Ram Kishen and Others vs Commissioner, Municipal Corporation of Delhi

S. Ravindra Bhat, J.—The petitioners claim a direction to the respondent (hereafter ''MCD'') to fix them in the initial pay-scale of Rs. 210-

250, being given to security guards/ personnel working in the health wing . They invoke the principle of ''equal pay for equal work''.

The undisputed facts are that the petitioners, all of whom are ex- service men having served with the armed forces of the Union, sought

employment with the MCD, which had requisitioned names from the Employment Exchange. The MCD had sought to fill the post of Security

guards/gunmen. It appears that initially many of them worked in the health department or wing of the MCD; later they were posted in the Care-

taker department, and designated as ""Chowkidar/gunman"". Their pay was fixed in the grade of Rs. 196-232. The petitioners were appointed in

1984-86.

The Commissioner, MCD had proposed, inter alia, the creation of 79 posts as ''security guard/gunman'' with the pay scale of Rs. 210-250, plus

allowances. These were to be deployed in the health wing, in various hospitals and health establishments of the MCD. The proposal was accepted,

and a resolution was issued on 17th of May, 1985. The personnel inducted in those posts had identical qualifications as the petitioners. It is not

disputed that there is interchangeability of postings; the security guards in the health establishment are sent to work in the care taker department,

and other units of MCD. Both categories of employees also were recruited through the employment exchange.

Mr. Dalal, on behalf of the petitioners contended that the doctrine of equal pay for equal work squarely applies to the facts of this case; he

submitted that in all respects, the security personnel in the health department or wing were performing the same, if not identical duties, as the

petitioners; they were also given special allowances; there is interchangeability of duties and postings; nevertheless, in respect of pay scales, there is

an unjustifiable disparity, which violates the equality clause, viz. Articles 14 and 16(1) of the Constitution of India. Counsel submitted that there is

nothing to show that the security duties of the petitioners is in any way different or inferior to that performed by the security personnel in the health

wing or unit.

The counsel for MCD, Mr. Yadav, submitted that the petitioners cannot claim any relief, since they have approached the court after inordinate

delay. On the merits, he submitted that both categories of employees were treated separately. As far as health department security personnel are

concerned, they are working in a different place. It was submitted that this aspect is important, and the pay-scale of such personnel was always

different and higher than the petitioners, whose job is more general in nature.

The precise content of the right to equal pay for equal work has been explained in several decisions of the Supreme Court. In Jaipal and Others

Vs. State of Haryana and Others, a public employer, like the state, was held to be a under a constitutional obligation to ensure equal pay for equal

work, where the two sets of employees- discharged similar responsibilities under similar working conditions. In, Dhirendra Chamoli and Another

Vs. State of U.P., , it was held that casual workers could not be denied same emoluments and benefits as admissible to the temporary employees

on the ground that they had accepted the employment with full knowledge of their disadvantage. In Grih Kalyan Kendra Workers'' Union Vs.

Union of India and others, , though no discrimination was found but the principle of equal pay for equal work was recognized where all were

placed similarly and discharging same duties and responsibilities irrespective of casual nature of work. This right had been held to have assumed

status of a fundamental right in service jurisprudence having regard to constitutional mandate of ''equality'' in Articles 14 and 16. In Daily Rated

Casual Labour through Daily Rated Casual Labour Employed under P and T Department Vs. Union of India (UOI) and Others, . All these

decisions were noticed, and applied, in the judgment reported as State of West Bengal and Others Vs. Pantha Chatterjee and Others, .

The Supreme Court has also ruled that if there are differences based on qualifications, rules, or conditions of experience, etc, the doctrine of

equal pay cannot be applied by the courts. The nature of work may be more or less the same but scale of pay may vary based on academic

qualification or experience which justifies classification. The principle of equal pay for equal work cannot be applied in a mechanical or casual

manner. Classification made by a body of experts after full study and analysis of the work should not be disturbed except for strong reasons which

indicate the classification made to be unreasonable. (Ref Mew Ram Kanojia Vs. All India Institute of Medical Sciences and Others, , V.

Markendeya and Ors. v. State of Andhra Pradesh and Ors. (1989) 3 SC 191

In this case, both categories of employees are under the same employer; they perform similar duties; they are recruited through a constitutionally

sanctioned process, and there is interchangeability of duties. Yet, they are not given parity in pay scales. The only difference pressed home to

justify this disparity is that the security guards in the health department perform duties that are different. No attempt was made to show how the

duties were different; apart from the slight variation in nomenclature, no document was relied upon to show differences in qualifications, experience,

or job content, or that security personnel had superior training or achievements. Indeed, the essential function of both kinds of employees is to

protect and secure the MCD''s assets. 9. The doctrine of equal pay for equal work is a facet of equality. If Therefore, the state seeks to escape its

application, the differentia has to be explained. This differentia is itself based upon the theory of classification which enables the State to treat two

seemingly similar persons, objects or classes or persons, differently. If the points of difference (''intelligible differentia'') are reasonable, and have a

rational or logical co-relation with the object sought to be achieved by the policy or legislation in which such differentia is built in, the classification

is said to be reasonable.

In Roop Chand Adlakha and Others Vs. Delhi Development Authority and Others, , the Supreme Court emphasized that the theory of

classification, if pressed too far, could destroy the guarantee of equality itself:

''the process of classification is in itself productive of inequality and in that sense antithetical of equality. The process would be constitutionally valid

if it recognise a pre-existing inequality and acts in aid of amelioration of the effects of such pre-existent inequality. But the process cannot in itself

generate or aggravate the inequality. The process cannot merely blow up or magnify insubstantial or microscopic differences on merely

meretricious or plausible differences. The overemphasis on the doctrine of classification or any anxious and sustained attempts to discover some

basis for classification may gradually and imperceptibly deprive the article of its precious content and end in replacing doctrine of equality by the

doctrine of classification. The presumption of good faith in and of constitutionality of a classification cannot be pushed to the point of predicating

some possible or hypothetical but undisclosed and unknown reason for a classification rendering the precious guarantee of equality ``a mere rope

of sand''.

To overdo classification is to undo equality."" The idea of similarly or dissimilarity of situations of persons, to justify classification, cannot rest on

merely differentia which may, be themselves be rational or logical, but depends on whether the differences are relevant to the goals sought to be

reached by the law which seeks to classify. The justification of the classification must needs, Therefore, to be sought beyond the classification. All

marks of distinction do not necessarily justify classification irrespective of the relevance or nexus to objects sought to be achieved by the law

imposing the classification.

The attempts of MCD to justify the differential treatment, and the classification, exemplify precisely the over-classification which renders the

guarantee of equality into a chimera, a ''mere rope of sand''. Besides the classification itself, there is no rationale offered. I am of the view

Therefore, that the petitioners are entitled to the doctrine of equal pay for equal work.

The next question is what ought to be the relief in these proceedings. Here, learned counsel for MCD is justified, to a certain extent, in urging

that the petitioners have approached the court after considerable delay. It is well settled that in proceedings under Article 226, though no inflexible

rule regarding limitation has been laid down, courts would decline exercising jurisdiction if the litigant approaches for relief after inordinate delay.

The petitioners have not attempted to explain why they have approached the court more than a decade and a half after their grievances arose.

Therefore, I am of the view that it would not be sound exercise of jurisdiction to direct payment of entire arrears of salary on the basis of the pay-

scale of Rs. 210-250. The Supreme Court held, in the judgment reported as M.R. Gupta Vs. Union of India and others, that wrongful pay fixation

results in a recurring cause of action, and does not constitute a one time wrong. If that principle is kept in mind, the petitioners would be entitled to

proper pay fixation from the date they were entitled to it, in 1985, and limited arrears of salary. They approached the court in 2005. Having regard

to the conspectus of facts, I am of the opinion that ends of justice would be met with if the arrears are confined to the period commencing from 1-

4-2002.

A direction is accordingly issued to the MCD to fix the petitioners in the pay-scale (pre-revised) of Rs. 210-250, with effect from 1-1-1986,

grant them notional increments, and fit them in that grade appropriately, after taking into account revisions, etc. They shall also be paid arrears, on

the basis of such revised salary, for the period 1-4-2002, till date. These directions, as to pay-fixation and fitment, and payment of arrears, shall be

complied with, within ten weeks from today.

The writ petition is allowed to the above extent. No costs.