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Judgment
Sandeep Moudgil, J
Prayer
The jurisdiction of this Court has been invoked under Article 226 of the Constitution of India for issuance of a writ in the nature of Certiorari to quash the impugned order dated 31.12.1999 (Annexure P-5) rejecting the representation of the petitioner wherein, the petitioner is claiming parity to bring his pay at par with his junior. Further prayer has been sought for issuance of a writ in the nature of Mandamus directing the respondent-State to fix the pay of the petitioner at par with his immediate junior and also to pay him arrears of difference of pay with other consequential benefits, including interest.
Brief Facts
The petitioner, Amarjit Singh, was serving in the Punjab Labour Department. He initially joined as a Legal Assistant on 21.07.1978 and was promoted as Superintendent Grade III on 21.09.1983. He was thereafter directly recruited as Labour Inspector Grade I and joined that post on 18.10.1989. Immediately before his direct recruitment, his basic pay as Superintendent Grade III was ₹2,150 as on 01.07.1989. Respondent No. 3, Khazan Singh, was junior to the petitioner in the cadre of Superintendent Grade III. The seniority list dated 09.10.1989 placed the petitioner at Sr. No. 4 and Respondent No. 3 at Sr. No. 7. Subsequently, Respondent No. 3 was directly recruited as Labour Inspector Grade I and joined on 26.08.1991. Even in the Labour Inspector cadre, the petitioner continued to rank senior to him.
The dispute arose because earlier pay of respondent No.3 was protected on his appointment as Labour Inspector, resulting in his pay being fixed higher than that of the petitioner. The comparative position pleaded was that on 26.08.1991 the petitioner was drawing basic pay of about ₹1,800, whereas Respondent No. 3 was fixed at ₹2,300, notwithstanding the petitioner's seniority.
The petitioner submitted a representation dated 27.04.1999 seeking stepping-up/parity of pay with his junior asserting that although he had been Labour Inspector since 18.10.1989 and Khazan Singh only since 26.08.1991, his pay remained lower; by 01.01.1998, according to the representation, the respective basic pays were ₹6,800 and ₹8,650. The representation was rejected by order dated 31.12.1999, leading to the present writ petition.
Contentions
On behalf of the petitioner
Learned counsel for the petitioner would contend that the petitioner is admittedly senior to Respondent No. 3, both in the cadre of Superintendent Grade III and subsequently as Labour Inspector Grade I, a position acknowledged even by the State in its written statement; nevertheless, Respondent No. 3, being the petitioner's admitted junior, was granted pay protection and consequently continued to draw substantially higher pay. It is argued that the distinction sought to be drawn by the respondents that the petitioner was merely an officiating Superintendent whereas Respondent No. 3 had become a confirmed/substantive Superintendent w.e.f. 17.02.1989 is artificial and cannot justify the continuing pay anomaly, particularly when the petitioner, being senior, would have obtained substantive appointment had he continued as Superintendent instead of joining as a directly recruited Labour Inspector.
It is further contended that the petitioner's representation for stepping-up of pay was rejected by relying upon Government instructions dated 21.06.1990, which govern an altogether different situation and have no application to his case. According to learned counsel, permitting an admitted junior to continuously draw higher basic pay causes recurring financial loss to the petitioner and amounts to discriminatory treatment violative of Articles 14 and 16 of the Constitution.
On behalf of respondents No.1 & 2
It is contended on behalf of Respondents No. 1 and 2 that the petitioner’s claim for stepping up of his pay at par with Respondent No. 3 is wholly misconceived, as mere seniority does not confer an absolute right to draw pay equal to or higher than a junior, particularly where the difference in pay arises from distinct incidents of service. It is argued that the petitioner and Respondent No. 3 were not similarly situated, since at the relevant time the petitioner was merely an officiating Superintendent Grade III, whereas Respondent No. 3 was a confirmed/substantive Superintendent Grade III w.e.f. 17.02.1989. Consequently, Respondent No. 3 was entitled to protection of his substantive pay under the applicable Punjab Civil Services Rules and his pay was accordingly fixed at Rs.2,300/-, whereas the petitioner, being only an officiating incumbent, was not entitled to similar pay protection. It is urged that higher pay drawn by Respondent No. 3, therefore, does not constitute an anomaly warranting stepping up, nor does it amount to discrimination under Articles 14 and 16 of the Constitution, as the differential fixation is founded upon a valid and material distinction in their respective service status. Thus, it is contended that he petitioner’s reliance upon seniority is misplaced and his representation was rightly rejected, apart from the fact that the claim is also highly belated, having been raised nearly ten years after his pay fixation; consequently, no enforceable right of the petitioner has been infringed and the writ petition seeking stepping up of pay, arrears and consequential benefits deserves to be dismissed.
On behalf of respondent No.3
Learned counsel for Respondent No. 3 has contended that respondent No.3 neither manipulated nor secured any arbitrary fixation of his pay, as his pay was fixed by the competent departmental authorities on the basis of his substantive status and the applicable Punjab Civil Services Rules and any higher pay drawn by him is thus the consequence of a lawful administrative fixation and not an advantage obtained at the expense of the petitioner. Further the counsel has submitted that his confirmation as Superintendent Grade III and consequent pay protection are supported by the departmental orders placed on record as Annexures R-3/1 and R-3/2.
Consequently, no adverse direction affecting the pay already lawfully fixed and drawn by Respondent No. 3 ought to be passed, particularly when his entitlement flowed from his confirmed/substantive status and has not been shown to have resulted from any fraud, misrepresentation or illegality attributable to him.
Analysis
Having heard learned counsel for the parties and upon perusal of the pleadings and the record, this Court finds that the controversy essentially turns upon the claim of the petitioner for stepping up of his pay at par with respondent No.3 on the premise that he was senior to the said respondent both as Superintendent Grade III and thereafter as Labour Inspector Grade I. The factum of seniority is not seriously in dispute. The question, however, is whether seniority by itself would entitle the petitioner to parity in pay.
Bare perusal of the material on record shows that immediately prior to the respective appointments of the petitioner and Respondent No.3 as Labour Inspector Grade I, the petitioner was working only as an officiating Superintendent Grade III, whereas respondent No.3 stood confirmed/substantively appointed as Superintendent Grade III with effect from 17.02.1989 (Annexure R-3/1). It is this distinction in service status which assumes significance for the purpose of pay protection.
It is the case of Respondent No.3 that he was granted protection of the pay drawn by him on the substantive post under sub rule (1) (a) of Rule 4.5(A) of the Punjab Civil Services Rules, whereas the petitioner, not having acquired substantive status on the said post before his appointment as Labour Inspector Grade I on 18.10.1989, could not claim the same benefit. The relevant rule is reproduced as under for ready reference:-
“4.5-A (1) Notwithstanding anything contained in these rules, the following provisions shall govern the pay of a Government employee who is appointed as a probationer in another service or cadre, and subsequently confirmed in that Service or cadre─ (a) during the period of probation he shall draw pay at the minimum of the time scale or at the probationary stages of the time scale of the service or post, as the case may be; Provided that if the presumptive pay of the permanent post, other than a tenure post, on which he holds a lien or would hold a lien had his lien not been suspended, should at any time be greater than the pay fixed under this clause, he shall draw the presumptive pay of the permanent post;”
The plea of the petitioner that respondent No.3 secured an unintended advantage merely because he continued in the post of Superintendent Grade III till 1991 also does not merit acceptance, for the respondents have specifically pointed out that the revised scale of Rs.2000-3500 had also been made available to the petitioner for the period he worked as Superintendent Grade III. The real distinction, therefore, was not the availability of the revised scale, but the substantive status of respondent No.3 as against the officiating status of the petitioner on the post of Superintendent Grade II.
The submission raised by the petitioner that a senior can under no circumstances draw lesser pay than his junior also cannot be accepted as an absolute proposition. Pay fixation is governed not merely by seniority but by the applicable rules and the incidents of service relevant to each employee. A junior may, in a given case, draw higher pay on account of a valid pay fixation, protection of substantive pay or any other permissible service benefit. What is required to be seen is whether the higher pay has been granted on a legally sustainable basis. Reliance may be placed on the judgment rendered by the Apex Court in the case of “State of Andhra Pradesh and another vs. G. Sreenivasa Rao and others.” 1989 (2) SCC 290.
“13.The factual basis in all these appeals is identical. The facts clearly show that in every case the pay fixation of the junior was done under the Fundamental Rules and there were justifiable reasons for fixing the junior at a higher pay than his seniors in the cadre. It was not disputed that the said pay fixation was in conformity with Fundamental Rules. Neither before us nor before the courts below the validity of Fundamental Rules were challenged by any of the parties. Without considering the scope of these Rules and without adverting to the reasons for fixing the juniors at a higher pay, the High Court and the Tribunal have in an omnibus manner come to the conclusion that whenever and for whatever reasons a junior is given higher pay the doctrine of "equal pay for equal work" is viołated and the seniors are entitled to the same pay.
14.We do not agree with the High Court/Tribunal. Doctrine of "equal pay for equal work" cannot be put in a strait-jacket. Although the doctrine finds its place in the Directive Principles but this Court, in various judgments, has authoritatively pronounced that right to "equal pay for equal work" is an accompaniment of equality clause enshrined in Articles 14 and 16 or the Constitution of India. Nevertheless the abstract doctrine of "equal pay for equal work" cannot be read in Article 14. Reasonable classification, based on intelligible criteria having nexus with the object sought to be achieved, is permissible.
15."Equal pay for equal work" does not mean that all the members of a cadre must receive the same pay packet irrespective of their seniority, source of recruitment, educational qualifications and various other incidents of service. When a single running pay scale is provided in a cadre the constitutional mandate of equal pay for equal work is satisfied. Ordinarily grant of higher pay to a junior would ex facie be arbitrary but if there are justifiable grounds in doing so the seniors cannot invoke the equality doctrine. To illustrate, when pay fixation is done under valid statutory rules/executive instructions, when persons recruited from different sources are given pay protection, when promotee from lower cadre or a transferee from another cadre is given pay protection, when a senior is stopped at efficiency bar, when advance increments are given for experience/passing a test/acquiring higher qualifications or incentive for efficiency; are some of the eventualities when a junior may be drawing higher pay than his seniors without violating the mandate of equal pay for equal work. The differentia on these grounds would be based on intelligible criteria which has rational nexus with the object sought to be achieved. We do not therefore find any good ground to sustain the judgments of the High Court/Tribunal.”
In the present case, the respondents have furnished a specific and rational explanation for the higher pay of respondent No.3, namely, protection of the pay attached to his substantive post. The petitioner and respondent No.3 were, therefore, not similarly situated for the purpose of pay fixation. Consequently, the plea based upon Articles 14 and 16 of the Constitution is also without merit, since differential treatment founded upon a relevant and intelligible service distinction cannot be characterised as hostile discrimination merely because the junior ultimately draws higher pay.
This Court also finds no substance in the challenge to the impugned order merely on the ground that the petitioner had not expressly quoted the Government instructions dated 21.06.1990 in his representation. The substance of the representation was that, being senior, he ought not to draw less pay than respondent No.3. The competent authority was, therefore, justified in examining that claim with reference to the Government instructions governing stepping up of pay. What is material before this Court is whether the claim of the petitioner was covered by the applicable instructions. The instructions themselves do not confer an unrestricted right upon every senior employee to have his pay stepped up whenever a junior happens to draw more. The benefit is subject to the conditions governing the nature and source of the disparity. Where the junior is drawing higher pay because of a lawful fixation arising from an independent service incident, the senior cannot seek automatic stepping up merely on the basis of inter se seniority.
The further plea of the petitioner that, had he continued as Superintendent Grade III till the stage when respondent No.3 was appointed as Labour Inspector Grade I, he would also have earned substantive status and obtained similar protection, is wholly hypothetical. The rights of the parties have to be determined on the basis of the service status actually held by them at the relevant point of time and not on a speculative assumption as to what might have happened had the petitioner continued in the earlier cadre. On the date of his appointment as Labour Inspector Grade I, the petitioner was only officiating on the post of Superintendent Grade III. Respondent No.3, on the other hand, had already been confirmed before his subsequent appointment as Labour Inspector Grade I. The petitioner cannot, therefore, seek retrospective parity on the basis of a hypothetical future confirmation.
Conclusion
In view of the above, the petitioner's challenge to the rejection of his representation and his claim for stepping up of pay vide order dated 31.12.1999 (Annexure P-5) cannot be sustained. Neither the admitted seniority of the petitioner nor the fact that Respondent No. 3 subsequently drew higher pay establishes an enforceable right to parity, particularly when the difference is satisfactorily explained by the distinct substantive status of Respondent No. 3 and the consequential application of the relevant pay-protection rules. Therefore, the impugned order, cannot be said to suffer from such illegality, arbitrariness or non-application of mind as would warrant interference in exercise of writ jurisdiction.
Consequently, the prayer for stepping up of pay, arrears and consequential benefits is liable to be declined, as such, the same is dismissed.
Pending application, if any, stands disposed of.