Case: PUNJAB STATE POWER CORPORATION LTD Vs. RAJESH KUMAR JINDAL

promotion from Circle Assistants/ARAs. The grievance of the respondents in this regard has been taken note by the Pay Anomaly Committee and as per its view in para (5.1), the same is redressed.36. Promotional avenues available to the Internal Auditors:- Promotional channels which are available against the post of Head Clerk, Internal Auditor and Senior Assistant are as under:-tableBy perusal of the above, it is seen that the promotional avenues which are available to all the Internal Auditors are far more in comparison to the promotional avenues which are available to the Head Clerks. Therefore, for this reason also, option of Internal Auditors which has been exercised by the Internal Auditors was a “conscious option” exercised by them because of more promotional avenues may available in the channel of Internal Auditors.37. That apart, the pay scales which are available in the promotional channel for Internal Auditors are also sharply higher than the Head Clerks. A Head Clerk on promotion to a Circle Superintendent receives one additional increment above the scale of Rs.10900- 34800 plus grade pay of Rs.5450 (i.e. available to a Head Clerk). However, in the Internal Auditors channel, further promotion as Accounts Officer will be in the pay scale of Rs.16650- 39100 plus grade pay of Rs.5800. Thereafter, on promotion as Deputy Chief Accounts Officer, he receives one further increment and the grade pay increases to Rs.8500. Thereafter, on further promotion as Chief Accounts Officer, he goes into the scale of Rs.41300-67000 plus grade pay of Rs.9600. Two senior-most Chief Accounts Officers are put in the scale equivalent to Chief Engineer i.e. Rs.41300-67000 plus grade pay of Rs.10500. From submission of the appellant-Board, we find that the increase in the pay scale is much higher on promotion against the post in the Internal Auditor promotional channel. Thus, for the said reason also, the choice of Internal Auditors made by all the persons (including those who have exercised the option between 01.01.1986 to 03.10.1990) is a reasoned choice keeping in view the greater promotional avenues and the higher pay scales which are available.38. It is also relevant to note that insofar as the direct recruits are concerned, the direct recruited Internal Auditors are entitled to a time-bound promotional scale on completion of nine and sixteen years of service. Time-bound promotional scale of directly recruited Internal Auditors after regular service of nine years is Rs.1900-3300 (unrevised) and after completion of sixteen years of service is Rs.2000-3500 (unrevised). However, no such time-bound promotional scale is available to Head Clerks. Head Clerks are not directly recruited and their appointment as Head Clerk is by promotion only.39. The only ground urged by respondents-Internal Auditors is that parity of pay scale between the Head Clerks and the Internal Auditors was maintained by the appellant-Board for more than two decades and while so, disturbing the parity is arbitrary and illegal. The Court has to keep in mind that a mere difference in service conditions, does not amount to discrimination. Unless there is complete identity between the two posts, they should not be treated as equivalent to claim parity of pay scale. No doubt, Internal Auditors were earlier placed in the same group namely Group XII; but educational qualifications for the post of Head Clerk and mode of recruitment are different. As submitted by the learned Senior Counsel for the appellant-Board, that in the year 1980, there were only four posts in Group XII but subsequently some posts were added to Group XII and the total fourteen posts which were added to Group XII are:- Punjabi Teacher, Drawing Teacher, Hindi Teacher, D.P.Ed. Teacher, Master/Mistress, Science Teacher, Security Inspector, Modeller Divisional Head Draftsman, Prosecuting Inspector (now Law Officer), Law Officer Grade II, Medical Assistant, Librarian and Fire Officer, etc. For all these posts, source and mode of recruitment, qualifications and nature of work are entirely different. If the contention of the Internal Auditors for claiming parity of pay scale with that of Head Clerks merely on the ground that the post of Internal Auditor was placed in Group XII, then if such parity of pay scale may have to be extended to all other posts, it would have huge financial implication on the finance of the Board which is a service-oriented institution owing to the consumers. As held in Union of India and Another v. Manik Lal Banerjee (2006) 9 SCC 643 , “it is now a well settled principle of law that financial implication is a relevant factor for accepting the revision of pay.”40. The learned Single Judge proceeded under the erroneous footing as if the case of Internal Auditors is covered by the case put forth by Sub Fire Officers. The learned Single Judge did not keep in view the counter statement filed by the appellant-Board before the High Court pointing out various distinguishing features of Internal Auditors and Head Clerks on account of which no parity could be granted to the Internal Auditors with the Head Clerks. The High Court also did not keep in view that the Pay Anomaly Committee did consider the demand of Internal Auditors and had not accepted the demand in view of different nature of duties and various other relevant factors. The learned Single Judge erred in recording that the respondents were in the same category of “Sub Fire Officers” within the same group which have been decided by the earlier judgment dated 21.01.2010.41. As discussed earlier, merely because various different posts have been categorized under Group XII, they cannot claim parity of pay scale as that of the Head Clerk. All the more so, when the Internal Auditors are appointed 55% by direct recruitment and 45% by promotion from Circle Assistant/Assistant Revenue Accountant. The High Court did not keep in view that the duties, nature of work and promotion channel of Head Clerks and Internal Auditors are entirely different and that option to seek promotion apparently as Internal Auditors was the “conscious exercise of option”, the impugned judgment cannot be sustained and is liable to be set aside.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]21. It is well settled that for considering the equation of posts and the issue of equivalence of posts, the following factors had been held to be determinative:-(i) The nature and duties of a post;(ii) The responsibilities and powers exercised by the officer holding a post, the extent of territorial or other charge held or responsibilities discharged;(iii) The minimum qualifications, if any, prescribed for recruitment to the post; and(iv) The salary of the post (vide Union of India and Another v. P.K. Roy and Others AIR 1968 SC 850  ).The burden of proof in establishing parity in pay scales and the nature of duties and responsibilities is on the person claiming such right. The person claiming parity must produce material before the court to prove that the nature of duties and functions are similar and that they are entitled to parity of pay scales. After referring to number of judgments and observing that it is the duty of an employee seeking parity of pay to prove and establish that he had been discriminated against, this Court, in SAIL, held as under:-22. It is the duty of an employee seeking parity of pay under Article 39(d) of the Constitution of India to prove and establish that he had been discriminated against, as the question of parity has to be decided on consideration of various facts and statutory rules, etc. The doctrine ofpay for equalas enshrined under Article 39(d) of the Constitution read with Article 14 thereof, cannot be applied in a vacuum. The constitutional scheme postulates equalpay for equalwork for those who are equally placed in all respects. The court must consider the factors like the source and mode of recruitment/appointment, the qualifications, the nature of work, the value thereof, responsibilities, reliability, experience, confidentiality, functional need, etc. In other words, the equality clause can be invoked in the matter of pay scales only when there is wholesome/wholesale identity between the holders of two posts.Nature of duties and responsibilities of Head Clerks are different from the Internal Auditors:- The duties and nature of work of Head Clerks and Internal Auditors are entirely different. Head Clerk works under XEN, Drawing and Disbursement Officer and there is only one Head Clerk in the Division Office. Head Clerk is the Head of the establishment in the Divisional Office and total work of the establishment is under the control of the Head Clerk. The Head Clerk disburses the salaries and other payments of the Sub-divisions and Division Offices and also maintains the leave and other miscellaneous works for the Sub-divisions and the Division Offices and discharges administrative functions and thus, has more responsibilities. Per contra, Internal Auditor works under the control of Chief Auditor. Duty of the Internal Auditor is to audit the billing of the Revenue Department of the Sub-division Office which includes billing of domestic supply to large supply. Internal Auditors work in the Sub-division and there can be one or more Internal Auditors as per quantity of work.25. It is thus well settled that it is the duty of an employee seeking parity of scale of pay to prove that the educational qualifications required for both the posts, mode of recruitment and the nature of work performed by them are one and the same. There are neither pleadings nor any material produced by the respondents to prove that the nature of work performed by the Internal Auditors is similar with that of the Head Clerks. In the writ petition, respondents have claimed parity of pay scale only on the ground that they were categorised in Group XII along with the Head Clerks. Merely on the ground that the cadre of Internal Auditors are placed in Group XII along with the Head Clerks, cannot be a ground for seeking parity of pay scale.31. Though the above arguments of the respondents appear to be attractive, when considered in the light of the well settled principles, we find no merit in the contention. Equation of posts and revision of pay scale is within the domain of the Government. The matter should be left to the discretion and expertise of the Pay Committee and the Government to take the decision on the scale of pay/revision of pay scale by considering the nature of duties and responsibilities. As pointed out earlier, the Pay Anomaly Committee has given elaborate reasons for revising the pay scales of the Head Clerks at Rs.2000-3500 and Internal Auditors at Rs.1800-3200. The conclusion arrived at by the experts/Pay Anomaly Committee are not susceptible to judicial review and the courts are not to interfere with the decision of the Government which is based on the opinion of the experts.40. The learned Single Judge proceeded under the erroneous footing as if the case of Internal Auditors is covered by the case put forth by Sub Fire Officers. The learned Single Judge did not keep in view the counter statement filed by the appellant-Board before the High Court pointing out various distinguishing features of Internal Auditors and Head Clerks on account of which no parity could be granted to the Internal Auditors with the Head Clerks. The High Court also did not keep in view that the Pay Anomaly Committee did consider the demand of Internal Auditors and had not accepted the demand in view of different nature of duties and various other relevant factors. The learned Single Judge erred in recording that the respondents were in the same category ofwithin the same group which have been decided by the earlier judgment dated 21.01.2010.41. As discussed earlier, merely because various different posts have been categorized under Group XII, they cannot claim parity of pay scale as that of the Head Clerk. All the more so, when the Internal Auditors are appointed 55% by direct recruitment and 45% by promotion from Circle Assistant/Assistant Revenue Accountant. The High Court did not keep in view that the duties, nature of work and promotion channel of Head Clerks and Internal Auditors are entirely different and that option to seek promotion apparently as Internal Auditors was thethe impugned judgment cannot be sustained and is liable to be set aside.