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PETITIONER: SHRI ALVARO NORONHA FERRIERA & ANR.

       Vs.

RESPONDENT: UNION OF  INDIA & ORS.

DATE OF JUDGMENT:       23/04/1999

BENCH: K.T. Thomas, S.Saghir Hamad

JUDGMENT:

     THOMAS, J.

     Some Judges whose function was dispensation of justice had  to  approach  the High Court for justice based  on  the celebrated doctrine equal pay for equal work but they were non-suited  by  a Division Bench of that High  Court.   They were  Judges  of higher judiciary in the subordinate  level. They  have now come to the Supreme Court with this appeal by special  leave.   It is interesting that, in the  meanwhile, two  of  them have become Judges of the same High  Court  of Bombay  as  efflux  of a decade in between has  changed  the hierarchiel  status of the parties who initiated this  legal action.  When they filed the writ petition in the High Court they  were  District and Sessions Judges.  One of  them  has since retired from service but the cause which they espoused survives.

     The nub of their grievance is this:  When the scale of pay  of  their counterparts in the Union Territory of  Delhi was  increased, appellants, while working in the same  cadre in  the  Union  Territory of Goa, were not  given  that  pay scale.   It  infringes,  according to  them,  the  principle enshrined in the Constitution.

     Facts  are  simple.  On 20-12-1961 the Territories  of Goa,  Daman  and Diu were liberated from the  suzerainty  of Portugal.   In 1962, Goa became part of the Union  Territory of  India.   Appellants were District Judges posted  in  the Union  Territory  of  Goa.   On 3-9-1981  the  pay-scale  of judicial  officers (in the category of Additional District & Sessions  Judges)  in  the Union Territories  was  the  same Rs.1200-2000/-.   In  1982  the  Union  Territory  of  Delhi increased  the scale of pay of such Judges to Rs.2000-3200/- while  their counterparts in the Union Territory of Goa were not  given  any increase to keep the scale on par  with  the former.    When  the  Fourth   Pay  Commission  was   formed representations were made by the judicial officers of Goa to rectify  the  anomaly  which, according to them,  came  into existence  for  the  first time in 1982, but no  relief  was provided  to them.  On the contrary, the recommendations  of the  Pay  Commission  were for raising the scale of  pay  of Delhi  Judges to Rs.4500-5700/- while that of Goa Judges was raised only to Rs.3000- 5000/-.

     On  30-5-1987, Goa became a State separate from  Union

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Territory.   It  is  conceded that appellants  cannot  claim parity  with  the Delhi judicial officers after  that  date. Hence  the  grievance of the appellants was confined to  the period between 1-3-1982 and 31-3-1987.  Appellants therefore filed  writ  petitions before the High Court  for  necessary reliefs to be granted to them.

     The  Division Bench of the High Court while  declining to grant the reliefs advanced the following reasons:

     It  is  now well-settled by a catena of decisions  of the Supreme Court and this Court that the doctrine of equal work,  equal pay is a well-accepted norm in  administration of services under the control of the Governments.  To enable the  employees  to  claim an advantage, it is  essential  to establish  that the posts of judicial officers in Delhi  and Goa  are  equal or are comparable before demanding that  the pay  scales  available  to  Delhi officers  should  be  made available  to  Goa  officers.   The  only  averment  in  the petition is that the posts in Delhi and Goa Judicial Service carry  the same duties, responsibilities and nature of  work being  identical, the Goa officers are entitled to identical pay  scales  as  those  available to  Delhi  officers.   The averment  made  in  the  petition is not  supported  by  any material  whatsoever  and it would be impossible to draw  on imagination  to  hold  that  the nature  of  the  duties  of officers in Delhi and Goa are identical.

     Learned  Judges  repelled  the contention  that  since Delhi and Goa were Union Territories it must be assumed that the  nature  of  the  duties  and  responsibilities  of  the District and Sessions Judges were identical and consequently both must get same benefit.  They took the view that merely because  the officers in the two Territories are in judicial service  it cannot be even suggested that the nature of  the duties and the responsibilities are identical.

     To buttress the aforesaid reasoning the Division Bench cited   an  illustration  as   the  following:   Take   for illustration,  the nurses employed in a large hospital in  a city  like  Bombay.   Is  it  possible  by  any  stretch  of imagination  to  suggest that the nurses working in a  small hospital  in a remote village are performing the same duties and carrying the same responsibilities as the nurses working in a large hospital in a city like Bombay?

     Ultimately  the  writ  petitions   were  dismissed  as learned  Judges were unable to appreciate on what basis they could  claim to be entitled to the same pay-scales as  those available  to judicial officers in Delhi.  In the concluding passage  the  Division Bench said that in our judgment  the claim made by the petitioners is wholly misconceived and the petitioners  are not entitled to any relief.  We are  unable to  grant any relief to the petitioner and the petition must fail.

     Shri  Ashok  Desai, learned senior  counsel  contended that  Division  Bench of the High Court missed  the  crucial point  that  the  claim is confined to the period  when  the District Judges and their counterparts in Delhi were working under the same Union Government though the administration in the   two  territories  was   carried  on  through  separate agencies.  According to the senior counsel, pendency of work at  two  places is not a criteria, as the workload  and  the nature  of work at both places were substantially the  same.

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The  illustration of nurses cited in the judgment was sought to  be demonstrated as another point in support of the claim instead of repelling it.

     The principle of equal pay for equal work has gained judicial recognition.  The principle incorporated in Article 14  when understood from the angle provided in Article 39(d) of  the  Constitution is held to be the recognition  of  the aforesaid  doctrine.  It has been held in Randhir Singh  vs. Union  of India [1982 (1) SCC 612] that the principle equal pay  for equal work is not an abstract doctrine but one  of substance.   Their  Lordships  pointed out:   To  the  vast majority  of the people in India the equality clauses of the Constitution would mean nothing if they are unconcerned with the work they do and the pay they get.  To them the equality clauses  will have some substance if equal work means  equal pay.

     The  parameters for invoking the said principles would include, inter alia, nature of the work and common employer. There  can  be  no  two views that the  nature  of  work  of District  and  Sessions  Judges is the same though  in  some areas  pendency  of  cases  would  be  higher  than  others. Differences  in  the  backlog are not uncommon even  in  two different  stations  of  the  same territory,  nay,  in  two different  courts of the same station.  Such lopsidedness is hardly  the ground to conclude that the nature of work  done by  one  judicial  officer at one place  is  different  from other.   The duty hours would be substantially the same, the powers  to  be discharged are in no way  different,  whether they  are District Judges in Goa or in Delhi.  It would be a futile  exercise  to  make  an   endeavour  for  drawing   a distinction  between  the work pattern at the two  different places,  for,  such differences are discernible  everywhere. But  that  would not make the nature of work different.   It was  not  necessary  to  cast the burden  of  proof  on  the appellants  to establish the pendency of litigation or  the norms  fixed  for  disposal of cases by the Delhi  court  to enable  comparison  between  the nature of  duties  and  the responsibilities  carried  by  the  officers  of  the  Delhi Territory and the Goa Territory.

     One  admitted fact which looms large is that till hike in  the pay-scale was brought about in 1982 for Delhi Judges the  parity maintained as between Union Territory of Goa and Delhi  applied  to  the  same cadre  of  judicial  officers. Nobody  doubted  till then that the nature and dimension  of work  discharged  by  the  officers of  the  same  cadre  of judicial   officers  at  two   different  territories   were different  from  any  perceptible standard.  It is  for  the contesting  respondents to show that there was change in the nature of work which necessitated the Government to keep two different  levels of pay to the same officers working at two different places.

     Pay-scale of District and Sessions Judges in the Union Territory  of  Goa was made on a par with that of  Delhi  by means of the rules and regulations formulated by the Central Government  in exercise of the powers conferred on it by the provisions  of The Goa, Daman and Diu (Absorbed  Employees) Act,  1965. The change was effected in 1982 on the  premise that the judicial officers in Delhi were upgraded as class I officers  and since Union Territory of Delhi was declared  a Metropolitan  city,  the  pay-scales were equated  with  the pay-scales  of  judicial  officers   in  other  Metropolitan

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cities.   We  are not against revision of the pay-scales  of the judicial officers in the Union Territory of Delhi on the basis  of  any  justifiable grounds.  But in  doing  so  the pay-scales  of  their  counterparts working in  other  Union Territories  cannot  suffer.   Shri A.S.   Nambiar,  learned Senior  Advocate  made a bid to raise a new contention  that the  Central  Government  was  helpless in  keeping  up  the pay-scales of the officers in Goa on a par with the judicial officers  of  Delhi as Goa was then administered  through  a separate  elected legislature, and under Article 240 of  the Constitution powers of the President to make regulations had been  bridled.  We are not disposed to countenance the  said contention  advanced  for the first time  during  arguments, for, that was not the premise on which the parity was denied to the appellants.

     For  the  aforesaid reasons we allow this  appeal  and direct the respondent Union of India to disburse the arrears of pay to the appellants calculating their scale of pay on a par  with their counterparts in the Union Territory of Delhi during  the  period  between 1.3.1982 and  31.3.1987.   Such recalculation  shall  be  made  and  the  arrears  shall  be quantified to be disbursed within six months from today.