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PETITIONER: Y.K. MEHTA AND ORS.

       Vs.

RESPONDENT: UNlON OF INDIA & ANR.

DATE OF JUDGMENT26/08/1988

BENCH: DUTT, M.M. (J) BENCH: DUTT, M.M. (J) VENKATARAMIAH, E.S. (J)

CITATION:  1988 AIR 1970            1988 SCR  Supl. (2) 604  1988 SCC  Supl.  750     JT 1988 (3)   466  1988 SCALE  (2)444  CITATOR INFO :  RF         1989 SC  19  (27)

ACT:     Central  Civil  Services (Classification ,  Control  and Appeal)  Rules,  1966:   Doordarshan-Staff   Artists-Whether Government. Servants-Whether entitled to parity in pay  with their   counterparts  in  Film  Division  of   Ministry   of Information and Broadcastng. %     Constitution  of  lndia, Articles 14, 16,  37  &  39(d): Equal pay for equal work-Two posts under two different wings of the same Ministry-Identical and  involving performance of same   nature   of   duties-Unreasonable   and   unjust   to discriminate in the matter of pay.

HEADNOTE:     The  Government by an order dated March  9,1979  revised the  fee  scales of certain categories of Staff  Artists  in Doordarshan  with retrospective effect from January 1,  1973 on  the  analogy  of the recommendations of  the  Third  Pay Commission  made in respect of regular  Government  servants but  the  categories  of the  petitioners  were  denied  the benefit by giving them junior scales.     In these writ petitions they assailed the said order  as discriminatory  and violative of Arts. 14 and 16(1)  of  the constitution.  Their  case  is  that  the  nature  of   work performed  by  them is similar to that  performed  by  their counterparts  in  the Film Division and  the  qualifications required  For  appointment  to  these  categories  of  Staff Artists are also the same as required in the cases of  their counterparts in the Film Division. They, therefore,  claimed that  they should be declared Government servants and  given the   same   pay  scales  as  given  to   their   respective counterparts  in the Film Division of the same .Ministry  of lnformation and Broadcasting with effect from the respective dates of their appointments.     The petitioners’ claim was contested by the  respondents by contending that the Staff Artists of Doordarshan were not Government servants but were engaged on contract basis, that they were not of the same class as the employees of the Film Division  and that they were therefore not entitled  to  the

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same scales of pay.                                                   PG NO 604                                                   PG NO 605     Allowing the writ petitions,     HELD:  1. The Staff Artists of Doordarshan including the petitioners  are Government servants. They possess  all  the criteria  of  a Government servant. They are  holding  civil posts  under the Government. They are being appointed up  to the  age  of  55-6O years on a time  scale  like  a  regular Government  servant.  Their contract runs till  the  age  of retirement as in regular government service. 608E, B, 606F]     Union  oflndia  v.  M.A. Chowdhary, AIR  1987  SC  l526, applied.     2.1  The  petitioners perform the same duties  as  those performed by their counterparts in the Film Division,  under the same Ministry of Information and Broadcasting. When  two posts under two different wings of the same Ministry are not only identical, but also involve the performance of the same nature  of  duties, it would be unreasonable and  unjust  to discriminate between them in the matter of pay. [609D]     2.2  One of the Directive Principles of State Policy  as embodied  in  clause (d) of Art. 39 of the  Constitution  is equal  pay  for  equal  work for both  men  and  women.  The Directive   Principles   contained   in   Part-IV   of   the Constitution  though  not  enforceable  by  any  court,  are intended to be implemented by the State of its own accord so as  to  promote  the  welfare  of  the  people.  Article  37 provides, inter alia, that it shall be the duty of the State to apply these principles in making law. [609E-F]     2.3 The principle of "equal pay for equal work", if  not given  effect  to  in  the case of  one  set  of  Government servants  holding  same or similar  posts,  possessing  same qualifications  and doing the same kind of work  as  another set  of Government servants it would be  discriminatory  and violative of Arts. 14 and 16 of the Constitution.[609G]     Such  discrimination  has been made in  respect  of  the petitioners. They are, therefore, entitled to same scales of pay as their counterparts in the Film Division.[609H-6l0A]     [The petitioners to be given the new scales of pay  with effect from the first day of the month of the year in  which each writ petition was filed, except the petitioners in writ Petition  Civil  No. 1756 of 1986 who are to be  given  such scales  of pay With effect from December 1,1983. They  would also  be  entitled  to the substituted  scales  of  pay  and consequential  benefits. The respondents to disburse to  the petitioners the arrear  amounts being the difference in  the pay-scales within four months.][610B-C,E-F]                                                   PG NO 606

JUDGMENT:     CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil)  Nos. 1239 of 1979, 974 of 1978 & 1756 of 86.     (Under Article 32 of the Constitution of India.)     P.Rama   Reddy,  R.K.  Jain  and  R.P.  Gupta  for   the Petitioners  in W.P. No. 1239 of 1979 and W.P. No.  1756  of 1986.     M.K. Ramamurthy, J. Ramamurthy and B. Parthasarathy  for the Petitioner in W.P. No. 974 of 1978.     G. Ramaswamy Additional Solicitor General, A.K. Ganguli, Miss A. Subhashini and K. Swamy for the Respondents in  W.P. No.1239 of 1979.     Miss A. Subhashini for the Respondents.     The Judgment of the Court was delivered by

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   DUTT,  J. In these writ petitions, three  categories  of Staff   Artists  of  Doordarshan  under  the   Ministry   of Information  and Broadcasting, namely,  Cameraman  Grade-II, Sound   Recordist  and  Lighting  Assistant/Lightman,   have claimed that they should be declared as Government  servants and  should be given the same pay-scales as given  to  their respective counterparts in the Film Division under the  same Ministry.     The Staff Artists were originally appointed on renewable contracts  for  3-4 years’ duration, but that  practice  has since  undergone a change and they are now appointed  up  to the  age of 55-6O years on a time-scale. They are,  however, employed on contract basis till the age of 55-60 years, that is,  the  contract  runs till the age of  retirement  as  in regular Government service.     In 1973, the Third Central Pay Commission considered the pay-scales  of the employees in the Film Division  including those  of  the  Staff  Artists.  The  Commission,   however, excluded  the cases of Staff Artists from its  consideration on  the  ground that they were not Government  servants  but contract employees. It may be stated at this stage that  the emoluments that are paid to the Staff Artists are termed  as ‘fees’ and the scales of pay are termed as ’Fee Scales’, the reason  being  that  they are  contract  employees  and  not Government servants.                                                   PG NO 607     By an order dated March 9, 1977, the Government  revised the  Fee Scales of the Staff Artists in Doordarshan  on  the analogy  of  the recommendations of the  Third  Central  Pay Commission  made in respect of regular Government  servants. The  revised  Fee Scales came into force  with  effect  from January 1, 1973. It appears that up to the post of Cameraman Grade-II   in  Doordarshan,  the  same  scales  of  pay   of equivalent   posts   in  the  Film  Division  as   per   the recommendation  of the Third Pay Commission were given,  but from  the stage of Cameraman Grade-II or Sound Recordist  up to  the post of Lighting Assistant/Lightman, the  same  pay- scales  of  equivalent posts in the Film Division  were  not given. The pay-scale of Cameraman under the Film Division is Rs.650-96O,  while the pay-scale of the equivalent  post  of Cameraman  Grade-II in Doordarshan was fixed at  Rs.550-900. Similarly,  the pay-scale of Sound Recordist in  Doordarshan was  fixed at Rs.425-750 instead of Rs.550-900 as  fixed  in the  case of the Sound Recordist in the Film  Division.  The pay-scale  of  Lighting  Assistant/Lightman  was  fixed   at Rs.330-480,  while the pay-scale of equivalent post  in  the Film  Division,  namely, Assistant Cameraman, was  fixed  at Rs.425-750.     It  is  the case of the petitioners that the  nature  of work performed by them is similar to that performed by their counterparts  in  the  Film  Division.  The   qualifications required  for  appointment  to  these  categories  of  Staff Artists,  are  the same as required in the  cases  of  their counterparts in the Film Division. In the circumstances,  it is  submitted  by the petitioners that the  said  Government order dated March 9, 1977 is discriminatory and violative of Articles  14 and 16(1) of the Constitution. Accordingly,  in these writ petition it has been prayed that the  petitioners should be declared as Government servants and paid the  same scales  of  pay as paid to their counterparts  in  the  Film Division  with  effect from the respective  dates  of  their appointments.     The  respondents  have  opposed the  writ  petitions  by filling  counter-affidavits.  It  has been  averred  in  the counter-affidavits that the Staff Artists of Doordarshan are

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not  Government servants, but they are engaged  on  contract basis.  It  is submitted that as they are not  of  the  same class as of the employees in the Film Division, they are not entitled to the same scales of pay. With regard to the Sound Recordists,  petitioners  in Writ Petition (C)  No.  974  of 1978,  it  is the case of the respondents that there  is  no such  post in the Film Division as "Sound Recordist". It  is averred  that in the Film Division, there are  three  posts, namely,  the  Chief Sound Recordist, the Recordist  and  the Assistant  Recordist. It is, accordingly, contended that  in Doordarshan,   the  organisational  structure  is   entirely different  and consists of only one category of  post,  that is, the Sound Recordist.                                                   PG NO 608     The  first question as to whether the Staff  Artists  of Doordarshan are Government servants or not, need not  detain us long. It was already been noticed that although initially their appointments were made on contract basis, subsequently the Staff Artists were being appointed up to the age of  55- 60 years on a time scale like a regular Government  servant. Indeed,  they  possess  all the  criteria  of  a  Government servant.  The  question once came up before us in  Union  of India  v.  M.A.  Chowdhary,  AlR 1987  SC  1526,  which  was disposed of by the following order:-     "Shri  A.K.  Ganguli, learned counsel for the  Union  of India   submits  that  Art.  311  of  the  Constitution   is applicable  to the Staff Artists of the All India Radio.  We are  of  the view that the statement made on behalf  of  the Government  represents the true legal position  because  the Staff Artists are holding civil posts under the  Government. In  view of the above statement, this appeal  filed  against the  judgment  of  the High Court of  Allahabad  in  Special Appeal  No. 258 of 1974 which has also taken the  view  that Art.  311  is applicable to those Staff Artists  has  to  be dismissed. This appeal is accordingly dismissed. No costs."     It  will appear from the order extracted above  that  we took the view that the Staff Artists of All India Radio were holding  civil  posts  under the  Government.  There  is  no distinction between the Staff Artists of All India Radio and those  in the Doordarshan. Accordingly, we hold that  having regard  to  the service conditions of the Staff  Artists  of Doordarshan  and  in view of the said  decision,  the  Staff Artists   of  Doordarshan  including  the  petitioners   are Government servants.     The  contention of the respondents that the category  of Staff  Artists   designated  as  ‘Sound  Recordist’  has  no counterpart  in the Film Division is without any  substance. It  may  be that in the Film Division,  the  designation  is ‘Recordist’  and not ‘Sound Recordist’ but, in our  opinion, it  is  quite  immaterial.  It  is  not  the  case  of   the respondents that the nature of duty of the Recordist in  the Film  Division  is  something else than that  of  the  Sound Recordist  in  Doordarshan. Indeed, it is the  case  of  the petitioners  in Writ Petition (C) No. 974 of 1978,  who  are all  Sound Recordists of Doordarshan, that they  peform  the same  duties as performed by their counterparts in the  Film Division, that is, the ‘Recordists’ or ‘Sound Recordists’ as                                                   PG NO 609 the case may be. At this stage, it is significant to  notice that the last sentence of paragraph 6 of the Reply Affidavit of  the respondents to the Rejoinder of the  petitioners  in Writ  Petition  (C)  No.  974  of  1978,  affirmed  by  Shri Sailendra  Shankar,  the Director  General  of  Doordarshan, reads as follows:     "I  reiterate  that the petitioners cannot  be  compared

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with  the  Sound  Recordist of the Film  Division,  who  are regular civil servants."     The  above  statement is an admission of the  fact  that there is the post of ‘Sound Recordist’ in the Film Division. It  may be that really the designation in the Film  Division is  ‘Recordist’,  but the use of the designation  as  ‘Sound Recordist’  in the statement extracted above  suggests  that the  ‘Recordists’  in  the  Film  Division  and  the  ‘Sound Recordists’  in Doordarshan are counterparts of each  other. The contention of the respondents is, accordingly, rejected.     We have gone through the averments in the writ petitions and  those  made  in the  counter-affidavits  filed  by  the Director General of Doordarshan and we have no hesitation in holding  that  the petitioners perform the  same  duties  as those performed by their counterparts in the Film  Division. When  two  posts  under  two different  wings  of  the  same Ministry  are  not  only identical,  but  also  involve  the performance  of  the  same  nature of  duties,  it  will  be unreasonable and unjust to discriminate between the two,  in the matter of pay. One of the directive principles of  State Policy,  as  embodied  in clause (d) of Article  39  of  the Constitution,  is equal pay for equal work for both men  and women.  The provision of Article 39(d) has been relied  upon by  the petitioners. The Directive Principles  contained  in Part-IV  of the Constitution, though not enforceable by  any court,  are intended to be implemented by the State  of  its own  accord  so  as to promote the welfare  of  the  people. Indeed,  Article 37 provides, inter alia, that it  shall  be the  duty of the State to apply these principles  in  making laws.  Even leaving out of our consideration Article  39(d), the  principle of "equal pay for equal work", if  not  given effect  to  in the case of one set  of  Government  servants holding    same   or   similar   posts,   possessing    same qualifications  and doing the same kind of work, as  another set  of Government servants, it would be discriminatory  and violative  of Articles 14 and 16 of the  Constitution.  Such discrimination has been made in respect of the  petitioners, who are the Staff Artists of Doordarshan, by not giving them the same scales of pay as provided to their counterparts in                                                   PG NO 610 the Film Division under the same Ministry of Information and Broadcasting.  The petitioners are. therefore,  entitled  to the  same  scales of pay as their counterparts in  the  Film Division.     But  the question is as to from which date they will  be entitled  to  the  scales of pay  as  prescribed  for  their counterparts  in  the Film Division.  The  petitioners  have claimed  that such scales of pay should be admitted to  them with  effect  from their respective dates  of  appointments. After having given a careful thought to this aspect, we  are of  the view that ends of justice will be met  sufficiently, if  such  scales of pay are given to  the  petitioners  with effect from the first day of the month of the year in  which each  writ petition was filed in this Court except  that  in the  case of Writ Petition (C) No. l756 of 1986 such  scales of  pay shall be given to the petitioners with  effect  from December 1, 1983.     In  the  circumstances,  all these  writ  petitions  are allowed.  The Sound Recordists, who are the  petitioners  in Writ  Petition (C) No. 974 of 1978, shall be given the  pay- scale of the Recordist/Sound Recordist in the Film  Division i.e.,  Rs.550-900  with  effect from January  1,  1978.  The Cameramen Grade-II, who are the petitioners in Writ Petition (C)  No. 1239 of 1979, shall be given the pay-scale  of  the Cameraman of the Film Division i.e., Rs.650-960 with  effect

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from  August 1, 1979. The Lighting Assistants/Lightmen,  who are  the petitioners in Writ Petition (C) No. 1756 of  1986, shall  be given the scale of Pay of Assistant  Cameraman  in the Film Division i.e., Rs.425-700 with effect from December 1,  1983. The petitioners in all these writ  petitions  will also  be  entitled  to the substituted  scales  of  pay  and consequential  benefits.  The respondents  are  directed  to disburse  to  the petitioners the arrear amounts  being  the difference in the pay-scales within four months from today.     There will, however, be no order as to costs.   P.S.S.                       Petitions allowed.