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2011 (2) GCD 1281 (Guj) (DB)
Hon’ble Mr. Justice D.H. Waghela &
Hon’ble Mr. Justice K.A. Puj
Gujarat State Government College Lab Staff Association and Others
Versus
State of Gujarat and Others
Letters Patent Appeal No. 169 of 19981—Decided on 29/04/2011
Education — Pay Scales — Laboratory Assistants in PTT Colleges and appellants working as Laboratory Assistances in other Colleges — Formers granted higher pay when there is whole sale identity between them — Sustainability — Finding of — The doctrine of ‘equal pay to equal work’ can be invoked only when employees are similarly situated — The Court has to consider the factors like source and mode of recruitment/appointment, qualifications, nature of work, the value thereof, responsibility, reliability, experience, confidentiality, functional need etc. — In other words equality clause can be invoked in the matter of pay scales only when there is wholesale identity between the two posts — In the case there is no controversy or dispute about the parity of posts, functions and responsibility — The equality of pay scale was denied only on the basis that Lab-Assistants in the PTT Colleges were appointed in different Colleges under department and were offered higher pay scale from the start — It appear a clear discrimination between the two and it is a case of conscious irrational and wholly unjustified discrimination against appellants — Court, therefore, set aside the impugned judgment of Single Judge and issued necessary and consequential appropriate orders.
Held :
The doctrine of ‘equal pay for equal work’ can be invoked only when the employees are similarly situated. Similarity in the designation or nature or quantum of work is not determinative of equality in the matter of pay scales. The Court has to consider the factors like the source and mode of recruitment/appointment, 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 wholesale identity between the holders of two posts. [Para 6.2]
The above facts, rival contentions and perusal of the impugned judgment clearly lead to the conclusion that, although there was no controversy or dispute about the parity of posts, functions and responsibilities of the Lab-Assistants in question being of higher level or about the fact of the Lab-Assistants in PTT colleges being paid higher wages, the equality in the pay scale was denied only on the basis that the Lab-Assistants in the PTT colleges were appointed in different colleges under the same department and were offered higher pay scale from the start. [Para 7]
What remained was clear discrimination in the face of successive reports and recommendations of the higher officers of the Education Department itself. In fact, as detailed in Paragraph 3.3, the Education Department of the State Government had itself written to the Secretary of the Pay Commission as late as on 24th December 1990 that the posts of Lab-Assistants in Government colleges carried higher responsibilities and request of the Staff Association was just and fair. Thus, it was a case of conscious, irrational and wholly unjustified discrimination against the Lab-Assistants represented by the appellants. [Para 7]
Therefore, the impugned judgment is set aside and the respondents are directed to place Lab-Assistants concerned in the pay scale of Rs. 1350-2200 with effect from 1.1.1986, considering their pay scale to be 175-345 from 19.8.1971 and Rs. 350-600 from 1.1.1973, on notional basis. The actual benefits accruing from application of the pay scale at par with Lab-Assistants in the PTT colleges with effect from 1.1.1986, alongwith consequential benefits of arrears of pay, increments, pay fixation and allowances applicable to the revised pay scale shall be calculated and paid to the Lab-Assistants concerned on or before 30th June 2011; [Para 8]
Law Laid Down :
The doctrine of ‘equal pay for equal work’ can be invoked only when the employees are similarly situated.
D.H. Waghela J.—Invoking Clause 15 of the Letters Patent, the appellant Staff Unions of the Government Arts and Science Colleges, Technical Education Institutions and other colleges affiliated to the Gujarat University have challenged decision dated 22.12.1997 of learned Single Judge of this Court in Special Civil Application No. 290 of 1986. The members of the appellant Unions and Association were working as Laboratory Assistants under the Directorate of Higher Education, Directorate of Technical Education and non-government colleges affiliated to the Gujarat University. Their grievance was that Laboratory Assistants working in Primary Teachers Training College were granted higher pay scales, although they were working under the same department of the State Government, discharging same duties and functions with same responsibilities and qualifications, but the members of the appellants, though senior and recruited earlier were denied parity in the pay scale and wages.
2. While rejecting the petition of the appellants, learned Single Judge has, in the impugned decision, taken the view that the Third Pay Commission had considered the issue of pay scales applicable to two categories of Laboratory Assistants and if anything was done thereafter to remove anomaly or inequality, it would directly cause many more anomalies and inequalities. Learned Single Judge has also accepted the case of the respondent that the higher pay scale given to the Laboratory Assistants in Teachers Training Colleges was the result of starting of a particular project in the year 1971 and higher pay scale was given to them erroneously, and such error or illegality cannot be extended and allowed to be perpetuated and no one could claim such benefit on the basis of the doctrine of equality. The Court believed and accepted that the Government had sought to correct the error by issuing another resolution in 1989 by equalizing the pay scale of the Laboratory Assistants, and, thus there was no meaningful, deliberate discrimination and no denial of equality. It was also held that since the Laboratory Assistants represented by the appellants were in the same equivalent category of their pay scales along with several other homogeneous groups, no relief could be granted.
3. Being aggrieved by the dismissal of their petition, the appellants have re-agitated their argument of clear discrimination and violation of Articles 14 and 16 of the Constitution. In order to appreciate the contentions of the parties it would be appropriate to recount the following indisputable facts of the case.
3.1 Prior to August 1971 all the Laboratory Assistants (“Lab-Assistants” for short) working under the Directorate of Higher Education and Directorate of Technical Education of the State Government were placed in the pay scale of Rs. 130-240 and after coming into force of the Third Pay Commission w.e.f. 1.1.1973 their pay scale was revised to Rs. 260-430, for holder of SSC or higher qualification and to Rs. 260-350 for non-matriculates. The Lab-Assistants working in non-government colleges affiliated to Gujarat University were also given that pay scale. On the other hand, 64 new posts of Lab-Assistants were created on 18th August 1971 by the State Government with the pay scale of Rs. 175-345 for appointments in the Primary Teachers Training Colleges. At the time of making appointments on those new posts, no recruitment rules were framed or followed, even as they were recruited through open advertisement or through sponsorship of employment exchanges concerned. Thereafter, the Gujarat Educational Institutions (Pre-primary and Primary Teachers Training Colleges) Rules, 1984 were framed and qualifications for the post of Lab-Assistants were prescribed. Although some of the appointees would not have fulfilled the qualification criteria, they were not only regularized in service but they continued to get their wages in the higher pay scale of Rs. 175-345, with revision on that basis fro
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