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PETITIONER:

SHRI ALVARO NORONHA FERRIERA & ANR.

Vs.

RESPONDENT:

UNION OF INDIA & ORS.

DATE OF JUDGMENT: 23/04/1999

BENCH:

K.T. Thomas, S.Saghir Hamad

JUDGMENT:

THOMAS, J.

Some Judges whose function was dispensation of justice

had to approach the High Court for justice based on the

celebrated doctrine equal pay for equal work but they were

non-suited by a Division Bench of that High Court. They

were Judges of higher judiciary in the subordinate level.

They have now come to the Supreme Court with this appeal by

special leave. It is interesting that, in the meanwhile,

two of them have become Judges of the same High Court of

Bombay as efflux of a decade in between has changed the

hierarchiel status of the parties who initiated this legal

action. When they filed the writ petition in the High Court

they were District and Sessions Judges. One of them has

since retired from service but the cause which they espoused

survives.

The nub of their grievance is this: When the scale of

pay of their counterparts in the Union Territory of Delhi

was increased, appellants, while working in the same cadre

in the Union Territory of Goa, were not given that pay

scale. It infringes, according to them, the principle

enshrined in the Constitution.

Facts are simple. On 20-12-1961 the Territories of

Goa, Daman and Diu were liberated from the suzerainty of

Portugal. In 1962, Goa became part of the Union Territory

of India. Appellants were District Judges posted in the

Union Territory of Goa. On 3-9-1981 the pay-scale of

judicial officers (in the category of Additional District &

Sessions Judges) in the Union Territories was the same

Rs.1200-2000/-. In 1982 the Union Territory of Delhi

increased the scale of pay of such Judges to Rs.2000-3200/-

while their counterparts in the Union Territory of Goa were

not given any increase to keep the scale on par with the

former. When the Fourth Pay Commission was formed

representations were made by the judicial officers of Goa to

rectify the anomaly which, according to them, came into

existence for the first time in 1982, but no relief was

provided to them. On the contrary, the recommendations of

the Pay Commission were for raising the scale of pay of

Delhi Judges to Rs.4500-5700/- while that of Goa Judges was

raised only to Rs.3000- 5000/-.

On 30-5-1987, Goa became a State separate from Union

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Territory. It is conceded that appellants cannot claim

parity with the Delhi judicial officers after that date.

Hence the grievance of the appellants was confined to the

period between 1-3-1982 and 31-3-1987. Appellants therefore

filed writ petitions before the High Court for necessary

reliefs to be granted to them.

The Division Bench of the High Court while declining

to grant the reliefs advanced the following reasons:

It is now well-settled by a catena of decisions of

the Supreme Court and this Court that the doctrine of equal

work, equal pay is a well-accepted norm in administration

of services under the control of the Governments. To enable

the employees to claim an advantage, it is essential to

establish that the posts of judicial officers in Delhi and

Goa are equal or are comparable before demanding that the

pay scales available to Delhi officers should be made

available to Goa officers. The only averment in the

petition is that the posts in Delhi and Goa Judicial Service

carry the same duties, responsibilities and nature of work

being identical, the Goa officers are entitled to identical

pay scales as those available to Delhi officers. The

averment made in the petition is not supported by any

material whatsoever and it would be impossible to draw on

imagination to hold that the nature of the duties of

officers in Delhi and Goa are identical.

Learned Judges repelled the contention that since

Delhi and Goa were Union Territories it must be assumed that

the nature of the duties and responsibilities of the

District and Sessions Judges were identical and consequently

both must get same benefit. They took the view that merely

because the officers in the two Territories are in judicial

service it cannot be even suggested that the nature of the

duties and the responsibilities are identical.

To buttress the aforesaid reasoning the Division Bench

cited an illustration as the following: Take for

illustration, the nurses employed in a large hospital in a

city like Bombay. Is it possible by any stretch of

imagination to suggest that the nurses working in a small

hospital in a remote village are performing the same duties

and carrying the same responsibilities as the nurses working

in a large hospital in a city like Bombay?

Ultimately the writ petitions were dismissed as

learned Judges were unable to appreciate on what basis they

could claim to be entitled to the same pay-scales as those

available to judicial officers in Delhi. In the concluding

passage the Division Bench said that in our judgment the

claim made by the petitioners is wholly misconceived and the

petitioners are not entitled to any relief. We are unable

to grant any relief to the petitioner and the petition must

fail.

Shri Ashok Desai, learned senior counsel contended

that Division Bench of the High Court missed the crucial

point that the claim is confined to the period when the

District Judges and their counterparts in Delhi were working

under the same Union Government though the administration in

the two territories was carried on through separate

agencies. According to the senior counsel, pendency of work

at two places is not a criteria, as the workload and the

nature of work at both places were substantially the same.

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The illustration of nurses cited in the judgment was sought

to be demonstrated as another point in support of the claim

instead of repelling it.

The principle of equal pay for equal work has gained

judicial recognition. The principle incorporated in Article

14 when understood from the angle provided in Article 39(d)

of the Constitution is held to be the recognition of the

aforesaid doctrine. It has been held in Randhir Singh vs.

Union of India [1982 (1) SCC 612] that the principle equal

pay for equal work is not an abstract doctrine but one of

substance. Their Lordships pointed out: To the vast

majority of the people in India the equality clauses of the

Constitution would mean nothing if they are unconcerned with

the work they do and the pay they get. To them the equality

clauses will have some substance if equal work means equal

pay.

The parameters for invoking the said principles would

include, inter alia, nature of the work and common employer.

There can be no two views that the nature of work of

District and Sessions Judges is the same though in some

areas pendency of cases would be higher than others.

Differences in the backlog are not uncommon even in two

different stations of the same territory, nay, in two

different courts of the same station. Such lopsidedness is

hardly the ground to conclude that the nature of work done

by one judicial officer at one place is different from

other. The duty hours would be substantially the same, the

powers to be discharged are in no way different, whether

they are District Judges in Goa or in Delhi. It would be a

futile exercise to make an endeavour for drawing a

distinction between the work pattern at the two different

places, for, such differences are discernible everywhere.

But that would not make the nature of work different. It

was not necessary to cast the burden of proof on the

appellants to establish the pendency of litigation or the

norms fixed for disposal of cases by the Delhi court to

enable comparison between the nature of duties and the

responsibilities carried by the officers of the Delhi

Territory and the Goa Territory.

One admitted fact which looms large is that till hike

in the pay-scale was brought about in 1982 for Delhi Judges

the parity maintained as between Union Territory of Goa and

Delhi applied to the same cadre of judicial officers.

Nobody doubted till then that the nature and dimension of

work discharged by the officers of the same cadre of

judicial officers at two different territories were

different from any perceptible standard. It is for the

contesting respondents to show that there was change in the

nature of work which necessitated the Government to keep two

different levels of pay to the same officers working at two

different places.

Pay-scale of District and Sessions Judges in the Union

Territory of Goa was made on a par with that of Delhi by

means of the rules and regulations formulated by the Central

Government in exercise of the powers conferred on it by the

provisions of The Goa, Daman and Diu (Absorbed Employees)

Act, 1965. The change was effected in 1982 on the premise

that the judicial officers in Delhi were upgraded as class I

officers and since Union Territory of Delhi was declared a

Metropolitan city, the pay-scales were equated with the

pay-scales of judicial officers in other Metropolitan

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cities. We are not against revision of the pay-scales of

the judicial officers in the Union Territory of Delhi on the

basis of any justifiable grounds. But in doing so the

pay-scales of their counterparts working in other Union

Territories cannot suffer. Shri A.S. Nambiar, learned

Senior Advocate made a bid to raise a new contention that

the Central Government was helpless in keeping up the

pay-scales of the officers in Goa on a par with the judicial

officers of Delhi as Goa was then administered through a

separate elected legislature, and under Article 240 of the

Constitution powers of the President to make regulations had

been bridled. We are not disposed to countenance the said

contention advanced for the first time during arguments,

for, that was not the premise on which the parity was denied

to the appellants.

For the aforesaid reasons we allow this appeal and

direct the respondent Union of India to disburse the arrears

of pay to the appellants calculating their scale of pay on a

par with their counterparts in the Union Territory of Delhi

during the period between 1.3.1982 and 31.3.1987. Such

recalculation shall be made and the arrears shall be

quantified to be disbursed within six months from today.