuurth Pay Commission in the matter or grant ..-*<A-< y ^ of pay scale to Central Government, ought to have exl.ended the pay scaie uf Rs.2000-350u to Assistant Cnemists in the State Government in pariiy with the pay scale grantsd to Assistant Chernists vvorkjnu underthe Centrai Govemmerit. 3. It has peen lurther argued that the nature of duues and funcuoris of Assistant Chernists in the flepartment of Geology and Mining of State Government and that of Assistant Chemists in the Centrai Govemrnent are ioenticai. it has been argued uiat the workiriB 01 Asslstant Chernists in the State Government service is analysis 01 rriinerai ore, coal, clay, petroieum producis, anu precious rneiais B'y organic anci moaern insti'urnentation metnou. 1 nis cornpared 'wlth the work of Assistant Chemists In uie Cenuai Oovernment being anaiysis of ore and minerals by organic and rnodern instrunientatiun meihou demonstrates that they are perforrriing similar 'work. in such a situation, it is suDmiiieu inat pnncipie or equai pay ror equat worK is squareiy atiractecl tvan'anting issuance of dlrection to respondent / Stete for exLendinu the benefit of the pay scale i.e. Rs.2000-3500/-. Though several representations (Annexure N2., Annexure A/3) were subrnitted, the higher pay scaie has not been granted. 4. Per contra, ieamed counsei for the I'esponderitS subrnitted that the petitioners are not entltied to clairri parity' for the purposes of grant of pay scaie which is being granted to Assistant Chernisis under Geoloyicai survey jr. the departrnent of Central Government. !t is submitied thai the post of Assistant Chemist has been categorised as Class-ii gazetted post in fhe Geoiogicai Survey of india, 'which carries pay scaie 01 Rs.2000-3500/- "whereas Assistant Chernisi workina in the Directorate of Geolociy and ivlinlrig in the State Government is Ciass-iil Executive post. Thus. the post of Assistant Chernist borne in the Centrai Govemment and that in the State Govemment cannot be equated. it is <7.fi ^s^." "' ^ s •SS^J also submitteQ' the procedure for appointment as also qualification for the post of Assistant Chemist in tbe State Service is different from the procedure for appoinimeni as aiso quaiHicaiion prescriDea ror ine posi or Mssisiani i-nerriisis in the Centrai Govemment. it is further subrfiitted that the Quaiification fur appointrrient for tn&'post of Assistant Cherfiist iri th©S^ite Govefnment serviGe Is oniy B.Sc. whereas the educationai quaijfication for appointment to the post of Assisiant Chernist in the Cenfra! Govemrnent is M.Sc. and the seiectlon is based &n 'Ail india Compstition'. it has aiso been submitted that the representauons were forwarded to the Pay Cornmission Csil of the Govsrnment which vi'as considered and reiected and the said rejection w'ss cornmunicated vlde ietter dated 24/07/93 (Annexure R/1). it has aiso been stated in the said comrnunication that in fu^ure, if Pay Commission Is constituted, stated anomaiy would bs piaced before the commission. 5. The brief pieadings made by the petitioners mereiy iay down broad nature of duties and functions. It cannot be disputed that the job of a chernist is essentlaily to can-y out anaiysis. However, that by itself, vvoulu not concretize ciairn for grant of equai pay for equai work. It is trite iaw that the doctrine of eciual pay' for equai work cannot be appiied autornatically and the appilcatiori of the said doctrine invoives severai factors. The same or simiiar naturs of vvork, &y itseli, does not entltie an employes to invoke tiie doctrine of equal pay for equai "w'ork. Quaiification and experience and other factors wouiu be reievant for the said puroose. in the case of Deb Naravan Shvam v. State of Benuai i2008i 2 SCC 286.^upreme Court helu - 33. A iarfie number of decisions have been cited before us with regard to the principSs of "egua! oay for ecsuat work" by both sldcs. Ws rt€@d not OGSE Vvith th©^Sid dSCtSiGHS to overburden this judgment. Suffice it to say that the principie is o settisd that if the favo categories of posts perfom'i the same dutles and functlons and carry the same qualification; then 4.^-»n-n ^.i^n. .1.4 <~—i.—— nn» ^S n.;.: n n^; n sn ;n tnn^J. y~n*~!n Sn> **.i^.n-n n n A^, iuere snouiu noi Dc sny' uio'Einciiort in psy sc5ic Dswv'ssn ins tv'o categories of posts slmjlarly situated. But when they are dlfferent and perform different duties and quaHfeatioriS for recruitment being different, then they cannot be said to be eauated so as to sua'iftf for eoua!cav for saual "e'ork-" in the cas6 of-Uriion of inuia anu another v. iwahajabeen Akhtar, 2uUo i1! 3CC ooo, ii 'w'as heiy- ia. ine question carne 10 Be consiQerea in a large nurnBer of decisions of this Court wherein it unhesitaHtlv came to the 1-i^^.i n !—»—,^. flin^ina- —^-S^i^.4. -.^ -»/» nn *->. i. • -» . • ^.^*,:—„-.' conciuSion ins? 5 isrge numDGr OT Tsciors. risnnsay, suucasionsi "ualiflcatlons, nature of dutv, nature of responsibiiity, nature of ?"«~^^fs~~>.-i ~tV- ro.f^v, ;}~n^zs3~it »ST^ isjos y\sK. •ir,s..Sa\!Vf'^>v "•"••!- ."•3>¥£i,?'m5S^3t~,-~ t 1 I'^/lil It/S^ ^i^i > •^/'fc/I UlIfcK t<hii| ifc) \/t.<rf. 'iVlII »^\rf t-irft^VUIIIh Itl/i ^t^t.'Ut } ll ilt) 111} eauivaience in tne rnauer OT Tixatiun OT scaie 01 pav. isee Secv., Finance Dsptt. '.'. W.B. Reaistration Service Assn., •i^ft's e;...-.-. /-!\ ^r^r^ ^s's- ^Qirt's eirtr^ /s ^ o\ 4^?. /^C;G^\ ^;^ A'T^ ii?iy0 i3upp \i) ^\^\^ i 0.5^ i5y£y0 G!Lnu> ^L&i3^ i3f: ^ iyyo^ ^,^ r\ i \^ 403; State of U.P. v- J.P. Chaurasia (1989) 1 SCC 121:1989 3f'^S<^i3 1 1 K^rfli SCC (L&S) 71: (1988) 8 ATC 829; Union of India < Kumar Dey (2000) 8 SCC 580: 2001 SCC (l.&S) 56 and Stato of Haryana v. Haryana C.lvi! Secretariat Persona! Staff Assn. ff*f\^\fy>, £•^/^.^ —r" - f^nf\f*t ^if'^/^ /'2 S! S?\ o-^^ i' ^LiUZjl G 0\A^ t ^. . ^iJU^ 0'«'\-'^Lut^ O&A. jn the case of Offiuai iiuuiudtor v. Davananu anu OtSiers, 2008 (10) s\ai 1. it 'was rieiu — f-'- :—j-.ti.-.~i9~ 'ya.........oirniiaray in tne aesignation or quanium OT worK are "ot dsterminativs of eesuajitv in Shs T'atter of oav scates a"d thst bdofG critGrtsiriin^ snd sccGptiriy ths ciCTim bascd ori t'hs principle of eauai DSV for equal work, the Court must consider tiiS TSCtQiS liKS recruitmenuappoiriiment, fr.S t^3 3Srtffl^£^ 'ld> trftlrf as ine quaiincauons, liiUUt./ Vi naiure OT workina. the value iud"ment. resoons'bil'ties- re!iab'!it". sxpsrisncs, conTiusniiSiiiy, Tunciionai nswu sic. in the case of State of Puniab v. Surinder Singh. i2007i 13 SCC 231, Supi'eme Court noted the developrnents and held that the principle of equaS pay for equai work tias undergone a sea change since its initiai i'ecognition and heiu- 6. The principte of equai pay for equal 'work has undQrgone a sea change. Earlier the yiew of thls Court vas that if two psrsons are dischai^ing the same fynctlons, they wsH be entitied to same wages. Suusequentiy this view has been chanaed and now the view of th's Court is that there should be :^L compiete and total identity between the wo persons sirnilarly situated so as to grant equat pay for equai work. Recentiy thjs Court has heid that ideniity between r*'o psrsons has to be Gompiete and totai. in case of a reyular appointee, he has undergone a selection process and his serysces are regutar. Even if a daiiy wage empioyee Is discharging the same functions as a reguiar ernpioyee the authorities are not bound to grant equa! pay to such a person who js appointed o" dal!y- v/age basls,Le. is appointed for a short tsrrfi and has not faced the seiection process. Thus, the principle of squal pay for eaual v/ork has So be orantsd on!v if thers is a total and SSlf^ I'^/^fjT.f-'ia^S1 !>"V fr(-i;C1 •.fi.rt.ta; 1.1 ^.^. t,wy pyisuns. i?i iiiis 'visw, W55 \!."t^& 5/<)dsntlty betv.'een ths are supported by a uecislon of this Court in S.C. Chandra v. State of Jharkhand which has referred to eariisr decisions of *^E»-<- i^^i ,-yi. ' u ti-o t^^/ui t. in the case of Hanana State Eiectricifrv Board and Anr. v. Guishan Lal and Ors., i2009i AiR SCW 5038, relying upon its earlier decision in the case of Deu Narayan Shyam (Supra), it 'was held by the Supreme Court as under - "34. Same or slrniiar nature of work, by itself, does not entitle sn emD'cvee to irsvoks the doctnne of eausl Dav for eaua! WOrK. QuaiitiCStiOri, GXpSFiSnCS SFid Gtii©ftsctors WGUia bs relevant for the said DurDOse." 6. in the case of State of niaunva pradesh anu otiiers v. Ramesh Chandra Baipai. i2009'i 13 SCC 635. the princiuie iaid dovyn in the aforesaiu were reiterated bv the SuDrem® Court and It was held ihat sirnilaritv in desianation or nature of auantum of work is not determinative for eauaiity in the matter of pay scales. The Court has to consider the facts !ike souroe and mode of recruitment/qualifications, nature of work, value thereof, reliabiiity, experience, confldentiaiitv, functionai need etc. and eaualltv clause to invoRe in the matter of pay scaies only when there is whoiesaie identity between the holders of two posts. 7. Appiying the aforesaid principie in the matter of determlnation, if the Dieadings and documents Dlaced before this Court bv the Detitioner ars iooRea \y into, it is found that the petitioners have utteriy faiieu to corne out with proper oisadinos to estabiish parifrv uf the deQree as reuuired under the iaw in order to succeed in the clairn of equai pay for equal WOIK. in the case of Stafe of Puniab and another v. Surieet Sinuh and others, (ZOOSi 8 SCC 514. SuDreme Cuurt emphasizsd on stiTCt pieadings and proof of various factors, it is profitabie to quote - 35....The High Court noticed that thjs Court in severai dscisions had arrived at an opinlc.R that ths srinciele of "eaual pay for equaS work canriot be appiied biina'iy bui chose to rely upon the decision of this Court in Dhifendra Chamoli v. State *^1 ^/*f . 36....With the utrnost respect, the principie, as indicated hereinbefore, has undergone a sea change. We are bound by iiiG aSCi5iOii3 d iSfyw DGnCuGS. i ni3 v^GUrE riSQ GSSri iri3i5liFiy on strict pleadings and proof of various factors as Ind'cated heretobefore. Furthermore, ihe burden of proof ever, in that case ii'ad wrongiy been piaced on the State which in fact iay on the '.wit Detitioners claimina similar benefits. The factua! matrix obtaininy in the said case particuiarly simiiar aualification. interchanaeabillty of the oosit'ons wlthln the regular empioyees and the casuai emptoyees and other reievant factors which have been notlced bv us also had sorne role to play." upon scrutiny of the claim of the pemioner by appiying the aforesaid principies vi/ith reference to the pieadings and docurnents placed on record, this Court comes to the conclusion that the petitioners have failed to discharge their uuruen OT prouT. 8. ivioreover, the principles which have iaid down m the aforesaid decisions of the Suprerne Court ciearly iay down that whiie examining such a ciajm of parify in the pay scate-amongst various factors, mode of recruitmeiw appointment and qualifications are reievant factors. Respondents have categoricaiiy stated in their retum, which has not been refuted by the petitioner, that the quaiifications for appointrnent for the post of Assistant Chernist in the Siate Government is oniy •^. .'^. % •^^-s^ ^ v B.Sc. 'whereas essentiai quaiifjcation for the post of Assistani Chemist in the Centrai Government is M.Sc. in the case of Union of india and another v. Mahajabeen Akhtar (Supraj Suprerne Court rsiterated principle iaid uown in the case of U.P. Sfate Suyar CorporatioTi Ltd. and another v. Sant Raj Sinyh and others, (2006) a SCC 82 and State of Haryana and others v. Charanjtt Slngh and others. J'rtrf^^^l ff^ ff^y^^^ ^^*d 9 SCC 321. In U.F. State Sugar Corporation Ltd. (Suprai It v»ashelu- 16. The uoctrlne of equai pay for squai work, as adumbrateu undsr Articte 39(d) of the C-onstitutlon of India read w'th Article i£r1.nSiSOT. CSiiiiOt DS SppiiSG iri 3 vSCUUsTi. i FiS COHSLiIUlEGfiESi sciieme postulates equat pay for equa! worK for those who are equally placsd in ail respects. Possession of s higher quailncaiion has aii alona been treated bv this Court to be a val'd basis for classificatio" of tv/o cateaories of employees." moreover, seieciion or Mssisiani L-nerTiisi in ine i-'enirai uovernrnent is bassd on 'Aii india Basis Recruitrnent' camed out by UPSC. Petitjoners have rnade no pieadings nor any other n'iateriai basis to estabilsh parity on other relevant factors iaid dovvn by the Suprerne Court in the decisions referred 10 aoove ana nave inus raiiea 10 maKe oui a case OT grani or panry. 9. Scope of judicia! rsview in the matter of fixation of pay and detemiinatlon of parity' was exarnlned in the case of Harv'ana State Minor irrioauon TubeWelis Corooration and others v. Q.S. uDBal anei ouisfS^WuoiJ^a^^ 376 and it was heiu — 21......There is no uispute nor can there b8 anv to the princip!e as settied in the a&ovecited decisions of this Court ^•^—.4'^mi.;^;—.n^ »i»^ll,.^.^^ *4n.J.<»«-?nn:nn.S.;^.—*<£ .^^. ••;&•• :-* ^.rA: T~ :j-- i-^ f. uicii, HAatltJ'ii vi piciy aiiu u<si.diiiit iclUUi i Ui pttliLy iii uyutto io i.1io functlon of the executive and the scope of judicial revlew of adiTiinisfratlve decision in this regard is very limiied. However, it Is aiso euuaiiy vveil settled fhat the courts shoulu interfere with the administrative decisions Derta'nsna to oav fixation and pay pciHty WiiSn tnSy iiHCi SliCfi 3 uGCi5EOH tu t3S UHrcaSOHS&IS, unlust and Dreludlcia! to a sectlon of emD'ovees ancj taken in ignorar.ee of riiaterial and rsssvant factors." iiiS' M , L tu. in view OT ine aDove anaiysis, tne ciairri OT ine petiuuner Tor grant OT saiTie pay scaie as granted to the Assistant Ci'iernisis in Centrai Govemment is founu untenabie in iaw. Consequentiy, the petition is dismissed. ihere shaii be no oraer as 10 cusis.t Manindra Mohac Shrivastava Judge