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2004(2) Supreme 520
SUPREME COURT OF INDIA
(From Calcutta High Court)
V.N. Khare, CJI., S.B. Sinha and Dr. AR. Lakshmanan, JJ.
Government of West Bengal -Appellant
versus
Tarun K. Roy and Ors. -Respondents
Civil Appeal No. 3527 of 1998
Decided on 18-11-2003
Counsel for the Parties :
For the Appellant : B.P. Gupta, Sr. Advocate, Rana Mukherjee, Siddharth Gautam, Advocate for Goodwill Indeevar, Advocate.
For the Respondents : M.N. Krishnamani, Sr. Advocate, Abhijit Sengupta, T. Raja, Advocates.
Held : Article 14 read with Article 39(d) of the Constitution of India envisages the doctrine of equal pay for equal work. The said doctrine, however, does not contemplate that only because the nature of the work is same, irrespective of an educational qualification or irrespective of their source of recruitment or other relevant considerations the said doctrine would be automatically applied. The holders of a higher educational qualification can be treated as a separate class. Such classification, it is trite, is reasonable. Employees performing the similar job but having different educational qualification can, thus, be treated differently. (Para 14)
The Post of Operator-cum-Mechanic and Sub-Assistant Engineers are technical posts. As noticed hereinbefore, whereas for the posts of Operator-cum-Mechanic the qualification of school final examination and a certificate obtained from the Industrial Training Institute would be sufficient; for the posts of Sub-Assistant Engineer the person must have a diploma from a polytechnic apart from being a matriculate. It is also not in dispute that such qualification was prescribed as far back as in the year 1971 and the respondents herein were appointed thereafter. The Court, in exercise of its power of judicial review cannot hold that matriculates with a certificate from ITIs or simply graduates in science would be entitled to hold the posts of Sub-Assistant Engineers. It is for the executive to lay down the qualification required for holding a post and not for the courts. (Paras 16 to 18)
The respondents are merely graduates in science. They do not have the requisite technical qualification. Only because they are graduates, they cannot, in our opinion, claim equality with the holders of diploma in engineering. If any relief is granted by this Court to the respondents on the aforementioned ground, the same will be in contravention of the statutory rules. It is trite that this Court even in exercise of its jurisdiction under Article 142 of the Constitution of India would not ordinarily grant such a relief which would be in violation of a statutory provision. (Para 31)
JUDGMENT
S.B. Sinha, J.-Applicability of the doctrine of equal pay for equal work is the question involved in this appeal which arises out of a judgment and order dated 3rd December, 1997 passed by a Division Bench of the Calcutta High Court in FMAT No. 1505/1996.
Factual Background :
2. In the Irrigation Department of the State of West Bengal inter alia there existed two posts - Operator-cum-Mechanic and Sub-Assistant Engineer. The First Pay Commission of the State of West Bengal in its report dated 31.12.1969 recommended the following pay-scales relating thereto.
Posts Pay scale recommended
Operator-cum-Mechanic Rs. 200-250
Sub-Assistant Engineer Rs. 350-600
3. It is not in dispute that by reason of statutory rules the minimum qualification required for recruitment for the said two posts were laid down as under :
"Operator-cum-Mechanic
(a) Pass in School Final Examination or its equivalent;
(b) Pass in Certificate Course in the trade of internal compustion engine from ITI or Technical School recognized by the Government.
Sub-Assistant Engineer
(a) Pass in School Final Examination or its equivalent;
(b) Pass in Diploma Course in Engineering from any Government Polytechnic."
4. The Government of West Bengal framed The West Bengal Service (Revision of Pay & Allowances) Rules, 1970 (hereinafter referred to as the ROPA Rules ) whereby and whereunder, the pay scale for the post of Operator-cum-Mechanic was initially prescribed as Rs. 180-350/- which was subsequently revised to Rs. 230-425/- with effect from 1st April, 1970. The pay-scale for the post of Sub-Assistant Engineer, however, was prescribed at Rs. 300-600/- with higher initial start at Rs. 330/- with effect from the same date. By a notification No. 10303 F dated 19th November, 1974 in modification of ROPA Rules, 1970 it was laid down :
"IV (i) Sub-Assistant Engineers having Engineering Degree shall have an initial start in the existing scale of Rs. 300-Rs. 600/- at the stage of Rs. 360/- p.m. They will also get the benefit of age relaxation for direct recruitment either through the Public Service Commission or for ad-hoc appointments.
(ii) All Test Relief Overseers and other Diploma holder Engineers will henceforth be termed as Sub-Asstt. Engineers."
5. The Sub-Assistant Engineers, it is not disputed, are directly recruited through Public Service Commission whereas no such procedure is laid down for appointment in the Post of Operator-cum-Mechanic. It is not in dispute that some persons in the category of employees of Operator-cum-Mechanic who were possessing Diploma in Engineering claimed entitlement to the nomenclature of the Sub-Assistant Engineer and the scale of pay prescribed therefor by filing two writ petitions in Calcutta High Court. The matters eventually came up to this Court. A plea was taken in the said writ petitions by the appellants herein that the diploma holder engineers working as Operators-cum-Mechanic in the Irrigation Department were not entitled to the said designation. The said plea was negatived by this Court in its judgment titled State of West Bengal and Others Vs. Debdas Kumar and Others [Reported in 1991 Suppl (1) SCC 138] holding:
"15. It has been contended for the appellants that by construing the notification as including Operators-cum-Mechanics in the lower time scale as Sub-Assistant Engineers and giving them a higher scale, there would be a division amongst the Operators-cum-Mechanics in the matter of their pay scale and such as anomaly would not have been contemplated by the rule makers. There is no force in this contention. It is well settled that difference in pay of employees belonging to the same cadre post or educational qualification is constitutionally valid and permissible and is not violative of Articles 14 and 16 of the Constitution. The post of Sub-Assistant Engineer is a direct recruitment post. It appears that the Divi
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