s^^'-^^^. . ^ .fr /; ^•:' •m IN.THE CCURS OP JUDICATURE AT JABALPUR (M^P. ) N&3<1^8 / 2000 M*P« Petitioner Respondents VERSUS 1« ^ ./< sf ^ 5» Anwar Ahmad Siddique Aged about 60 years Son of Shrl Late Abul Hasan Ansari Occupation $ Service Resident of 12^ Anand Nagar Adjoining to Nature Cure Hospital, Anand Nagar R A~I P O R (M«P») Vice Chancellor Indra Gandhi Krishi Vishwavidhiyalay Ra.tpur^, Registrar Indra Gandhi Krishi Vishwavidhyalay Raipur Indra Gandhi Krishi Vishwavidhiyalay through its Viee Chancellor Raipur^ PETITION UNDER Am'ICLE;; 226 &. 227 OF CONSTITIJTIQN-OF. IM)IA ^l^^.-.^ HIGH COURT OF CHHATTISGARH : BILASPUR .4P>f Division Bench : Hon'ble Shri Satish K. Agnihotri & Hon'ble Shri Prashant Kumar Mishra, JJ. Petitioner Respondents Writ Petition No.3758 of 2000 Anwar Ahmad Siddique Versus Vice Chancellor, Indira Gandhi Krishi Vishwavidyalaya & Others ORDER FOR CONSIDERATION Sd/- Satish K. Agnihotri Judge Hon'ble Shri Prashant Kumar Mishra. J. <^AA-A- Sd/- Prashant Kumar Mishra Judge Post for pronouncement of the order on 4-1-2010 Sd/- Satish K. Agnihotri Judge (O HjGHCOURT OF CHHATTISGARH .-BILASPUR Division Bench : Hon'ble Shri Satish K. Agnihotri & Hon'ble Shri Prashant Kumar Mishra, JJ. Petitioner Respondents Writ Petition No.3758 of 2000 AnwarAhmad Siddique Versus Vice Chancellor, Indira Gandhi Krishi Vishwavidyalaya & Others (Writ Petitions under Articles 226/227 of the Constitution of India) Present:- Shri K.A. Ansari, Sr. Advocate with Shri R.L. Bajpai, Advocate for the petitioner. Shri J.D. Bajpai, counsel forthe respondents. OR D E R (Delivered on this ^ day of January, 2010) Per Satish K. Aanihotri. J. 1. By this petition, the petitioner seeks to challenge the legality and validity of the order dated 12-6-2000 (Annexure - P/6) passed by the respondent authorities whereby the petitioner was made to retire from the service w.e.f. 30-6-2000 on attaining the age of superannuation of 60 years. 2. The indisputable facts, in nutshell, as projected by the petitioner, are that the petitioner was working as a Librarian (Class 1 employee) in the respondent Indira Gandhi Krishi Vishwavidyalaya (for short "the respondent University"). The petitioner claims parity with the teachers on the question of retirement on the basis of memo dated 24-12-1998 issued by the University Grants Commission (for short "the UGC") addressed to the Vice Chancellors of all the Universities and Education Secretaries of all the State/Union Territories. The petitioner impugns the order dated 12-6-2000 (Annexure - P/6) whereby the petitioner was made to ,^%^'^s y'^^ m p %.^/ ^K^' ^••^s^^ ^^•^^ ^^..^. retire from the service w.e.f. 30-6-2000 on attaining the age of superannuation of 60 years. Shri Ansari, learned senior counsel with Shri Bajpaj, learned counsel for the petitioner, would submit that the claim of the petitioner is based on the memo dated 24-12-1998 (Annexure - P/1) issued bythe UGC and as perthe notification dated 18-3-1999 issued by the respondent University. The nomenclature of the post held by the official is immaterial if he is engaged in the work of teaching. Thus, the petitioner is entitled to work till he attains the age of 62 years i.e. 30-6-2002. Per contra, Shri J.D. Bajpai, learned counsel appearing for the respondent University, would submit that no service benefit with regard to retirement has been granted in respect of Librarian, therefore, the retirement age of the petitioner is 60 years. Vide notification dated 3-3-2000 (Annexure - R/2) also it was clarified that the Librarians are not the teachers. We have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto. Reliance of the petitioner on memo dated 24-12-1998 is misplaced, as the same is applicable to those Universities, which are established or incorporated by or under a Central Act, Provincial Act or a State Act, every institution including a constituent or an affiliated college recognized by the UGC, in consultation with the concerned University under Clause (f) of Section 2 ofthe University Grants Commission Act, 1956 (for short "the Act, 1956") and every institution deemed to be a University under Section 3 of the Act, 1956. The Agricultural Universities/Colleges are not affiliated with or recognized by the UGC under the provisions of the Act, 1956 l^f?>^ '^N^^-^: 8. and, as such, unless recommendation of UGC for retirement of Librarian at 62 years is accepted by the State, is not applicable to the employees of the Agricultural Universities/ Colleges. Letter dated 12-3-1999 (Annexure - P/2 page 15), relied on by the petitioner, addressed to the Vice Chancellor of the respondent University states that the proposal moved by the Board of Directors under the statutes 9 (3) and 9 (4) in its 30 meeting dated 11-11-1998 has been approved by the Chancellor. The resolution of the Board of Directors as enshrined in the meeting provides for extension of age of retirement in case of teachers who have worked for a minimum period of 20 years as teachers/researchers and who were involved in the work of development and expansion of teaching. There is no provision for extension of age of retirement of Librarians, which was approved by the Chancellor. So far as the contention of the petitioner that the petitioner while working as Librarian was engaged in teaching work also is concerned, on perusal it has been found that the petitioner was appointed on the post of Librarian and thereafter no material has been produced to indicate that apart from the job of Librarian he was engaged in the work of teaching for a minimum period of 20 years. Thus, the resolution of the Board of Directors in its 30 meeting held on 11-11-1998, which was approved by the Chancellor, is not applicable to the facts of the present case. In support of his contention, learned counsel relies on Annexure -1 of Annexure - P/3 (at page 21) that the pay scales and fixation of pay and other measures for maintenance of standards in agriculture education are governed by the UGC is not correct, as the revised scales of pay was issued by the Department of i^ f?'--'^'-:.--^.^'^^ 9. Agriculture. There is no mention of extension of age of retirement and at the bottom of Annexure - 1 of Annexure - P/3 (at page 23), it is clearly stated that the memo dated 24-12-1998 is not applicable to State Agricultural Universities unless the same is adopted by the State. The revision of pay scale was duly accepted by the State Government by order dated 20-10-1999 (Annexure - P/4). The letter dated 15-2-1972 (Annexure - P/9) which provides that the Librarian has to associate with the course also, does not change the nature ofjob as associating with the course does not mean that the librarian was required to teach for a minimum period of 20 years. The letter dated 15-3-1974 (Annexure - P/10), referred by the petitioner, whereby the petitioner was authorized to teach the students pursuing Librarian course does not fulfill the requirement of teaching of minimum 20 years to have the benefit of age of retirement at par with the teachers. In the letter dated 3-3-2000 (Annexure - R/2) it has been made clear that the Librarians are not teachers and as such, they are not entitled to extension of age of retirement. The petitioner has produced one more letter dated 16-11-1999 (Annexure - P/21) issued by the Deputy Secretary, Government of India, Ministry of Human Resource Development, New Delhi, wherein the age of superannuation of Librarians has been extended to 62 years. The said letter is not applicable to the Librarians of the Agricultural Universities as the Agricultural Universities are run by the Agriculture Department. The Human Resources Department does not make a recommendation in respect of the Agricultural Universities/Colleges. Even otherwise, the letter dated 16-11-1999 (Annexure - P/21) is addressed to the UGC wherein a suggestion sss^ has been made for enhancing the age of retirement in case of Librarian, Deputy Librarian and Assistant Librarian of the Universities/Colleges affiliated and recognized by the UGC. 10. It has not been pleaded by the petitioner that the respondent University is affiliated and recognized by the UGC. No material has also been produced to establish that the respondent University is affiliated and recognized by the UGC. It is submitted that in one case the Librarian was retired on attaining the age of 62 years. One instance cannot make the law. 11. In Seventh Schedule ofthe Constitution of India, entries No.62, 63, 64, 65 and 66 of the listl - Union List provides for educational institutions. Entry No.25 of the list III - concurrent list provides for education including technical education and medical education and Universities, vocational and technical training of labour. Agricultural education is neither in the Union list nor in the concurrent list, but in the entry No.14 of the list II - State list i.e. Agriculture, including agricultural education and research, protection against pests and prevention of plant diseases. 12. On the reasons stated hereinabove, it is clear that the Parliament is neither competent nor has passed any law, nor has established any Commission, which regulates and determines the pay scales and qualifications of the teachers and the Librarians of the Agricultural Universities/Colleges. This is for the State Legislature or the State Government to regulate the services conditions of the teachers and the employees of the Agricultural Universities/Colleges including the age of retirement. 13. The Supreme Court in B. Bharat Kumar and Others v. Osmania University and Others1, observed as under: "19. Learned counsel also argued, to a great extent, the desirability of the age of superannuation being raised to 60 or 62 as the case may be. We again reiterate that it is notfor this Court to formulate a policy as to what the age of retirement should be as by doing so we would be trailing into the dangerous area of the wisdom of the legislation. If the State Government in its discretion, which is permissible to it under the scheme, decides to restrict the age and not increase it to 60 or as the case may be 62, it was perfectly justified into doing so." 14. In the memo dated 24-12-1998 (Annexure - P/1) the UGC has made it clear that the revised pay scale, which was accepted for other Universities and colleges under the provisions of the UGC may be adopted by the State Government for Agricultural Universities/Colleges also. Thus, any recommendation made by the UGC unless it is accepted by the State Government for the purpose of teachers and Librarians of the Agricultural Universities would not be binding. Thus, the claim of parity raised by the petitioner (Librarian) with teachers of the Agricultural Universities for the purpose of age of superannuation is without any basis. 15. The Supreme Court in State of Madhya Pradesh and Another v. Pramod Bhartiya and Others2, wherein the Lecturers working in the Higher Secondary Schools were claiming parity with technical schools, observed as under: "12. The material abovementioned goes to show that (a) the qualifications prescribed for the lecturers in the Higher Secondary Schools and the non-technical lecturers in Technical Schools are the same; (b) service conditions of both the categories of lecturers are same and (c) that the status of the schools is also the same. There is, 1 (2007)118cc 58 2 (1993) 1 SCC 539 l)^ however, a conspicuous absence of any clear allegation and/or material suggesting that functions and responsibilities of both the categories of lecturers are similar. Much less is there any allegation or proof that qualitatively speaking, they perform similar functions. It is not enough to say that the qualifications are same nor is it enough to say that the schools are of the same status. It is also not sufficient to say that the service conditions are similar. What is more important and crucial is whether they discharge similar duties, functions and responsibilities. On this score there is a noticeable absence of material. Whether we look at the averments in, and the material produced along with, the original petition or to the averments in the counter-affidavit or even to the averments in the counter-affidavit filed by the Government in M.P. No. 2277 of 1985 (upon which the counsel for the respondents has placed strong reliance), we do not find any clear material to show that the duties, functions and responsibilities of both the categories of lecturers are identical or similar. In this context, it would be appropriate to refer to the definition of the expression "same work or work of similar nature" contained in clause (/?) of Section 2 of the Equal Remuneration Act, 1976. The said Act was enacted by Parliament (as pointed out by this Court in Mackinnon Mackenzie v. Audrey D'Costa) to implement Article 39(c/) of the Constitution and the obligation created by The Convention concerning Equal Remuneration for Men and Women Workers' for work of equal value (generally referred to as 'Equal Remuneration Convention, 1951') adopted on June 29, 1951, to which India is a signatory. Article 2 of the Convention obliged the signatory States to effectuate the said rule by all means including the machinery of law. The said Act is applicable to such establishments and employments as may be notified by the Central Government under Section 1(3) of the Act. Though the said Act is mainly directed against discrimination against women and is also not applicable to the employments or establishments to which the Respondents herein belong, yet the relevance of the said definition cannot be denied, occurs as it does in an enactment made to give statutory shape to the rule of "equal pay for equal work both for men and women". The definition in Section 2{h) reads: (2. (h) (same work or work of a similar nature' means work in respect of which the skill, effort and responsibility required are the same, when performed under similar }\7 16. working conditions, by a man or a woman and the difference, if any, between the skill, effort and responsibility required of a man and those required of a woman are not of practical importance in relation to the terms andconditions ofemployment;'" In State of Haryana and Others v. Charanjit Singh and Others3, the Supreme Court observed as under: ^^^^^t^M^^^^ Y^-----—^^.^^^ P^^<®$fei^ t^" '—•;-<-;-^^s:^^ "17. In Bhagwan Dass v. State of Haryana this Court held that if the duties and functions of the temporary appointees and regular employees are similar, there cannot be discrimination in pay merely on the ground of difference in modes of selection. It was held that the burden of proving similarity in the nature of work was on the aggrieved worker. We are unable to agree with the view that there cannot be discrimination in pay on the ground of differences in modes of selection. As has been correctly laid down in Jasmer Singh case persons selected by a Selection Committee on the basis of merit with due regard to seniority can be granted a higher pay scale as they have been evaluated by the competent authority and in such cases payment of a higher pay scale cannot be challenged. Jasmer Singh case has been noted with approval in Tarun K. Roy case. 19. Having considered the authorities and the submissions we are of the view that the authorities in the cases of Jasmer Singh, Tilak Raj, Orissa University of Agriculture & Technology and Tarun K. Roy lay down the correct law. Undoubtedly, the doctrine of "equal pay for equal work" is not an abstract doctrine and is capable of being enforced in a court of law. But equal pay must be for equal work of equal value. The principle of "equal pay for equal work" has no mechanical application in every case. Article 14 permits reasonable classification based on qualities or characteristics of persons recruited and grouped together, as against those who were left out. Of course, the qualities or characteristics must have a reasonable relation to the object sought to be achieved. In service matters, merit or experience can be a proper basis for classification for the purposes of pay in order to promote efficiency in administration. A higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues is also an acceptable reason for pay differentiation. The very fact that the ' (2006) 9 SCC 321 person has not gone through the process of recruitment may itself, in certain cases, make a difference. If the educational qualifications are different, then also the doctrine may have no application. Even though persons may do the same work, their quality of work may differ. Where persons are selected by a Selection Committee on the basis of merit with due regard to seniority a higher pay scale granted tosuch persons who are evaluated by the competent authority cannot be challenged. A classification based on difference in educational qualifications justifies a difference in pay scales. A mere nomenclature designating a person as say a carpenter or a craftsman is not enough to come to the conclusion that he is doing the same work as another carpenter or craftsman in regular service. The quality of work which is produced may be different and even the nature of work assigned may be different. It is not just a comparison of physical activity. The application of the principle of "equal pay for equal work" requires consideration of various dimensions of a given job. The accuracy required and thedexterity that the job may entail may differ from job to job. It cannot be judged by the mere volume of work. There may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities make a difference. Thus normally the applicability of this principle must be left to be evaluated and determined by an expert body. These are not matters where a writ court can lightiy interfere. Normally a party claiming equal pay for equal work should be required to raise a dispute in this regard. In any event, the party who claims equal pay for equal work has to make necessary averments and prove that all things are equal. Thus, before any direction can be issued by a court, the court must first see that there are necessary averments and there is a proof. If the hligh Court is, on basis of material placed before it, convinced that there was equal work of equal quality and all other relevant factors are fulfilled it may direct payment of equal pay from the date of the filing of the respective writ petition. In all these cases, we find that the High Court has blindly proceeded on the basis that the doctrine of equal pay for equal work applies without examining any relevant factors." w 10 "'^ 18. The ratio laid down in Charanjit Singh (supra) was referred with approval in S.C. Chandra and Others v. State of Jharkhand and Others . In the said decision the Supreme Court observed as under: "36. It is well settled by the Supreme Court that only because the nature of work is the same, irrespective of educational qualification, mode of appointment, experience and other relevant factors, the principle of equal pay for equal work cannot apply vide Govt. ofW.B. v. Tarun K. Roy." In State of Punjab and Another v. Surjit Singh and Others , the Supreme Court observed as under : 24. It is no longer in doubt or dispute that grant of the benefit of the doctrine of xequal pay for equal work' depends upon a large number of factors including equal work, equal value, source and manner of appointment, equal identity of group and wholesale or complete identity. This Court, even recently, in Union of India & Anr. v. Mahajabeen Akhtar, categorically held as under: (SCC pp. 376-77, paras 19 and 24). "19. The question came to be considered in a large number of decisions of this Court wherein it unhesitantly came to the conclusion that a large number of factors, namely, educational qualifications, nature of duty, nature of responsibility, nature of method of recruitment, etc. will be relevant for determining equivalence in the matter of fixation of scale of pay. (See Finance Deptt. v. W.B. Registration Service Assn.; State of U.P. v. J.P. Chaurasia; Union of India v. Pradip Kumar Dey and State of Haryana v. Haryana Civil Secretariat Personal StaffAssn.) 24. On the facts obtaining in this case, therefore, we are of the opinion that the doctrine of equal pay for equal work has no application. The matter may have been different, had the scales of pay been determined on the basis of educational qualification, nature of 4 (2007) 8 SCC 279 5 (2009) 9 SCC 514 r~° 11 M duties and other relevant factors. We are also not oblivious of the fact that ordinarily the scales of pay of employees working in different departments should be treated to be on a par and the same scale of pay shall be recommended. The respondent did not opt for her services to be placed on deputation. She opted to stay in the government service as a surplus. She was placed in list as Librarian in National Gallery of Modern Art. She was designated as Assistant Librarian and Information Assistant. Her pay scale was determined at Rs 6500-10,500 which was the revised scale of pay. Her case has admittedly not been considered by the Fifth Pay Revision Commission. If a scale of pay in a higher category has been refixed keeping in view the educational qualifications and other relevant factors by an expert body, no exception thereto can be taken. Concededly it was for the Union of India to assign good reasons for placing her in a different scale of pay. It has been done. We have noticed hereinbefore that not only the essential educational qualifications are different but the nature of duties is also different. Article 39(d) as also Article 14 of the Constitution of India must be applied, inter alia, on the premise that equality clause should be invoked in respect of the people who are simjlarly situated in all respects'. How the said principle is to be applied in different fact situation is the only question. Whereas this Court refused to apply the said principle as the petitioners therein did not have the requisite qualification; in Union of India v. Dineshan K.K, the application of the rule was advocated to be left to an expert body, stating : (Dinehan K.K. case SCC pp. 592-93, para 16). "16. Yet again in a recent decision in State of Haryana v. Charanjit Singh a Bench of three learned Judges, while affirming the view taken by this Court in State of Haryana v. Jasmer Singh, Tilak Raj, Orissa University of Agriculture & Technology v. Manoj K. Mohanty and Govt. of W.B. v. Tarun K. Roy has reiteratedthat the doctrine of equal pay for equal work is not an abstract w SE1^^;s§.s...^. 12 19. 20. doctrine and is capable of being enforced in a court of law. Inter alia, observing that equal pay must be for equal work of equal value and that the principle of equal pay for equal work has no mathematical application in every case, it has been held that Article 14 permits reasonable classification based on qualities or characteristics of persons recruited and grouped together, as against those who are left out. Of course, the qualities or characteristics must have a reasonable relation to the object sought to be achieved. Enumerating a number of factors which may not warrant application of the principle of equal pay for equal work, it has been held that since the said principle requires consideration of various dimensions of a given job, normally the applicability of this principle must be left to be evaluated and determined by an expert body and the court should not interfere till it is satisfied that the necessary material on the basis whereof the claim is made is available on record with necessary proof and that there is equal work of equal quality and all other relevant factors are fulfilled." Applying the well settled principles of law to the facts of the case on hand, it is