PUNJAB STATE ELECTRICITY BOARD AND ANOTHER versus THANA SINGH AND OTHERS

17. After referring to P.K. Roy’s case, this Court, in SAIL, held as under:- “25. In State of Maharashtraand Another v.Chandrakant Anant Kulkarni and Others (1981) 4 SCC 130 and Vice- Chancellor, L.N. Mithila Universityv. Dayanand Jha (1986) 3 SCC 7, a similar view has been reiterated observing that equal status and nature and responsibilities of the duties attached to the two posts have to be taken into consideration for equivalence of the post. Similar view has been reiterated in E.P. Royappav. State of T.N. and Another (1974) 4 SCC 3 and Sub-Inspector Rooplaland Another v.Lt. Governor Through Chief Secretary, Delhi and Others (2000) 1 SCC 644, wherein this Court following the earlier judgment in P.K. Roy AIR 1968 SC 850 held that the salary of the post alone may not be a determining factor, the other three criterion should also be fulfilled.”

18. The duties and nature of work of Head Clerks and Internal Auditors are entirely different. Head Clerk works under XEN, Drawing PUNJAB STATE ELECTRICITY BOARD v. THANA SINGH [R. BANUMATHI, J.] and Disbursement Officer and there is only one Head Clerk in the Division Office. Head Clerk is the Head of the establishment in the Divisional Office and total work of the establishment is under the control of the Head Clerk. Head Clerk also maintains the leave and other miscellaneous works for the Sub-divisions and the Division Offices and also discharges administrative functions and thus, has more responsibilities. Duty of an Internal Auditor is to audit the billing of the Revenue Department of the Sub-division Office which includes billing of domestic supply to large supply. Whereas the duty of the Sub Fire Officer is entirely different viz., rush to the spot of emergency along with firefighting equipment crew, direct and supervise firefighting and rescue operations, arrange for extra fire fighting equipments, if need be discharge mechanical foam, dry chemical powder, etc. and inform the fire pump house for continuous running of pumps and also inform Fire Officer/Sr.Xen/Fire and Safety regarding incident. Thus, the work performed by the Sub Fire Officer is entirely different from the nature of duties performed by the Head Clerks and the Internal Auditors.

19. The appellant-Board being an autonomous body governed by its own regulations, it was for the Board to classify its employees/posts 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, the Board would be justified in prescribing different pay scales. Article 14 of the Constitution of India would be applicable only when a discrimination is made out between the persons who are similarly situated and not otherwise. It is the duty of an employee seeking parity of pay to prove and establish that they have been discriminated. In State of Haryana and Another v. Tilak Rajand Others (2003) 6 SCC 123, this Court held that “to claim a relief on the basis of equality, it is for the claimants to substantiate a clear-cut basis of equivalence and a resultant hostile discrimination before becoming eligible to claim rights on a par with the other group vis-à-vis an alleged discrimination.”

20. The person claiming parity must produce material before the court to prove that the nature of duties and functions are similar and that they are entitled to parity of pay scales. After referring to number of judgments and observing that it is the duty of an employee seeking parity of pay to prove and establish that he had been discriminated against, this Court, in SAIL, held as under:- “22. It is the duty of an employee seeking parity of pay under Article 39(d) of the Constitution of India to prove and establish that he had been discriminated against, as the question of parity has to be decided on consideration of various facts and statutory rules, etc. The doctrine of “equal pay for equal work” as enshrined under Article 39(d) of the Constitution 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. The court must consider the factors like the source and mode of recruitment/appointment, the qualifications, the nature of work, the value thereof, responsibilities, reliability, experience, confidentiality, functional need, etc. In other words, the equality clause can be invoked in the matter of pay scales only when there is wholesome/wholesale identity between the holders of two posts. The burden of establishing right and parity in employment is only on the person claiming such right. (Vide U.P. State Sugar Corpn. Ltd. and Another v. Sant Raj Singh and Others (2006) 9 SCC 82, Union of Indiaand Another v. Mahajabeen Akhtar (2008) 1 SCC 368, Union of India v. Dineshan K.K (2008) 1 SCC 586, Union of Indiaand Others v. Hiranmoy Sen and Others (2008) 1 SCC 630, Official Liquidator v. Dayanand and Others (2008) 10 SCC 1, U.P. SEBand Another v. Aziz Ahmad (2009) 2 SCC 606 and State of M.P.and Others v. Ramesh Chandra Bajpai (2009) 13 SCC 635)”.

21. Burden of establishing parity in pay scale and employment is on the person claiming such right. There were neither pleadings nor any material produced by the respondents to prove that the nature of work performed by the Sub Fire Officers is similar with that of the Head Clerks and the Internal Auditors to claim parity of pay scale. As pointed out earlier, the burden lies upon the party who claims parity of pay scale to prove similarity in duties and responsibilities. In the writ petition, respondents have only claimed parity of pay scale with those of the employees working under the Punjab Government which was not accepted by the learned Single Judge. Determination of parity or disparity in duties and responsibilities is a complex issue and the same should be left to the expert body. When the expert body considered revision of pay for various posts, it did not revise the pay scale of Sub Fire Officers. PUNJAB STATE ELECTRICITY BOARD v. THANA SINGH [R. BANUMATHI, J.] When the expert body has taken such a view, it is not for the courts to substitute its views and interfere with the same and take a different view.

22. As pointed out earlier, though the Head Clerks, Head Clerk- cum-Divisional Accountants and Internal Auditors were earlier placed in the same group viz. Group XII; but educational qualifications requisite for these posts and mode of recruitment are different. Likewise, there is no similarity in the work performed by the employees on those posts. Only in cases of complete similarity in the nature of work, duties, responsibilities and promotional channels, parity of pay scale can be claimed. Merely on the ground that Sub Fire Officers are categorised in Group XII along with Head Clerks, Head Clerk-cum-Divisional Accountants and Internal Auditors cannot be a ground for seeking parity of pay scale. As submitted by the learned Senior counsel for the appellant- Board, the nature of work, duties, responsibilities and initial qualification for recruitment of each post are entirely different as all these posts belong to different cadre.

23. That apart, though in the year 1988 there were only four posts in Group XII, number of several posts have been subsequently included. Vide Finance Circular No.44/89 dated 15.06.1989, seven more posts were added in Group XII. Thereafter, vide Finance Circular No.45/89 dated 26.06.1989, there was a further increase of seven posts in Group XII. The fourteen posts which were added to Group XII are:- Punjabi Teacher, Drawing Teacher, Hindi Teacher, D.P.Ed. Teacher, Master/ Mistress, Science Teacher, Security Inspector, Modeller Divisional Head Draftsman, Prosecuting Inspector (now Law Officer), Law Officer Grade II, Medical Assistant, Librarian and Fire Officer, etc. At the time of the issuance of order dated 03.10.1990 revising the scale of pay of Head Clerks, Head Clerk-cum-Divisional Accountants, Internal Auditors etc., there were various posts included in Group XII. For all these posts, source and mode of recruitment, qualifications and nature of work are entirely different. If the contention of the Sub Fire Officers for parity of pay scale with pay scale of Head Clerks, Head Clerk-cum-Divisional Accountants and Internal Auditors is accepted, such parity of scale of pay may have to be extended to all other posts in Group XII which would involve huge financial repercussion on the finance of the Board which is a service-oriented institution. The High Court, in our view, erred in not keeping in view the financial consequences of the direction to give parity of pay scale to the Sub Fire Officers. As held in Union of India and Another v. Manik Lal Banerjee (2006) 9 SCC 643, “it is now a well settled principle of law that financial implication is a relevant factor for accepting the revision of pay.”

24. Before the learned Single Judge, the respondents relied upon the letter written by the Superintendent Engineer, GNDTP, Bhatinda to the Chief Engineer, GNDTP, Bhatinda dated 25.03.1991 to consider the request of Sub Fire Officers for parity of pay scale with pay scale of Head Clerks, Head Clerk-cum-Divisional Accountants and Internal Auditors. As rightly contended by the appellant-Board, the letter was written only on the ground that there would not be much financial burden. But the said letter does not indicate any parity of nature of work, responsibilities, functional need, etc. The said letter of the Superintendent Engineer, GNDTP, Bhatinda also did not take note of other various categories of posts included in Group XII. Referring to the said letter dated 25.03.1991 of the Superintendent Engineer, GNDTP, Bhatinda, the learned Single Judge observed that the plea of the respondents for parity of pay scale was supported by the Superintendent Engineer. The learned Single Judge did not keep in view the well factors like source, mode of recruitment, nature of work, etc. for the post of Sub Fire Officers and the Head Clerks, Head Clerk-cum-Divisional Accountants and Internal Auditors.

25. In the writ petition, the respondents have taken the plea that they are entitled to the scale of pay on par with the employees of the Punjab Government in parity of the wages. Nature of work performed by those in the service of Punjab Government are different from those in service of the Board, the learned Single Judge rightly refused to accept the plea of the respondents claiming parity with the employees of the State Government.

26. The learned Single Judge, however, proceeded under the erroneous footing that merely because Sub Fire Officers were categorised in Group XII, they were entitled parity of scale of pay with pay scale of Head Clerks, Head Clerk-cum-Divisional Accountants and Internal Auditors. Inclusion of posts of Sub Fire Officers in Group XII may not be a determinative factor to hold that the Sub Fire Officers are equal with Head Clerks, Head Clerk-cum-Divisional Accountants, and Internal Auditors. Mere difference in pay scale does not always amount to discrimination; it depends upon the mode of selection/recruitment, PUNJAB STATE ELECTRICITY BOARD v. THANA SINGH [R. BANUMATHI, J.] nature, quality of work and duties and that the status of both the posts are identical. Observing that it is not always impermissible to provide two different pay scales in the same cadre, this Court, in SAIL, held as under:- “29. It is a settled legal proposition that it is not always impermissible to provide two different pay scales in the same cadre on the basis of selection based on merit with due regard to experience and seniority. (Vide State of U.P. and Others v. J.P. Chaurasia and Others (1989) 1 SCC 121 and Mewa Ram Kanojia v. All India Institute of Medical Sciences and Others (1989) 2 SCC 235.) “Non-uniformities would not in all events violate Article 14.” Thus, a mere difference does not always amount to discrimination. (Vide Madhu Kishwarand Others v. State of Bihar and Others (1996) 5 SCC 125, Associate Banks Officers’ Assn. v. SBI and Others (1998) 1 SCC 428 and Official Liquidator v. Dayanand and Others (2008) 10 SCC 1)”.

27. Respondents have not produced any material to show that there is any similarity/identity between the posts of Sub Fire Officers and the Head Clerks, Head Clerk-cum-Divisional Accountants and Internal Auditors in terms of the nature of duties, responsibilities, qualifications and mode of recruitment etc. to apply the principle of parity of pay scale. The learned Single Judge did not keep in view that the nature of duties and responsibilities performed by the Sub Fire Officers are different and parity cannot be claimed merely on the ground that they are categorised in one group. The judgment of the learned Single Judge and the impugned judgment of the Division Bench cannot be sustained and are liable to be set aside.

28. In the result, the impugned judgment dated 28.09.2010 passed by the High Court of Punjab and Haryana at Chandigarh in LPA No.713 of 2010 is set aside and this appeal is allowed. Pursuant to the interim order of the Supreme Court, if any amount over and above the salary payable has been paid, the same may not be recovered from the respondents and other Sub Fire Officers. Divya Pandey Appeal allowed.