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PETITIONER:

GARHWAL JAL SANSTHAN KARMACHARI UNION & ANOTHER

Vs.

RESPONDENT:

STATE OF U.P. & ORS.

DATE OF JUDGMENT: 27/03/1997

BENCH:

K.S. PARIPOORNAN, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

S.P. KURDUKAR, J.

This Civil Appeal by Special Leave is filed by the

appellants challenging the correctness of the judgment dated

April 18, 1995 rendered by the Division Bench of the

Allahabad High Court. The first respondent is the State of

Uttar Pradesh. The second respond respondent is Garhwal Jal

Sansthan, Dehradun.

2. By way of a writ petition under Article 226 of the

Constitution of India , The appellants challenged the

legality and correctness of the communication/order dated

5th march, 1984 passed by the State Government. A further

relief was sought for issuance of a writ of mandamus or

direction to the respondents not implement the order dated

5th March, 1984 and instead to implement the resolution

dated 4th June, 1983 passed by the second respondent.

3. The claim set out by the appellants in their writ

petition was that they are entitled for the same pay scales

which are given to the employees of Jal Nigam. In short, the

appellants claim is based on the principle of equal pay for

equal work and it arises under the following circumstances.

4. The State of Uttar Pradesh in the year 1975 enacted the

U.P Water Supply and Sewerage Act, 1975(for short `the

Act'). Prior to the passing of this Act, it appears that

there were two departments (1) Local self Engineering

Department which was entrusted including proper water supply

and sewer age service and (2) after installation of such

projects, they used to be handed over to the Nagar Palikas

and Municipal Boards for maintenance by their respective

employees. From the record it further appears that the

services and the pay scales in these two departments were

not identical and the former was directly under the control

of government whereas the latter was under the control of

local bodies such as Maha palikas or Municipal Boards.

5. The Government of Uttar Pradesh under the Act created

two separate and distinct Corporations. U.P Jal Nigam has

been constituted under section 3 of the Act being a body

corporate having jurisdiction all over the territory of

uttar Pradesh. Jal Sansthans have been established under

section 18 having jurisdiction over the local area or any

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part thereof , of one or more local bodies as the State

Government may specify in the notification. Jal Sansthan is

again a body corporate and is deemed to be the local

authority. Under section 31 of the Act with effect from June

18, 1975, all properties, assets, liabilities and

obligations of U.P. Local self Government Engineering

Department stood vested under Jal Nigam and Consequently the

employees of this department stood allocated and transferred

to the Uttar Pradesh Jal Nigam. From the scheme of the Act ,

it appears that Jal Nigam (corporation) is vested with the

jurisdiction all over the State and is fully controlled by

the State Government. As against this, Jal Sansthans which

are established under Section 18 of the Act exercised their

jurisdiction in respect of the local area or any part

thereof, of one or more local bodies as specified by the

state Government by notification. It is, therefore, quite

apparent that Jal Nigam has got a wider jurisdiction than

Jal Sansthan, although some of the duties and obligations

are similar. The nature of work discharged by Jal Nigam and

Jal Sansthan is also to some extent similar but having

regard to the scheme of the Act, it cannot be said that both

of the discharged the same duties and functions. The

distinction between them is again noticed from the

provisions contained in Section 16 of the Act Wherein Jal

Nigam is empowered to call for such reports and information

from Jal Sansthan or local body whenever it may be

considered necessary and after considering the reports and

information may issue such directions to Jal Sansthan or

local Body as may be found necessary. Section 17 of the Act

in fact confers supervisory powers on Jal Nigam. The duties

and the work assigned to Jal Nigam and jal sansthan, inter

alia, provide for formulation of the projects and schemes

relating to the water supply and sewerage. The functions of

Jal Nigam have been specifically set out in Section 14 of

the Act whereas functions of Jal Sansthan have been

enumerated in Section 24. After going through the various

provisions of the Act, it appears to us that Jal Nigam and

Jal Sansthan area two distinct body corporates although some

of the functions are overlapping and of similar nature. It

is the claim of the appellants that the duties , obligations

and the work discharged by the employees of both these

Corporations being identical, they are entitled for parity

in pay scales on the principle of equal work. The appellants

sought to justify their claim on the basis of the resolution

dated 4th June, 1983 passed by Jal Sansthan, Dehradun

approving the pay parity with the employees of Jal Nigam .

The resolution dated 4th June, 1983 was sent to the State

Government for its approval, however, the State Government

vide its communication dated 5th March, 1984 did not accord

permission to implement the said resolution and as a result

thereof, they were required to file the aforesaid writ

petition in the High Court for the aforesaid reliefs.

6. The high Court after considering the pleadings and

materials on record held that the employees of jal sansthhan

cannot be equated in the matter of pay scales with the

employees of Jal Nigam. The High court , inter alia noticed

the following of differences between the tow corporations;

(1) Jal Sansthan was constituted under section 18 of the Act

and it is a local authority . The Nature of work of the

employees is the same as that of local bodies, (2) Jal

Sansthans are under the purview of pay commission for the

local bodies, (3) there is a basic difference in the Jal

Nigam and Jal Sansthan and (4) Jal Nigam is a separate

corporation and the employees are under the purview of

separate commission. Consistent with these findings, the

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High Court declined to grant any relief to the appellants

(writ petitioners).

7. Mr. G.L Sanghi, Learned Senior Advocate appearing in

support of this appeal urged that both these Corporations

have been created under the Act and the nature of work

discharged by the employees being similar, there is no

justification to deny the parity in the pay scales of the

employees of Jal Nigam and Jal Sansthan . He draw our

attention to Annexures II,III,IV and `A' and contended that

the Garhwal Jal Sansthan had been creating posts from time

to time by passing resolutions and extended the benefit of

leave encashment, reimbursement of medical expenses etc. to

its employees in the same manner as were made applicable to

the employees of the Jal Nigam. In this Context, counsel

drew our attention to the resolution dated 4th June, 1983

passed by the Jal Sansthan recommending and seeking sanction

from the State Government, to bring parity in respect of the

pay scales of the employees of jal Sansthan with Jal Nigam.

Counsel therefore, urged that the High Court was totally

wrong in denying the reliefs to the appellants.

8. As indicated earlier, some of the duties and functions

discharged bu; the employees of Jal Nigam and Jal Sansthan

are similar but the question is whether that by itself is a

decisive factor to hold that the employees of the first

appellant union are entitled for the parity of pay scales

with the employees of Jal Nigam. Can the principle of equal

pay for equal work be applied to the two sets of employees

in different organisations who area discharging the duties

and functions to some extent similar without reference to

the qualitative commonality thereof? From the scheme of the

Act, the duties and functions assigned to the employees of

Jal Nigam and Jal Sansthan, are in many respects

qualitatively different. Jal Nigam is a corporation fully

controlled by the state and extending the jurisdiction all

over the territory of Uttar Pradesh whereas the duties and

functions of Jal Sansthans are restricted to local area and

under the control of local bodies. From the material

produced before us, we are constrained to say that there is

qualitative difference in the duties and functions

discharged by the employees of Jal Nigam an Jal Sansthan

and, therefore , the claim of equal pay for equal work on

the plea of discrimination under Articles 14 and 16(1) of

the Constitution is without any foundation. The principle of

equal pay for equal work would not be applicable where

qualitative difference in functions and responsibilities is

apparent. This Court in State of Madhya Pradesh and another

vs. Pramod Bhartiya and others, 1993(1) SCC 539 had an

occasion to consider the application of this principle .

After careful consideration of various decisions on this

subject, this Court held as under:-

"It would be evident from this

definition that the stress is upon

the similarity of skill, effort and

responsibility when performed under

similar conditions. Further as

pointed out by Mukharji, J. (as he

then was) in Federation of All

India Customs and 1983(3) SCC 91,

the quality of work may vary

institution to institution. We

cannot ignore or overlook this

reality, It is not a matter of

assumption but one of proof. The

respondents (original petitioners)

have failed to establish that

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their duties, responsibilities and

functions are similar to those of

the non-technical lecturers in

Technical Colleges. They have also

failed to establish that

distinction between their scales of

pay and that of non-technical

lecturers working in Technical

Schools is either irrational and

that it has no basis, or that it is

vitiated by mala fides, either in

law or in fact(see the approach

adopted in Federation case ). It

must be remembered that since the

plea of equal pay for equal work

has to be examined with reference

to Article 14, the burden is upon

the petitioners to establish their

right to equal pay, or the plea of

discrimination, as the case may be.

This burden, the original

petitioners (respondents herein)

have failed to discharge."

In state of Haryana and others Vs. Jasmer Singh and

others, 1977(1) Supreme 137, this Court observed that

principle of equal pay for equal work is not always easy to

apply. There are inherent difficulties in comparing and

evaluating work done by different persons in different

organizations, or even in the same organization. This Court

observed as follows:-

"It is, therefore, clear that the

quality of work performed by

different sets of persons holding

different jobs will have to be

evaluated. There may be differences

in educational or technical

qualifications which may have a

bearing on the skills which the

holders bring to their job although

the designation of the fob may be

the same. There may also be other

considerations which have relevance

to efficiency in service which may

justify differences in pay-scales

on the basis of criteria such as

experience and seniority, or a need

to prevent stagnation in the cadre,

so that good performance can be

elicited from persons who have

reached the top of the pay-

consideration which may have a

bearing on efficient performance in

a job. This Court has repeatedly

observed that evaluation of such

jobs for the purpose of pay-scale

must be left to expert bodies and,

unless there are any mala fides,

its evaluation should be accepted."

In view of the settled position of law, we are of the

considered view that the appellants have not brought on

record any material which justify their claim based on the

principle of equal work.

9. Mr. Sanghi, Learned Counsel for the appellants drew our

attention to the decision of this Court in Babu Lal,

Convenor and anr. Vs. New Delhi Municipal Committee an anr.

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1994 suppl. (2) SCC 633. The dispute in this case was in

respect of the pay scales of SWD Beldars and SWD Mates Vis-

a-Vis the work of Sewermen/Sewermates and SWD Lorry Beldars-

class IV employees working under the New Delhi Municipal

Committee. On the basis of the pleadings and record of the

said case, this Court found that the work of SWD Beldars and

SWD Mates is almost similar to the work of SWD

Sewermen/Sewermates and SWD Lorry Beldars. This decision, in

our opinion, is based upon the facts of that case and,

therefore, it is distinguishable. Mr. Sanghi then drew our

attention to another decision of this Court in Kshatrapal

Sharma and others Vs. Lt. Governor and others. 1993 Suppl,

(3) SCC 206. This decision again proceeds on the footing

that there is commonality of work among the employees in

each department of New Delhi Municipal Committee and if this

be so, granting benefit of Shiv Shanker Committee to certain

categories although, there is commonality of work is

discriminatory. This decision is again distinguishable on

facts.

10. It was contended on behalf of the appellants that the

second respondent vide its resolution dated 4th June, 1983

resolved to pay the same pay-scales as are paid to the

employees of Jal Nigam, to its employees after considering

financial implication thereof. The second respondent has

only sought the approval of the State Government to its

resolution dated 4th June, 1983 passed by the second

respondent. This submission need not detain us any longer

because the State Government exercises a supervisory power

and if the State Government finds that the appellants's

claim based on principle of equal pay for equal work is

unsustainable, it cannot be said that the government

decision is either arbitrary or suffers from any vice.

11. In view of our above conclusions, we are of the opinion

that the judgment of the High Court suffers from no

infirmity. The appeal to stand dismissed. In the facts and

circumstances of the case, we direct the parties to bear

their own costs.