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PETITIONER: MEWA RAM KANOJIA

       Vs.

RESPONDENT: ALL INDIA INSTITUTE OF MEDICAL SCIENCES & ORS.

DATE OF JUDGMENT09/03/1989

BENCH: SINGH, K.N. (J) BENCH: SINGH, K.N. (J) SHETTY, K.J. (J)

CITATION:  1989 AIR 1256            1989 SCR  (1) 957  1989 SCC  (2) 235        JT 1989 (1)   512  1989 SCALE  (1)280  CITATOR INFO :  F          1989 SC1308  (12)

ACT:     Constitution  of  India,  1950:  Articles  14,  16   and 39(d)--’Equal  pay for equal work’--Principle of--Cannot  be invoked invariably in every kind of service--Particularly in area  of  professional services-Open to  State  to  classify employees  on basis of qualifications, duties and  responsi- bilities of posts.     ’Hearing           Therapist’--’Senior            Speech pathologist’--’Senior physiotherapist’--’Senior  Occupation- al  Therapist’--’Audiologist’-’Speech  pathologist’--Differ- ent scales of pay for the posts--Permissibility of.

HEADNOTE:     The petitioner was initially appointed in the year  1967 to  the post of ’Teacher Co-ordinator’ in the pay  scale  of Rs.210-425 in a Research Project funded by the Indian  Coun- cil  of Medical Research. As the unit where  the  petitioner was  employed was taken over by the All India  Institute  of Medical Sciences on 1.7.1970 his services stood  transferred to  the said Institute and he continued to hold the post  of Teacher  Coordinator in the Institute. Though the  post  was redesignated as ’Hearing Therapist’ with effect from 3.8.72, the same scale of pay, viz Rs.210-425 continued.     Pursuant to the recommendations of the Third Pay Commis- sion  the  pay scale of ’Hearing Therapist  was  revised  to Rs.425-700  with  effect from 1.1.1973, and since  then  the petitioner continued to draw salary in the said scale.     The  petitioner  made  several  representations  to  the respondentauthorities  to revise his pay scale and to  place him in the pay scale prescribed for ’Speech Pathologist’ and ’Audiologist’ viz. Rs.650-1200. Since no relief was  granted the  petitioner  invoked the jurisdiction of this  Court  by means of a writ petition under Article 32.      The petitioner contended in his writ petition, that  as ’Hearing  Therapist’ he performs the same duties  and  func- tions as ’Senior Speech Pathologist’, ’Senior Physio  Thera- pist’, ’Senior Audiologist’ and 958 ’Speech Pathologist’ that the qualifications prescribed  for

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the aforesaid posts are almost similar and they are  working in  the  same institution under the same employer,  yet  the respondent-authorities practised discrimination in  refusing to accept his claim for equal pay. It was further  contended that the Third Pay Commission ignored the claim of  ’Hearing Therapist’  although it had granted higher scale of pay  for similar posts of ’Speech Therapist’, ’Senior Speech Patholo- gist’,  and  ’Audiologist’,  and  that  ’Speech  Therapists’ performing  similar  types of duty as are performed  by  the petitioner had been granted higher pay scale in other organ- isations  like  Safdarjung  Hospital,  PGI  Chandigarh,  and Medical College, Rohtak. The respondents having thus  failed to implement the Directive Principle of ’Equal pay for equal work’  as  contained in Art. 39(d) of  the  Constitution  in violation of Arts. 14 and 16, the petitioner claimed  relief for  the  issuance of a writ of mandamus directing  the  re- spondents for fixing his pay in the scale of Rs.410-950 with effect  from  1.1.1970,  and  thereafter  in  the  scale  of Rs.650-1200 with effect from 1.1.1973.     The respondents contested the writ petition by asserting that  the  petitioner cannot compare  himself  with  ’Senior Speech Therapist’. ’Senior Physio Therapist’, ’Senior  Occu- pational Therapist’, ’Audiologist’ or ’Senior Therapist’  as qualifications,  duties  and functions of  these  posts  are altogether different and distinct from those prescribed  for ’Hearing  Therapist’, that there is no equality between  the petitioner and the persons holding the aforesaid posts, that the Institute had created different posts with different pay scales  having  regard to the  qualifications,  duties,  and responsibilities  of  the posts. The  petitioner’s  plea  of discrimination was emphatically denied. Dismissing the writ petition, the Court,     HELD: The principle of ’Equal pay for equal work’ cannot be invoked invariably in every kind of service,  particular- ly, in the area of professional services. [967H]     Dr.  C.  Girijambal  v. Government  of  Andhra  Pradesh, [1981] 2 SCR 782 relied on.     In  the instant case, even assuming that the  petitioner performs similar duties and functions as those performed  by an  ’Audiologist’, it is not sufficient to uphold his  claim for  equal  pay.  In judging the equality of  work  for  the purposes  of equal pay, regard must be had not only  to  the duties and functions but also to the educational  qualifica- tions, 959 qualitative  difference and the measures  of  responsibility prescribed for the respective posts. Even if the duties  and functions  are  of  similar nature but  if  the  educational qualifications  prescribed for the two posts  are  different and there is difference in measure of responsibilities,  the principle  of  ’Equal Pay for Equal Work’ would  not  apply. [964H; 965A-B]     State of Mysore v. Narasing Rao, [1968] 1 SCR 407; Union of India v. Dr. (Mrs.) S.B. Kohli, [1973] 3 SCC 592; Jammu & Kashmir v. Triloki Nath Khose & Ors., [1974] 1 SCC 19; Ganga Ram v. Union of India, [1970] 3 SCR 481; Mohammad Shujat Ali JUDGMENT: of All India Customs & Central Excise Stenographers  (Recog- nised) & Ors. v. Union of India & Ors., [1988] 3 SCC 91  and State of U.P. & Ors. v. Sh. J.P. Chaurasia & Ors., [1989]  1 SCC 121 referred to.     Merely  because  Speech  Therapists  performing  similar duties  and functions in other institutions are paid  higher pay scale is no good ground to accept the petitioner’s claim for equal pay. In the absence of any material placed  before

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the  Court  it is not possible to record findings  that  the petitioner  is denied equality before the law. Moreover,  if the employer is not the same the principle of ’Equal pay for equal work’ would not be applicable. [969E-F]     The  doctrine  of ’Equal Pay for Equal Work’ is  not  an abstract one, it is open to the State to prescribe different scales  of pay for different posts having regard  to  educa- tional  qualifications, duties and responsibilities  of  the post.  The  principle of ’Equal Pay for Equal Work’  is  ap- plicable when employees holding the same rank perform  simi- lar functions and discharge similar duties and responsibili- ties  are treated differently. The application of  the  doc- trine would arise where employees are equal in every respect but  they  are denied equality in matters  relating  to  the scale  of pay. The principle of ’Equal Pay for  Equal  Work’ has been enforced by this Court. [962D-F]     Randhir  Singh  v. Union of India & Ors., [1982]  1  SCC 618; Direndra Chemoli & Anr. v. State of U.P., [1986] 1  SCC 637;  V.J.  Thomas & Ors. v. Union of India &  Ors.,  [1985] (Supp.)  SCC 7; P. Savita v. Union of India &  Ors.,  [1985] (Supp.) SCR 101; Bhagwan Dass v. State of Haryana, [1987]  4 SCC  634  and  Jai Pal & Ors. v. State of  Haryana  &  Ors., [1988] 3 SCC 354, referred to. 960     While considering the question of application of princi- ple of ’Equal Pay for Equal Work’ it has to be borne in mind that  it is open to the State to classify employees  on  the basis of qualifications, duties and responsibilities of  the posts concerned. If the classification has reasonable  nexus with the objective sought to be achieved, efficiency in  the administration, the State would be justified in  prescribing different pay scale but if the classification does not stand the  test  of  reasonable nexus and  the  classification  is rounded on unreal, and unreasonable basis it would be viola- tive of Article 14 and 16 of the Constitution. Equality must be among the equals, unequals cannot claim equality.  [962G- H; 963A-B]

& ORIGINAL JURISDICTION: Writ Petition (Civil) No. 4611 of 1983. (Under Article 32 of the Constitution of India) Gobinda Mukhoty and K.N. Rai for the Petitioner. A. Mariarputham for the Respondents. The Judgment of the Court was delivered by     SINGH, J. By means of this petition under Article 32  of the Constitution the petitioner has raised a grievance  that the Respondent-Authorities have practised discrimination  in violation  of  Articles  14 and 16 of  the  Constitution  in refusing  to pay him salary in the scale of  pay  prescribed for similarly placed employees. He has invoked the  doctrine of  "Equal  Pay for Equal Work" as enshrined  under  Article 39(d) of the Constitution.     In  order  to appreciate petitioner’s  grievance  it  is necessary  to  refer to relevant facts giving rise  to  this petition. The petitioner was initially appointed in 1967  to the  post of Teacher Co-ordinator in the pay scale  of  Rs.2 10-425  in  the  Research Project  "Rehabilitation  Unit  in Audiology  and  Speech Pathology" a project  funded  by  the Indian  Council  of Medical Research under  PL-480  research scheme with the special assistance of the Social Rehabilita- tion  Services (formerly Vocational Rehabilitation  Adminis- tration). The aforesaid unit was taken over by the All India

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Institute  of  Medical Sciences on 1.7. 1970  alongwith  the staff  attached to the said unit. The petitioner’s  services stood  transferred  to the All India  Institute  of  Medical Sciences (hereinafter referred to as the Institute) and  the petitioner continued to hold the post of Teacher Coordinator in the Institute. On the recommendation 961 of  the  Head of the Department of Rehabilitation  Unit  the petitioner’s  post was redesignated as  ’Hearing  Therapist’ with  effect  from 3.8. 1972 but he continued  to  draw  the salary  in the same scale of pay of Rs.210425. In  pursuance to the recommendations of the Third Pay Commission as adopt- ed  by the Institute the pay scale of Hearing Therapist  was revised to Rs.425-700 with effect from 1.1.1973. Since  then the petitioner has continued to draw salary in the pay scale of  Rs.425-700. The petitioner made several  representations to the respondentauthorities to revise his pay scale and  to place  him in the pay scale prescribed for the  "Speech  Pa- thologist"  and  "Audiologist" in the pay scale  of  Rs.650- 1200.  Since  no relief was granted to him  he  invoked  the jurisdiction  of this Court by means of this petition  under Article 32 of the Constitution.     The petitioner’s main grievance is that ’Hearing  Thera- pist’  perform  the  same duties and  functions  as  ’Senior Speech   Pathologist’,  ’Senior  Physiotherapist’,   ’Senior Occupational Therapist’, ’Audiologist’, and ’Speech Patholo- gist’, yet the respondents have practised discrimination  in paying salary to the petitioner in a lower scale of pay. The petitioner  has asserted that the  qualification  prescribed for  the  aforesaid posts are almost similar  and  they  are working in the same institution under the same employer  but the respondent-authorities have practised discrimination  in refusing to accept the petitioner’s claim for equal pay. The petitioner has further raised a grievance that the Third Pay Commission ignored the claim of ’Hearing Therapist’ although it  has  granted higher scale of pay for  similar  posts  of ’Speech Therapist’, ’Senior Speech Pathologist’ and ’Audiol- ogist’.  He has asserted that Speech  Therapists  performing similar  kind of duties as performed by the petitioner  have been  granted higher pay scale in other  organisations  like Safdarjang  Hospital,  P.G.I.  Chandigarh,  Medical  College Rohtak and Ali Yaver Jung National Institute for the Hearing Handicapped,  Hyderabad.  The petitioner contends  that  the respondents  have failed to implement the Directive  Princi- ples  of ’Equal Pay for Equal Work’ as contained in  Article 39(d) of the Constitution in violation of Articles 14 and 16 of the Constitution. He has claimed relief for the  issuance of writ of mandamus directing the respondents which  include All  India Institute of Medical Sciences and Union of  India for  fixing the petitioner’s pay in the scale of  Rs.400-950 with  effect  from 1.1.1970 and thereafter in the  scale  of Rs.650-1200  with effect from 1.1.1973. In defence  the  re- spondents assert that the petitioner cannot compare  himself with Senior Speech Therapist, Senior Physiotherapist, Senior Occupational  Therapist, Audiologist or Speech Therapist  as qualifications, duties and functions of those posts 962 are altogether different and distinct from those  prescribed for  Hearing  Therapist. There is no  equality  between  the petitioner  and  persons holding the  aforesaid  posts.  The Institute  has  created different posts with  different  pay scales  having regard to the qualifications,  duties,  func- tions  and responsibilities of the posts. The petitioner  is not  entitled to equate himself with the incumbents  holding the  posts of Senior Speech Therapist,  Senior  Physiothera-

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pist, Senior Occupational Therapist, Audiologist and  Speech Therapist.  The petitioner’s plea of discrimination  is  em- phatically denied.     The  doctrine of "Equal Pay for Equal Work" is  not  ex- pressly declared a fundamental fight under the Constitution. But  Article 39(d) read with Articles 14 and 16 of the  Con- stitution  declares  the constitutional goal  enjoining  the State not to deny any person equality before law in  matters relating to employment including the scales of pay.  Article 39(d)  read  with  Articles 14 and 16  of  the  Constitution enjoins the State that where all things are equal and person holding indentical posts, performing indentical and  similar duties under the same employer should not be treated differ- ently in the matter of their pay. The doctrine of ’Equal Pay for Equal Work’ is not abstract one, it is open to the State to  prescribe  different scales of pay for  different  posts having  regard  to educational  qualifications,  duties  and responsibilities  of the post. The principle .of ’Equal  Pay for  Equal  Work’ is applicable when employees  holding  the same  rank perform similar functions and  discharge  similar duties  and  responsibilities are treated  differently.  The application  of  doctrine would arise  where  employees  are equal  in  every  respect but they are  denied  equality  in matters  relating  to  the scale of pay.  The  principle  of "Equal  Pay for Equal Work" has been enforced by this  Court in Randhir Singh v. Union of India & Ors., [1982] 1 SCC 618; Dhirendra Chamoli & Anr. v. State ofU. P., [1986] 1 SCC 637; V.J.  Thomas & Ors. v. Union of India & Ors.,[1985]  (Supp.) SCC  7; P. Savita v. Union of India & Ors.,  [1985]  (Supp.) SCR 101; Bhagwan Dass v. State of Haryana, [1987] 4 SCC  634 and Jai Pal & Ors. v. State of Haryana & Ors., [1988] 3  SCC 354.  In  all these cases this Court granted relief  on  the application of the doctrine of ’Equal Pay for Equal Work’.      While considering the question of application of  prin- ciple  of ’Equal Pay for Equal Work’ it has to be  borne  in mind  that it is open to the State to classify employees  on the basis of qualifications, duties and responsibilities  of the  posts concerned. If the classification  has  reasonable nexus  with the objective sought to be achieved,  efficiency in  the  administration,  the State would  be  justified  in prescribing 963 different pay scale but if the classification does not stand the  test  of  reasonable nexus and  the  classification  is rounded on unreal, and unreasonable basis it would be viola- tive  of  Articles 14 and 16 of the  Constitution.  Equality must be among the equals, Unequals cannot claim equality.     In the writ petition, the petitioner claimed parity with the  pay  scale  prescribed for  Senior’  Speech  Therapist, Senior   physiotherapist,  Senior  Occupational   Therapist, Audiologist and Speech Pathologist but during the course  of hearing  Sri Gobind Mukhoty, learned counsel for  the  peti- tioner confined the petitioner’s case for parity with  ’Aud- iologist’  only.  He urged that the  educational  qualifica- tions,  duties  and  functions of  ’Hearing  Therapist’  and ’Audiologist’ are similar, if not the same, and there is  no reasonable justification for prescribing lower pay scale  of pay to Hearing Therapist. A Hearing Therapist is required to treat  the  deaf and other patients suffering  from  hearing defects. His function is to help in rehabilitation of  those whose hearing capacity is impaired. The Hearing  Therapist’s main function is to train the patient to facilitate  maximum expressive  and receptive communication skill. An  ’Audiolo- gist’  pertains to the science of hearing. His work  is  de- signed to coordinate the separate professional skills  which

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contribute to study, treatment and rehabilitation of persons with impaired hearing. A person holding the post of Audiolo- gist is a specialist in the non-medical evaluation,  habili- tation and rehabilitation of those who suffer from  language and  speech  disorders.  Generally,  Hearing  Therapist  and Audiologist  both  perform duties and functions  is  helping rehabilitation of patients suffering from hearing disorders, their  duties  and functions appear to be similar,  but  the petitioner  has  not  placed material before  the  Court  to demonstrate  that  the  duties and  functions  performed  by Hearing Therapist is same or similar as that performed by an Audiologist. The petitioner has placed reliance on a certif- icate issued by the Head of Department of Otorhinolaryngolgy which enumerates duties, functions which the petitioner  has been performing while working as Hearing Therapist.  Accord- ing to this certificate the petitioner has been carrying out the following functions:     "1.  Diagnosis  of  the  impairment  of  hearing  cases. (Detailed diagnosis).     2. Audiological evaluation i.e. heating aid  evaluation, hearing and prescription and autitory training. 964 3. Parent counselling and guidance.    4. Referring to different experts for their opinion  such as  Physiotherapist, Occupational Therapist,  Clinical  Psy- chologist,  Ear Mould Technician, Paediatrician,  Paediatric Neurologist and Opthalmologist, Audiometry Technical and  to ENT Specialist. 5. Speech and language therapy. 6. Integration of hearing handicapped with normal persons.    7.  Integration  of  hearing loss  children  with  normal hearing children.    8. Guidance to the teachers of normal schools where there is any hard of heating case is studying.    9.  Writing of papers and books on the basis of  personal experience and research.    10. Speech therapy to normal hearing persons as and  when referred to them.    11. Referring the hearing handicapped children to special schools for the deaf and when a child is unable to study  in a normal school.    12. Educational rehabilitation of any age group of  hear- ing loss cases. ’’ The petitioner has, however, failed to place material before the Court showing the corresponding duties and functions  of an  Audiologist in the Institute. In the absence  of  duties and  functions of an Audiologist it is not possible for  the Court  to  record  findings that the  duties  and  functions performed by Hearing Therapist is similar to those performed by  an Audiologist more so when the respondents have  denied the  petitioner’s claim in the counter-affidavit. The  peti- tioner’s  claim that he performs the same duties  and  func- tions  as those performed by an Audiologist under  the  same employer cannot therefore be accepted.     Even  assuming  that  the  petitioner  performs  similar duties  and functions as those performed by an  Audiologist, it is not sufficient to 965 uphold  his  claim for equal pay. As  already  observed,  in judging the equality of work for the purposes of equal  pay, regard must be had not only to the duties and functions  but also to the educational qualifications, qualitative  differ- ence  and the measures of responsibility prescribed for  the respective  posts. Even if the duties and functions  are  of similar  nature but if the educational  qualifications  pre-

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scribed for the two posts are different and there is differ- ence in measure of responsibilities, the principle of ’Equal Pay  for  Equal Work’ would not apply.  Under  the  relevant Rules  framed  by the Institute qualifications for  the  two class  of posts, namely, Audiologist and Hearing  Therapist’ are as under: Audiologist Qualifications  Hearing Therapist Qualifications Essential                       Essential 1. A graduate in Science/       1. A graduate in Science or Arts or Medicines, from         Arts of a recognised Univer- a recognised University.        sity in India or abroad. 2. Master’s degree in Audiology  2. Trained teacher for the or Otolaryngology from a         deaf, such as Certified recognised Institution/          Teacher for Deaf University                       (C.T.D  ....  Dip.) 3. Three years teaching/       3. Teaching experience at a research experience in       recognised school for the deaf the field of Audiology.      in India for not less than                                three years. Desirable  1. Ph.D. in Audiology from a    recognised University.  2. Practical experience of    working in a speech and    Hearing Rehabilitation    Centre.  3. Journalistic or literary     activity in relation to     Audiology. 966 A  perusal  of  the above chart would  show  that  different educational qualifications are prescribed for the two posts. For  an Audiologist a Master’s Degree in  Otolaryngology  or Audiology is an essential qualification but no such Master’s Degree is prescribed for Hearing Therapist instead a diploma as Certified Teacher for Deaf is the essential qualification for  the said post. A comparison of the qualifications  pre- scribed  for  the two posts clearly  indicates  that  higher qualification  is  prescribed for the post  of  Audiologist. There appears to be qualitative difference in the  responsi- bilities of the two posts as an Audiologist possesses higher qualification. It is therefore manifest that on the basis of educational qualifications two posts cannot be equated. Even if  the functions and duties of two posts are similar it  is open  to the State to prescribe different scales of  pay  on the  basis  of  difference  in  educational  qualifications. Different  treatment to persons belonging to the same  class is a permissible classification on the basis of  educational qualifications.     There  are several decisions of this Court where  educa- tional qualifications have been recognised as a valid  basis for  classification.  In State of Mysore v.  Narasingh  Rao, [1968]  1  SCR 407 this Court held that  higher  educational qualifications  such as success in S.S.L.C. examination  are relevant considerations for fixation of higher pay scale for tracers  who  had passed the S.S.L.C.  examination  and  the classification of two grades of tracers in Mysore State, one for matriculate tracers with higher pay scale and the  other for  non-matriculate tracers with lower pay scale, was  held valid.  It  is pertinent to note that matriculate  and  non- matriculate  tracers both constituted the same service  per- forming  the same duties and functions, yet the  Court  held that higher pay scale prescribed for the matriculate tracers on  the  basis of higher educational qualification  was  not violative  of  Articles 14 and 16 of  the  Constitution.  In

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Union  of India v. Dr. (Mrs.) S.B. Kohli, [1973] 3  SCC  592 classification  made on the basis of educational  qualifica- tion  for purposes of promotion was upheld by this Court  on the ground that the classification made on the basis of such a  requirement was not without reference to  the  objectives sought  to  be achieved and there could be  no  question  of discrimination. In State of Jammu & Kashmir v. Triloki  Nath Khose  & Ors., [1974] 1 SCC 19 cadre of Assistant  Engineers included of Degree holders and Diploma-holders, they consti- tuted one class of service but for promotion to the post  of Executive  Engineers  only those  Assistant  Engineers  were eligible  for promotion who possessed Bachelor’s  Degree  in Engineering  and the Diploma-holders were eligible  only  if they had put in 7 years minimum service no such  restriction was prescribed for Degree-holders. The 967 Diploma-holder  Assistant Engineers challenged the  validity of the rule on the ground that it denied them equal opportu- nity of promotion, in violation of Articles 14 and 16 of the Constitution.  On  a detailed consideration  a  Constitution Bench of this Court upheld the classification on the  ground of  difference in educational qualification. The Court  held that  classification  rounded on the  basis  of  educational qualification had a reasonable nexus to achieve  administra- tive  efficiency in Engineering Services. The Court  approv- ingly  referred  to the decisions of the Court in  State  of Mysore v. Narasing Rao, [1968] 1 SCR 407; Ganga Ram v. Union of India, [1970] 3 SCR 481 and Union of India v. Dr.  (Mrs.) S.B. Kohli, [1973] 3 SCC 592. The Court upheld the classifi- cation  and  refused to grant any relief  to  Diploma-holder Engineers. In Mohammad Shujat Ali & Ors. v. Union of India & Ors.  etc., [1975] 1 SCR 449 another Constitution  Bench  of this Court upheld the classification of Supervisors into two classes,  graduates  and non-graduates for  the  purpose  of promotion  to the post of Assistant Engineers on the  ground of  educational  qualification although both  the  class  of supervisors  constituted the same service. In Federation  of All  India  Customs & Central Excise  Stenographers  (Recog- nised)  &  Ors. v. Union of India & Ors., [1988]  3  SCC  91 claim  of Personal Assistants and Stenographers attached  to the  Head of Departments in the Customs and  Central  Excise Department  of  the  Ministry of Finance for  equal  pay  in parity  with the Personal Assistants and  Stenographers  at- tached  to the Joint Secretaries and Officers above them  in the  Ministry of Finance was rejected by this Court  on  the ground  of  the  functional requirement of  the  work  done, training,  and responsibility prescribed for the two  posts. In State of U.P. & Ors. v. Sh. J.P. Chaurasia & Ors., [1989] 1  SCC 121 the question arose whether it was permissible  to have  two different pay scales in the cadre of Bench  Secre- taries,  for persons performing the same duties  and  having the  same  responsibilities.  In the light  of  the  various decisions  of this Court it was held that the  principle  of "equal pay for equal work", has no mechanical application in every  case of similar work. Articles 14 and 16 permit  rea- sonable  classification  rounded on rational basis,  it  is, therefore,  permissible to provide two different pay  scales in  the same cadre on the basis of selection based on  merit with due regard to experience and seniority. The Court  held that  in  such a situation the principle of  equal  pay  for equal work did not apply.     We  would like to emphasise that the principle of  equal pay  for  equal work cannot be invoked invariably  in  every kind  of service, particularly, in the area of  professional services.  In  Dr.  C. Girijambal v.  Government  of  Andhra

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Pradesh, [1981] 2 SCR 782 it was contended 968 before the Court that medical officers holding the degree of Graduate from the College of Integrated Medicine (GCIM)  and holders of Licentiate in Indigenous Medicine (LIM) performed the same functions and discharged the same duties in dispen- saries  and  therefore on the principle of  "equal  pay  for equal work" both class of persons were entitled to the  same scale of pay. Medical officers holding the qualifications of GCIM  or  the qualification of LIM or the  qualification  of Diploma  in  Ayurvedic Midicine (DAMO), being in  charge  of dispensaries  run by Zilla Parishads were not treated  alike as  the State Government had prescribed different scales  of pay  for. medical officers. On behalf of the aggrieved  Doc- tors  it  was contended that the functions and  duties  dis- charged  by the three class of doctors in  the  dispensaries run  by Zilla Parishads were the same and  their  qualifica- tions  were also similar and yet the State Government  prac- tised  discrimination in prescribing different scale of  pay for  them. This Court held that the principle of  equal  pay for  equal work could not be invoked or applied in the  area of professional services like medical practioners. The Court observed as under:               "Dealing  with the first contention  we  would               like to observe at the outset that the princi-               ple of equal work cannot be invoked or applied               invariably  in every kind of service and  cer-               tainly  it  cannot be invoked in the  area  of               professional  service  when these  are  to  be               compensated.  Dressing of any injury or  wound               is  done  both by a doctor as well as  a  com-               pounder,  but  surely it cannot  be  suggested               that  for  doing this job a doctor  cannot  be               compensated more than the compounder. Similar-               ly, a case in Court of law is argued both by a               senior  and a junior lawyer, but it is  diffi-               cult to accept that in matter of  remuneration               both  should  be treated equally. It  is  thus               clear  that in the field of rendering  profes-               sional  services at any rate the principle  of               equal  pay for equal work would be  inapplica-               ble.  In  the instant  case  Medical  officers               holding  the  qualification of  GCIM,  or               the qualification of LIM or the  qualification               of  DAM, though in charge of dispensaries  run               by Zilla Parishads cannot therefore, be treat-               ed  on  par with each other and if  the  State               Government  or the Zilla  Parishads  prescribe               different  scales of pay for each category  of               Medical officers no fault could be found  with               such prescription."     We  fully agree with the above observations and  accord- ingly  we  hold that in the instant case since  the  Hearing Therapist and 969 Audiologist  both render professional services and there  is qualitative  difference  between  the two on  the  basis  of educational  qualification  the principle of equal  pay  for equal work cannot be invoked or applied. The Pay  Commission considered  the  case of Hearing Therapists and it  did  not accept their claim for higher scale of pay. The Pay  Commis- sion  was in a better position to judge the volume of  work, qualitative  difference and reliability  and  responsibility required  for the two posts. The Pay Commission made  recom- mendations  for  pay scales on the basis of  value  judgment

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which  has an intelligible criteria on the basis  of  educa- tional qualifications. The scant material placed before  the Court by the petitioner, is not sufficient to hold that  the recommendations  of Pay Commission are without any  rational basis or that it permits discrimination.     The petitioner’s contention that Speech Therapists  have been  granted  higher scale of pay  in  other  Institutions, namely,  Rohtak  Medical  College,  National  Institute  for Hearing  Handicapped,  Hyderabad, Safdarjang  Hospital,  and P.G.I. Chandigarh cannot be taken into consideration as  the petitioner  has  failed to place any  material  showing  the duties  and functions performed by the Speech  Therapist  in the aforesaid Institutions or the qualifications  prescribed for  the same. Merely because Speech  Therapists  performing similar duties and functions in other Institutions are  paid higher  pay scale is no good ground to accept the  petition- er’s claim for equal pay. There may be difference in  educa- tional  qualifications, quality and volume of work  required to be performed by the Hearing Therapists in other  Institu- tions.  In  the absence of any material  placed  before  the Court  it is not possible to record findings that the  peti- tioner  is  denied  equality before law.  Moreover,  if  the employer  is  not the same the principle of ’Equal  Pay  for Equal  Work’ would not be applicable. We do not consider  it necessary  to discuss the matter further as  the  petitioner has  not placed requisite material before the Court for  the application of the principle of ’Equal Pay for Equal Work’.     In  view of the above discussion we are of  the  opinion that  the  petitioner  has failed to  demonstrate  that  any discrimination has been practised against him in the  matter relating  to pay, therefore the question of  application  of the  principle of ’Equal Pay for Equal Work’ does not  arise and the petitioner is not entitled to any relief. The  peti- tion fails and is accordingly dismissed but there will be no order as to costs. N.V.K.                                       Petition   dis- missed. 970