# Manoj Kumar Sengar & Ors v. The State of U.P. & Ors

- **Citation:** (2020) 1 ILRA 564
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-17
- **Case number:** Writ A No. 7885 of 2016
- **Bench:** Rohit Ranjan Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manoj-kumar-sengar-ors-v-the-state-of-u-p-ors-45226
- **Pages:** 17

## Headnote

C.S.C., Sri Pranab Kumar Ganguli

A. Service - Payment of Salary - Equal
pay
for
equal
work
-
U.P.
State
Agricultural
Universities
Act;
Uttar
Pradesh
Agricultural
and
Technical
Universities Act, 1958: Section 28(r);
Agricultural
Universities
Act
-
An
employee is entitled for parity in pay/
pay scale if he is discharging/performing
similar
functions,
duties
and
responsibilities. (Para 22 & 26)

It is a settled law that similarly situated
employees are entitled for equal pay for equal
work where they are discharging same work,
function and responsibilities. In the present
case, the State Government before bifurcation
of State, granted the benefit of the 5th Pay
Commission to the Lab Technicians but, post
bifurcation the respondent-State is trying to
distinguish between the Lab Technicians of the
two Universities on the basis of experiences
and is trying to create three different slabs in
the said pay scale, which was not there at the
1 All. Manoj Kumar Sengar & Ors. Vs. The State of U.P. & Ors.
565
time it was granted to the Lab Technicians of
the State in the year 1998. The action of the
State Government is totally arbitrary and
discriminatory in nature. (Para 16, 23, 24 & 26)

B. Constitution of India: Articles 14, 16,
39(d) - 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. Principle of 'equal pay
for equal work' is deducible from Articles 14, 16
and 39(d) and may be properly applied to
cases of unequal scales of pay based on no
classification or irrational classification, though
performing identical work. (Para 19 & 27)

Writ Petition allowed. (E-4)

Precedent followed: -

## Text

_Characters 0–39,846 of 57,049. This is a partial read: ask again with offset=39846 for what follows._

564 INDIAN LAW REPORTS ALLAHABAD SERIES

(22) It was moreover, observed by the
opposite party no.1 that when the workmen
engaged on sanitation duty in other units of
HAL like Kanpur, Koraput, Nasik, Hyderabad
and Bangalore are regular workmen, and not
engaged through contractors, and getting the
wages and all other benefits like any other
regular employee.

(23) A detailed determination of
wages to be paid to contract labourers
engaged in sanitation work at Korwa Unit
has been done at the rate of minimum
wages paid to unskilled workers of HAL,
Korwa. Since the contract workers were
already covered by the beneficial Statutory
scheme like Provident Fund, Payment of
Bonus Act, etc. such benefit was continued
to be given. Moreover, the determination
was made with regard to the paid
Holidays, Casual Leave, Earned Leave and
Uniform etc. also in the order impugned.

(24) I have carefully perused the
order passed by the Dy. Chief Labour
Commissioner. The distinction sought to
be drawn by the learned counsel for the
petitioner with HAL Lucknow unit of the
same employer, the petitioner, has not
been such as would lead to different wages
being given to workers at Korwa Unit.
This Court does not find any good ground
to show interference in writ jurisdiction.

(25) This petition is dismissed.

(26) No order as to costs.

Writ Petition No.1213 (SS) of 2005-
This petition was filed by the petitioners,
the Union of Contract Sanitation workers
at Korwa Unit, Amethi, challenging the
order dated 27.07.2004 passed by the
Deputy
Chief
Labour
Commissioner
(Central), praying for enhancement.

Learned counsel for the petitioner Sri
Manish Kumar Singh, has been instructed
by his Client, not to press this petition, in
view of the order passed by this counsel in
Writ Petition No.7347 (SS) of 2004.
----------
(2020)1ILR 564

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.10.2019

BEFORE
THE HON'BLE ROHIT RANJAN AGARWAL, J.

Writ A No. 7885 of 2016

Manoj Kumar Sengar & Ors. ...Petitioners
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Amrendra Pratap Singh, Sri Subhendra
Singh

Counsel for the Respondents:
C.S.C., Sri Pranab Kumar Ganguli

A. Service - Payment of Salary - Equal
pay
for
equal
work
-
U.P.
State
Agricultural
Universities
Act;
Uttar
Pradesh
Agricultural
and
Technical
Universities Act, 1958: Section 28(r);
Agricultural
Universities
Act
-
An
employee is entitled for parity in pay/
pay scale if he is discharging/performing
similar
functions,
duties
and
responsibilities. (Para 22 & 26)

It is a settled law that similarly situated
employees are entitled for equal pay for equal
work where they are discharging same work,
function and responsibilities. In the present
case, the State Government before bifurcation
of State, granted the benefit of the 5th Pay
Commission to the Lab Technicians but, post
bifurcation the respondent-State is trying to
distinguish between the Lab Technicians of the
two Universities on the basis of experiences
and is trying to create three different slabs in
the said pay scale, which was not there at the
1 All. Manoj Kumar Sengar & Ors. Vs. The State of U.P. & Ors.
565
time it was granted to the Lab Technicians of
the State in the year 1998. The action of the
State Government is totally arbitrary and
discriminatory in nature. (Para 16, 23, 24 & 26)

B. Constitution of India: Articles 14, 16,
39(d) - 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. Principle of 'equal pay
for equal work' is deducible from Articles 14, 16
and 39(d) and may be properly applied to
cases of unequal scales of pay based on no
classification or irrational classification, though
performing identical work. (Para 19 & 27)

Writ Petition allowed. (E-4)

Precedent followed: -

1. Union of India and others Vs. Rajesh Kumar
Gond, (2014) 13 SCC 588 (Para 18)

2. Randhir Singh Vs. Union of India and others,
(1982) 1 SCC 618 (Para 19, 21, 28)

3. Ashok Kumar and others Vs. State of U.P.
and another, (2005) 1 ESC 143 (Para 20)

4. State of Punjab and others Vs. Jagjit Singh
and others, (2017) 1 SCC 148 (Para 21, 28)

5. State of Haryana vs. Jasmer Singh and
others, (1996) 11 SCC 77 (Para 21)

6. State of Punjab and Anr. Vs. Surjit Singh,
(2009) 9 SCC 514 (Para 21)

7. D.S. Nakara Vs. Union of India, (1983) 1
SCC 305 (Para 21)

8. Mewa Ram Kanojia v. All India Institute of
Medical Sciences, (1989) 2 SCC 235 (Para 21)

Petition
challenges
order
dated
22.01.2016,
passed
by
Principal
Secretary,
Agriculture
and
Research,
Government of Uttar Pradesh, Lucknow.
(Delivered by Hon'ble Rohit Ranjan
Agarwal, J.)

1. Heard Sri Anil Bhushan, learned
Senior Advocate assisted by Sri Subhendra
Singh, learned counsel for the petitioners,
learned Standing Counsel for respondent
nos. 1 and 2 and Sri P.K. Ganguly, learned
counsel for respondent nos. 3, 4 and 5.

2. Petitioners who are ten in number
have filed this writ petition for the
following reliefs:-

"A). Issue a writ, order or
direction in the nature of Certiorari
quashing the impugned order dated
22.01.2016 passed by respondent no. 1,
The Principal Secretary, Agriculture and
Research, Government of Uttar Pradesh,
Lucknow.

B). Issue a writ, order or
direction in the nature of Mandamus
commanding
and
directing
the
respondents to fix the salary of the
petitioners as Lab Technicians in the
Sardar Vallabh Bhai Patel Agricultural
and Technical University Meerut, in the
pay scale of Rupees 5000-8000 with effect
from 01.01.1996 or from the date of their
appointment whichever is later and to
ensure payment of the same on monthly
basis;

C). Issue a writ, order or
direction in the nature of Mandamus
commanding
and
directing
the
respondents to ensure payment of the same
on monthly basis together with arrears of
salary with interest @18% per annum
consequent upon fixation of their salary in
the pay scale of Rs. 5000-8000 with effect
from 01.01.1996 or from the date of initial
appointment whichever is later;"
566 INDIAN LAW REPORTS ALLAHABAD SERIES

3. Brief facts giving rise to the
present petition are that Pt. Govind
Ballabh Pant Agriculture and Technical
University,
Pant
Nagar,
Nainital
(hereinafter referred to as 'Pant Nagar
University') was constituted and created
under U.P. State Agricultural Universities
Act for imparting education and research
work in technical field of agriculture
within the State of U.P. After the
reorganisation of the State of U.P. on
09.11.2000, the University came within
the limits of newly created State of
Uttarakhand. To carry out work of
imparting education and technical research
in agriculture, one 'Sardar Vallabh Bhai
Patel
Agricultural
and
Technical
University, Meerut (hereinafter referred to
as 'Agricultural University, Meerut') was
established on the lines on which the Pant
Nagar
University
was
created
and
constituted. It has been stated that some
staff of Pant Nagar University was
transferred and absorbed in Agriculture
University
Meerut.
Post
of
Lab
Technicians was created and sanctioned
for both the Universities by the State of
U.P. The ten petitioners before this Court
are
working
on
the
post
of
Lab
Technicians at Agriculture University,
Meerut. According to petitioners, after the
acceptance of recommendation of 4th Pay
Commission, pay scale of Lab Technicians
was revised and fixed at Rs.1400-2600
with effect from 01.01.1986. It is further
stated that the Chancellor granted no
objection for creation and sanction of the
post of Lab Technicians in the pay scale of
Rs.1400-2600 before the creation of new
State of Uttarakhand on 23.02.1998,

4. The recommendations of the 5th
Pay Commission was accepted by State
Government
and
Principal
Secretary
(Finance) on 10.07.1998 directed for
revision of the pay scale of Rs.1400-2600
with the corresponding pay scale of
Rs.5000-8000. The said pay scale stood
revised from 01.01.1996, copy of the
Government Order dated 10.07.1998 is on
record as Annexure-3 to the writ petition.
Pursuant to that Pant Nagar University
also revised the pay scale of teaching and
other staff, and on 24th July, 1998 the
Finance Controller issued a letter to the
said effect which is on record as
Annexure-4 to the writ petition.

5.

Petitioners
who
are
Lab
Technicians
working
at
Agriculture
University, Meerut were paid salary in the
pay scale of Rs.4500-7000 instead of pay
scale of Rs.5000-8000 which had already
been revised as per the recommendation of
5th Pay Commission and accepted in the
State of U.P. and being applicable from
01.01.1996.
Petitioners
raised
their
grievance before respondent nos. 3 and 4
through representation seeking parity in
the pay scale between the Lab Technicians
of Pant Nagar University, Nainital and
Agriculture
University
at
Meerut.
According
to
petitioners
a
meeting
between the Meerut Workers' Union and
the
Administration
of
Agriculture
University, Meerut was held on 13th and
14th August, 2008 and it was agreed for
resolving the dispute within 45 days but
the same was not implemented. As no
action was taken, petitioners filed Writ
Petition No. 58288 of 2008. The said
petition was dismissed on 10.10.2010,
against which a Special Appeal No. 1331
of 2011 was preferred, which was
disposed of on 07.09.2015 with a direction
to State Government to take decision on
revision of pay scale. The grievance of the
petitioners was turned down by the State
Government by the impugned order dated
22.01.2016.
1 All. Manoj Kumar Sengar & Ors. Vs. The State of U.P. & Ors.
567

6. Sri Anil Bhushan, learned Senior
Advocate appearing for the petitioners
submitted that both Pant Nagar University
and Agriculture University, Meerut were
created and constituted under the U.P.
State Agricultural Universities Act and
further, the University in question on
18.02.2009 had recommended to the
Government that petitioners' pay scale
should be amended from Rs.4500-7000 to
higher scale of Rs.5000-8000. Sri Bhushan
further contended that the order impugned
suffers on many counts, as it states that the
Lab Technicians working in Agriculture
University, Meerut and those working at
Pant
Nagar
University
are
different
because the designation, pay scale, mode
of recruitment, educational qualification,
duty and responsibilities were not identical
and, which according to him are not
correct. He further submitted that for
judging the equality of work for the
purpose of equal pay regard must be not
only to the duties and function but also to
educational
qualifications,
qualitative
difference and measures of responsibility
prescribed on respective post. He further
tried to distinguish the four facts for
settling dispute regarding equation of post
are:-

(1) The nature of duties of post;

(2)
The
responsibilities
and
power exercised by officer holding a post,
the extent of territorial or the other charges
held on responsibilities discharged;

(3) The minimum qualification
of any, prescribed for recruitment to his
part and

(4) The salary of the post, if the
earlier three criteria mentioned above are
fulfilled then the fact that the salaries of
two posts are different would not in any
way to make the post not equivalent.

7. He further contended that
petitioners are working on post of Lab
Technicians and are discharging same
duties, responsibilities and functions and
their hours of duties are also same, thus
are entitled to receive salary in pay scale
of Rs.5000-8000. It was also contended
that once the Government Order accepted
the
recommendation
of
5th
Pay
Commission and was implemented in the
State of U.P. from 01.01.1996 and being
applicable to Agricultural Universities in
the State and the pay scale of Lab
Technicians being fixed in the scale of
Rs.5000-8000,
the
action
of
the
respondents in rejecting their claim was
illegal, arbitrary and discriminatory. Sri
Anil Bhushan, learned Senior counsel
vehemently submitted that had the State of
U.P. not bifurcated in the year 2000, then
the State Government would have been
paying the Lab Technicians of Pant Nagar
University in the pay scale of Rs.50008000.

8. Sri P.K. Ganguli, learned counsel
appearing for the respondent nos. 3 to 5
(University) submitted that the University
in
question
is
a
State
Agriculture
University and receives funds/ grant in aid
from the State Government and it cannot
enhance salary of its employee without
sanction of the State Government. He,
however,
supported
the
fact
that
petitioners are entitled in the pay scale of
Rs.5000-8000 and relied upon the letter of
the Vice Chancellor of the University
dated 18.02.2009 written to the State
Government.

9. Per contra, learned Standing
Counsel appearing for the respondent nos.
1 and 2 submitted that the State
Government has taken decision regarding
the recommendation of the 6th Pay
568 INDIAN LAW REPORTS ALLAHABAD SERIES
Commission
on
26.09.2013
and
accordingly, the petitioners are being paid
in the said pay scale. He further contended
that Pant Nagar University, Uttarakhand
and Agriculture University, Meerut are
different institutions, having different
nomenclature, pay scale, process of
recruitment,
work
and
responsibility,
which has been distinguished in the Chart
as given in Para 7 of their counter affidavit
which is extracted hereasunder:
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10. He further contended that the
Agriculture University at Meerut being set
up under the Uttar Pradesh Agricultural
and Technical Universities Act, 1958 is
running within the State of U.P. and no
parity can be granted to the establishment
of post at Pant Nagar University which is
running
under
the
Agricultural
Universities
Act
in
the
State
of
Uttarakhand.

11. Replying the argument of the
learned
Standing
Counsel
Sri
Anil
Bhushan submitted that the post in the
University is sanctioned by the State
Government under Section 28(r) of the
State
Agricultural
and
Technical
Universities Act, 1958. He invited the
attention of the Court to the letter of the
Vice Chancellor dated 03.06.2017 written
to the State Government which is on
1 All. Manoj Kumar Sengar & Ors. Vs. The State of U.P. & Ors.
569
record as RA-1, wherein respondent no. 3
had categorically stated that appointment,
educational qualification, work and duties
of Lab Technicians in both the Pant Nagar
University
as
well
as
Agriculture
University, Meerut are same. Further, both
these Universities are doing the same
work, but despite the said fact there is
disparity in the pay scale of the Lab
Technicians of the two Universities. It is
also stated in the said letter that respondent
no. 3 had already apprised the Chancellor
on 30.08.2007 that the statutes of Pant
Nagar
University
are
applicable
in
Agriculture University, Meerut, and it was
after the bifurcation of the State of U.P.
that Pant Nagar University fell within the
territorial jurisdiction of Uttarakhand and
Agriculture University at Meerut was
created.

12. Having heard learned counsel for
the parties and the perusal of the material
on record the question which emerges for
consideration is whether the petitioners are
entitled for the pay scale of Rs.5000-8000
made applicable to the Lab Technicians of
Pant Nagar University pursuant to the
Government
Order
dated
10.07.1998
issued by the State of U.P., which was
made effective from 01.01.1996 or to be in
the pay scale of Rs.4500-7000.

13. It is not in dispute that Pant
Nagar
University
was
created
and
established in the State of U.P. under the
U.P. State Agricultural Universities Act.
From time to time the teaching as well as
non-teaching staff of the said University
was paid salary by the State Government
according to the recommendations of the
Pay Commission. The State of U.P. had
accepted the 4th and 5th Pay Commission
recommendation
which
was
made
applicable in the State, in the year 1986
and thereafter, from 01.01.1996. The
Government
Order
dated
10.07.1998
issued by the State Government accepting
and endorsing the recommendation of the
5th Pay Commission was made applicable
to all the teaching as well as non-teaching
staff in various Universities as well as
Agricultural Universities in the State of
U.P.,
which
was
effective
from
01.01.1996. Lab Technicians working at
that relevant point of time were given the
benefit of the 5th Pay commission from
01.01.1996.

14. Subsequently, State of U.P. was
bifurcated on 09.11.2000, and the State of
Uttarakhand was carved out, as Pant Nagar
University
fell
within
the
territorial
jurisdiction of Uttarakhand, it came to be
governed by the orders of the State of
Uttarakhand. It is also not in dispute that
after the formation of new State of
Uttarakhand another Agricultural and
Technical University was created and
established in the name of Agriculture
University at Meerut under the U.P. State
Agricultural and Technical Universities
Act, 1958. It is the Lab Technicians of this
University who are claiming the benefit of
the pay scale of Rs.5000-8000 which was
given by the State of U.P. through
Government Order dated 10.07.1998 to the
Lab Technicians, then working in the State
of U.P. in the University at Pant Nagar.

15. Vide order dated 02.08.2019 time
was granted to the learned Standing
Counsel to seek instructions as to why the
Government Order dated 10.07.1998 was
not applicable in case of petitioners though
they are working as Lab Technicians
within the State of U.P. while the benefit
of the same had already been extended and
given to those Lab Technicians who were
earlier working in the State but now after
570 INDIAN LAW REPORTS ALLAHABAD SERIES
bifurcation, are within the territorial
jurisdiction of State of Uttarakhand at Pant
Nagar; but as usual the State again tried to
seek time to reply the query raised. As
sufficient time had been granted to the
State only to reply on this question
regarding
the
applicability
of
the
Government Order and the State having
failed to reply the same, I find no option
but to proceed with the matter as the
petitioners are claiming parity and had
been litigating for last 11 years, as no
useful purpose would be served in keeping
the matter pending but to decide the same
on merits.

16. The State Government rejected
the representation of the petitioners on
22.01.2016
on
the
ground
that
nomenclature, pay scale, process of
recruitment, work and responsibility are
different in both Universities, that is at
Pant Nagar, Uttarakhand and Agriculture
University at Meerut. From reading of the
Chart distinguishing between the two
institution by the State as far as the pay
scale is concerned, it is amply clear that
the State of U.P. which had accepted and
endorsed 4th and 5th Pay Commission
made applicable to those Lab Technicians
who were working within the State of U.P.
at that relevant point of time were paid
salary in the pay scale of Rs.5000-8000,
while by the subsequent Government
Order the State of U.P. placed the
petitioners as Lab Technicians in the pay
scale of Rs.4500-7000. As far as the mode
of recruitment is concerned the University
at Meerut prescribes for direct recruitment,
while at Pant Nagar University 50% of the
Technicians are appointed by direct
recruitment and 50% by promotion. The
educational qualification as provided in
the third column of the Chart for the two
Universities also does not show any
distinction as both of them provide for
almost same qualification while the work
and responsibility for the Lab Technicians
of the two Universities are also almost the
same.

17. In the Chart provided in Para 7 of
the counter affidavit the work and
responsibilities
assigned
to
the
lab
technicians
in
the
two
Universities,
Column 4 provides that the lab technicians
are to work for upkeeping and maintaining
the electric machines, equipment in the lab
for the students in the Agricultural
University.
The
said
work
or
responsibilities provided for the two
Universities in the said Column does not
provide any distinction as to the work and
responsibilities assigned to them.

18. The principle of equal pay for
equal work was discussed by the Apex
Court in catena of judgments, in one such
case while deciding the benefits to be
accorded to Hindi Translators in Central
Government Directorates with that of
Translator in Central Secretariat, the Apex
Court in case Union of India and others v.
Rajesh Kumar Gond (2014) 13 SCC 588
held as under:-

"10. The respondents herein
working as Senior Translators/ Assistant
Directors in the offices under the Ministry
of Defence. They also sought parity with
the translators in the Central Secretariat
which has been granted by the Central
Administrative Tribunal, Chandigarh by
its judgment dated 18-05-2009. That
judgment is left undisturbed by the Punjab
and Haryana High Court in Union of
India v. Central Administrative Tribunal,
by its order dated 23-03-2011.

11.
Mr
Balasubramanian,
learned
counsel
appearing
for
the
1 All. Manoj Kumar Sengar & Ors. Vs. The State of U.P. & Ors.
571
appellant submitted that their source of
recruitment
was
different.
However,
having noted that no functional difference
was shown in their work, we cannot find
any fault with the judgments of the
Tribunal and the High Court for the
reasons stated in the earlier special leave
leave petition. The special leave petition
is, therefore, dismissed. There will be no
order as to costs."

19. While considering the case of
Drivers in Delhi Police Force performing
same function and duties as Drivers in
Delhi Administration, the Apex Court in
case of Randhir Singh v. Union of India
and others (1982) 1 SCC 618 in Paras 7, 8
and 9 held as under:-

"7. Our attention was drawn to
Binoy Kumar Mukerjee v. Union of
India, ILR (1973) 1 Del 427 and Makhan
Singh v. Union of India ILR (1975) 1 Del
227, where reference was made to the
observations of this Court in Kishori
Mohanlal Bakshi v. Union of India, AIR
1962 SC 1139 describing the principle of
'equal pay for equal work' as an abstract
doctrine which had nothing to do with Art.
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 India 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 Art. 14 if sought to be applied to
them.

8. 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 robberbarons and smuggler kings or for dealing
with
tax
evaders
is
discriminatory,
whether a particular governmental policy
in the matter of grant of licences or
permits confers unfettered discretion on
the Executive, whether the take-over of the
572 INDIAN LAW REPORTS ALLAHABAD SERIES
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 of 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 Article
and may 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 idential work under the same
employer.

9. There cannot be the slightest
doubt that the drivers in the Delhi Police
Force perform the same functions and
duties as other drivers in service of the
Delhi Administration and the Central
Government. If anything, by reason of
their
investiture
with
the
'powers,
functions and privileges of a police
officer', their duties and responsibilities
are more arduous. In answer to the
allegation in the petition that the driverconstables of the Delhi Police Force
perform no less arduous duties than
drivers in other departments, it was
admitted by the respondents in their
counter that the duties of the driverconstables of the Delhi Police Force were
onerous. What then is the reason for
giving them a lower scale of pay than
others ? There is none. The only answer of
the respondents is that the drivers of the
Delhi Police Force and the other drivers
belong to different departments and that
the principle of 'equal pay for equal work'
is not a principle which the Courts may
recognise and act upon. We have shown
that
the
answer
is
unsound.
The
clarification is irrational. We, therefore,
allow the writ petition and direct the
respondents to fix the scale of pay of the
petitioner and the drivers-constables of the
1 All. Manoj Kumar Sengar & Ors. Vs. The State of U.P. & Ors.
573
Delhi Police Force at least on a par with
that of the drivers of the Railway
Protection Force. The scale of pay shall be
effective from January 1, 1973, the date
from which the recommendations of the
Pay Commission were given effect."

20. This Court also had an occasion
to consider the case of Dark Room
Assistants performing the work of X-ray
technicians who were granted the pay
scale of X-ray technicians in case of
Ashok Kumar and others v. State of U.P.
and another (2005) 1 ESC 143, the Court
held as under:-

"9. The respondents have not
paid their salary of the post of X-ray
Technicians to the petitioners because of
non-amendment of the Rules of 1986
(which
is
prerogative
of
the
State
Government
exclusively).
The
State
Government cannot refuse the salary
admissible
to
the
post
of
X-ray
Technicians to the petitioners, inasmuch
as no one can be permitted to take benefit
of his own wrong. The State Government
had categorically assured the Dark Room
Assistants
of
appointment
as
X-ray
Technicians provided they are selected
and completed the training for being
appointed as X-ray Technicians. The
decision of the State Government to that
effect is patently arbitrary and without any
basis. Even otherwise on the principle of
"Equal pay for equal work', since the
respondents have appointed the petitioners
on the post of X-ray Technicians and there
is no denial of the fact that the duties and
responsibilities of the post of X-ray
Technicians are being discharged by the
petitioners."

21. Supreme Court while considering
the principle of equal pay for equal work
applicable to temporary employees had the
occasion to consider the same in State of
Punjab and others v. Jagjit Singh and
others (2017) 1 SCC 148. The Apex Court
laid down the parameters for applicability
of the concept of equal pay for equal work,
it also considered the earlier judgment of
the Apex Court in case of Jasmer Singh,
(1996) 11 SCC 77, Surjit Singh (2009) 9
SCC 514, Randhir Singh v. Union of
India (1982) 1 SCC 618, D. S. Nakara v.
Union of India (1983) 1 SCC 305, Mewa
Ram Kanojia (1989) 2 SCC 235. The
Apex Court in the said judgment not only
considered for the employees engaged on
regular basis but claim of temporary
employees. Relevant Paras are 42, 57, 58,
59, 60, which are extracted hereasunder:-

"42. All the judgments noticed in
paragraphs 7 to 24 hereinabove, pertain
to employees engaged on regular basis,
who were claiming higher wages, under
the principle of ''equal pay for equal
work'. The claim raised by such employees
was premised on the ground, that the
duties and responsibilities rendered by
them, were against the same post for
which a higher pay scale was being
allowed, in other government departments.
Or
alternatively,
their
duties
and
responsibilities were the same, as of other
posts with different designations, but they
were placed in a lower scale. Having been
painstakingly
taken
through
the
parameters laid down by this Court,
wherein the principle of ''equal pay for
equal work' was invoked and considered,
it would be just and appropriate, to
delineate the parameters laid down by this
Court. In recording the said parameters,
we have also adverted to some other
judgments
pertaining
to
temporary
employees (also dealt with, in the instant
judgment), wherein also, this Court had
574 INDIAN LAW REPORTS ALLAHABAD SERIES
the occasion to express the legal position
with reference to the principle of ''equal
pay for equal work'. Our consideration,
has led us to the following deductions:-

42.1 The "onus of proof" of
parity in the duties and responsibilities of
the subject post with the reference post
under the principle of "equal pay for equal
work", lies on the person who claims it. He
who
approaches
the
Court has
to
establish, that the subject post occupied by
him requires him to discharge equal work
of equal value, as the reference post (see
Orissa
University
of
Agriculture
&
Technology v. Manoj K. Mohanty, (2003)
5
SCC
188,
Union
Territory
Administration, Chandigarh v. Manju
Mathur, (2011) 2 SCC 452, the Steel
Authority of India Limited v. Dibyendu
Bhattacharya, (2011) 11 SCC 122 and the
National Aluminum Company Limited v.
Ananta Kishore Rout, (2014) 6 SCC 756).

42.2 The mere fact that the
subject post occupied by the claimant, is in
a "different department" vis-a-vis the
reference post, does not have any bearing
on the determination of a claim, under the
principle of ''equal pay for equal work'.
Persons
discharging
identical
duties,
cannot be treated differently, in the matter
of their pay, merely because they belong to
different departments of Government (see
Randhir Singh case v. Union of India,
(1982) 1 SCC 618 and the D.S. Nakara v.
Union of India, (1983) 1 SCC 305).

42.3 The principle of ''equal pay
for equal work', applies to cases of
unequal scales of pay, based on no
classification or irrational classification
(see Randhir Singh case v. Union of India,
(1982) 1 SCC 618). For equal pay, the
concerned employees with whom equation
is sought, should be performing work,
which besides being functionally equal,
should be of the same quality and
sensitivity (see Federation of All India
Customs
and
Central
Excise
Stenographers v. Union of India, (1988) 3
SCC 91, the Mewa Ram Kanojia v. All
India Institute of Medical Sciences, (1989)
2 SCC 235, Grih Kalyan Kendra Workers'
Union v. Union of India, (1991) 1 SCC
619 and S.C. Chandra v. State of
Jharkhand, (2007) 8 SCC 279).

42.4 Persons holding the same
rank/designation
(in
different
departments),
but
having
dissimilar
powers, duties and responsibilities, can be
placed in different scales of pay, and
cannot claim the benefit of the principle of
''equal pay for equal work' (see the
Randhir Singh case (supra), State of
Haryana v. Haryana Civil Secretariat
Personal Staff Association (2005) 6 SCC
72, and the Hukum Chand Gupta v. ICAR,
(2012) 12 SCC 666). Therefore, the
principle would not be automatically
invoked, merely because the subject and
reference
posts
have
the
same
nomenclature.

42.5 In determining equality of
functions and responsibilities, under the
principle of ''equal pay for equal work', it
is necessary to keep in mind, that the
duties of the two posts should be of equal
sensitivity, and also, qualitatively similar.
Differentiation of pay scales for posts with
difference in degree of responsibility,
reliability and confidentiality, would fall
within the realm of valid classification,
and therefore, pay differentiation would be
legitimate and permissible (see Federation
of All India Customs and Central Excise
Stenographers case (supra) and the State
Bank of India v. M.R. Ganesh Babu,
(2002) 4 SCC 556). The nature of work of
the subject post should be the same and
not less onerous than the reference post.
Even the volume of work should be the
same.
And
so
also,
the
level
of
1 All. Manoj Kumar Sengar & Ors. Vs. The State of U.P. & Ors.
575
responsibility. If these parameters are not
met, parity cannot be claimed under the
principle of ''equal pay for equal work'
(see State of U.P. v. J.P. Chaurasia (1989)
1 SCC 121, and Grih Kalyan Kendra
Workers' Union v. Union of India, (1991)
1 SCC 619).

42.6 For placement in a regular
pay-scale, the claimant has to be a regular
appointee. The claimant should have been
selected, on the basis of a regular process
of recruitment. An employee appointed on
a temporary basis, cannot claim to be
placed in the regular pay-scale [see
Orissa
University
of
Agriculture
&
Technology case (supra)].

42.7 Persons performing the
same or similar functions, duties and
responsibilities, can also be placed in
different pay scales. Such as - ''selection
grade', in the same post. But this
difference must emerge out of a legitimate
foundation, such as - merit, or seniority,
or some other relevant criteria [see State
of U.P. v. J.P. Chaurasia (supra)].

42.8 If the qualifications for
recruitment to the subject post vis-a- vis
the reference post are different, it may be
difficult to conclude, that the duties and
responsibilities
of
the
posts
are
qualitatively similar or comparable (see
Mewa Ram Kanojia case (supra), and
Government of W.B. v. Tarun K. Roy
(2017) 1 SCC 347). In such a cause, the
principle of ''equal pay for equal work',
cannot be invoked.

42.9 The reference post, with
which parity is claimed, under the
principle of ''equal pay for equal work',
has to be at the same hierarchy in the
service, as the subject post. pay scales of
posts may be different, if the hierarchy of
the posts in question, and their channels of
promotion, are different. Even if the duties
and responsibilities are same, parity
would not be permissible, as against a
superior post, such as a promotional post
[see Union of India v. Pradip Kumar Dey
(2000) 8 SCC 580 and Hukum Chand
Gupta case (supra)].

42.10 A comparison between the
subject post and the reference post, under
the principle of ''equal pay for equal
work', cannot be made, where the subject
post and the reference post are in different
establishments,
having
a
different
management.
Or
even,
where
the
establishments
are
in
different
geographical locations, though owned by
the same master (see Harbans Lal case v.
State of H.P., (1989) 4 SCC 459). Persons
engaged differently, and being paid out of
different funds, would not be entitled to
pay parity (see Official Liquidator v.
Dayanand, (2008) 10 SCC 1).

42.11 Different pay scales, in
certain eventualities, would be permissible
even for posts clubbed together at the
same hierarchy in the cadre.