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CASE NO.: Appeal (civil)  1532 of 2005

PETITIONER: S. C. Chandra and others

RESPONDENT: State of Jharkhand and others

DATE OF JUDGMENT: 21/08/2007

BENCH: A. K. Mathur & Markandey Katju

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO. 1532 OF 2005 (With Civil Appeal Nos. 6595, 6602-6603 and 6601 of 2005)

Markandey Katju, J.

1.      The facts of the case have been stated in the judgment of my learned  brother Hon’ble A.K. Mathur, J. which I have perused.  I respectfully agree  with him that these appeals deserve to be dismissed.  However, I am writing  a separate concurrent judgment since I am of the view that the principle of  equal pay for equal work needs to be clarified.

2.      The principle of equal pay for equal work was propounded by this  Court in certain decisions in the 1980s, e.g.  Dhirendra Chamoli and  another vs. State of U.P. (1986) 1 SCC 637,  Surinder Singh vs.  Engineer-in-Chief, C.P.W.D. (1986) 1 SCC 639, Randhir Singh vs.  Union of India (1982) 1 SCC 618 etc.  This was done by applying Articles  14 and 39(d) of the Constitution.  Thus, in Dhirendra Chamoli’s case  (supra) this Court granted to the casual, daily rated employees the same pay  scale as regular employees.

3.      It appears that subsequently it was realized that the application of the  principle of equal pay for equal work was creating havoc.  All over India  different groups were claiming parity in pay with other groups e.g.  Government employees of one State were claiming parity with Government  employees of another State.

4.   Fixation of pay scale is a delicate mechanism which requires various  considerations including financial capacity, responsibility, educational  qualification, mode of appointment, etc. and it has a cascading effect.   Hence, in subsequent decisions of this Court the principle of equal pay for  equal work has been considerably watered down, and it has hardly ever been  applied by this Court in recent years.

5.      Thus, in State of Haryana vs. Tilak Raj (2003) 6 SCC 123, it was  held that the principle can only apply if there is complete and wholesale  identity between the two groups.  Even if the employees in the two groups  are doing  identical work they cannot be granted equal pay if there is no  complete and wholesale identity, e.g., a daily rated employee may be doing  the same work as a regular employee, yet he cannot be granted the same pay  scale.  Similarly, two groups of employees may be doing the same work, yet  they may be given different pay scales if the educational qualifications are  different.  Also, pay scale can be different if the nature of jobs,  responsibilities, experience, method of recruitment, etc. are different.

6.      In State of Haryana and others vs. Charanjit Singh and others

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(2006) 9 SCC 321, discussing a large number of earlier decisions it was held  by a three-Judge Bench of this Court that the principle of equal pay for equal  work cannot apply unless there is complete and wholesale identity between  the two groups.  Moreover, even for finding out whether there is complete  and wholesale identity, the proper forum is an expert body and not the writ  court, as this requires extensive evidence.  A mechanical interpretation of the  principle of equal pay for equal work creates great practical difficulties.   Hence in recent decisions the Supreme Court has considerably watered  down the principle of equal pay for equal work and this principle has hardly  been ever applied in recent decisions.

7.      In State of Haryana & another vs. Tilak Raj & others (2003) 6  SCC 123,  the Supreme Court considered the doctrine of equal pay for equal  work in the context of daily wagers of the Haryana Roadways.  After taking  note of a series of earlier decisions the Supreme Court observed:

"A scale of pay is attached to a definite post and in case  of a daily wager, he holds no post.  The respondent  workers cannot be held to hold any posts to claim even  any comparison with the regular and permanent staff for  any or all purposes including a claim for equal pay and  allowances.  To claim a relief on the basis of equality, it  is for the claimants to substantiate a clear cut basis of  equivalence and a resultant hostile discrimination before  becoming eligible to claim rights on a par with the other  group vis-‘-vis an alleged discrimination.  No material  was placed before the High Court as to the nature of  duties of either categories and it is not possible to hold  that the principle of ’equal pay for equal work’ is an  abstract one.

’Equal pay for equal work’ is a concept which requires  for its applicability complete and wholesale identity  between a group of employees claiming identical pay  scales and the other group of employees who have  already earned such pay scales.  The problem about equal  pay cannot always be translated into a mathematical  formula".

                                                       (Emphasis supplied) 8.      In State of U.P. and others vs. Ministerial Karamchari Sangh, AIR  1998 SC 303, the Supreme Court observed that even if persons holding the  same post are performing similar work but if the mode of recruitment,  qualification, promotion etc. are different it would be sufficient for fixing  different pay scale.  Where the mode of recruitment, qualification and  promotion are totally different in the two categories of posts, there cannot be  any application of the principle of equal pay for equal work.

9.      In State of Haryana vs. Jasmer Singh and others AIR 1997 SC  1788, the Supreme Court observed that the principle of equal pay for equal  work is not always easy to apply.  There are inherent difficulties in  comparing and evaluating the work of different persons in different  organizations.  Persons doing the same work may have different degrees of  responsibilities, reliabilities and confidentialities, and this would be  sufficient for a valid differentiation.  The judgment of the administrative  authorities concerning the responsibilities, which attach to the post, and the  degree of reliability expected of an incumbent, would be a value judgment of  the authorities concerned which, if arrived at bona fide, reasonably and  rationally was not open to interference by the court.

10.     In Federation of All India Customs and Excise Stenographers  (Recognized) and others  vs. Union of India and others AIR 1988 SC  1291, this Court observed :

"In this case the differentiation has been sought to be

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justified in view of the nature and the types of the work  done, that is, on intelligible basis.  The same amount of  physical work may entail different quality of work, some  more sensitive, some requiring more tact, some less, it  varies from nature and culture of employment. The  problem about equal pay cannot always be translated into  a mathematical formula".

11.     It may be mentioned that granting pay scales is a purely executive  function and hence the Court should not interfere with the same.  It may  have a cascading effect creating all kinds of problems for the Government  and authorities.  Hence, the Court should exercise judicial restraint and not  interfere in such executive function vide Indian Drugs &  Pharmacheuticals Ltd. vs. Workmen, Indian Drugs and  Pharmaceuticals Ltd. (2007) 1 SCC 408.

12.     There is broad separation of powers under the Constitution, and the  judiciary should not ordinarily encroach into the executive or legislative  domain.  The theory of separation of powers, first propounded by the French  philosopher Montesquieu in his book ‘The Spirit of Laws’ still broadly holds  the field in India today.  Thus, in Asif Hameed vs. State of Jammu and  Kashmir, AIR 1989 SC 1899 a three Judge bench of this Court observed  (vide paragraphs 17 to 19) :         "17.    Before adverting to the controversy directly  involved in these appeals we may have a fresh look on  the inter se functioning of the three organs of democracy  under our Constitution.  Although the doctrine of  separation of powers has not been recognized under the  Constitution in its absolute rigidity but the constitution  makers have meticulously defined the functions of  various organs of the State.  Legislature, executive and  judiciary have to function within their own spheres  demarcated under the Constitution.  No organ can usurp  the functions assigned to another.  The Constitution trusts  to the judgment of these organs to function and exercise  their discretion by strictly following the procedure  prescribed therein.  The functioning of democracy  depends upon the strength and independence of each of  its organs.  Legislature and executive, the two facets of  people’s will, they have all the powers including that of  finance.  Judiciary has no power over sword or the purse  nonetheless it has power to ensure that the aforesaid two  main organs of State function within the constitutional  limits.  It is the sentinel of democracy.  Judicial review is  a powerful weapon to restrain unconstitutional exercise  of power by the legislature and executive. The expanding  horizon of judicial review has taken in its fold the  concept of social and economic justice.  While exercise  of powers by the legislature and executive is subject to  judicial restraint, the only check on our own exercise of  power is the self imposed discipline of judicial restraint.

18.     Frankfurter, J. of the U.S. Supreme Court  dissenting in the controversial expatriation case of Trop  v. Dulles (1958) 356 US 86 observed as under :

"All power is, in Madison’s phrase, "of an  encroaching nature".  Judicial powers is not  immune against this human weakness.  It  also must be on guard against encroaching  beyond its proper bounds, and not the less so  since the only restraint upon it is self  restraint\005\005\005\005\005.

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       Rigorous observance of the difference  between limits of power and wise exercise  of power\026between questions of authority  and questions of prudence\026requires the most  alert appreciation of this decisive but subtle  relationship of two concepts that too easily  coalesce. No less does it require a  disciplined will to adhere to the difference.   It is not easy to stand aloof and allow want  of wisdom to prevail to disregard one’s own  strongly held view of what is wise in the  conduct of affairs.  But it is not the business  of this Court to pronounce policy.  It must  observe a fastidious regard for limitations on  its own power, and this precludes the  Court’s giving effect to its own notions of  what is wise or politic.  That self-restraint is  of the essence in the observance of the  judicial oath, for the Constitution has not  authorized the judges to sit in judgment on  the wisdom of what Congress and the  Executive Branch do."                

19.     When a State action is challenged, the function of  the court is to examine the action in accordance with law  and to determine whether the legislature or the executive  has acted within the powers and functions assigned under  the constitution and if not, the court must strike down the  action.  While doing so the court must remain within its  self-imposed limits.  The court sits in judgment on the  action of a coordinate branch of the Government.  While  exercising power of judicial review of administrative  action, the court is not an appellate authority.  The  constitution does not permit the court to direct or advise  the executive in matters of policy or to sermonize qua  any matter which under the constitution lies within the  sphere of legislature or executive, provided these  authorities do not transgress their constitutional limits or  statutory powers."    

                                               (Emphasis supplied)

13.     In our opinion fixing pay scales by Courts by applying the principle of  equal pay for equal work upsets the high Constitutional principle of  separation of powers between the three organs of the State.  Realizing this,  this Court has in recent years avoided applying the principle of equal pay for  equal work, unless there is complete and wholesale identity between the two  groups (and there too the matter should be sent for examination by an expert  committee appointed by the Government instead of the Court itself granting  higher pay).  

14.     It is well settled by the Supreme Court that only because the nature of  work is the same, irrespective of educational qualification, mode of  appointment, experience and other relevant factors, the principle of equal  pay for equal work cannot apply vide Government of West Bengal vs.  Tarun K. Roy and others (2004) 1 SCC 347.

15.     Similarly, in State of Haryana and another vs. Haryana Civil  Secretariat Personal Staff Association (2002) 6 SCC 72, the principle of  equal pay for equal work was considered in great detail.  In paragraphs 9 &  10 of the said judgment the Supreme Court observed that equation of posts  and salary is a complex matter which should be left to an expert body.  The  Courts must realize that the job is both a difficult and time consuming task  which even experts having the assistance of staff with requisite expertise  have found it difficult to undertake.  Fixation of pay and determination of

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parity is a complex matter which is for the executive to discharge.  Granting  of pay parity by the Court may result in a cascading effect and reaction  which can have adverse consequences vide Union of India and others vs.  Pradip Kumar Dey (2000) 8 SCC 580.   

16.     In view of the above, I concur with the conclusion arrived at by my  learned brother Hon’ble A.K. Mathur, J. that the appeals preferred by the  appellants deserve to be dismissed.  Ordered  accordingly.