IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.685 OF 2005
U.P. Land Development Corporation ... Appellants
and another
Versus
Mohd. Khursheed Anwar and another ... Respondents
JUDGMENT
G.S. Singhvi, J.
1. This is an appeal for setting aside the order passed by the Division
Bench of the Allahabad High Court which allowed the writ petition filed by
the respondents and directed the appellants to pay salary to the respondents
in the pay-scale of Rs.2200-4000 prescribed for the post of Assistant
Engineer, as revised up to date.
2. Appellant No.1 – U.P. Land Development Corporation (hereinafter
described as the Corporation) was established for helping the farmers of the
State in reclaiming their land. The Corporation executed several schemes,
2
most of which were sponsored and/or funded by the World Bank by
engaging staff on contract basis. Ordinarily, such engagement was
continued till the completion of the particular scheme but, at times, the
services of the same staff were utilized for execution of other scheme(s).
3. The respondents, who are graduates in engineering applied for being
employed under the Corporation as Assistant Engineers. They were
interviewed by the Selection Committee along with other eligible persons
and were adjudged suitable for employment on contract basis for completion
of `Million Wells Scheme’. This is evident from the contents of the
document titled `notes and order’ (Annexure P-1 with the memo of appeal),
which reads thus:-
“Notes and Order
At 4 districts, the work is being carried out by this Corporation under
the Million Wells Scheme. At present this work is going at full
speed. At present, there is only one engineer who is looking after
the work and considering the nature of the work, one engineer is not
sufficient and because of lack of engineers, it is not being possible to
complete the work within stipulated time, because of this, works at
Aligarh and Raibareilly are suffering from time to time. In the
headquarters of the Corporation, there is no engineer and we have to
remained depend on the said one engineer only. Keeping in mind
the need of the work, the applications received in this office have
been examined and degree holder (civil) engineers were called for
interview on 15.2.1991. Two posts of Asstt. Engineer and one post
of Jr. Engineer are sanctioned in the Corporation but the work is to
be completed under time bound Million Wells Scheme. Therefore,
the services of two engineers may be obtained on a consolidated
3salary of Rs.2,000/- per month for a period of 3 months. The salary
of both these engineers would be less than the salary of the regular
appointed engineers. The engineers would be appointed on contract
basis and the original certificate of their educational qualification
will remain deposited here.
On the basis of the interview dated 15.2.91, Md. Khursheed
Anwar and Shri Ashok Kumar were found suitable. It is being
forwarded for necessary approval and signature in this regard.
Sd/-
Illegible
16.2.91.
Sd/-
Managing Director.”
4. As a sequel to the approval accorded by the Managing Director of the
Corporation, two separate orders dated 18.2.1991 were issued engaging the
respondents on contract basis for a period of three months on a consolidated
salary of Rs.2000/- per month with a stipulation that their claim for regular
appointment will not be entertained. At that time, pay scale of the post of
Assistant Engineer was Rs.2200-4000 and that of Junior Engineer was
Rs.1600-2660. The tenure of engagement of the respondents was extended
by the Managing Director of the Corporation from time to time for short
periods of three months each. However, after one year and three months of
their initial engagement, the concerned authority passed an order dated
12.5.1992 and extended the services of the respondents till further orders.
4
5. After completing three years’ service, the respondents jointly filed
Writ Petition No.161 (S/B) of 1994 for issue of a mandamus to the
appellants herein to pay them salary in the regular pay scale prescribed for
the post of Assistant Engineer and also regularize their services on that post
by asserting that they fulfil the qualification prescribed for the post; that
they were appointed as Assistant Engineers after due selection and that right
from the date of joining, they were continuously discharging the duties of
the post of Assistant Engineer. They pleaded that action of the opposite
parties in not paying them salary in the prescribed pay scale and not to
regularize their services was wholly arbitrary and unjustified.
6. The appellants contested the writ petition. The thrust of their case
was that at the time of engagement of the respondents, no sanctioned post of
Assistant Engineer was available and they were appointed on consolidated
salary for a fixed period. The appellants denied the assertions contained in
the writ petition that the respondents were discharging the duties of the posts
of Assistant Engineer. According to the appellants, the respondents were
engaged on purely contractual basis for a fixed period and they have no right
to be regularized on the post of Assistant Engineer.
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7. In the rejoinder affidavit filed by him, Mohd. Khursheed Anwar not
only reiterated the averments contained in the writ petition but also placed
on record documents marked as Annexures R/1 to R/7 to show that at the
time of their engagement, sanctioned posts of Assistant Engineer were
available.
8. During the pendency of the writ petition, the Division Bench of the
High Court directed the Managing Director of the Corporation to file his
own affidavit. Thereupon, Shri D.K. Mittal, the then Managing Director of
the Corporation filed affidavit dated 6.12.1994 stating therein that the post
of Assistant Engineer (Civil) never existed in the Corporation and the
respondents were not appointed as Assistant Engineer or against the post of
Assistant Engineer. He, however, admitted that the respondents were
employed on a consolidated salary of Rs.2000/- per month after being
subjected to interview.
9. The Division Bench of the High Court negatived the respondents’
claim for regularization of service by observing that they had not made
specific prayer to that effect but accepted their plea for issue of a mandamus
to the appellants herein to pay them salary in the pay scale prescribed for the
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post of Assistant Engineer. The Division Bench opined that the writ
petitioners were qualified to be appointed as Assistant Engineer and there
was enough material on record to show that they were appointed as such on
ad hoc basis. The Division Bench then referred to letter dated 22.2.1993 and
observed:
“If there are posts of Assistant Engineers or equivalent thereto,
payment of their wages should be equal to the said post on the
ground of the principle of pay parity. The reasoning that while
creating new posts, the Government did not sanction any post
of Assistant Engineer will not help the opposite parties as by
the letter dated 22.2.1993 (Annexure A-3), by virtue of which,
new posts were created, the old post numbering 260 in total
lying vacant were not abolished, although, they were kept in
abeyance. As the petitioners have been appointed long before
issuance of the said letter dated 22.2.1993, it would be deemed
that the two posts of Assistant Engineers had been filed up with
the ad hoc appointment of the petitioners. It was, however,
different rather meaningless if the said two posts were not
shown to have been occupied by the petitioners on account of
some implications. One of such implications is obvious that if
the two posts had been indicated to be occupied by the
petitioners, their salary in the prescribed scale was required to
be paid to them. The Management of the Corporation some
how did not wish to keep the things clean and clear and it is a
matter of common experience that very often a motivated
ambiguity is left with a view to leave scope for suitable
interpretation. If there was no post of an Engineer in the
Corporation, why in the initial appointment letters of the
petitioners, they were referred to as simply Engineers. The
opposite parties have not proved from any document that there
was no post of engineer existing in the Corporation. As is
evident from the list of 260 sanctioned posts, there were posts
of either Assistant Engineers or Junior Engineers. If the
Corporation had in mind to appoint the two petitioners on any
terms and conditions, their designation should have been clearly
7indicated. In the absence of clarity coupled with subsequent
reference to their designation as Assistant Engineers, it would
be presumed that they were appointed as Assistant Engineers
and therefore, they would be entitled to get their salary in the
pay-scale of Rs.2200-4000 as revised up to date.”
10. Shri M.S. Ganesh, learned senior counsel appearing for the appellants
took us through the documents produced by his clients to show that at the
time of engagement of the respondents, sanctioned posts of Assistant
Engineer (Civil) were not available in the services of the Corporation and
argued that the High Court committed serious error in directing the
appellants to pay salary to the respondents in the regular pay scale of the
post of Assistant Engineer ignoring that they were engaged for a fixed
period on a consolidated salary. Learned senior counsel emphasized that the
Corporation is primarily engaged in execution of schemes sponsored and
funded by the World Bank and argued that in the absence of availability of
sanctioned posts of Assistant Engineer, the appellants cannot be compelled
to pay to the respondents salary in the pay scale of that post by applying the
principle of equal pay for equal work.
11. Shri Anil Kumar Sangal, learned counsel for the respondents fairly
stated that his clients were not appointed after following the procedure
prescribed for regular appointment but argued that the direction given by the
8
High Court for payment of salary to them in the regular pay scale prescribed
for the post of Assistant Engineer cannot be faulted because they were
employed against the existing posts of Assistant Engineer and discharged the
duties and functions of that post. Learned counsel submitted that the
respondents had continuously discharged the duties of the post of Assistant
Engineers and as such their entitlement to get salary in the scale prescribed
for that post cannot be questioned.
12. The question whether the principle of `equal pay for equal work’ can
be read as part of the doctrine of equality has been considered by this Court
in large number of cases. In Kishori Mohanlal Bakshi v. Union of India,
AIR 1962 SC 1139, this Court observed that the principle of `equal pay for
equal work’ as an abstract doctrine had nothing to do with Article 14. This
view has not been followed in most of the subsequent judgments. In
Randhir Singh v. Union of India (1982) 1 SCC 618, the Court
distinguished the three earlier judgments including Kishori Mohanlal
Bakshi v. Union of India (supra) and observed:
“Our attention was drawn to Binoy Kumar Mukerjee v. Union
of India and Makhan Singh v. Union of India, where reference
was made to the observations of this Court in Kishori Mohanlal
Bakshi v. Union of India describing the principle of “equal pay
for equal work” as an abstract doctrine which had nothing to do
9with Article 14. We shall presently point out how the principle,
“equal pay for equal work”, is not an abstract doctrine but one
of substance. Kishori Mohanlal Bakshi v. Union of lndia is not
itself of any real assistance to us since what was decided there
was that there could be different scales of pay for different
grades of a service. It is well known that there can be and there
are different grades in a service, with varying qualifications for
entry into a particular grade, the higher grade often being a
promotional avenue for officers of the lower grade. The higher
qualifications for the higher grade, which may be either
academic qualifications or experience based on length of
service, reasonably sustain the classification of the officers into
two grades with different scales of pay. The principle of “equal
pay for equal work” would be an abstract doctrine not attracting
Article 14 if sought to be applied to them.
It is true that the principle of “equal pay for equal work” 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.
“Equal pay for equal work for both men and women” means
equal pay for equal work for everyone and as between the
sexes. Directive principles, as has been pointed out in some of
the judgments of this Court have to be read into the
fundamental rights as a matter of interpretation. Article 14 of
the Constitution enjoins the State not to deny any person
equality before the law or the equal protection of the laws and
Article 16 declares that there shall be equality of opportunity
for all citizens in matters relating to employment or
appointment to any office under the State. These equality
clauses of the Constitution must mean something to everyone.
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. Whether the special procedure prescribed by a statute for
trying alleged robber-barons and smuggler kings or for dealing
with tax evaders is discriminatory, whether a particular
10
governmental policy in the matter of grant of licences or
permits confers unfettered discretion on the Executive, whether
the take-over of the empires of industrial tycoons is arbitrary
and unconstitutional and other questions of like nature, leave
the millions of people of this country untouched. 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 Preamble to the Constitution declares the solemn
resolution of the people of India to constitute India into a
Sovereign Socialist Democratic Republic. Again the word
“socialist” must mean something. Even if it does not mean `to
each according to his need’, it must at least mean “equal pay for
equal work”. “The principle of “equal pay for equal work” is
expressly recognized by all socialist systems of law, e.g.,
Section 59 of the Hungarian Labour Code, para 2 of Section
111 of the Czechoslovak Code, Section 67 of the Bulgarian
Code, Section 40 of the Code of the German Democratic
Republic, para 2 of Section 33 of the Rumanian Code. Indeed
this principle has been incorporated in several western Labour
Codes too. Under provisions in Section 31 (g. No. 2d) of Book I
of the French Code du Travail, and according to Argentinian
law, this principle must be applied to female workers in all
collective bargaining agreements. In accordance with Section 3
of the Grundgesetz of the German Federal Republic, and Clause
7, Section 123 of the Mexican Constitution, the principle is
given universal significance” (vide International Labour Law
by Istvan Szaszy, p. 265). The Preamble to the Constitution of
the International Labour Organisation recognises the principle
of `equal remuneration for work of equal value’ as constituting
one of the means of achieving the improvement of conditions
“involving such injustice, hardship and privation to large
numbers of people as to produce unrest so great that the peace
and harmony of the world are imperilled”. 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 may be properly applied to
cases of unequal scales of pay based on no classification or
irrational classification though those drawing the different
scales of pay do identical work under the same employer.”
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13. The ratio of the judgment in Randhir Singh’s case was invoked and
applied in Dhirendra Chamoli v. State of U.P. (1986) 1 SCC 637,
Surinder Singh v. Engineer-in-Chief, CPWD (1986) 1 SCC 639 and other
cases for extending the benefit of the principle of `equal pay for equal work’
to different types of employees including daily wagers but the same was
distinguished in Federation of All India Customs and Central Excise
Stenographers (Recognized) v. Union of India (1988) 3 SCC 91, State of
U.P. v. J.P. Chaurasia (1989) 1 SCC 121, Mewa Ram Kanojia v. All
India Institute of Medical Sciences (1989) 2 SCC 235, Ghaziabad
Development Authority v. Vikram Chaudhry (1995) 5 SCC 210, State of
Haryana v. Jasmer Singh (1996) 11 SCC 77, Orissa University of
Agriculture and Technology v. Manoj K. Mohanty (2003) 5 SCC 188,
State of Haryana v. Tilak Raj (2003) 6 SCC 123, Government of West
Bengal v. Tarun K. Roy (2004) 1 SCC 347, State of Haryana v.
Charanjit (2006) 9 SCC 321, S.C. Chandra v. State of Jharkhand (2007)
8 SCC 279, Official Liquidator v. Dayanand and others (2008) 10 SCC 1
and very recently in State of Punjab v. Surjit Singh (2009) 9 SCC 514.
12
14. In Jawaharlal Nehru Technological University v. T. Sumalatha
(2003) 10 SCC 405, a two-Judge Bench set aside the direction given by the
High Court to the appellant to absorb the respondents in accordance with the
policy contained in G.O. No.212 dated 22.4.1994, but made some significant
observations on the issue of payment of higher salary to them. The same are
extracted below:
“Though the plea of regularisation in respect of any of the fifth
respondents cannot be countenanced, the respondent employees
should have a fair deal consistent with the guarantee enshrined
in Articles 21 and 14 of the Constitution. They should not be
made to work on a meagre salary for years together. It would be
unfair and unreasonable to extract work from the employees
who have been associated with the nodal centre almost from its
inception by paying them remuneration which, by any objective
standards, is grossly low. The Central Government itself has
rightly realised the need to revise the consolidated salary and
accordingly enhanced the grant on that account on two
occasions. That revision was made more than six years back. It
is high time that another revision is made. It is therefore
imperative that the Ministry concerned of the Union of India
should take expeditious steps to increase the salary of the
investigators viz. Respondents 1 to 4 working in the nodal
centre in Hyderabad. In the absence of details regarding the
nature of work done by the said respondents and the
equivalence of the job done by them to the other posts
prevailing in the University or the Central Government
institutions, we are not in a position to give any direction based
on the principle of `equal pay for equal work’. However, we
consider it just and expedient to direct Respondent 7 or 8, as the
case may be, to take an expeditious decision to increase the
consolidated salary that is being paid to Respondents 1 to 4 to a
reasonable level commensurate with the work done by them
and keeping in view the minimum salary that is being paid to
the personnel doing a more or less similar job. As far as the
13fifth respondent is concerned, though we refrain from giving
similar directions in view of the fact that the post is not
specifically sanctioned under the Scheme, we would like to
observe that the Central Government may consider increasing
the quantum of office expenditure suitably so that the
University will be able to disburse higher salary to the fifth
respondent.”
15. In Dayanand’s case, the Court observed that the ratio of Randhir
Singh’s case has not been followed in later judgments and held that
similarity in the designation or quantum of work are not determinative of
equality in the matter of pay scales and that before entertaining and
accepting the claim based on the principle of equal pay for equal work, the
Court must consider the factors like the source and mode of
recruitment/appointment, the qualifications, the nature of work, the value
judgment, responsibilities, reliability, experience, confidentiality, functional
need etc.
16. In Surjit Singh’s case, the Court reviewed large number of judicial
precedents and observed:
“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
14
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 the 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 make 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
regard. 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
15
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.”
17. In the light of the above stated legal position, we shall now consider
whether the direction given by the Division Bench of the High Court to the
appellants to pay salary to the respondents in the regular pay scale
prescribed for the post of Assistant Engineer is legally correct. Here it is
apposite to note that the High Court granted relief to the respondents by
presuming that two posts of Assistant Engineer were utilized for appointing
them. This assumption is ex facie fallacious because the documents
produced before the High Court and this Court show that the respondents
were engaged for a fixed period on a consolidated salary. There is nothing
in the language of orders dated 18.2.1991 from which it can be inferred that
the respondents were appointed against the sanctioned posts of Assistant
Engineer (Civil). The correspondence exchanged between the State
Government and the Corporation after 18.2.1991 cannot be relied upon for
recording a finding that the respondents were appointed against the
sanctioned posts of Assistant Engineer. Therefore, the direction given by the
High Court for payment of salary to the respondents in the regular pay scale
16
prescribed for the post of Assistant Engineer cannot be sustained. But, at the
same time, we are convinced that the appellants were not justified in
continuing the respondents on a consolidated salary of Rs.2000/- per month
despite the fact that at the time of their selection, two sanctioned posts of
Assistant Engineer and one post of Junior Engineer were lying vacant and
proposal for appointing the respondents without any nomenclature was made
with the sole object of taking work of the particular post from them without
paying salary in the regular pay-scale of any post. To say the least, the
decision of the Corporation to effect economy by depriving the respondents’
even minimum of the pay-scale was totally arbitrary and unjustified. The
very fact that the respondents were engaged on a consolidated salary of
Rs.2,000/- per month and the prescribed pay-scale of the post of Assistant
Engineer in other branches was Rs.2200-4000/- and that of the Junior
Engineer was Rs.1,600 – 2,660/- gives a clear indication that they were
engaged to do the work of Assistant Engineer. The appellants had
neither pleaded before the High Court nor it has been shown to this Court
that the respondents were not qualified for the post of Assistant Engineer. It
is also not the case of the appellants that the respondents suffered from any
other disability which could impede their appointment on the post of
Assistant Engineer. In the written statement filed before the High Court, the
17
appellants did make a statement that the respondents were not discharging
the duties of Assistant Engineer but no material was produced either before
the High Court or before this Court to show any difference in the nature of
duties being performed by the respondents and those which were required to
be performed by an Assistant Engineer. It is, therefore, reasonable to take
the view that the respondents had been arbitrarily deprived of their
legitimate right to get minimum of the pay-scale prescribed for the post of
Assistant Engineer.
18. In the result, the appeal is partly allowed. The impugned order is set
aside. However, the appellants are directed to pay to the respondents
minimum of the pay-scale prescribed for the post of Assistant Engineer (as
revised from time to time) from the date of their appointment till they
continued in the employment of the Corporation.
19. During the course of hearing, we were informed by the learned
counsel for the parties that the respondents’ engagement was discontinued in
2007 and they were offered fresh employment on the post of Junior
18
Engineer. On this issue we do not want to make any observation and leave it
to the respondents to accept or decline the offer made by the appellants.
…………………………..J.
[G.S. Singhvi]
………………………….J.
[C.K. Prasad]
New Delhi
July 05, 2010.