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PETITIONER: STATE OF U.P. AND ORS.

       Vs.

RESPONDENT: RAMASHYRAYA YADAV AND ANR.

DATE OF JUDGMENT:       15/02/1996

BENCH: G.B. PATTANAIK (J) BENCH: G.B. PATTANAIK (J) RAMASWAMY, K.

CITATION:  1996 AIR 1188            1996 SCC  (3) 332  JT 1996 (2)   418        1996 SCALE  (2)304

ACT:

HEADNOTE:

JUDGMENT:                     J U D G M E N T G.B. PATTANAIK, J.      Leave granted.      This appeal  by special  leave is directed against the judgment  of the  Division Bench  of the  Allahabad High Court  dated 2.2.1995  dismissing the petitioners’ appeal and affirming the decision of the learned Single Judge in  Civil Misc.  Writ Petition No. 32001 of 1992. This is a glaring instance of abuse of judicial process which is  partly due  to inaction  on the  part of  the State authorities.      The   respondents    had   been    appointed    as Investigators-cum-Computer on  a fixed  remuneration of Rs. 400/-  per month  by order  dated  17.9.1986,  such posts having  been created  under the  temporary scheme only upto  28th of  February, 1987  in 15  districts of Uttar Pradesh.  While selecting  persons for filling up those purely temporary posts apart from considering the cases of  names which  were sponsered by the employment exchange,  the  appropriate  authority  of  the  Animal Husbandary Directorate  received about 208 applications directly and  finally selected  44 persons  among them. The Government  having come to know of the irregularity as stated  above cancelled  the appointments  by  order dated 6.3.1987  and  called  upon  the  authorities  to select  persons   in  accordance   with  the  procedure prescribed. The  appointees  -  respondents  moved  the Allahabad High  Court against the order of cancellation alleging that  they having  joined, the order is bad in law.  The   High  Court  passed  an  interim  order  on 14.8.1987  allowed   continuance  of  the  respondents. Though the State appeared in said proceedings and filed application for  vacation of  stay, stay  order has not been vacated  and the  respondents  are  continuing  as such. In  the meanwhile  the respondents  filed another

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writ petition  claiming that  they are  entitled to the same  salary   as  the  Investigators-cum-Computer  are getting   in    the   Animal    Husbandary   Department particularly when  they  are  discharging  the  similar duties as  those of  the regular  employees,  obviously invoking the  principle of  ’equal pay for equal post’. Though  the   State  Government  was  noticed  in  that proceeding  but   no  counter   affidavit  was   filed. Therefore the  learned Single  Judge allowed  the  writ petition by  order dated  3.3.1994 granting the regular pay scale  of Rs.  1200-2040 to  the  respondents.  The State filed a special appeal before the Division Bench, and by  the impugned judgment the special appeal having been dismissed, the present appeal by special leave has been filed in this Court.      Learned counsel  for the appellants contended that the respondents  having been  allowed  to  continue  by virtue  of   an  interim   order  of   the  High  Court notwithstanding their appointment having been cancelled and even  though the  scheme under  which they had been appointed not being in force, the High Court committed an error in directing the State to pay the respondents same salary as those in the regular cadre. It  was  further  contended  that  the  post  of Investigator-cum-Computer to  which the respondents had been appointed  being of a purely temporary nature with a fixed  salary of  Rs. 500  per month,  the  essential qualification  for   the  same  being  much  less  than qualification for  a regular Investigator-cum-Computer, the mode  of selection  being different  than  mode  of selection  for  the  regular  posts  and  duties  being different, the High Court was in error in directing the State to  pay the  respondents the same scale of pay as is available  to the regular Investigator-cum-Computer. A  counter  affidavit  has  been  filed  on  behalf  of respondents. It  has been  stated in  the said counter- affidavit that  since the State did not file any return before the  learned Single  Judge the High Court had no other option  than to accept the averments made in that application.  Therefore   this  court   would  not   be justified in  interferring with  the same under Article 136 of  the Constitution.  It has  further been averred that the  nature of  work of the respondents is similar to the  work done  by regular Investigator-cum-Computer and therefore  the High  Court was  fully justified  to follow the principle of ’equal pay for equal work’.      It is  no doubt  true that  the State did not file any counter-affidavit  in the High Court in the present proceedings though  an  application  for  vacating  the interim order  in  the  earlier  proceedings  had  been filed. The  earlier proceedings  was in relation to the order  of  relation  of  appointment  to  the  post  of Investigator-cum-Computer by  the State  Government and it is  because of the interim order in that proceedings the respondents are continuing. The respondents did not disclose this  fact in  the subsequent proceedings when they claimed equal pay as the regular Investigator-cum- Computer,  Such   non-disclosure  in   the   subsequent proceedings  disentitled  them  to  get  any  equitable relief from the Court. Since the original proceeding is still pending  we are not expressing any opinion on the legality of  the order  of cancellation though there is some force  in the  contention raised  by  the  learned counsel  for  the  appellant  -  State.  But  on    the materials on  record the  conclusion is    irresistable

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that the respondents are not entitled to claim the same scale of  pay as  those  of  regular  Investigator-cum- Computer. The  principle of equal pay for equal work is attracted only when two sets of employees are similarly situated and  are discharging similar functions but yet are getting  different scales  of pay.  In the  case in hand  as   has  been   stated  earlier   the  posts  of Investigators-cum-Computer had been created purely on a temporary basis.  The essential  qualification for  the said  post   was  Intermediate  whereas  the  essential qualification for  regular Investigator-cum-Computer is Bachelor’s  decree   with  Statistics  or  Mathematical statistics  or  Mathematics.  The  knowledge  of  Hindi written in Devnagrik Script was essential qualification for   regular    Investigator-cum-Computer,   was   not prescribed for  the post  held by respondents. The mode of recruitment to the posts held by the respondents was through Departmental  Selection Committee  whereas  the mode  of   recruitment  for  regular  Investigator-cum- Computer is  through Public  Service  Commission  Uttar Pradesh. Allahabad/U.P.  or U.P.  Subordinate  Services Selection Board,  Lucknow. The nature of duties for the respondents was  to  collect  the  data  for  livestock number and  livestock products from 14 Districts of the State  only   whereas  the   duties  of   the   regular Investigator-cum-Computer was  (1) To collect data from Districts.  Livestock   farms   and   other   Livestock Institutions (2)  to complete,  tabulate, to  assist in the scrutiny and analysis of the tabulated data and (3) to  supervise   the  statistical   work  of  the  other departmental field  staff. In the aforesaid premises it is difficult  for us  to hold  that  the  principle  of ’equal pay  for equal  work’ can  be attracted.  In our considered opinion  the High  Court was wholly in error in directing  the State to pay the respondents the same scale of  pay as  is paid  to the regular Investigator- cum-Computer. In  the aforesaid  premises the  impugned judgment of  the Division  Bench of  the High  Court in Special Appeal  No. 534 of 1994 as well as the Judgment of the  learned Single Judge in Writ Petition No. 32001 of 1992  are set  aside. It  is further  held that  the respondents are  not entitled  to scale of pay which is available to the regular Investigator-cum-Computer. The appeal is  allowed but in the circumstances without any order as to costs.