[Disparity In Pay Scale] Classification Based On Mode Of Recruitment, Qualification & Merit Not Unreasonable: Delhi High Court
The Delhi High Court has held that whereas the "Equal Pay for Equal Work" is a constitutional goal, however, there is no absolute application of the principle by default, within or across organisations/ departments. A single bench of Justice Chandra Dhari Singh observed that organisations as well as the government have the liberty to set different pay scale, where they make a...
The Delhi High Court has held that whereas the "Equal Pay for Equal Work" is a constitutional goal, however, there is no absolute application of the principle by default, within or across organisations/ departments.
A single bench of Justice Chandra Dhari Singh observed that organisations as well as the government have the liberty to set different pay scale, where they make a reasonable, valid and intelligible classification for employees placed at similar grades and work profiles.
"(There are) several considerations to be borne in mind while deciding the issue of parity between two posts, whether in the same organisation or across different organisations/ departments. There is definitely no mathematical application of the principle of parity and "Equal Pay for Equal Work" and it is the Courts of the country that have laid down various factors for deciding the question of parity amongst different designations," the bench observed.
The court further observed that while similar nature of work, responsibilities, duties and reliabilities are relevant considerations while evaluating parity and consequent question of equality of pay scale, several other factors like qualifications, mode of recruitment as well as merit are also relevant factors.
The court also cautioned that irrational classification and apparent discrimination cannot be justified where employees placed at an identical position are treated differently, whether working under the same employer or placed in different public departments.
"The fundamental principle, hence, is how closely a nexus or similarity can be found between two post/positions in different organisations/departments and how this nexus should affect the pay for the employees appointed in this position," the court said.
Reliance was placed on State of Madhya Pradesh & Ors. vs. Seema Singh in which the Supreme Court held that an employee can't claim parity of pay scale with another due to mere similarity of designation or similarity or quantum of work. It was further held that various relevant factors such as the mode of recruitment, qualifications for the post, the nature of work, the value of work, responsibilities involved, etc. must be considered.
Background
The observations were made when the court was faced with a question whether there is parity between the position of Stenographers/ Assistants in Central Secretariat Stenographer Service and Stenographers Grade "C" in Telecom Disputes Settlement and Appellate Tribunal.
The question arose in a plea filed by one Nishant Chawla who was employed in TDSAT (Respondent herein) as Stenographer Grade 'C' and was aggrieved by disparity in pay as compared to Assistants and Stenographer Grade 'C' of Central Secretariat Stenographer Service.
He challenged a communication issued by Department of Telecommunications refusing his representation for upgradation of the pay-scale from Rs.5500-9000 to Rs.6500-10500.
Arguments
The Petitioner argued that it is well settled that when there is complete parity, employees in two organizations cannot be discriminated or treated differently.
He submitted that that there has been historical parity between the Assistants and Stenographer Grade 'C' working in the DoT and TDSAT and their counterparts working in CSS and CSSS, however, this parity was tampered with by the refusal of the grant of the upgraded pay-scale and Grade Pay.
It was further submitted that TDSAT follows the same grade structure as is applicable to CSS/CSSS employees. The functions of the Assistants and Stenographer Grade 'C' are similar in nature to their counterparts in CSS/CSSS. There is direct recruitment for the post of Stenographers in TDSAT which is also in parity with the service conditions in CSS/CSSS. The educational qualification for the post of Stenographer Grade 'C' in CSSS was Matriculate in the year 2000, and the same qualification was also required for the post of Stenographer Grade C in TDSAT.
Hence, the Petitioner argued that the impugned orders are facially unsustainable and unintelligible and deny fair and due promotion to the petitioner in his services.
The Respondent on the other hand argued that both 5th and 6th Central Pay Commission made a clear distinction between Secretariat and Non-Secretariat Organizations and recommended that pay scale of Assistants in the Non-Secretariat organizations should slightly be lower as compared to pay scale of Asstt. in the Sectt. It was argued that since TDSAT is a Non-Secretariat Organization, there was no infirmity in the impugned order.
Findings
At the outset, the Court ventured into the meaning of word "parity". It observed,
"The word parity, in its simplest and truest sense, means equality or being at par. Such equality can be of position, rank, value or condition when seen in the context of service and the benefits that arise from such service. The test of parity also starts to hold a greater significance when seen on the touchstone of equality, as has been guaranteed under Article 14 of the Constitution of India.
The test, hence, is to be considered with the utmost care and consideration when the question of rights of the civilian employees are in question with respect to their work and pay. more particularly when the benefits accruing to two similarly placed positions are to be evaluated. The principle of equal pay for equal work needs to be kept in mind while considering this expansive interpretation of Article 14 of the Constitution and the rights arising thereto."
Reliance was also placed on Union of India vs. Manoj Kumar, where it was held that the principle of equal pay for equal work cannot be applied merely on basis of designation and that there is an element of disparity between the Secretariat and the field offices.
Coming to the facts of the instant case, the High Court observed that petitioner was placed in the pay scale of Rs. 5500-6000, whereas, it has been alleged that counterparts in the CSSS have been placed under the pay-scale of Rs. 6500-10500.
However, it refused to interfere with the same while observing that that the position under the CSSS is filled by way of direct recruitment by way of clearing the All-India Competitive Examination whereas under the TDSAT the position is to be occupied on deputation basis, without passing of any competitive examination.
It observed,
"It is found that to establish parity in employment, more significant factors including qualifications and mode of recruitment are to be given equal consideration… Moreover, it cannot be said that the petitioner working at the respondent no. 1 has the same rigours as that of the Secretariat in terms of the requirement for recruitment, since, an employee being deputed cannot be placed at par with an employee appearing for and clearing a competitive examination where only a selected few fill up the position at Ministerial organisation from amongst thousands of those appearing for the examination."
Thus the Court held that the petitioner is not entitled to any benefit sought and prayed by him of an upgraded pay scale.
The petition was accordingly dismissed.
Case Title: Nishant Chawla v. TDSAT
Citation: 2022 LiveLaw (Del) 643