JUDGMENT
S. Ravindra Bhat, J.
1. The petitioners in these writ proceedings claim pay scales higher to what has been prescribed to them, and allege that the scales of equivalent to what is prescribed for Assistants, is violative of Article 14 of the Constitution of India; they claim pay parity with those who worked as Stenographer Grade II, at the relevant time.
2. All the petitioners were recruited, at the relevant time, on various dates between 1983-1986, as Stenographer-III. The relevant facts, uncontroverter by the respondent-employer (the Oil and Natural Gas Commission, hereafter called “ONGC”) are that as per the recruitment rules applicable in the respondent organization, there were three categories of Stenographers- Grade-I, Grade-II and Grade-III. In 1968, ONGC decided, as a matter of policy to discontinue direct recruitment to the post of Stenographer-III; it commenced recruitment directly to the post of Stenographer Grade-II. Sometime in 1974, Recruitment Rules were framed, which altered the situation, in that the entry level for Stenographers was changed to Stenographer Grade III. The 1974 rules were replaced by a fresh set of rules, in 1980; in material particulars, so far as this case is concerned, there was no change; the entry level for Stenographers continued to be in Grade III. The petitioners joined the services of ONGC as Stenographers-III.
3. The grievance raised in the petition, and articulated during the hearing, by Ms. Asha Jain Madan, centers round the complaint of discrimination and arbitrariness. It is claimed that the duties and functions of Stenographers-III are superior to those of Assistants, and even the recruitment parameters, indicate that higher standards are required of stenographers, since they not only have to possess typing speed, but also a fairly high degree of proficiency in stenography, viz 80 words per minute. It was alleged, and also submitted that the stenographers are made to discharge more onerous functions than Assistants. Therefore, the equation of both the posts, for the purposes of pay and allowances, amounts to discrimination, and treating unequals equally. It was therefore submitted that the petitioners ought to be given the higher pay scale, prescribed to those in the grade of Stenographers-II.
4. It was submitted that Stenographers were treated with discrimination as they were placed in the same pay scales granted to Assistants, despite the former being better qualified than the Assistants. Learned Council relied upon the fact that in all the Oil Companies, differential pay scales had been prescribed between two categories. Assistants were always placed in a grade lower than Stenographers-II. Therefore the equation of two unequal categories was contrary to Article 14 of the Constitution of India. Learned Counsel submitted that with effect from 08-05-1968, ONGC abolished the category of Stenographers Grade-III and raised the induction level to Stenographers-II. It was submitted that the Regulations framed in 1974 reintroduced the induction level to stenographer Grade-II but without assigning any reason; however this decision was never implemented.
5. Learned Counsel for the petitioners raised a serious grievance in regard to what was termed as a policy of “pick and choose” adopted by ONGC. It was submitted that a large number of Stenographers, also recruited in Grade-III, but before the petitioners, were given the benefit of a retrospective re-categorization in the Stenographer Grade-II pay-scale. This was attacked as contrary to the regulations, arbitrary and illegal. Counsel relied upon the orders issued by ONGC in 1989 and 1993 to submit that several persons appointed in Grade-III were retrospectively upgraded/appointed with effect from their original dates of appointment in the lower grade. It was contended that this step could not have been adopted by the ONGC, as it was unauthorized; Counsel also submitted that such a move was not supported by any rationale or sustainable reasoning.
6. In support of the claim for grant of pay scales prescribed for Assistants, Learned Counsel relied upon certain reports made by the committees of ONGC. Counsel relied upon an extract of one such committee report dated 13-031997, particularly the following extract:
it may be pertinent to mention here that care is always taken by Management that growth differentials between various disciplines should be as far as possible avoided and system so regulated that personal belonging to various disciplines have more or less the same range of growth for equal merit/duties, but the above case of unequal growth in the same discipline for persons joining the post with similar nature of duties in certain years of Sibley, could not received the attention of unequal growth of concerned authority.
Further, their case needs special consideration as stay no grafters graded-I are mostly rendering secretarial assistance to very senior officials, hence they are mostly under great pressure of work and often required to set late to make the secretarial and co-ordination requirements of the respective officers….
7. It was submitted that ONGC had constituted an appeals committee to look into the grievances of the petitioners; the committee had by its report dated 03-05-1998 observed that the ONGC could not explain the new situation which warranted introduction of the post of stenographers grade III despite the circular of 1968 which had prohibited it from creating that Grade in the future. The committee had also served that induction level of clerical posts is lower in most public sector units than the induction level of stenographers on account of differences in duties, responsibilities etc. Counsel also pointed out that the report noted that induction level of the post of stenographers with effect from 1974/1980 was Grade III and Grade-II was only a promotional post; the committee also noticed irregularities by the ONGC. Council further submitted that another, two member committee examined the grievances once again and by report dated 26-10-1998 confirmed the facts and accepted that the induction level was changed, after a gap of 21 years and 18 years and that seniority were also changed, which should not have been done. Counsel submitted that after recruitment and Promotion Regulations were framed in 1980, no Stenographer could have been appointed in Grade II; she placed reliance on the report of the two member committee to say that there were precedents whereby some stenographers were given the induction level Grade -II despite the fact that under the 1980 regulations, that post was promotional in nature.
8. Counsel for the petitioners submitted that every state action, even in the sphere of contracts, has to be informed by reason. The complete absence of reasons and the capricious manner whereby the ONGC functioned, granting retrospective upgradation to a few persons and denying it to all the rest including the petitioners, rendered its actions illegal and void. She relied upon the judgment of the Supreme Court reported as Shrilekha Vidyarthi-vs- State of UP . It was submitted that although the petitioners were appointed in the lower grade, after the enforcement of the 1980 Regulations; no estoppel could be set up as a bar to the maintainability of their petitions. It was also urged on behalf of the petitioners that the cause of action leading up to the present writ petitions arose only after 1998, with the recommendations of the two member committee, which, the ONGC, for its best known reasons chose not to accept.
9. ONGC, in its counter-affidavit objects to the maintainability of these writ proceedings both on the ground of delay as well as acquiescence. It is alleged that the petitioners willingly and voluntarily applied to the post of Stenographer-III when vacancies were advertised, participated in the recruitment process, and obtained employment in that grade, on different dates after 1983. They cannot claim to be legitimately aggrieved, by the action of the ONGC in matters relating to induction, and the level of induction of Stenographers, since they were recruited admittedly after the policy changes, in 1980. The allegation about discriminatory action or equal treatment of unequals by granting the lower scale applicable to Assistants, was justified as a matter of executive policy, consciously adopted by the employer, ONGC.
10. Mr. R.G. Srivastava, learned Counsel appearing for the respondent ONGC, urged that the petitioners were appointed as long ago as in the year 1983 ” 1986 as Stenographer Grade III. If they had any reservations, they ought to have voiced it at the threshold and not waited for nearly two decades to approach the Court, with the claim of discrimination and unjust or unfair equation with unequals. It was also contended that although the 1974 regulations prescribe the induction levels for Stenographers in Grade-III, yet admittedly in practice, induction continued in respect of Grade-II. However, by the time the petitioners were selected and appointed to the services of ONGC, induction had been consistently in respect of Grade-III.
11. It was also urged on behalf of the respondents that aside from laches, the petitioners could also not maintain these writ proceedings, since most of them had been promoted to higher positions and in some cases, were even promoted to executive cadres. It was therefore contended that the petitioners have raised non-existent grievances. It was submitted on behalf of the respondent ONGC that subsequent to the induction of the petitioners in 1983-1986, a further development took place in that induction levels were lowered to one step below that of Stenographers-III; it is now Junior Stenographers. The lowering of such induction levels has been effected in other cadres,as a matter of uniform executive policy.
12. It was lastly contended on behalf of the ONGC that there was no pick and choose, as alleged by the petitioners, in the matter of retrospective grant of Stenographers-II Grade to some persons. It was urged that those employees had been selected in respect of vacancies, which had arisen during the existence of the 1974 regulations and the recruitment process itself was carried out under those old regulations. Besides, the ONGC, after repeated representations by such persons, discovered that in respect of reserved vacancies, action had not been taken to fill the posts. All these led to reconsideration of the matter and grant of benefits to such persons It was submitted that the petitioners could have no grievance in that regard, because the entire question had been carefully reviewed at the time of granting the relief as well as upon the representations received from the petitioners. It was lastly contended that the benefits were granted, admittedly, to those appointed before the petitioners; it could never lead to any prejudice or discrimination, since the petitioners were appointed in respect of vacancies which occurred much after the coming into force of the 1980 regulations, when the previous practice of appointing personnel to induction level Grade II had been discontinued.
13. Two questions arise for determination; one, whether the claim for higher pay scales, by the petitioners, is justified. Two, whether there was any discriminatory action by ONGC, in granting retrospective upgradation/ appointment to some persons, as Stenographer-II, when they were originally appointed as Stenographer-III.
14. In support of the claim for unequal treatment by ONGC, in extending the same pay scales to Assistants and Stenographer-III,the petitioners relied upon the relative qualification and experience levels required of both categories. It is alleged that the latter category has to possess, (in addition to typing speed @30 words per minute), short hand skills at 80 words per minute. It was also contended that the criteria for promotion to higher grades also requires greater degrees of skill and proficiency, for Stenographers which is absent in the case of Assistants.
15. In Federation of All India Customs and Central Excise Stenographers (Recognised) v. Union of India the Supreme Court observed as follows:
7. Equal pay for equal work is a fundamental right. But equal pay must depend upon the nature of the work done, 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 make a difference. One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as such value judgment is made bona fide, reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination. It is important to emphasize that equal pay for equal work is a concomitant of Article 14 of the Constitution. But it follows naturally that equal pay for unequal work will be a negation of that right.
The above formulation was accepted and applied in State of U.P. v. Ministerial Karamchari Sangh where Supreme Court held as follows:
…It is also settled proposition that the evaluation of such jobs for the purpose of pay scales must be left to expert body and unless there are any mala fides, its evaluation should be accepted…
16. The same view was reiterated in a recent judgment State of Haryana v. Jasmer Singh this Court in that case held as follows:
5. 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. The principle was originally enunciated as a part of the Directive Principles of State Policy in Article 39(d) of the Constitution. In the case of Randhir Singh v. Union of India3, however, this Court said that this was a constitutional goal capable of being achieved through constitutional remedies and held that the principle had to be read into Articles 14 and 16 of the Constitution. In that case a Driver-constable in the Delhi Police Force under the Delhi Administration claimed equal salary as other Drivers and this prayer was granted. The same principle was subsequently followed for the purpose of granting relief in Dhirendra Chamoli v. State of U.P.4 and Jaipal v. State of Haryana5. In the case of Federation of All India Customs and Central Excise Stenographers (Recognised) v. Union of India1, however, this Court explained the principle of “equal pay for equal work” by holding that differentiation in pay scales among government servants holding same posts and performing similar work on the basis of difference in the degree of responsibility, reliability and confidentiality would be a valid differentiation. In that case different pay scales fixed for Stenographers (Grade I) working in the Central Secretariat and those attached to the heads of subordinate offices on the basis of a recommendation of the Pay Commission was held as not violating Article 14 and as not being contrary to the principle of “equal pay for equal work”. This Court also said that the judgment of administrative authorities concerning the responsibilities which attach to the post, and the degree of reliability expected of an incumbent, would be a value judgment of the authorities concerned which, if arrived at bona fide, reasonably and rationally, was not open to interference by the court.
16. In a more recent decision, viz. Union of India v. Tarit Ranjan Das , the Supreme Court again held as follows:
Whether two posts are equal or should carry equal pay, depends on several factors. It does not depend just upon either the nature of work or the volume of work done. Primarily, it requires among others, evaluation of duties and responsibilities of the respective posts by the competent authorities constituted for the purpose and courts cannot ordinately substitute themselves in the place of those authorities. The quantity of work may be the same but the quality may be different. That cannot be determined by relying upon averments in affidavits of interested parties. It must be determined by expert bodies like Pay Commission and the Government, who would be the best judges, to evaluate the nature of duty, responsibility and all relevant factors. The same view was reiterated in the case of State of M.P. v. Pramod Bhartiya8 by a three-Judge Bench of this Court. In the case of Shyam Babu Verma v. Union of India9 a claim for equal pay by a group of pharmacists was rejected saying that the classification made by a body of experts after full study and analysis of the work, should not be disturbed except for strong reasons which indicate that the classification made was unreasonable.
17. In these cases, although the claim is not for equal pay but rather that the pay scales prescribed are unreasonably equal and that the petitioners ought to be given the higher pay scale, yet the principles of law indicated by the Supreme Court for examination of claims for equal treatment in matters of pay under Article 14 of the Constitution of India would nevertheless apply with equal vigour.
18. The record indicates that right from inception, both categories, viz Stenographers and Assistants, were treated alike and extended the same pay scales. Though the petitioners have relied upon certain internal reports, furnished to the management of ONGC, recommending avoidance of growth differentials between the various categories of similar staff, yet there is nothing on record to suggest that these reports were ultimately accepted or reviewed in favor of the petitioner’s claims. In order to disturb a parity which has existed for more than 3 1/2 decades, surely there are to be some more material, quite apart from the recommendations of an internal committee or the subjective assessment of one category which claims higher pay scales than another. As held by the Supreme Court, inherent in the exercise by an employer in such cases, is a value judgment about the nature and responsibility of both the categories, their relative relevance is to the organisation, the skills and proficiency relatable to the posts in question and historicity. Unless the exercise, or value judgment by the employer is shown to be lacking in bona fides, or is manifestly arbitrary, the court should be reluctant to step in and carry out a primary decision-maker’s role. Having regard to all these factors, I am of opinion that the allegation of unequal treatment, or that stenographers have been treated with disfavor, has not been established, to warrant intervention on the ground of violation of the equality clause.
19. The second question is whether the petitioners grievance about grant of Stenographer “Grade-II to several persons initially recruited in Grade-III, between 15 and 20 years after their initial appointment is justified. The factual narrative shows that up to 1974 the induction level prescribed was Stenographer-II. This was changed, with the introduction of Stenographer’ III grade as the induction level in the Regulations of 1974. It is also an undisputed position that the induction level continued to be Stenographer Grade-III in the 1980 Regulations. The respondents’ defense for granting higher pay scale of Stenographer ‘II, to certain persons, is two fold. It is firstly stated that between 1974-80, although the Regulations required induction at Stenographer-III level, in practice appointments were made to the post of Stenographer-II. The benefit of upgradation although given much later to the concerned employees, (it was averred and contended), was due to the selection process in their case having been undertaken during the currency of the 1974 Rules, when the practice of appointment to Stenographer-II was in vogue. It was also claimed that while appointing the said persons, as Stenographer-III, the ONGC had overlooked the guidelines applicable for appointment to the reserved vacancies. As a consequence, this benefit of existing practice could not be extended to employees eligible to be appointed in reserved categories.
20. The petitioners have not disputed that even after the 1974 regulations, appointments were in fact being made on the basis of a practice to the Stenographer Grade-II. This emerges from a careful reading of Para III of the writ petition. The petitioners were however appointed much later after the coming into force 1980 Regulations between 1983 & 1986. Their grievances regarding the benefit given to six employees by retrospective up-gradation order dated 17.10.1989 and subsequent dates were considered by two Committees. The observations of the Committee comprising of five senior officials of the ONGC, produced by the respondent, to the extent it is relevant, are extracted below:
On perusal of the above paras, the position in this case is summarised below:
i] The post of Steno Gd. II was reserved for SC candidate and not the post of steno Gd. III.
ii] Two reserve candidates had qualified the test and were recommended for appointment to the post of Steno Gd. II by the Selection Board on 20.02.80. These candidates should have been appointed directly as Steno Gd. II and it is not understood why they were called for re-interview on 25.4.80.
iii] If there had not been difference of opinion amongst the Members of the Selection Board and relaxation had been granted in time, these candidates would have been appointed as Steno Gd.II in 1979 i.e. much before promulgation of R&P Regulations, 1980. This has adversely affected their career in two ways:
a] They have been appointed in one step lower scale as Steno Gd.III instead of Steno Gd.II which means that they will become Steno Gd. II after six years of experience instead of date of joining.
b] They have lost experience of one year for future career growth because promotions are rationalised from 1st January.
iv] Simultaneous recruitment action was not taken for reserved posts Along with recruitment action for General posts in 1977.
v] Eight posts of Steno Gd.II were filled in 1979 ’80 and proportionate quota of reserve vacancy has not been filled in.
vi] The post of Steno Gd.II was filled in by a general candidate in June, 1980, though erroneously and as also recruitment at EO level was made in 1980, 1981 and 1982, which was not an induction level, it therefore, cannot be said that the post of Steno Gd.II cannot be filled in after promulgation of R&P Regulations, 1980 on 25.04.80.
In view of the above it is recommended that seven Stenographers Gd.III appointed in 1980 against reserved quota may be treated to have been appointed as Steno Gd.II from the date of their joining as Steno Gd.III.
[V.D. Sharma] [S.D. Aswal] [Nand Ram] [S.K. Agrawala]
DD (P&A) Dy. C.L.A. JD(F&A) DGM (P&A)
Member Member Member Member
Secretary
(S.K. Chawla)
Gp. General Manager (Per)
Chairman
21. The above facts and the other materials on record show that five Stenographers were interviewed in 1979-80 to the post of Stenographer Grade-II. All of them belonged to Scheduled Caste category and were recruited to reserved posts relatable to the period before 1980 Regulations. As far as others who were given the grade in 1989 w.e.f. 1968 are concerned, the explanation put forth by the respondent is that those persons were appointed as Stenographer Grade-III at points of time when the post did not exist.
22. In the above conspectus of fact I am not persuaded to accept the contention of the petitioners that the respondents behaved in an arbitrary or discriminatory manner in picking and choosing a few Stenographers for conferring a higher pay scale, applicable to Stenographers Grade-II. The instances pointed out by the petitioners either relate to cases where the appointments had been made in 1968 after Grade-III was abolished or at a point in time when the consistent practice was to make appointment in Grade-II. In some cases, the appointments made to Grade-III related to back log vacancies arising when the practice of making appointments to Grade-II existed. All those instances pertained to vacancies and periods, when the selection processes was undertaken prior to coming into force of the 1980 Regulations. It is an undeniable fact that the petitioners were recruited as Stenographers Grade-III much after the 1980 Regulations came in to force. They accepted the posts and worked in it. Many of them were promoted and were granted second promotions as well. In these circumstances, the complaint of discrimination and arbitrariness, raised after such lapse of time, is neither justified nor actionable. Besides, the respondent has in my opinion given reasonable justification for its action in extending Stenographer Grade-II grade to a few persons recruited before the petitioners. Therefore, on this score too, the writ petition is without merit.
23. In view of the foregoing reasons, the writ Petitions fails. They are accordingly dismissed. Rule discharged. No costs.