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CASE NO.:

Appeal (civil) 6562 of 2002

PETITIONER:

STATE OF HARYANA & ORS.

RESPONDENT:

CHARANJIT SINGH & ORS., ETC. ETC.

DATE OF JUDGMENT: 05/10/2005

BENCH:

S. N. Variava,Dr. AR. Lakshmanan & S. H. Kapadia

JUDGMENT:

J U D G M E N T

With

(Civil Appeal No.6567/2002, Civil Appeal No.6568/2002, Civil

Appeal No.6570/2002, Civil Appeal No.6572/2002, Civil Appeal

No.6569/2002, Civil Appeal No.6573/2002, Civil Appeal

No.6574/2002, Civil Appeal No.6575/2002, Civil Appeal

No.6528/2002, Civil Appeal No.6647/2002, Civil Appeal

No.6485/2002, Civil Appeal No.7093/2002, Civil Appeal

No.8090/2002, Civil Appeal No. __________ of 2005 (arising

out of SLP(C)........../2003 CC 905), Civil Appeal No.1272/2003,

Civil Appeal No.1475/2003, Civil Appeal No. 6167 of

2005 (arising out SLP(C) No.4852/2003), Civil Appeal

No.4154/2003, Civil Appeal No.4636/2003, Civil Appeal

No.5104/2003, Civil Appeal No.6322/2003, Civil Appeal

No.4447/2003, Civil Appeal Nos.6654-6657/2003, Civil Appeal

No.8636/2003, Civil Appeal No.185/2004, Civil Appeal

No.189/2004, Civil Appeal No.6648/2002)

S. N. VARIAVA, J.

Delay condoned.

Special leave granted in S. L. Ps.

1) In all these Appeals, the Respondents were daily wagers who

were appointed as ledger clerks, ledger keepers, pump operators,

mali-cum-chowkidar, fitters, petrol men, surveyors etc. All of them

claimed the minimum wages payable under the pay-scale of regular

Class IV employees from the date of their appointments. The question

whether or not these persons were entitled to the minimum of the

pay-scale of a regular Class IV employee was referred to a Full Bench

for consideration. The Full Bench gave its decision. Following the Full

Bench decision all these Writ Petitions have been disposed off with

short Orders. In all these cases the Respondents have been directed

to be given the minimum of the wages in the scale payable to a

regular Class IV employee from the date of the filing of the respective

Petition.

2) One other fact which must be mentioned is that, whilst these

Appeals were pending before this Court, all the Respondents have

been regularized. From the date of their regularization they being paid

pay-scales as payable to a regular Class IV employee. The question

therefore is only whether the directions of the High Court to pay the

minimum wage in the scale payable to a Class IV employee, from the

date of their filing the respective Petition, is required to be interfered

with.

3) When these Appeals came up for hearing on 23rd August, 2004

this Court referred the matters to a larger Bench for consideration by

passing the following Order:

"The respondents in all these appeals were initially

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appointed as Ledger-clerks, ledger keepers, pump

operators, mali-cum-chowkidars, fitters, petrol man,

surveyor, drivers etc. on daily wages or on contractual

basis. They were all regularized with effect from October,

2003 and they have been getting the minimum payable

under the regular pay scale of Class-IV employees from

the date of their regularization. In the writ petitions filed

by these respondents before the High Court of Punjab and

Haryana at Chandigarh, the Division Bench directed that

these respondents shall be paid the minimum salary and

dearness allowances payable to their counter parts

working on regular basis. The question for consideration

before this Court, in the present set of cases, is that

whether these respondents are entitled to get the

minimum scale of pay from the date of their appointment

as daily wagers/casual employees or they are entitled to

get the minimum salary in the scale of pay from the date

of their regularization.

Learned counsel for the State contended that they

are entitled to get minimum of the scale of pay only from

the date of regularization whereas the respondents

contended that applying the principle of "equal pay for

equal work" they are entitled to get the minimum of the

pay scale from the date of their employment as casual

employees or daily wagers. The respondents, in this

connection, relied on the decision of this Court reported in

AIR 1986 SC P. 584, Surinder Singh & Anr. vs. Engineer-

in-Chief, C.P.W.D. & Ors. wherein the petitioners were

appointed on daily wages in the Central Public Works

Department were given salary and allowances which were

payable to the regular employees from the date on which

they were employed but in series of other decisions

rendered by this Court reported in 1996 (11) SCC p.77,

State of Haryana & Ors. Vs. Jasmer Singh & Ors. in paras

9 and 10 it was held that the daily rated workmen who

were to be paid minimum wages admissible to such

workmen as prescribed and not in the pay scale applicable

to similar employees working on regular service. Reliance

was also placed on earlier decisions in Harbans Lal Vs.

State of H.P. 1989 (4) SCC p.459. A similar view was

taken by this Court in Orissa University of Agriculture &

Technology & Anr. Vs. Manoj K. Mohanty, 2003 (5) SCC

P.188 AND Ghaziabad Development Authority & Ors. Vs.

Vikram Chaudhary & Ors., 1995 (5) SCC p.210 and also in

State of Haryana & Anr. Vs. Tilar Raj & Ors., 2003 (6)

SCC p.123.

It appears that there is a conflict of decision and

earlier decision in Surinder Singh & Anr. Vs. Engineer-in-

Chief, C.P.W.D. & Ors., [AIR 1986 SC 584] was not

referred to in later decisions. Therefore, in our view, these

cases have to be considered by a larger bench so that the

conflict may be resolved. The registry is requested to

place these matters before the Hon'ble Chief Justice of

India for posting the same before a larger bench."

The matters are thus before this three Judge Bench.

4) In the case of Surinder Singh vs. Engineer-in-Chief,

C.P.W.D., reported in (1986) 1 SCC 639 = AIR (1986) SC 4, a two

Judge Bench of this Court held that the doctrine of "equal pay for

equal work" is not an abstract doctrine which is not capable of being

enforced in a court of law. This Court cited with approval the following

observations made in the case of Dhirendra Chamoli vs. State of

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U.P., reported in (1986) 1 SCC 637:

"We therefore allow the writ petitions and

make the rule absolute and direct the Central

Government to accord to these persons who are

employed by the Nehru Yuvak Kendras and who are

concededly performing the same duties as Class IV

employees, the same salary and conditions of service

as are being received by Class IV employees, except

regularization which cannot be done since there are

no sanctioned posts. But we hope and trust that

posts will be sanctioned by the Central Government

in the different Nehru Yuvak Kendras, so that these

persons can be regularized. It is not at all desirable

that any management and particularly the Central

Government should continue to employ persons on

casual basis in organizations which have been in

existence for over 12 years. The salary and

allowances of Class IV employees shall be given to

these persons employed in Nehru Yuvak Kendras

with effect from the date when they were

respectively employed.

Earlier the court also observed that it was a peculiar

attitude to take on the part of the Central Government to

say that they would pay only daily wages and not the

same wages as other similarly employed employees,

though all of them did identical work. The court said:

This argument lies ill in the mouth of the

Central Government for it is an all too familiar

argument with the exploiting class and a welfare

State committed to a socialist pattern of society

cannot be permitted to advance such an argument.

It must be remembered that in this country where

there is so much unemployment, the choice for the

majority of people is to starve or to take

employment on whatever exploitative terms are

offered by the employer. The fact that these

employees accepted employment with full knowledge

that they will be paid only daily wages and they will

not get the same salary and conditions of service as

other Class IV employees, cannot provide an escape

to the Central Government to avoid the mandate of

equality enshrined in Article 14 of the Constitution.

This article declares that there should be equality

before law and equal protection of the law and

implicit in it is the further principle that there must

be equal pay for equal work of equal value ....... It

makes no difference whether they are appointed in

sanctioned posts or not. So long as they are

performing the same duties, they must receive the

same salary and conditions of service as Class IV

employees."

5) In Dhirendra Chamoli's case this Court then held that the Central

Government like all organs of a State is committed to the Directive

Principles of State Policy and Article 39 enshrines the principle of equal

pay for equal work. On this basis, this Court directed the Government

to pay to the Petitioners therein and all other daily wagers the same

salary and allowances as were paid to regular and permanent

employees. To be immediately noted that in this case, there is no

discussion as to whether or not the concerned employees were

similarly situated with the regular employees and what was the nature

of their work and the nature of work of a regular employee. The case

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appears to have proceeded on the footing that everything was

identical and that the doctrine of equal pay for equal work applied.

Counsel for the Respondents have also relied upon other Judgments of

this Court. They are being dealt with later.

6) The question as to when such a doctrine can apply was

considered by this Court in the case of State of Haryana vs. Jasmer

Singh, reported in (1996) 11 SCC 77. In this case, it was held that

the principle of equal pay for equal work is not easy to apply. It was

held that there are inherent difficulties in comparing and evaluating

the work of different persons in different organizations or even in the

same organization. Earlier judgments directing payment on the basis

of the doctrine of equal pay for equal work were taken note of. The

Court recorded that a note of caution had been expressed in the case

of State of U.P. v. J.P. Chaurasia [(1989) 1 SCC 121]. It was pointed

out that the principle of "equal pay for equal work" has no mechanical

application in every case of similar work. It was held that Article 14

permits reasonable classification based on qualities or characteristics

of persons recruited and grouped together, as against those who were

left out. It was held that these qualities or characteristics must have a

reasonable relation to the object sought to be achieved. It was held

that 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. It was held that a higher pay scale to avoid stagnation

or resultant frustration for lack of promotional avenues is also an

acceptable reason for pay differentiation. It was held that even though

persons may do the same work, their quality of work may differ. It

was held that where persons are selected by a Selection Committee on

the basis of merit with due regard to seniority a higher pay scale

granted to such persons who are evaluated by competent authority

cannot be challenged. Note was also taken of the case of Mewa Ram

Kanojia v. All India Institute of Medical Sciences [(1989) 2 SCC 235]

wherein it was held that a classification based on difference in

educational qualifications justified a difference in pay scales. This

Court further observed that the judgment of the Pay Commission in

this regard relating to the nature of the job, in the absence of material

to the contrary, should be accepted. The case of Harbans Lal v. State

of H.P. [(1989) 4 SCC 459 was referred to with approval. In that case

it was held that a mere nomenclature designating a person as a

carpenter or a craftsman was not enough to come to the conclusion

that he was doing the same work as another carpenter in regular

service. In that case, carpenters employed by the Himachal Pradesh

Handicraft Corporation on daily wages sought parity of wages with

carpenters in regular service. This Court negatived this contention,

holding that a comparison cannot be made with counterparts in other

establishments with different management or even in the

establishments in different locations though owned by the same

management. 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 the dexterity

that the job may entail may differ from job to job. It was held that it

must be left to be evaluated and determined by an expert body. In

Jasmer Singhs' case this Court summed up as follows:

"\005\005\005\005\005the 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 job 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

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the pay scale. There may be various other similar

considerations which may have a bearing on efficient

performance in a job. This Court has repeatedly observed

that evaluation of such jobs for the purposes of pay scale

must be left to expert bodies and, unless there are any

mala fides, its evaluation should be accepted.

9. This court in the case of Harbans Lal v. State of H.P.

[(1989) 4 SCC 459 : 1990 SCC (L&S) 71 : (1989) 11 ATC

869] further held that daily-rated workmen who were

before the Court in that case were entitled to be paid

minimum wages admissible to such workmen as prescribed

and not the minimum in the pay scale applicable to similar

employees in regular service - unless the employer had

decided to make such minimum in the pay scale applicable

to the daily-rated workmen. The same position is

reiterated in the case of Ghaziabad Development Authority

v. Vikram Chaudhary [(1995) 5 SCC 210 : 1995 SCC (L&S)

1226 : (1995) 31 ATC 129].

10. The respondents, therefore, in the present appeals

who are employed on daily wages cannot be treated as on

a par with persons in regular service of the State of

Haryana holding similar posts. Daily-rated workers are not

required to possess the qualifications prescribed for regular

workers, nor do they have to fulfil the requirement relating

to age at the time of recruitment. They are not selected in

the manner in which regular employees are selected. In

other words the requirements for selection are not as

rigorous. There are also other provisions relating to regular

service such as the liability of a member of the service to

be transferred, and his being subject to the disciplinary

jurisdiction of the authorities as prescribed, which the

daily-rated workmen are not subjected to. They cannot,

therefore, be equated with regular workmen for the

purposes for their wages. Nor can they claim the minimum

of the regular pay scale of the regularly employed."

7) In the case of State of Haryana vs. Tilak Raj, reported in

(2003) 6 SCC 123, it has been held that the principle of equal pay for

equal work is not always easy to apply. It has been held that there

are inherent difficulties in comparing and evaluating the work of

different persons in different organizations or even in the same

organization. It has been held that this is a concept which requires,

for its applicability, complete and wholesale identity between a group

of employees claiming identical pay scales and the other group of

employees who have already earned such pay scales. It has been held

that the problem about equal pay cannot be translated into a

mathematical formula. It was further held as follows:

"11. A scale of pay is attached to a definite post and in

case of a daily wager, he holds no posts. The respondent

workers cannot be held to hold any posts to claim even

any comparison with the regular and permanent staff for

any or all purposes including a claim for equal pay and

allowances. To claim a relief on the basis of equality, it is

for the claimants to substantiate a clear cut basis of

equivalence and a resultant hostile discrimination before

becoming eligible to claim rights on a par with the other

group vis-a-vis an alleged discrimination. No material was

placed before the High Court as to the nature of the duties

of either categories and it is not possible to hold that the

principle of "equal pay for equal work" is an abstract one. "

8) In the case of Orissa University of Agriculture & Technology

vs. Manoj K. Mohanty, reported in (2003) 5 SCC 188, this Court set

aside the Order of the High Court granting equal pay for equal justice

on the basis that the High Court, before issuing such directions, had

not examined facts of the case in order to appreciate whether the

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Respondent therein satisfied the relevant requirements such as the

nature of work done by him as compared to the nature of work done

by a regularly employed person, the qualifications, the responsibilities,

etc. It was noted that as the Respondent therein was only on a

temporary basis and he had not undergone the process for regular

recruitment and in such cases direction to give regular pay scale could

not be given without examining the relevant factors. It was held that

before giving such directions the Court must also keep in mind what to

what would be its implications and impact on the other employees.

It was held that in the absence of necessary averments and materials

placed on record, there is no scope to give such a direction. It was

held that the burden to prove that everything was equal is on the

person claiming equal pay for equal work and in the absence of

necessary averments and proofs a party would not be entitled to get

such directions.

9) In the case of Government of West Bengal vs. Tarun K. Roy

reported in (2004) 1 SCC 347, a three Judge Bench of this Court has

also considered the doctrine of equal pay for equal work in the

following terms:

"Equal Pay for Equal Work

Article 14 read with Article 39(d) of the Constitution of

India envisages the doctrine of equal pay for equal work.

The said doctrine, however, does not contemplate that

only because the nature of the work is same, irrespective

of an educational qualification or irrespective of their

source of recruitment or other relevant considerations the

said doctrine would be automatically applied. The holders

of a higher educational qualification can be treated as a

separate class. Such classification, it is trite, is reasonable.

Employees performing the similar job but having different

educational qualification can, thus, be treated differently.

In State of Jammu & Kashmir v. Trilok Nath Khosa AIR

1974 SC 1 : 1974 (1) SCC 19 : 1974-I-LLJ-121, this Court

held :

"Educational qualifications have been recognized by this

Court as a safe criterion for determining the validity of

classification."

The Post of Operator-cum-Mechanic and Sub-Assistant

Engineers are technical posts. As noticed hereinbefore,

whereas for the posts of Operator-cum-Mechanic the

qualification of school final examination and a certificate

obtained from the Industrial Training institute would be

sufficient; for the posts of Sub-Assistant Engineer the

person must have a diploma from a polytechnic apart from

being a matriculate.

It is also not in dispute that such qualification was

prescribed as far back as in the year 1971 and the

respondents herein were appointed thereafter.

The Court, in exercise of its power of judicial review cannot

hold that matriculates with a certificate from ITIs or simply

graduates in science would be entitled to hold the posts of

Sub-Assistant Engineers. It is for the executive to lay down

the qualification required for holding a post and not for the

Courts.

In Debdas Kumar's case (supra) the issue which fell for

determination by this Court was as to whether those

Operators-cum-Mechanic who were diploma holders,

having regard to the aforementioned notification dated

November 19, 1974 were entitled to be designated as Sub-

Assistant Engineers. This Court noticed that the Post of

Sub-Assistant Engineer is direct recruitment post and not a

promotional post and, thus, they are entitled to be

designated as Sub-Assistant Engineers, particularly, when

such a status had been conferred upon 17 persons

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similarly situated. This Court granted relief to Debdas

Kumar's case (supra), only on the ground that they had

been discriminated against.

Question of violation of Article 14 of the Constitution of

India on the part of the State would arise only if the

persons are similarly placed. Equality Clause contained in

Article 14, in other words, will have no application where

the persons are not similarly situated or when there is a

valid classification based on a reasonable differentia.

Doctrine of 'equal pay for equal work', therefore is not

attracted in the instant case.

There is nothing on record to show that the duties and

functions of two categories of employment are at par, and,

thus, parity in pay-scales is not permissible.

The very fact that from the very beginning two different

pay scales were being maintained is itself suggestive of the

fact that the duties and functions are also different. In fact

it is not disputed that the two post of Sub-Assistant

Engineer is a higher post.

In Chairman-cum-Managing Director, National Textiles

Corporation Ltd. v. N.T.C. (WBAB & O) Ltd. Employees

Union 2003-III-LLJ-1102, this Court, held at p. 1106 :

"9. In view of the fact that the nature of duties of the staff

in the two categories has been found to be not at par,

parity in pay scales may not be possible. ....."

In Orissa University of Agriculture & Technology v. Manoj

K. Mohanty 2003-II-LLJ-968 this Court noticed at p. 970 :

"10. It is clear from the averments made in the writ

petition extracted above, nothing is stated as regards the

nature of work, responsibilities attached to the respondent

without comparing to the regularly recruited Junior

Assistants. It cannot be disputed that there was neither

necessary averments in the writ petition nor any material

was placed before the High Court so as to consider the

application of principle of 'equal pay for equal work'."

This Court further noticed at p. 971 of LLJ :

"11. In the absence of material relating to other

comparable employees as to the qualifications, method of

recruitment, degree of skill, experience involved in

performance of job, training required, responsibilities

undertaken and other facilities in addition to pay scales,

the learned single Judge was right when he stated in the

order that in the absence of such material it was not

possible to grant relief to the respondent. ........

12. Before giving such direction, the High Court also did

not keep in mind as to what would be its implications and

impact on the other employees working in the appellant-

University. From the averments made in the writ petition

extracted above, it is clear that no details were given and

no material was placed before the High Court for

comparison in order to apply the principle of 'equal pay for

equal work'. The Court in State of Haryana v. Jasmer

Singh AIR 1997 SC 1788 : 1996 (11) SCC 77 : 1997-II-

LLJ-667 observed that the 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.

13. Yet, in another decision in State Bank of India v. M. R.

Ganesh Babu 2002 (4) SCC 556 : 2002-II-LLJ-829, a

Bench of three learned Judges of this Court, while dealing

with the same principle, has expressed that :

'......... It is well settled that equal pay must depend upon

the nature of work done. It cannot be judged by the mere

volume of work; there may be qualitative difference as

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regards reliability and responsibility. Functions may be the

same but the responsibilities made a difference. ...'"

In Tarun Roy's case an argument that relief should be given as in an

earlier matter objection was not taken was rejected in the following

terms:

"In a case of this nature, the Courts are required to

determine the issue having regard to larger public interest.

It is one thing to say that in a given case the High Court or

this Court may not exercise an equitable jurisdiction under

Article 226 or Article 136 of the Constitution of India, but it

is another thing to say that the Courts shall grant a relief

to a party only on the ground that a contention which is

otherwise valid would not be raised on the ground that the

same was not done in an earlier proceedings.

In the instant case, the appellant has explained under

what circumstances the order of the learned single Judge

of the Calcutta High Court had to be obeyed. If rule of law

is to be followed, judicial discipline demands that the Court

follows its earlier binding precedent. The Calcutta High

Court itself has rejected such a plea. The matter is pending

in appeal. An order passed to the contrary by another

learned single Judge in ignorance of the earlier binding

precedent by itself would not constitute a binding

precedent and may be held to have been rendered per

incuriam.

Furthermore, in the order dated October 1, 1991, the

learned Judge categorically directed that the same would

be subject to any order that may be passed in the appeal

which is pending before the Division Bench from the

judgment and order dated January 20, 1989 passed in

Nemai Chand Ghosh's case (supra). The said order,

therefore, did not attain finality.

In the aforementioned situation, the Division Bench of the

Calcutta High Court manifestly erred in refusing to

consider the contentions of the appellant on their own

merit, particularly, when the question as regard difference

in the grant of scale of pay on the ground of different

educational qualification stands concluded by a judgment

of this Court in Debdas Kumar's case (supra). If the

judgment of Debdas Kumar's case (supra) is to be followed

a finding of fact was required to be arrived at that they are

similarly situated to the case of Debdas Kumar (supra)

which in turn would mean that they are also holders of

diploma in engineering. They admittedly, being not, the

contention of the appellants could not be rejected, non-

filing of an appeal, in any event, would not be a ground for

refusing to consider a matter on its own merits State of

Maharashtra v. Digambar 1995 (4) SCC 683.

In State of Bihar v. Ramdeo Yadav AIR 1996 SC 3135 :

1996 (3) SCC 493 wherein this Court noticed Debdas

Kumar's case (supra) holding :

"Shri B. B. Singh the learned counsel for the appellants

contended that though an appeal against the earlier Order

of the High Court has not been filed, since larger public

interest is involved in the interpretation given by the High

Court following its earlier judgment, the matter requires

consideration by this Court. We find force in this

contention. In similar circumstances, this Court in State of

Maharashtra v. Digambar 1995 (4) SCC 683 and in State

of West Bengal v. Debdas Kumar 1991 Suppl (1) SCC 138

: 1995-III-LLJ (Suppl)-294, had held that though an

appeal was not filed against an earlier order, when public

interest is involved in interpretation of law, the Court is

entitled to go into the question."

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The three Judge Bench decision of this Court is binding on this Court.

Even otherwise we are in full agreement with what has been stated

therein.

10) In the case of State of Orissa vs Balaram Sahu & Ors.,

reported in (2003) 1 SCC 250, this Court has held that the applicability

of the principle depends not only on the nature or volume of the work

but also on the qualitative difference in reliability and responsibilities

also. It is held that it is for the claimant of parity to substantiate a

clear cut basis of equivalence and a resultant hostile discrimination. It

is held that in the absence of requisite substantiating material the

Court would be wrong to grant parity in pay merely on the

presumption of equality of nature of work. It was held that such

workers would be entitled to prescribed minimum wages.

11) Now we examine the authorities relied upon by counsel for

various Respondents to see whether this Court has laid down anything

contrary.

12) In the case of State of U.P. & Ors. vs Putti Lal, reported in

(2003) 8 Scale 259, a three Judge Bench of this Court, of which one of

us (Variava, J.) was a party directed the Government to pay the

concerned daily rated workers the minimum of the pay scale payable

to a regularly employed worker. However, this was pending a scheme

for regularization. Thus, there was no direction to pay retrospectively.

Further the order proceeds on the basis that everything was equal and

that the principle applied. It was not argued before this court that the

principle had no application.

13) In the case of State of Punjab vs Devinder Singh & Ors.,

reported in (1988) 9 SCC 595, it was noted that the concerned Ledger

Clerks were found to have been given similar work as regular Ledger

Clerks. This Court without any further discussion or consideration held

that concerned Ledger Clerks would be entitled to the minimum of the

pay scale of Ledger Clerks. It was directed that this be paid for a

period of three years prior to the filing of the Writ Petition. It seems

that attention of this Court was not brought to the earlier authorities,

which lay down when the principle of equal pay for equal work can

apply. Also we are unable to accept the finding that for similar work

the principle of equal pay applies. Equal pay can only be given for

equal work of equal value.

14) In the case of Sandeep Kumar & Ors. vs State of Uttar

Pradesh & Ors., reported in (1993) Supp (1) SCC 525, regularisation

was refused but equal pay was granted on the admitted position that

the concerned workmen were doing the same work.

15) In the case of Bhagwan Dass & Ors. vs State of Haryana &

Ors., reported in (1987) 4 SCC 634, 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

similarility 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's case (supra) 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 competent authority and in such cases payment of a

higher pay scale cannot be challenged. Jasmer Singh's case has been

noted with approval in Tarun K. Roy's case.

16) In the case of State of Punjab vs Talwinder Singh & Ors.,

reported in (2003) 11 SCC 776, this Court granted equal pay following

Devinder Singh's case (supra). Jasmer Singh's case was brought to the

notice of the Court but it differentiated the case on the ground that in

Jasmer Singh's case the Court had concluded that the daily wagers did

not discharge the same duties. Thus, this case also proceeds on the

basis that the work was identical.

17) 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

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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

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

to such persons who are evaluated by 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 the dexterity 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 made 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 lightly interfere. Normally a party claiming

equal pay for equal work should be required to raise a dispute in this

regards. 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 High 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.

18) As stated above in all these cases the High Court has followed a

Full Bench decision of that Court. The Full Bench has also observed

that the essential ingredient is similarity. This would be correct.

However, at one stage the Full Bench observes that even if some

dispute is raised. That would be wrong law. In each case the Court

must satisfy itself that the burden of proving that the work and

conditions are equal is discharged by the aggrieved employee.

19) We, therefore, set aside all the impugned Judgments and remit

all these matters back to the High Court. The High Court shall now

examine each case and see whether the necessary averments are

there. It shall then consider all relevant facts, as enumerated above,

and decide whether everything is identical and equal. If the High

Court feels that there is a dispute which would necessitate extensive

evidence it may direct that party to raise an appropriate dispute where

such questions could be dealt with and which, in fact, would be the

appropriate proceedings.

20) One other fact which must be noted is that Civil Appeals Nos.

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6648 of 2002, 6647 of 2002, 6572 of 2002 and 6570 of 2002 do not

deal with casual or daily rated workers. These are cases of persons

employed on contract. To such persons the principles of equal pay for

equal work has no application. The Full Bench Judgment dealt only

with daily rated and casual workers. Where a person is employed

under a contract, it is the contract which will govern the terms and

conditions of service. In the case of State of Haryana vs Surinder

Kumar & Ors., reported in (1997) 3 SCC 633, persons employed on

contract basis claimed equal pay as regular workers on the footing that

their posts were interchangeable. It was held that these persons had

no right to the regular posts until they are duly selected and

appointed. It was held that they were not entitled to the same pay as

regular employees by claiming that they are discharging same duties.

It was held that the very object of selection is to test eligibility and

then to make appointment in accordance with rules. It was held that

the Respondents had not been recruited in accordance with the rules

prescribed for recruitment.

21) In the case of Union of India & Ors. vs K. V. Baby & Anr.,

reported in (1998) 9 SCC 252, the question was whether Commission

Bearers/Vendors are entitled to the same salary as regular employees.

It was held that their appointment and mode of selection, their

qualifications cannot be compared with regular employees. It was held

that by their very nature of employment they cannot be equated with

regular employees. It was held that recruitment rules and service

conditions do not apply to such persons. It was held that their

responsibilities cannot be equated with those of regular employees.

22) Thus it is clear that persons employed on contract cannot claim

equal pay on basis on equal pay for equal work. Faced with this

situation it was submitted that all these persons were in fact claiming

that their respective appointments were regular appointments by the

regular process of appointment but that instead of giving regular

appointments they were appointed on contract with the intention of

not paying them regular salary. It was admitted that the Petitions may

be badly drafted and such a contention not put forth specifically. The

High Court has disposed of these Petitions also on the footing that the

principle of equal pay for equal work applied. We therefore set aside

the impugned orders in these cases also and remit the matters back to

the High Court for disposal. The High Court shall permit these

Petitioners to amend their Petitions to make necessary averments and

will also permit the Respondents in these cases to file replies to the

amended Petitions.

23) With the above directions all these Appeals stand disposed off.

All the matters are remitted back to the High Court. There will be no

order as to costs.