Case: Steel Authority Of India Ltd Vs. Dibyendu Bhattacharya

3. Facts and circumstances giving rise to this appeal are that the appellant No.2 issued an advertisement in The Statesman newspaper dated 22.9.1993 inviting applications for the post of Speech Therapist/Audiologist at the Durgapur Steel Plant in6 grade in Medical and Health Services. The respondent applied in response to the said advertisement. An interview was held on 17.6.1996 and the respondents name found place at serial no.4 in the merit list. As none of the first three candidates joined, the appointment was offered to the respondent vide letter dated 17.6.1996. The respondent joined the said post without any protest. After serving for a few years, respondent started claiming parity with one Shri B.V. Prabhakar, employed at Rourkela Steel Plant, a different unit of the same company who was holding the post of1 grade in executive cadre though designated as Speech Therapist/Audiologist. Respondent made representation dated 1.9.2004 not claiming parity in pay but to change the cadre and upgrade his post, accord relaxation in eligibility and give him thee of the post of1 grade from the date of his joining the service. The said representation stood rejected vide order dated 12/14.10.2004 by the Authorities, observing that upgradation of his post to executive cadre was not permissible under the policy of the company, and as the respondent was working ine cadre, he could not claim parity with an employee in another unit of the company on a post of executive cadre4. Being aggrieved, the respondent preferred the writ petition before the High Court claiming the same relief, however, the learned Single Judge dismissed the same vide judgment and order dated 16.9.2005. The respondent challenged the said judgment by filing an intra court appeal. The said appeal has been allowed, issuing direction to the present appellants to grant thee to the respondent as was being paid to Shri B.V. Prabhakar at the Rourkela Steel Plant in the executive cadre and that too from the date of his initial appointment. The arrears also were to be paid within six weeks. Hence, this appeal.

Reasoning:
16. 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 of `equal pay for equal work as enshrined under Article 39 (d) of the Constitution read with Article 14 thereof, cannot be applied in a vacuum. The constitutional scheme postulates equal pay for equal work 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. The burden of establishing right and parity in employment is only on person claiming such right. (Vide U.P. State Sugar Corporation Ltd. & Anr. v. Sant Raj Singh & Ors., AIR 2006 SC 2296 ; Union of India & Anr. v. Mahajabeen Akhtar, AIR 2008 SC 435 ; Union of India & Ors. v. Dineshan K.K., AIR 2008 SC 1026 ; Union of India & Ors. v. Hiranmoy Sen & Ors., (2008) 1 SCC 630 ; Official Liquidator v. Dayanand and Ors., (2008) 10 SCC 1 ; Uttar Pradesh State Electricity Board & Anr. v. Aziz Ahmad, (2009) 2 SCC 606 ; and State of Madhya Pradesh & Ors. v. Ramesh Chandra Bajpai, (2009) 13 SCC 635 )24. It is a settled legal proposition that it is not always impermissible to provide two differents in the same cadre on the basis of selection based on merit with due regard to experience and seniority. (Vide J.P. Chaurasia (Supra) and Meva Ram Kanojia (Supra)s would not in all events violate Article 14. Thus, a mere difference does not always amount to discrimination. (Vide Madhu Kishwar & Ors. v. State of Bihar & Ors., (1996) 5 SCC 125 ; Associate Banks Officers Association v. State Bank of India & Ors., AIR 1998 SC 32 ; and Official Liquidator (Supra))26. In view of the above, the law on the issue can be summarised to the effect that parity of pay can be claimed by invoking the provisions of Articles 14 and 39(d) of the Constitution of India by establishing that the eligibility, mode of selection/recruitment, nature and quality of work and duties and effort, reliability, confidentiality, dexterity, functional need and responsibilities and status of both the posts are identical. The functions may be the same but the skills and responsibilities may be really and substantially different. The other post may not require any higher qualification, seniority or other like factors. Granting parity in pay scales depends upon the comparative evaluation of job and equation of posts. The person claiming parity, must plead necessary averments and prove that all things are equal between the concerned posts. Such a complex issue cannot be adjudicated by evaluating the affidavits filed by the parties. The onus to establish the discrimination by the employer lies on the person claiming the parity of pay. The expert committee has to decide such issues, as the fixation of pay scales etc. falls within the exclusive domain of the executive. So long as the value judgment of those who are responsible for administration i.e. service conditions etc., is found to be bonafide, reasonable, and on intelligible criteria which has a rational nexus of objective of differentiation, such differentiation will not amount to discrimination. It is not prohibited in law to have two grades of posts in the same cadre. Thus, the nomenclature of a post may not be the sole determinative factor. The courts in exercise of their limited power of judicial review can only examine whether the decision of the State authorities is rational and just or prejudicial to a particular set of employees. The court has to keep in mind that a mere difference in service conditions does not amount to discrimination. Unless there is complete and wholesale/wholesome identity between the two posts they should not be treated as equivalent and the Court should avoid applying the principle of equal pay for equal work27. The present case requires to be examined in view of the aforesaid settled legal propositions. Undoubtedly, the respondent had applied in response to an advertisement for the post of Grade6 and not for Grade1 as he did not possess the requisite qualifications for the post in the said Grade. The name of the respondent had appeared at serial No. 4 in the merit list and he was offered appointment only for the reason that the candidates whose names appeared at serial Nos.1 and 3 asked for payn of the post, and it was not acceptable to the employer. The candidate whose name appeared at serial No.2 in the merit list, did not join though was offered the appointment. The respondent accepted the appointment in Grade6 on the terms and conditions incorporated in his appointment letter without any protest. The relief sought by the respondent is the same, which had, in fact been asked by two candidates in the merit list, above the respondent. If such a demand was acceptable to the appellants they could have gotten a more meritorious candidate than respondent. Grant of the relief sought by the respondent is violative of equality clause contained in Article 14 of the Constitution of India qua other candidates in the panel above the respondent who did not join for not granting the same relief though it had been sought at least by two of them at the initial state of recruitment. By the impugned order, the respondent has not been granted the post in Grade1 but salary equivalent to that of Shri B.V. Prabhakar has been granted to the Respondent. The order itself is mutually inconsistent and contradictory. The representation of the respondent had been for waiving the criteria meaning thereby that the respondent sought a relaxation in the eligibility criteria for the post in Grade. It is evident from the representation itself that the respondent never possessed the eligibility for the post of Grade. The Law does not prohibit an employer to have different grade of posts in two different units owned by him. Every unit is an independent entity for the purpose of making recruitment of most of its employees. The respondent had not been appointed in centralised services of the company. Shri B.V. Prabhakar, had been appointed in1 Grade, in the Rourkela unit, considering his past services in the Bokaro Steel Plant, another unit of the company, for about two decades prior to the recruitment of the respondent. As every unit may make appointments taking into consideration the local needs and requirement, such parity claimed by the respondent cannot be held to be tenable. The reliefs sought by the respondent forthe post and waiving the eligibility criteria had rightly been refused by the appellants and by the learned Single Judge. In such a, there was no justification for the Division Bench to allow the writ petition, granting the benefit from the date of initial appointment of the respondent. The respondent has not produced any tangible material to substantiate his claim, thus, he could notthe onus of proof to establish that he had made some justifiable claim. The respondent miserably failed to make out a case for pay parity to the post of1 Grade in executive cadre. The appeal, thus, deserves to be allowed28. Before parting with the case, it may be pertinent to state that although a Plant/Unit of they is competent to make appointment in the executive ande cadres in the said plant/unit, however, it has no authority to determine the grade or the pay scale of a post or determine and sanction the number of posts since the same relates to the recruitment policy of the. This would be evident from the perusal of the Recruitment Plan of they laid down at Clause 7.1 of the Personnel Manual which reads:The Recruitment Plan will form part of the annual Human Resource Plan of the Company. Among other things, the Human Resource Plan will clearly state the skill/grade wise requirement of man power in the Company i.e., the Plants/Units, and the subsidiaries separately. Any deviation from the approved plan/mix will be subject to the prior approval of Chairman/BoardIn view of the above, the competent authority in the corporate office of they is directed to consider the issue expeditiously relating to anomaly raised by the respondent herein for future recruitments.