Contractual Part Time School Teachers Are Entitled To 'Equal Pay For Equal Work': Calcutta HC [Read Judgment]

Justice Moushumi Bhattacharya was hearing petitions filed by contractual part-time teachers seeking equal pay for equal work against an order passed by the Secretary, School Education Department, Law Branch, Government of West Bengal. The order was passed by the Secretary following a direction of a Single Judge Bench of the Calcutta High Court in 2013 to consider an earlier representation filed by the petitioner claiming the same rights as that of a permanent full time teacher in Government aided schools. The order rejected their plea on the grounds that the petitioner's service could not be regularized as a permanent teacher and that they were not entitled to the salary of permanent teachers appointed against vacancies.

The petitioners were inducted originally by the State government, pursuant to a the policy decision of the School Education Department in 2002 for creation of 900 posts for part-time teachers in Higher Secondary Schools of West Bengal. The present writ petition before the Court was based on a series of communications passed by the government since 2004 extending the period of appointment and further increasing monthly emoluments in phases from the initial pay Rs of 2000/- to Rs. 8100/- in 2010. Placing further reliance on such documents the counsel argued that petitioners, although being appointed as part of a special recruitment policy had to perform duties the nature and extent of which, was at par with that of full-time teachers such as duties of Examiners and Scrutinizer for the Higher Secondary Examinations as well as Presiding Officers and Polling Officers for designated polling stations for assembly elections which as per the directions of subsequent orders passed by the government. Moreover, it was further argued that as contractual teachers they took equal number of classes and could only apply for medical leave subject to taking classes for the corresponding number of days in the leave, as per a government directive. The counsel further contended that the State had felt the need to sanction and fill up additional posts to upgrade High Schools to the level of Higher Secondary Schools and after having done so, the importance of the petitioners have been reiterated in view of repeated extension of tenure and increasing emoluments. A plea for equal pay for equal work was thus made.

The counsel for the government had stated that the service of the petitioners could not be regularized by placing reliance upon State of Karnataka Vs. Umadevi reported in (2006) 4 SCC 1 contending that such an action was an exception and could not used to regularize those not duly appointed as per the constitutional scheme.

The Court referring to a number of cases like State of Punjab Vs. Jagjit Singh reported in (2017) 1 SCC 148, observed that 'equal pay for equal work', would be applicable in cases of unequal scales of pay based on irrational classification or an absence of classification and the concerned employees should be performing work of the same quality and sensitivity as those with whom the comparison is sought to be made. Not paying wages despite same work was violative of Article 14. Similar principles had also been reiterated in Bhagwan Dass V. State of Haryana (1987) 4 SCC 634 wherein it was observed the only consideration for such principle was whether an employee is required to discharge similar duties and responsibilities as regular employees and possession of required qualifications prescribed for the post, irrespective of the manner of selection of appointment. However where the employee had failed to establish that they were rendering similar duties and responsibilities as being discharged by regular employees holding corresponding posts, the plea for equal pay for equal work had been rejected by the Supreme Court.

Hence, the next issue considered by the Court pertained to the establishment of the petitioner's pleas. The Court observed that the supplementary affidavits filed by petitioners recorded that an equal number of classes were being taken to that of full time teachers, a fact, which was not disputed by the school authorities either. Through an order in 2007, the government had restrained the appointment of new contractual teachers, continuing the service of existing ones. Moreover petitioners were also engaged in taking a significant number of classes at par with full-time employees in their respective subjects as per a government circular in 2008 which stated that there would be no additional posts/teachers for those subjects which would be taken care of by the part time contractual teachers.

Observing that the concept of conferring permanency to those who have been appointed on a temporary basis was different than the concept of 'equal pay for equal work' the Court held that Umadevi would not be applicable in this matter where such distinction was clearly laid down. The Court observed that the respondents had through repeated actions reinforced the necessity of service rendered by petitioners the most significant one being the aforementioned orders passed in 2007 and 2008. Several subsequent orders of the government as well reinforced the fact that the State Government considered the petitioners to be at par in all respects with full-time teachers.

The Court further observed that:

"The claim for "equal pay for equal work" has its underpinnings in Article 16 of the Constitution of India which mandates equal treatment and equal opportunities to all citizens in matters of employment. Unlike the cases where the prayer for pay parity was declined, in these proceedings, the petitioners cannot be treated as a separate and distinct class or said to be claiming benefits for a scale of duties which is outside the post and profile of the petitioners. The petitioners do not seek a change in the nature of their duties in the sense of being "regularized". The petitioners claim equal rewards compared to those who are rendering work equal in all respects to that of the petitioners."

In view of this, the Court held that when petitioners were appointed, they were expected to take on a workload equivalent to that of a permanent employee and hence denying them equal benefits would be in breach of Article 16.

"If petitioners have been performing such duties, denying them equal pay would amount to treating equals as unequals and thus, the State having treated "petitioners as one with the full-time teachers, is estopped by conduct from contending to the contrary."

In view of the above, the Court set aside the impugned orders and directed the respondents to take steps for payments of salaries and other benefits to petitioners equal to that of the regular scale of pay and at par with the full-time permanent teachers of the concerned school having effect from 27th April 2007 since the same was the date of the order restraining any further appointment of any new part-time teachers on a contract basis. The writ petitions were disposed off.

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