# Kaushal Kishore & Ors v. The State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 709
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-30
- **Case number:** Writ A No. 46063 of 2014
- **Bench:** Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kaushal-kishore-ors-v-the-state-of-u-p-ors-46650
- **Pages:** 6

## Headnote

A. Service Law - Parity in pay scale - U.P. Jail
Ministerial and Commercial Service Rules, 1983
- Uttar Pradesh Karagar Prashasan Evam
Sudhar Vibhag Pravidhik (Samuh "Ga") Seva
Niyamavali, 2011 - The doctrine of equal pay
for equal work, as adumbrated u/Article 39(d)
of the Constitution of India read with Article 14
thereof, cannot be applied in a vacuum. The
constitutional scheme postulates equal pay for
equal work for those who are equally placed in
all
respects.
Possession
of
a
higher
qualification has all along been treated to be a
valid basis for classification of two categories
of employees. (Para 10)

The principle of 'equal pay for equal work' should not
be applied in a mechanical or casual manner.
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 the
classification made to be unreasonable. Inequality of
the men in different groups excludes applicability of
710 INDIAN LAW REPORTS ALLAHABAD SERIES
the principle of 'equal pay for equal work' to them.
(Para 10)

Constitution of India: Article 14 - Question of
violation of Article 14 of the Constitution of India
on the part of the State would arise only if the
persons are similarly placed. Equality clause
contained in Article 14, in other words, will have no
application where the persons are not similarly
situated or when there is a valid classification
based on a reasonable differentia. (Para 10)

It is abundantly clear that classification based upon
higher qualification for allowing higher salary to an
employee performing similar work would be
permissible. Therefore, the respondents would
clearly be justified in denying equal pay to
petitioners at par with those Instructors, who
possess qualification of three year diploma. It is
otherwise a matter of policy for the State to
prescribe as to what would be the scale of pay
admissible to an employee based upon his
qualification. The Rules of 2011 are otherwise not
under
challenge.
The
mere
fact
that
such
distinction did not exist in the earlier rules of 1983
would also not constitute any valid basis to
challenge prescription of different wages in the
given instance. It is otherwise not the case of the
petitioners that their salary is reduced consequent
upon substitution of earlier rules with the Rules of

## Text

11 All. Kaushal Kishore & Ors. Vs. The State of U.P. & Ors.
709
of the findings returned by the Enquiry Officer
with an intent to form his prima facie
satisfaction for issuing show cause notice while
specifying the proposed punishment. The object
of notice apparently was to acquaint the
delinquent employee with the findings of the
Enquiry Officer so that he may submit his
explanation considering the fact that the charges
were serious against bank employee. The course
adopted in that regard cannot be said to be
violative of principles of natural justice in view
of what has been observed by the Supreme
Court in the case of Bolaram Bardoloi (supra).
The judgment in the case of Mahesh Dahiya
(supra) has otherwise been found to be on facts
of its own and has been distinguished by the
Supreme Court in the case of Chief General
Manager, State Bank of India (supra).

In light of the above discussions it is
held that the show cause notice is not vitiated for
the reasons urged by the petitioner and the
challenge laid in that regard accordingly fails.

26. This takes the Court to the last issue
i.e. proportionality of punishment imposed as
also the plea of discrimination based upon the
punishment awarded to Branch Manager
Brijendra Kumar Singh, who has been let off
with lesser punishment. It has already been
noticed that the charge against the Branch
Manager and the petitioner were quite distinct.
There
was
no
allegation
of fraudulent
withdrawal of money from other account
holders and the charge on part of the Branch
Manager is clearly distinct from such serious
charges levelled against the petitioner. It is
otherwise settled that in respect of same
transaction distinct punishment can always be
imposed upon delinquent employee based
upon the nature of guilt attributed and
established on part of the employee concerned.
Law is settled that distinct allegations against
employee charged in the same transaction
would be justified being based on a valid
classification and no perversity or arbitrariness
can be alleged in the process.

27. In view of the above deliberations
and discussions, this petition fails and is,
accordingly, dismissed.
----------
(2021)11ILR A709
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.09.2021

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ A No. 46063 of 2014

Kaushal Kishore & Ors. ...Petitioners
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ashish Kumar Ojha, Sri Radha Kant Ojha

Counsel for the Respondents:
C.S.C.

A. Service Law - Parity in pay scale - U.P. Jail
Ministerial and Commercial Service Rules, 1983
- Uttar Pradesh Karagar Prashasan Evam
Sudhar Vibhag Pravidhik (Samuh "Ga") Seva
Niyamavali, 2011 - The doctrine of equal pay
for equal work, as adumbrated u/Article 39(d)
of the Constitution of India read with Article 14
thereof, cannot be applied in a vacuum. The
constitutional scheme postulates equal pay for
equal work for those who are equally placed in
all
respects.
Possession
of
a
higher
qualification has all along been treated to be a
valid basis for classification of two categories
of employees. (Para 10)

The principle of 'equal pay for equal work' should not
be applied in a mechanical or casual manner.
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 the
classification made to be unreasonable. Inequality of
the men in different groups excludes applicability of
710 INDIAN LAW REPORTS ALLAHABAD SERIES
the principle of 'equal pay for equal work' to them.
(Para 10)

Constitution of India: Article 14 - Question of
violation of Article 14 of the Constitution of India
on the part of the State would arise only if the
persons are similarly placed. Equality clause
contained in Article 14, in other words, will have no
application where the persons are not similarly
situated or when there is a valid classification
based on a reasonable differentia. (Para 10)

It is abundantly clear that classification based upon
higher qualification for allowing higher salary to an
employee performing similar work would be
permissible. Therefore, the respondents would
clearly be justified in denying equal pay to
petitioners at par with those Instructors, who
possess qualification of three year diploma. It is
otherwise a matter of policy for the State to
prescribe as to what would be the scale of pay
admissible to an employee based upon his
qualification. The Rules of 2011 are otherwise not
under
challenge.
The
mere
fact
that
such
distinction did not exist in the earlier rules of 1983
would also not constitute any valid basis to
challenge prescription of different wages in the
given instance. It is otherwise not the case of the
petitioners that their salary is reduced consequent
upon substitution of earlier rules with the Rules of
2011. (Para 11)

The rejection of petitioners' claim for parity in pay
scale is neither found to be arbitrary nor violative
of principles of 'equal pay-for equal work'. (Para
12)

Writ petition allowed. (E-4)

Precedent followed:

1. U.P. State Sugar Corporation Ltd. & anr. Vs Sant
Raj Singh & ors., (2006) 9 SCC 82 (Para 10)

Present
petition
assails
order
dated
27.05.2014, passed by Department of Jail
Administration.

(Delivered by Hon'bel Ashwani Kumar Mishra, J.)

1. Challenge in this writ petition is laid to
an order passed by the department of Jail
Administration,
dated
27th
May,
2014
(contained in Annexure 12 to the writ petition);
whereby petitioners claim for higher wages
admissible to Instructors is declined and the
classification
based
on
qualification
for
prescribing different scale of pay is upheld.

2. Petitioners were appointed as Instructors
to teach various vocational subjects to Prisoners
in the Jail and are working since long. Petitioner
No. 1 was appointed as Instructor in 1997;
Petitioner No. 2 was appointed to the same post
in 1992; Petitioner No. 3 was appointed in 1995;
Petitioner No. 4 was appointed in 1987 and
Petitioner No. 5 was appointed in 1982,
respectively.
There
services
were
earlier
governed by the provisions of the U.P. Jail
Ministerial and Commercial Service Rules,
1983. Eligibility for appointment to the post of
Instructor has been specified in Part IV of the
Rules of 1983. For Instructors in different trades,
the qualification prescribed was Diploma and
Practical Knowledge of three years. Reference
can be had to the qualification of Tailor Master,
which reads as under:-

^^8&Vsyj ekLVj&ekU;rk izkIr laLFkk ls
Vsyfjax esa fMIyksek vkSj rhu o"kZ dk vH;kfld KkuA^^

3. Similar qualifications have been
specified for other trades also. All the petitioners
possess requisite qualification as per the
requirement contained in the Rules of 1983.
They were also paid salary as per the scale of
pay prescribed for them.

4. In the year 2011, the Rules of 1983
stood substituted by a new set of Rules known
as ''Uttar Pradesh Karagar Prashasan Evam
Sudhar Vibhag Pravidhik (Samuh "Ga") Seva
Niyamavali, 2011'. The educational qualification
for appointment under the new rules is distinct
from what was specified earlier. In the service
rules different scale of pay has been prescribed
for same post, depending upon the qualification
11 All. Kaushal Kishore & Ors. Vs. The State of U.P. & Ors.
711
possessed by the Instructor. Lower scale of pay
i.e. 3050-4590 with Grade Pay of Rs. 1900 is
prescribed
for
Instructors
possessing
qualification of High School or one year
diploma; whereas in respect of candidates
possessed two years diploma with High School,
the scale of pay is Rs. 4000-6000 with
corresponding Grade Pay of Rs. 4200. In cases
where the qualification possessed by Instructor
is Three Year Diploma, the pay scale prescribed
is Rs. 5000-8000 with corresponding Grade Pay
of Rs. 4200. No such distinction existed in the
earlier Rules of 1983. Petitioners, therefore,
approached this Court with the grievance that
their scale of pay ought to be at par with other
Instructors notwithstanding difference in their
educational qualification. Grievance in that
regard was raised before this Court in writ
petition no. 53679 of 2012, which came to be
disposed of directing the Secretary of the
Department concerned to examine such claim.
Order passed by this Court on 19.10.2012 in the
aforesaid
writ
petition
is
reproduced
hereinafter:-

"Heard
learned
counsel
for
the
petitioners.

The petitioners claim that they are
working as Instructor in different Central Jails
situate within the State of U.P.

It is contended that after enforcement
of U.P. Karagar Prashasan Evam Sudhar Vibhag
Pravidhik (Samuh 'G') Seva Niyamavali, 2011
(for short Rules 2011), two different pay scales
have been prescribed for the post of Instructors
and persons lesser qualified and junior to the
petitioners have been placed in the higher pay
scale, but the petitioners are placed in the lower
pay scale for no rhyme or reason.

From a perusal of pleadings, it appears
that petitioners have made representation with
respect to their grievances and anomaly in
accordance with Rule 2011.

Considering the facts, writ petition
stands disposed of with the liberty to the
petitioners
to
make
a
fresh
individual
representation with respect to their grievances
before respondent
no.
1,
Secretary
Jail,
Government of U.P., Lucknow along with a
certified copy of this order within a period of
three weeks from today and, in case, any such
representation is made, the concerned authority
shall decide the same by means of a reasoned
and speaking order in accordance with law
within a further period of two months from the
date of making of the representation."

5. Contempt petition was also filed and
ultimately by the order impugned dated 27th May,
2014 claim of the petitioners for scale of pay at par
with other Instructors who possessed three years
diploma is rejected by the State Government.
Order impugned records that distinction in the
scale of pay based upon the qualification of
Instructor is a valid classification and, therefore,
petitioners are not entitled to parity with the
Instructors who have higher qualification.

6. Learned counsel for the petitioners
submits that denial of pay scale admissible to an
Instructor of Rs. 5000-8000 with corresponding
Grade Pay of Rs. 4200 to the petitioners in the
facts and circumstances is arbitrary.

7. It is also urged that denial of equal wages
in the facts of the present case would amount to
violating the principles of equal pay for equal work
as all the petitioners are performing duties similar
to what is being performed by the Instructors
possessing diploma of three years. It is also stated
that
the
amended
rules
can
only
apply
prospectively
and
the
employees
engaged
previously cannot be discriminated in the matter of
fixation of pay scale as it would amount to
retrospectively implementing the rules of 2011 for
which there exists no stipulation in the rules itself.

8. A counter affidavit has been filed
justifying the rejection of petitioners claim on
the ground that classification based on higher
712 INDIAN LAW REPORTS ALLAHABAD SERIES
qualification for higher salary in the same cadre
and class of employment would be permissible.

9. The question that falls for determination
in this petition, therefore, is as to whether the
State would be justified in fixing higher scale of
pay for same category of employees, performing
similar work, merely on the strength of their
higher qualification?

10. Controversy raised in the present writ
petition is no longer res-integra, inasmuch as, in
a series of judgments the Supreme Court has
upheld the classification based on qualification
for the purposes of fixation of salary to the
employees performing similar work. In U.P.
State Sugar Corporation Ltd. and another Vs.
Sant Raj Singh and others, (2006) 9 SCC 82, the
Supreme Court was confronted with the similar
issue and the doctrine of ''equal pay-for equal
work' came to be examined where difference in
salary was justified on the basis of higher
qualification of the employee performing same
work. In paragraphs 16 to 22, the issue has been
examined threadbare by the Supreme Court in
following words:-

"16. The doctrine of equal pay for
equal work, as adumbrated under Article 39(d)
of the Constitution of India read with Article 14
thereof, cannot be applied in a vacuum. The
constitutional scheme postulates equal pay for
equal work for those who are equally placed in
all respects. Possession of a higher qualification
has all along been treated by this Court to be a
valid basis for classification of two categories of
employees.

17. In State of J&K v. Triloki Nath
Khosa [(1974) 1 SCC 19 : 1974 SCC (L&S) 49]
the validity of such a classification came to be
considered before this Court. Chandrachud, J.
(as the learned Chief Justice then was), opined:
(SCC p. 30, para 19)

"Formal education may not always
produce excellence but a classification founded
on variant educational qualifications is, for
purposes of promotion to the post of an
Executive Engineer, to say the least, not unjust
on the face of it and the onus therefore cannot
shift from where it originally lay."

18. Krishna Iyer, J. supplemented,
stating: (SCC pp. 40-41, para 54)

"The social meaning of Articles 14 to
16 is neither dull uniformity nor specious
''talentism'. It is a process of producing quality
out of larger areas of equality extending better
facilities to the latent capabilities of the lowly. It
is not a methodology of substitution of pervasive
and slovenly mediocrity for activist and
intelligent--but not snobbish and uncommitted--
cadres. However, if the State uses classification
casuistically for salvaging status and elitism, the
point of no return is reached for Articles 14 to
16 and the Court's jurisdiction awakens to
deaden such manoeuvres. The soul of Article 16
is the promotion of the common man's
capabilities,
overpowering
environmental
adversities and opening up full opportunities to
develop in official life without succumbing to the
sophistic argument of the elite that talent is the
privilege of the few and they must rule,
wriggling out of the democratic imperative of
Articles 14 and 16 by the theory of classified
equality which at its worst degenerates into
class domination."

19. In State of M.P. v. Pramod
Bhartiya [(1993) 1 SCC 539 : 1993 SCC (L&S)
221 : (1993) 23 ATC 657] referring to the
provisions of Section 2(h) of the Equal
Remuneration Act, 1976 this Court stated: (SCC
p. 547, para 13)

"13. It would be evident from this
definition that the stress is upon the similarity of
skill, effort and responsibility when performed
under similar conditions. Further, as pointed out
by Mukharji, J. (as he then was), in Federation
of All India Customs and Excise Stenographers
[Federation of All India Customs and Central
Excise Stenographers v. Union of India, (1988)
3 SCC 91 : 1988 SCC (L&S) 673 : (1988) 7 ATC
11 All. Kaushal Kishore & Ors. Vs. The State of U.P. & Ors.
713
591] the quality of work may vary from post to
post. It may vary from institution to institution.
We cannot ignore or overlook this reality. It is
not a matter of assumption but one of proof. The
respondents (original petitioners) have failed to
establish that their duties, responsibilities and
functions are similar to those of the nontechnical lecturers in technical colleges. They
have also failed to establish that the distinction
between their scale of pay and that of nontechnical lecturers working in technical schools
is either irrational and that it has no basis, or
that it is vitiated by mala fides, either in law or
in fact (see the approach adopted in Federation
case [Federation of All India Customs and
Central Excise Stenographers v. Union of India,
(1988) 3 SCC 91 : 1988 SCC (L&S) 673 :
(1988) 7 ATC 591] )."

20. Yet again in Shyam Babu Verma v.
Union of India [(1994) 2 SCC 521 : 1994 SCC
(L&S) 683 : (1994) 27 ATC 121] a three-Judge
Bench of this Court opined: (SCC p. 525, para
9)

"The nature of work may be more or
less the same but scale of pay may vary based on
academic qualification or experience which
justifies classification. The principle of ''equal
pay for equal work' should not be applied in a
mechanical or casual manner. 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 the
classification
made
to
be
unreasonable.
Inequality of the men in different groups
excludes applicability of the principle of ''equal
pay for equal work' to them."

21. In Govt. of W.B. v. Tarun K. Roy
[(2004) 1 SCC 347 : 2004 SCC (L&S) 225] it
was clearly laid down that the holders of a
higher qualification can be treated to be a
separate class, holding: (SCC p. 356, para 20)

"20. Question of violation of Article 14
of the Constitution of India on the part of the
State would arise only if the persons are
similarly placed. Equality clause contained in
Article 14, in other words, will have no
application where the persons are not similarly
situated or when there is a valid classification
based on a reasonable differentia."

The said decision has been noticed by
another Bench of this Court in M.P. Rural
Agriculture Extension Officers Assn. v. State of
M.P. [(2004) 4 SCC 646 : 2004 SCC (L&S)
667] stating: (SCC p. 656, para 22)

"22.
Furthermore,
as
noticed
hereinbefore, a valid classification based on
educational qualification for the purpose of
grant of pay has been upheld by the Constitution
Bench of this Court in P. Narasing Rao [State of
Mysore v. P. Narasing Rao, (1968) 1 SCR 407 :
AIR 1968 SC 349] ."

22. The first respondent admittedly did
not possess the requisite qualification. He
merely claimed a higher scale of pay only
because Shri B.P. Srivastava and Shri Shyam
Sunder Shukla had been paid. It has not been
disputed before us that the case of Shri
Srivastava stood on a different footing and his
scale of pay had to be protected in terms of
Section 16 of the Act. So far as Shri Shyam
Sunder Shukla is concerned, we may proceed on
the basis that the Corporation took a wrong
decision. The said decision, however, was not
questioned by the first respondent before the
High Court. No foundational facts had been
placed before the High Court in relation thereto.
We would not like to enter into the controversy
as to whether his case could have been
considered by the Committee or on what basis
the Committee considered the cases of seven
candidates and granted higher scales of pay to
four candidates as the validity thereof is not in
question. Assuming that the Corporation was
wrong, the same by itself would not clothe the
first respondent even (sic with a) legal right to
claim a higher scale of pay. On what basis the
Selection Committee selected four employees
out of the seven is not known. Three persons
admittedly were not selected. If the plea put
forward by the respondent is accepted, these
714 INDIAN LAW REPORTS ALLAHABAD SERIES
employees also would be entitled to the same
scale of pay as given to the said Shri Shukla,
although they have been found to be not fit
therefor. Educational qualification was made the
basis for a valid classification in the matter of
payment of salary in a particular scale of pay by
the Wage Board itself. Only in the year 1989,
such a classification was obliterated. The first
respondent had been granted the benefit of the
recommendations of the Third Wage Board also.
It was a matter of policy decision for the
Corporation to consider as to whether a
particular category of employees should be
taken outside the purview of the pay scales
recommended by the Wage Board and place
them in a higher scale of pay. We, therefore,
cannot accept the contention of Shri Dwivedi
that only because no such qualification was
prescribed at the time of recruitment, the
classification made on that basis would be bad in
law. Even otherwise the said contention is not
correct as the scale of pay was determined by the
award of the Wage Board."

11. In view of what has been observed
above, it is abundantly clear that classification
based upon higher qualification for allowing
higher salary to an employee performing similar
work would be permissible. It is otherwise a
matter of policy for the State to prescribe as to
what would be the scale of pay admissible to an
employee based upon his qualification. The
Rules of 2011 are otherwise not under challenge.
Since the classification based on higher
qualification for prescribing different pay scale
to employees performing similar work is
permissible, the respondents would clearly be
justified in denying equal pay to petitioners at
par with those Instructors, who possess
qualification of three year diploma. The mere
fact that such distinction did not exist in the
earlier rules of 1983 would also not constitute
any valid basis to challenge prescription of
different wages for employees performing
similar work on account of variation in their
qualification. It is otherwise not the case of the
petitioners
that
their
salary
is
reduced
consequent upon substitution of earlier rules
with the Rules of 2011.

12. For the reasons recorded above, the
rejection of petitioners' claim for parity in pay
scale is neither found to be arbitrary nor
violative of principles of ''equal pay-for equal
work' and consequently the challenge laid to the
order dated 27th May, 2014 fails. The writ
petition, accordingly, is dismissed. No order is
passed as to costs.
----------
(2021)11ILR A714
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.10.2021

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE JAYANT BANERJI, J.

Special Appeal Defective No. 646 of 2021

UPPCL & Ors. ...Appellants
Versus
Anil Kumar Sharma & Anr. ...Respondents

Counsel for the Appellants:
Sri Abhishek Srivastava, Sri Krishna Agarawal,
Sr. Advocate Sri G.K. Singh

Counsel for the Respondents:
C.S.C., Sri R.K. Mishra

A. Service Law - Pension - Departmental
proceedings after retirement - Civil Service
Regulations - Article 351-AA & 919-A -
Electricity Supply Act, 1948 - Section 5 - Uttar
Pradesh Electricity Reforms Transfer Scheme,
2000 - Uttar Pradesh State Electricity Board
(Officers and Servants) (Conditions of Service)
Regulations 1975 - Uttar Pradesh Electricity
Reforms Act, 1999 - Sub-sections (1) and (2) of
Section 23 - U.P. Rajya Vidyut Utpadan Nigam
Absorption Regulations, 2006 - Constitution of
India - Article 300-A.