# Vijay Singh and another v. State of U.P. and another

- **Citation:** (2005) 3 ILRA 1054
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-10-07
- **Case number:** Civil Misc. Writ Petition No.16768 of 2003
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijay-singh-and-another-v-state-of-u-p-and-another-40589
- **Pages:** 7

## Headnote

Constitution of India, Art. 39 (d) Equal
Pay for Equal work-Petitioner appointed
as reader in the year 1966-given pay
scale
of
Rs.4000-6000-while
those
appointed in pursuance of G.O. 12.12.89
or prior to that-getting pay scale of
Rs.4500-7000/- only reason disclosed by
the
authorities,
the
G.O.
dated
23.7.1997-which provides different Pay
Scale
on
the
particular
dateclassification based no rational basisG.O. dated 23.799-held arbitrary and
violative of Art. 14 of the Constitution.

Held: Para 15, 20 & 22
In such a case, the differentiation would
not amount to discrimination, but where
two
classes
of
employees
perform
identical duties with the same measure
of responsibility and have the same
qualification for the appointment on the
said post, in that event, they would be
entitled for equal pay and denial of equal
pay would be violative of Articles 14 and
16 of the Constitution.

In my opinion, the classification made by
the respondents in giving different cadre
to the Readers is not based on any
intelligible criterion nor does it have a
rational nexus and in my opinion, such
differentiation amounts to a hostile
discrimination. It would have been a
different scenario, if persons holding the
same post and performing similar work
had
separate
responsibilities
or
educational qualifications, but merely by
making a differentiation on the ground
that
persons
appointed
prior
to
a
particular date would be given a higher
pay
scale
than
that
of
a
person
appointed after the said date would be a
clear case of hostile discrimination and
violative of Articles 14 and 16 of the
Constitution of India.

The aforesaid principle squarely applies
to the present facts and circumstances of
the case. The classification made by the
Government by its Government Order
dated 23.7.97 was not based on any
rational principle and the classification
made, does not stand the test of
reasonableness under Article 14 of the
Constitution.
Consequently,
the
Government Order dated 23.7.1997 in so
far as its provides the grade of 12002040, which has now been revised to
4000-6000 for the Readers working in
the District Consumer Forum is arbitrary
and violative of Article 14 of the
Constitution of India and to that extent,
the said Government Order is quashed.
The writ petition is allowed.
Case law discussed:
1982 (1) SCC-618
1984 (2) SCC-141
1989 (2) SCC-299
3 All] Vijay Singh and another V. State of U.P. and another
1055
1997 (5) SCC-253
2002 (4) SCC-556
2004 (4) SCC-646
1989 (2) SCC-235
1989 (3) SCC-191
AIR 1983 SC-130

## Text

1054 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
with the modifications of the judgment
and order dated 11/1/2000 to the extent
that the Department shall reconsider the
case
of
respondent-employee
for
absorption/ regularisation. This exercise
may be completed within a period of three
months from today.

Petition
allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.10.2005

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No.16768 of 2003

Vijay Singh and another ...Petitioners
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioners:
Sri Ashok Khare
Sri K.P. Shukla
Sri N.K. Mishra
Sri V.D. Chauhan
Sri Sanjay Kr. Rai

Counsel for the Respondents:
Sri Virendra Kumar
Sri Mahendra Pal Singh Niranajan
S.C.

Constitution of India, Art. 39 (d) Equal
Pay for Equal work-Petitioner appointed
as reader in the year 1966-given pay
scale
of
Rs.4000-6000-while
those
appointed in pursuance of G.O. 12.12.89
or prior to that-getting pay scale of
Rs.4500-7000/- only reason disclosed by
the
authorities,
the
G.O.
dated
23.7.1997-which provides different Pay
Scale
on
the
particular
dateclassification based no rational basisG.O. dated 23.799-held arbitrary and
violative of Art. 14 of the Constitution.

Held: Para 15, 20 & 22
In such a case, the differentiation would
not amount to discrimination, but where
two
classes
of
employees
perform
identical duties with the same measure
of responsibility and have the same
qualification for the appointment on the
said post, in that event, they would be
entitled for equal pay and denial of equal
pay would be violative of Articles 14 and
16 of the Constitution.

In my opinion, the classification made by
the respondents in giving different cadre
to the Readers is not based on any
intelligible criterion nor does it have a
rational nexus and in my opinion, such
differentiation amounts to a hostile
discrimination. It would have been a
different scenario, if persons holding the
same post and performing similar work
had
separate
responsibilities
or
educational qualifications, but merely by
making a differentiation on the ground
that
persons
appointed
prior
to
a
particular date would be given a higher
pay
scale
than
that
of
a
person
appointed after the said date would be a
clear case of hostile discrimination and
violative of Articles 14 and 16 of the
Constitution of India.

The aforesaid principle squarely applies
to the present facts and circumstances of
the case. The classification made by the
Government by its Government Order
dated 23.7.97 was not based on any
rational principle and the classification
made, does not stand the test of
reasonableness under Article 14 of the
Constitution.
Consequently,
the
Government Order dated 23.7.1997 in so
far as its provides the grade of 12002040, which has now been revised to
4000-6000 for the Readers working in
the District Consumer Forum is arbitrary
and violative of Article 14 of the
Constitution of India and to that extent,
the said Government Order is quashed.
The writ petition is allowed.
Case law discussed:
1982 (1) SCC-618
1984 (2) SCC-141
1989 (2) SCC-299
3 All] Vijay Singh and another V. State of U.P. and another
1055
1997 (5) SCC-253
2002 (4) SCC-556
2004 (4) SCC-646
1989 (2) SCC-235
1989 (3) SCC-191
AIR 1983 SC-130

(Delivered by Hon'ble Tarun Agarwala, J.)

1.

The
petitioner
No.1
was
appointed as a Reader in the year 1996
and the petitioner No.2 was appointed as a
Reader in the year 1999 in the office of
the District Consumer Forum II at
Moradabad in the pay scale of Rs.4000100-6000. The petitioners' contends that
13 Readers, working in the District
Consumer Forum, are getting the salary in
the pay scale of Rs.4500-7000 whereas
the petitioners are being given the pay
scale of Rs.4000-6000. The petitioners
have filed the present writ petition
alleging that they are doing the same kind
of work, and therefore, are liable to be
paid the same pay scale of Rs.4500-7000
and the denial of this pay scale amounts to
a hostile discrimination and is also against
the principles of 'equal pay for equal
work'. The petitioners therefore, prayed
that a mandamus be issued to the
respondents commanding them to pay the
salary in the scale of Rs.4500-7000 and
also pay the arrears.

2. A counter affidavit has been filed
by the respondents stating that on
5.2.1988, 13 posts of Reader were
sanctioned in the District Consumer
Forum in the pay scale of Rs.470-735. On
the basis of the recommendation of the
Samta Samiti, the State Government
issued
a
Government
Order
dated
12.12.1989 revising the pay scale of
Rs.470-735 to Rs.1200-2040. By another
Government Order dated 23.7.1997, the
pay scale of Rs.470-735 was revised to
Rs.1350-2000 in so far as its related to the
13 Readers, and that the Readers
appointed after the Government Order of
12.12.1989 were kept in the pay scale of
Rs.1200-2040. At the present moment, the
pay scale of Rs.1200-2040 has been
revised to Rs.4000-6000 and the pay scale
of Rs.1350-2200 has been revised to
Rs.4500-7000. The respondents submitted
that
the
Government
Order
dated
23.7.1997 made it very clear that only the
13 Readers, who were initially appointed
were only entitled to get the benefit of the
pay scale of Rs.1350-2200 and those who
are appointed after the Government Order
dated 12.12.1989 would not be entitled to
this pay scale. Since the petitioners were
appointed in the year 1996 and 1999
respectively, they were not entitled to be
given the pay scale as claimed by them.

3. Heard Sri Ashok Khare, Senior
Counsel assisted by Sri V.D. Chauhan and
Sri N.K. Mishra, the learned counsel for
the petitioners and the learned Standing
Counsel for the respondents.

4. The learned Counsel for the
petitioners submitted that the nature of
work which the petitioners are performing
is the same which the original 13 Readers
are
performing,
and
therefore,
the
principle of equal pay for equal work
should be adopted and that the petitioners
should also be placed in the same pay
scale. The learned counsel for the
petitioners submitted that since the
petitioners are performing the same kind
of work and they hold the same degree of
responsibilities, consequently giving a
different pay scale was not only violative
of Article 14 of the Constitution of India,
but
also
amounted
to
a
hostile
discrimination.
1056 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
5. The petitioners have invoked the
principle of equal pay for equal work and
contended that having regard to the nature
of
work
and
the
responsibilities
shouldered by them and taking into
consideration the relevant facts, they are
entitled to the same benefits as granted to
the 13 Readers.

6. The principle of equal pay for
equal
work
has
been
considered,
explained and criticised in a number of
decisions by the Supreme Court of India.

7. Article 39 (d) of the Constitution
provides 'equal pay for equal work for
both men and women i.e. equal pay for
equal work for everyone and as between
the sexes. Even though this directive
principle under the Constitution is not a
fundamental
right,
nonetheless,
is
certainly
a
Constitutional
goal
and
therefore,
Article
39
(d)
of
the
Constitution has to be read alongwith the
Articles 14 and 16 of the Constitution.
Article
14
of
the
Constitution
contemplates that the State shall not deny
to any person equality before the law or
the equal protection of the laws within the
territory of India. Article 16 of the
Constitution declares that there shall be
equality of opportunity to all the citizens
in the matter relating to the employment
or an appointment to any office under the
State. The equality clause under Articles
14 and 16 of the Constitution enshrines
the principle of equal pay for equal work.

8. In Randhir Singh vs. Union of
India and others, 1982(1) SCC 618, the
Supreme Court held-

"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."

9. The Supreme Court in the
aforesaid case held that the drivers
working in the Delhi Police Force were
performing the same functions and duties
like any other drivers in the service of the
Delhi Administration and the Central
Government and therefore entitled for the
same pay scale and that the principle of
equal pay for equal work was clearly
applicable. The Supreme Court further
held that the denial of the same pay scale
was irrational.

10. In P.K. Ram Chandra Iyer vs.
Union of India, 1984 (2) SCC 141, the
existing incumbent to the post, even
though
they
were
fulfilling
the
qualifications and the experience, were
deprived of the revised pay scale, whereas
the newly selected incumbent were given
the revised scale, the Supreme Court held
that the action of the respondents was
arbitrary, discriminatory and violative of
the principle of equal pay for equal work
as enshrined under Articles 14, 16 and
39(d) of the Constitution, and that the
revised pay scale was liable to be given to
all the incumbents.

11. In Bhagwan Sahai Carpenter
vs. Union of India and another,1989 (2)
SCC 299, out of 15 trades in the skilled
grade, six of these trades were given a
higher pay scale, the Supreme Court held
that the employees of the 15 trades in the
skilled grade cannot be treated differently
and that giving different pay scale was
3 All] Vijay Singh and another V. State of U.P. and another
1057
discriminatory
and
contrary
to
the
equality clause envisaged under Articles
14 and 16 of the Constitution and the
principle of equal pay for equal work .
The Supreme Court issued a mandamus
that all the employees in different trade in
the skilled grade were liable to be treated
equally.

12. In State of Haryana and others
vs. Ram Chander and others, 1997(5)
SCC 253, the Supreme Court held that the
teachers teaching students of XI and XII
standard
in
Haryana
Government
vocational education institution and those
teachers teaching student of XI and XII
standard in Higher Secondary Institutions
were entitled for the same pay scale on
the principle of equal pay for equal work.
The Supreme Court held that the work
performed by the teachers in a vocational
school and those performed by the
teachers in a Secondary School was
qualitatively and quantitatively the same
and therefore, they were entitled for the
same pay scale.

13. In State Bank of India and
another vs. M.R. Ganesh Babu and
others, 2002(4) SCC 556, the Supreme
Court held-
"The principle of equal pay for equal
work has been considered and applied in
many reported decisions of this Court.
The
principle
has
been
adequately
explained and crystallised and sufficiently
reiterated in a catena of decisions of this
Court. It is well settled that equal pay
must depend upon the nature of work
done. It cannot be judged by the mere
volume of work; there may be equalitative
difference as regards reliability and
responsibility. Functions may be the same
but the responsibilities make a difference.
One cannot deny that often the difference
is a matter of degree and that there is an
element of value judgement by those who
are charged with the administration in
fixing the scales of pay and other
conditions of service. So long as such
value judgement is made bona fide,
reasonably on an intelligible criterion
which has a rational nexus with the object
of differentiation, such differentiation will
not amount to discrimination."

14. In M.P. Rural Agriculture
Extension Officers Association vs. State
of M.P. and another, 2004 (4) SCC 646,
two different pay scales were provided in
the same cadre on the basis of educational
qualification even though the nature of
work was the same and the posts were
also
interchangeable.
The
said
classification was challenged which was
rejected by the High Court. The Supreme
Court while dismissing the appeal held
that despite the fact that the employees
had been performing similar duties and
functions and even though their posts
were interchangeable, nonetheless, a valid
classification was made on the basis of
their
educational
qualifications
and
therefore the doctrine for equal pay for
equal work was not applicable. The
Supreme Court further held that Article
14 of the Constitution does not forbid a
reasonable classification and that Article
14 forbids a class legislation but permits
reasonable classification subject to the
conditions that it was based on an
intelligible
differentia
and
that
the
differentia must have a rational relation to
the object sought to be achieved. The
Supreme Court held that the classification
done by the State Government was not
discriminatory in nature, inasmuch, as
there was a reasonable classification
based on the educational qualifications.
1058 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
15. In view of the aforesaid, it is
clear that the principle of equal pay for
equal work would depend upon the nature
of work done and that the same cannot be
judged by the mere volume of work. If the
responsibilities that carries with the post
are different, then the same would make a
difference. The differentiation in the pay
scale of person holding the same post and
performing similar work on the basis of
the degree of responsibilities would be a
valid differentiation. Difference of pay
scale in the same cadre based on
education qualification can be made a
valid
classification.
However,
while
comparing and evaluating the work done
by different persons either in the same
department or in different department a
reasonable classification can be made on
intelligible criterion which has a rational
nexus with the object of differentiation. In
such a case, the differentiation would not
amount to discrimination, but where two
classes of employees perform identical
duties
with
the
same
measure
of
responsibility
and
have
the
same
qualification for the appointment on the
said post, in that event, they would be
entitled for equal pay and denial of equal
pay would be violative of Articles 14 and
16 of the Constitution.

16. In Mewa Ram Kanojia vs. All
India Institute of Medical Science and
others, 1989(2) SCC 235 held-
"While considering the question of
application of principle of 'equal pay for
equal work' it has to be borne in mind that
it is open to the State to classify
employees on the basis of qualifications,
duties and responsibilities of the posts
concerned.
If
the
classification
has
reasonable nexus with the objective
sought to be achieved, efficiency in the
administration,
the
State
would
be
justified in prescribing different pay
scales but if the classification does not
stand the test of reasonable nexus and the
classification is founded on unreal, and
unreasonable basis it would be violative
of Articles 14 and 16 of the Constitution.
Equality must be among the equals.
Unequal cannot claim equality."

17. In V. Markendeya and others
vs. State of Andhra Pradesh and others,
1989 (3) SCC 191 held-
"In view of the above discussion we
are of the opinion that where two classes
of employees perform identical or similar
duties and carrying out the same functions
with the same measure of responsibility
having same academic qualifications, they
would be entitled to equal pay. If the State
denies them equality in pay, its action
would be violative of Articles 14 and 16
of the Constitution, and the court will
strike down the discrimination and grant
relief to the aggrieved employees. But
before such relief is granted the court
must consider and analyse the rationale
behind the State action in prescribing two
different scales of pay. If on an analysis
of the relevant rules, orders, nature of
duties,
functions,
measure
of
responsibility,
and
educational
qualifications required for the relevant
posts,
the
court
finds
that
the
classification made by the State in giving
different treatment to the two classes of
employees is founded on rational basis
having nexus with the objects sought to
be achieved, the classification must be
upheld. Principle of equal pay for equal
work is applicable among equals, it
cannot be applied to unequals. Relief to
an aggrieved person seeking to enforce
the principles of equal pay for equal work
can
be
granted
only
after
it
is
demonstrated
before
the
court
that
3 All] Vijay Singh and another V. State of U.P. and another
1059
invidious discrimination is practised by
the State in prescribing two different
scales for the two classes of employees
without there being any reasonable
classification
for
the
same.
If the
aggrieved employees fail to demonstrate
discrimination, the principle of equal pay
for equal work cannot be enforced by
court in abstract. The question what scale
should be provided to a particular class of
service must be left to the executive and
only when discrimination is practised
amongst the equals, the court should
intervene to undo the wrong, and to
ensure equality among the similarly
placed employees. The court however
cannot prescribe equal scales of pay for
different class of employees."

18. From the aforesaid, it is clear
that Article 14 prohibits discriminatory
legislation against an individual or against
a class of individual. It does not forbid
reasonable classification. In the light of
the aforesaid, the plea for equal pay for
equal work has to be analysed with
reference to Articles 14 and 16 of the
Constitution of India and the burden is
upon the petitioners to establish their right
to equal pay or the plea of discrimination,
as the case may be.

19. The petitioners in their writ
petition have only stated that 13 Readers
are getting the salary in the grade of
Rs.4500-7000 and that the petitioners are
getting the salary in the grade of Rs.40006000, and therefore, on the principle of
equal pay for equal work, they are entitled
to be given the same pay scale. No details
have been furnished as to how they are
doing the same kind of work. The mere
fact that they are working as Reader in the
District Consumers Forum does not mean
that they are performing the same kind of
work and shoulder the same kind of
responsibilities as that being performed
by the 13 Readers. In my view, the
foundation for equal pay for equal work
has not been laid down by the petitioners
in the writ petition.

20. On the other hand, the
respondents justify their action in making
a reasonable classification alleging that
persons who were appointed as Reader
prior to 1989 would be given a higher pay
scale and those who were appointed as
Readers after 1989 would be given a
lower pay scale. The difference in the pay
scale is only on this ground itself and, is
not on the ground of volume of work or
educational qualifications or qualitatively
difference in quality of work and
responsibilities. In my opinion, the
classification made by the respondents in
giving different cadre to the Readers is
not based on any intelligible criterion nor
does it have a rational nexus and in my
opinion, such differentiation amounts to a
hostile discrimination. It would have been
a different scenario, if persons holding the
same post and performing similar work
had
separate
responsibilities
or
educational qualifications, but merely by
making a differentiation on the ground
that persons appointed prior to a particular
date would be given a higher pay scale
than that of a person appointed after the
said date would be a clear case of hostile
discrimination and violative of Articles 14
and 16 of the Constitution of India.

21. In D.S. Nakara and others Vs.
Union of India, A.I.R. 1983 SC 130, the
Supreme
Court
granted
pensionary
benefits even to those employees who had
retired before the revision of the pension
scheme observing that the pensioners
form a class as a whole and cannot be
1060 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
micro classified in an arbitrary and in a
unreasonable manner. The Supreme Court
held that the specified date dividing the
pensioners between those who retired
prior to the specified date and those who
retired subsequent to that date was
arbitrary as well as discriminatory. The
classification was not based on any
rational principle and therefore, the
classification could not stand the test of
Article 14 of the Constitution of India.

The Supreme Court held -
"Thus the fundamental principle is
that Article 14 forbids class legislation but
permits reasonable classification for the
purpose of legislation which classification
must satisfy the twin tests of classification
being
founded
on
an
intelligible
differentia which distinguishes persons or
things that are grouped together from
those that are left out of the group and
that differentia must have a rational nexus
to the object sought to be achieved by the
statute in question."

and again held-
"The artificial division stares into
face and is unrelated to any principle and
whatever principle, if there be any, has
absolutely no nexus to the objects sought
to be achieved by liberalising the pension
scheme. In fact this arbitrary division has
not only no nexus to the liberalised
pension
scheme
but
it
is
counter
productive and runs counter to the whole
gamut of pension scheme. The equal
treatment guaranteed in Article 14 is
wholly violated inasmuch as the pension
rules being statutory in character, since
the specified, date the rules accord
differential and discriminatory treatment
to equals in the matter of commutation of
pension."
and further held-
".......The date of retirement is
irrelevant. But the revised scheme would
be operative from the date mentioned in
the scheme and would bring under its
umbrella all existing pensions and those
who retired subsequent to that date."

22. The aforesaid principle squarely
applies
to
the
present
facts
and
circumstances of the case. The classification
made
by
the
Government
by
its
Government Order dated 23.7.97 was not
based on any rational principle and the
classification made, does not stand the test
of reasonableness under Article 14 of the
Constitution.
Consequently,
the
Government Order dated 23.7.1997 in so far
as its provides the grade of 1200-2040,
which has now been revised to 4000-6000
for the Readers working in the District
Consumer Forum is arbitrary and violative
of Article 14 of the Constitution of India
and to that extent, the said Government
Order is quashed. The writ petition is
allowed.

23. Since relevant details of the
petitioners with regard to the qualifications
and
the
work
performed
and
the
responsibilities which carries with the work
is lacking in detail, consequently the matter
is remitted to the respondents to consider
the nature of the work performed by the
petitioners and the responsibilities that
carries
with
the
post
and if their
qualifications, nature of the work and
responsibilities is the same as that being
performed by the 13 Readers, in that
eventuality, the same pay scale would be
given to the petitioners as that given to the
13 Readers. This exercise shall be done by
the respondents within three months from
the date of receiving a certified copy of this
judgement.
Petition allowed.