Om Parkash and Others vs The Institute of Chartered Accountants of India and Others

Valmiki J Mehta, J.—This writ petition is filed by three petitioners. All the three petitioners were appointed as General Tradesman by the respondent No. 1. Petitioners were already working with the respondent No. 1 prior to their appointments as General Tradesman by the appointment letters dated 1.10.1992. The petitioner Nos. 1 and 2 were originally appointed on temporary basis as Electricians in terms of letters dated 25.9.1991 and 29.3.1992 of the respondent No. 1, and the petitioner No. 3 was appointed as Plumber on ad hoc basis in terms of the letter dated 25.9.1991 of the respondent No. 1. Though the appointments of the three petitioners in terms of letters dated 25.9.1991 and 29.3.1992 were on ad hoc basis their appointments were specifically as Electricians and Plumber. The case of the petitioners is that they have unfairly been denied the appointments to the posts of Electricians and Plumber of the respondent No. 1, and have been appointed by being categorized as General Tradesman only to deny them the pay scale which should be granted to regular Electricians and Plumbers of the respondent No. 1 who gets a scale of Rs. 950-1500/-. It is the pleading on behalf of the petitioners that by appointing the petitioners as General Tradesman instead of Electricians and Plumber, respondent No. 1 gave them the lower scale of pay of Rs. 750-940/- i.e. a lesser scale of pay than the normal scale of Rs. 950-1500/-. The writ petition states that the petitioners have always continued to work with the respondent No. 1 as Electricians and Plumber at all points of time right from inception till filing of the writ petition and even thereafter till date. It is contended that the principle of ''equal pay for equal work'' squarely applies in the case of the petitioners because a fraud ought not to be perpetuated upon them by their being called ''General Tradesman'' but taking from them works only of regular Electricians and Plumber. It is pleaded and argued that once the petitioners are doing the same works which are to be done by Electricians and Plumbers in the respondent No. 1, the petitioners should get the same scale of pay as being given to Electricians and Plumbers with the respondent No. 1 viz. of Rs. 950-1500/-. Reliance is placed by the petitioners upon the scales of pay of the respondent No. 1, filed as Annexure P-1 to the writ petition and which reads as under:-

THE INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA

NEW DELHI

SCALES OF PAY

It is argued that so far as the petitioner Nos. 1 and 2 who are Electricians are concerned they quite clearly fall in Serial/Category (3) in the aforesaid scales of pay, and though there is no category of a Plumber in the aforesaid scales of pay, however, even the petitioner No. 3 as a Plumber has to fall in category 3 which is the third lowest category for scale of pay inasmuch as petitioner No. 3 is a skilled person being a Plumber whereas the first two categories in the scales of pay pertain to Chowkidars, Peons and Sweepers who are unskilled workers.

Respondent No. 1 has countered the case of the petitioners by stating that the petitioners with open eyes took employment as General Tradesman and having taken the benefit of employment as General Tradesman they now cannot claim parity with regular Electricians and Plumbers of the respondent No. 1. It is also pleaded in the counter-affidavit that petitioners were over age for appointments and also lacked qualifications for appointments as Electricians and Plumber with the respondent No. 1 and therefore they cannot claim parity with regular Electricians and Plumbers working with the respondent No. 1.

The doctrine of ''equal pay for equal work'' is well established in service jurisprudence. Persons who have same qualifications and are performing the similar duties are ordinarily to be put under the same category for monetary emoluments. There may be certain differences with respect to qualifications or scope of duties but if such differences are minor and irrelevant, Courts can and do ignore the same. The object of the law is that similarly situated persons must be treated similarly for the purpose of payment of salaries. Once a person does identical work as another person in the same organization, there is no reason to deny parity in treatment to both the persons.

At the outset, I put to the learned senior counsel for the respondent No. 1 whether there were any recruitment rules of the respondent No. 1 pleaded in the counter-affidavit, to which the respondents could be said to be bound to, but the learned counsel for the respondents could not point out any paragraph in the counter-affidavit which states what were the applicable recruitment rules of the respondent No. 1. Clearly therefore the respondent No. 1 has let the position remain fluid and which position has to work definitely not against the petitioners but against the respondent No. 1 once we find that the petitioners are doing identical work as regular Electricians and Plumbers working for the respondent No. 1 organization and who get a higher scale of pay of Rs. 950-1500/- instead of Rs. 750-940/- being paid to the petitioners. So far as petitioner Nos. 1 and 2 are concerned, the writ petition shows that petitioner No. 1 is a matriculate holding Electrician Licence from Delhi Administration and having experience of more than 13 years as Electrician. Petitioner No. 2 is a matriculate holding ITI diploma of Electrician and has 13 years of experience as an Electrician. Petitioner No. 3 is also a matriculate and is an experienced Plumber. The experience of petitioner No. 3 is mentioned in para 7 of the writ petition. When we see the corresponding para of the counter-affidavit of the respondent No. 1, it is seen that with respect to these specific averments of the qualifications of the petitioners, there is no specific denial and which obviously is because petitioners had the necessary qualifications with respect to Electricians and Plumber which have been stated in paras 4, 5 and 7 of the writ petition. At this stage, I may state that petitioners have filed voluminous documents alongwith rejoinder-affidavit showing that the respondent No. 1 has been taking duties from the petitioners only of Electricians and Plumber. The documents filed by the rejoinder-affidavit pertain to the period of pendency of the writ petition and petitioners have been specifically described as Electricians and Plumber and have been specifically designated for electrical and plumbing jobs. Some of the documents show that the petitioner nos. 1 and 2 have even been sent outstation for the designated work of an Electrician. A reading of the aforesaid documents which are from pages 93 to 125 of the paper book, leaves no manner of doubt that actually duties being performed by the petitioners were undoubtedly were of an Electrician and a Plumber.

Though the qualifications in CPWD for appointment of Electrician and Plumber do not apply strictly, however, let us still see what these requirements are for appointment to Electrician and Plumber in CPWD. These requirements are as under:-

A reading of the aforesaid qualifications prescribed by the CPWD that so far as Electrician is concerned he must be a matriculate with an ITI diploma besides having experience of five years and possess electrical certificate of competency. So far as qualifications of a Plumber are concerned such person either has to have passed plumber examination from any Technical Training Institute with two years practical experience or have five years experience in the plumbing line. When these aforesaid requirements are compared to the averments made in paras 4, 5 and 7 of the writ petition, it is found that more or less these qualifications are met by each of the petitioners though it may not be strictly so to the last alphabet. The fact of the matter is that so far as petitioner Nos. 1 and 2 are concerned they either had a Diploma or had an Electrician licence from the Delhi Administration besides having experience of 13 years as Electrician and some of which period as an Electrician was with none other than the respondent No. 1. So far as a Plumber is concerned, such person only had to have five years experience, and petitioner No. 3 has given his requisite experience in para 7 of the writ petition. As already stated above, there is no denial of any worth by the respondent No. 1 to the averments made in paras 4, 5 and 7 of the writ petition.

I have already stated above that there is nothing in the counter-affidavit of the respondent No. 1 that qualifications of CPWD apply, however, I have referred to these CPWD qualifications just to state that it is not as if the petitioners are grossly unqualified for their jobs as Electricians or Plumber but in fact they comply with the requirements in spirit, and more or less in letter also, though may be not strictly 100% in letter. What I am stating is that petitioners are duly qualified to work as Electricians and Plumber with respondent No. 1, and I do not have before me what were the qualifications which were used by the respondent No. 1 for appointment of Electricians and Plumbers under them. Therefore, qualifications of the petitioners to work as Electricians and Plumber alongwith other such persons in the respondent No. 1, in my opinion, stands quite clearly established.

So far as scope of duties are concerned, I have already referred to the voluminous documents of the respondent No. 1 itself, filed by the petitioners with rejoinder-affidavit, showing beyond any iota of doubt, that the petitioners have always worked right from inception till filing of the writ petition and even thereafter during the pendency of the writ petition only as Electricians and Plumber with the respondent No. 1.

In my opinion, the facts of the present case show that respondent No. 1 is very unfairly using the appointment letters of the petitioners as General Tradesman to deny them the scales of pay which they are otherwise entitled to and being of category (3) in the scales of pay of respondent no. 1 annexed as Annexure P-1 to the writ petition. I have also failed to understand what can be the logic of the respondent No. 1 to deny parity between identically placed persons. It is not open to the respondent No. 1 in my opinion to rely upon appointment letters to give a lesser scale of pay to the petitioners merely on the ground of a conveniently given job designation which is not provided in the rules/scales of pay of respondent no. 1, and when otherwise the qualifications and the scope of duties of petitioners are same as other Electricians and Plumbers of the respondent No. 1. If I permit acceptance of the contentions of the respondent No. 1 for accepting petitioners appointments as ''General Tradesman'' it would amount to allowing the respondent No. 1 to violate the well-established doctrine of ''equal pay for equal work''.

The upshot of the above discussion is as under:-

(i) Petitioners were originally appointed by the respondent No. 1 itself as Electricians and Plumber.

(ii) Though the subsequent job designation in the appointment letters of the petitioners were as General Tradesman, however, the scope of duties of the petitioners were actually of Electricians and Plumber, and which were/are the same duties for being given to other Electricians and Plumbers of the respondent No. 1.

(iii) Respondent No. 1 has no rules of recruitment and when we take the rules of CPWD petitioners more or less comply with the qualifications for being appointed as Electricians and Plumbers.

(iv) Petitioners all along have worked only as Electricians and Plumber with the respondent No. 1 and hence they cannot be discriminated against by giving them separate treatment viz. giving them lesser and separate scales of pay than as given to other Electricians and Plumbers of the respondent No. 1.

The facts of the present case show the crying need to apply the principle of ''equal pay for equal work'' failing which Constitution mandate of Article 14 of the Constitution of India to avoid arbitrariness and directing for equals to be treated equally would stand violated.

In view of the aforesaid discussion, writ petition is allowed. Petitioners will be granted the pay scales of Rs. 950-1500/- from the date of their appointments as General Tradesman with the respondent No. 1. Petitioners will get all consequential monetary emoluments on their having been granted the scale of pay of Rs. 950-1500/- from the original date of their appointments. Of course, I must hasten to clarify that if promotions in the respondent No. 1 have to be as per the criteria of merit-cum-seniority or seniority-cum-merit, then, the petitioners for being entitled to promotions would have to meet the necessary criteria for being given the higher scale of pay of the promotion post. The arrears as now payable to the petitioners in view of allowing of the present writ petition be now calculated by the respondent No. 1 and be given to the petitioners within a period of eight weeks from today. The petitioners will give their response to such calculations within four weeks thereafter. Admitted dues of the petitioners be paid within a period of four weeks thereafter i.e. within a period of four months from today. In case, there are any disputes with respect to higher scales of pay required to be given to petitioners at a subsequent point of time, then their original dates of appointments or entitlement of the petitioners to promotions or any other aspects which entitle the petitioners to higher emoluments, and which if denied by the respondent No. 1, these aspects can be the subject matter of appropriate independent proceedings, and if permissible even contempt proceedings. Writ petition is allowed and disposed of with the aforesaid observations. Parties are left to bear their own costs.