JUDGMENT
R.C. Patnaik, J.
1. The petitioners who were Assistant Engineers (belonging to the Subordinate Engineering Service Cadre) in the Design Section of the Irrigation wing have raised in this writ application an interesting question, namely, whether the principle “equal pay for equal work” is applicable to them and if they can enforce their right by invoking the extraordinary jurisdiction of this Court.
2. On the demand of the Joint Committee of Service Associations of Civil, Electrical and Mechanical Engineers and of the Subordinate Engineering Service Association, a committee of Chief Engineers was appointed to identify posts which carried higher responsibility and/or required higher technical knowledge to be appropriately manned by Assistant Engineers In different engineering departments. The Committee of Chief Engineers categorised the following posts as carrying higher responsibility and/or requiring higher technical knowledge so as to be manned by Assistant Engineers
(a) All sanctioned posts of junior Engineers/Sub-Assistant Engineers in Designs Planning Quality Control and Research Divisions.
(b) One post of Estimator in the Field Divisions including investigation Divisions.
(c) Fifty percent of Estimators posts in Chief Engineer’s Office.
(d) Only two posts out sanctioned posts of Estimators in Circle (for planning, Arbitration cases; Draft para, Estimate of work involving higher technical know how.
(e) The junior Engineers in Investigation Divisions
(f) The junior Engineer/Sub-Asst. Engineer Posts in major construction works such as frame structure buildings. Highway Bridges, new High Way Construction, Dams and Spillways, works construction of power Houses, tunnels etc, head works of Minor Irrigation Projects Major Fabrication works, workshops of Major and Medium Projects etc and
(g) All posts of junior Engineers/Sub-Asst Engineers in operation and maintenance of Power stations, Grid sub-stations, Load dispatching stations, Constructions of E. H. T. Sub-Divisions, and maintenance of E. H. T. lines and sub-stations.
Accepting the recommendation Government decided that 1299 posts borne in different departments were to be upgraded. 261 posts thereof were in the Irrigation Wing [See Annexure-1 dated November 11, 1980). 909 posts of Assistant Engineer in the scale of Rs. 525-115O/-in class-II of the Orissa Engineering Service were created in the Irrigation and Power Department (See Annexure-2) dated November 17, 1980]. Equal number of posts in the Subordinate Engineering Service Cadre were abolished. 142 posts in the Design Section of the Irrigation Department were upgraded to the post of Assistant Engineers. Petitioners 5, 11, 15, 19 and 28 who were Junior Engineers, were promoted as Assistant Engineers by notification dated March 3, 1981. Petitioners 1, 4, 8, 13, 16, 17 and 18, who were members of the Sub ordinate Engineering Service were appointed as Assistant Engineers for a period of one year or till the recommendation of the O. P. S. C. was received whichever was earlier, by notification dated March 3, 1981 (Annexure-3/1.) The rest of the petitioners were direct recruits for the post of Assistant Engineers and were appointed in posts created In Annexure-3/3. The petitioners have averred that having regard to the arduous nature of work and the higher responsibilities that the posts carried, special pay had been sanctioned even before up gradation. The post of Assistant Engineers already existing in the Design Section of the Irrigation Department carried special pay as those posts fulfilled the requirements. The post of Assistant Engineers created pursuant to Annexures-1 and 2 also fulfilled the requirements justifying sanction of special pay. They assert that when other posts of Assistant Engineers in the Design Section of the Irrigation Department carried special pay, there was no justification to deny the same to the Assistant Engineers appointed against the post of Assistant Engineers newly created. They have averred that there is no difference in the nature of work performed by them and the other Assistant Engineers in the Design Section of the Irrigation Wing. Denial of special pay by drawing a distinction between the. Assistant Engineers in posts already existing and these appointed against the newly created posts is irrational amounting to an invidious distinction infringing Articles 14 and 16 of the Constitution of India. Reliance has been placed on the recommendation of the Chief Engineer (Annexure-4) and the Engineer-in-Chief dated August 31, 1982 (Annexure-5).
3. The logic of the Government behind denying special pay as per Annexure-6 dated January 13, 1983, namely, “for the purpose of job requirement the Sub-Asst, Engineer post have been upgraded to the rank of Asst. Engineers with a higher scale of pay than that of the Sub-Asst. Engineers. As such there is no justification for attaching special pay to such Asst. Engineer Posts” is assailed as unconstitutional.
4. The stand of the opposite parties In a nut shell is that when posts of Sub-Assistant Engineers were upgraded as Assistant Engineers, the incumbents were not entitled to special pay. It is worthwhile to quote the recommendation of the Chief Engineer to Government dated August 31, 1982 (Annexure-5):
“I am to state that 50 posts of Assistant Engineers were specially created in the office of Chief Engineer, Designs (Irrigation) as per I. & P. Department letter No. 39853 dated 17-11-1980 on the strength of the I. P. Deptt. Resolution No.
Estt. (Civil)-IE-10/8O-38943 dt. 11-11-1980 on abolition of equal number of posts of S. A. E. S. from S. Es cadre in view of the interest of work in the office. Prior to the abolition of posts, S. A. Es. working In Designs were enjoying special allowance @ 20% of their pay subject to maximum Rs. 50/-. But soon the posts are declared as A. Es. they are deprived of getting the financial benefit in shape of special pay even if the said benefit is enjoyed by other A. Es. doing the same nature
of work with similar responsibilities. The practice in vogue not only creates confusion, but brings dissatisfaction amongst those appointed against upgraded posts and in turn they are loosing zeal in work. Moreover, Government in I & P. Dept has impressed in their letter No. 75 dt. 4-1-1982 that for all practical purpose J. Es./S. A. Es. promoted against upgraded posts will have their equal status, rights and responsibilities as that of regular Asst. Engineers.
To meet the requirement of special pay to all the 50 Asst. engineers in the office of the Chief Engineer, Designs, there will be financial implication of Rs. 45,000/- per annum for which provision will be made in the 2nd Revised Budget Estimate of he said office for the year 1982-83 under the head “Demand No. 20-333-lrrigation-Navigation-Floqr Control Projects (C) Flood Control-Antisea Erosion-Projects (A) direction and Administration.
In view of the facts stated above and to bring parity, it is recommended that special pay facilities may please be extended to all the A. Es. posted in the office of the Chief Engineer, Designs, against upgraded posts with effect from the date of their joining and order of Government communicated at an early date”.
5. The short question is : Can there be two classes of Assistant Engineers in the Design Section of the Irrigation Wing doing sum nature of work, shouldering similar responsibilities, one enjoying special pay and the other denied the entitlement in the face of
Articles 14 and 16 of the Constitution of India?
6. The State Government had already decided that 21 posts of Asst. Engineers in the Irrigation Department the incumbents whereof were discharging duties of arduous nature were to be paid compensatory pay as special pay. The Subordinate Assistant Engineers or the Junior Engineers, as the case may be, were not able to satisfy the requirement of the State Government for which the posts were abolished and equal number of posts of Assistant Engineers were created. A word has not been breathed in the counter affidavit to indicate that the existing posts before the creation of the new posts were carrying duties of more arduous nature and the incumbents of the newly created posts would discharge less responsibilities which are less arduous in nature. It is true that under Rule 98 of the Orissa Service Code, the special pay which is in the nature of a compensatory allowance shall be as regulated that it is not on the whole a source of profit to the recipient. When in the same section same work is being discharged by a group of officers of same status, compensatory allowance as special pay to some and refusal of the same to others without any nexus would be clearly discriminatory. Once the petitioners joined the common stream of service to perform the same duties, it is clearly not permissible to make any classification on the basis of their origin. (See the observation of the Supreme Court in quoted and followed in 1984 LIC 1015).
7. It has been authoritatively declared that the principle “equal pay for equal work” is not an abstract doctrine but one of substance. Though the principle is not expressly declared by our Constitution to be a fundamental right, but it certainly is a constitutional goal.
Article 39(d) of the Constitution proclaims “equal pay for equal work for both men and women” as a Directive Principle of State Policy and it has been authoritatively stated that Directive Principles have to be read into the fundamental rights as a matter of interpretation. To the vast majority of the people 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. Questions concerning wages and the like, mundane they may be, are yet matters of vital concern to them and it is there, if at all that the equality clauses of the Constitution have any significance to them. The Supreme Court has declared in Randhir Singh v. Union of India, AIR 1982 .C. 879 :
“Construing Articles 14 and 16 in the light of the Preamble and Article 39(d), we are of the view that the principle “Equal pay for Equal work” is deducible from those Articles and pay be properly applied to cases of unequal scales of pay based on no classification or irrational classification though these drawing the’ different scales of pay do identical work under the same employer.”
When I. C. A. R. prescribed higher scales of pay for newly created posts of professor with slight change in essential qualification, the Supreme Court deprecated the same holding that two different scales while the duties, responsibilities and the functions were the same, offended the equality clause ( See P. K. R. Iyer v. Union of India, AIR 1984 S. C. 541). Differential treatment in the matter of pay can be justified:
“If officers of the same rank performed dissimilar functions and the powers, duties and responsibilities of the posts held by them vary; such officers may not be heard to complain of dissimilar pay merely because the posts are of the same rank and the nomenclature Is the same.”
Differential treatment can also be justified when there are different grades in a service with carrying qualifications for entry Into a particular grade, the higher grade often being a promotional avenue for officers of the lower grade. The higher qualification for the higher grade, which may be either academic qualification or experience based on length of service reasonably. sustain the qualification of the officers into two grades with different scales of pays. See Randhir Singh’s case. In the case of P. Savita and others v. Union of India and others (AIR 1975 S. C. 1124), the prescription of two different scales of pay for senior draftsman working in the same department was assailed. The Supreme Court accepted the challenge observing:
“…Where all relevant considerations are the same, persons holding identical posts and discharging same duties should not be treated differently.”
8. In our opinion, if Assistant Engineers in the Design Section of Irrigation Wing, enjoyed special pay by reason of the nature of work and the higher responsibilities that the posts carried, the benefit should extend to all Assistant Engineers in the Design Section whose nature of work was the same and who discharged similar responsibilities, The distinction that the existing posts formed a distinct class from those created by way of upgradation is not an intelligible differentia to find favour with the guarantee of equality clause. But that is the basis for the denial of special pay as disclosed In Annexure-6. We get it from Annexure-7 dated 4-1-1982, a letter from the Government in the Irrigation and Power Department addressed to the Additional Chief Engineer, Minor Irrigation that :
“…For all practical purpose they are Asst. Engineers having equal status, rights and responsibilities as that of regular Assistant Engineers …”
With this avowal, the petitioner right to the relief is unquestionable. Hence, we are of the opinion that the denial of special pay to the Assistant Engineers holding, the upgraded posts in the Design Section of the Irrigation Wing is violative of Articles 14 and 16 of the Constitution of India We, therefore, quash Annexure-6 and issue
amandamus to the opposite party No. 1 directing it to grant special pay to the petitioners.
9 In the result, the writ application is allowed. But there would be no order as to costs.
S.C. Mohapatra, J.
10. I agree