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PETITIONER: UNION TERRITORY, CHANDIGARH

       Vs.

RESPONDENT: KRISHAN BHANDARI

DATE OF JUDGMENT:       31/10/1996

BENCH: S.C. AGRAWAL, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.C. AGRAWAL, J.      This appeal by special leave has been filed against the judgment of  the Central Administrative Tribunal, Chandigarh Bench (hereinafter  referred to  as  ‘the  Tribunal‘)  dated August 17,  1994  in  O.A.  No.  490/CH/1987  filed  by  the respondent. By  the said judgment the Tribunal, invoking the principle of  "equal pay  for equal work", has held that the respondent, who  is working  as Science  Supervisor  in  the Union Territory,  of Chandigarh  is entitled to be placed on the scale  of Rs.  1200-1700, the  pay scale for the post of District Science Supervisors in the State of Punjab.      The respondent  was  appointed  as  Science  Master  on temporary basis by order dated August 21, 1973. At that time the respondent  was having  the qualifications of B.Sc. (III Class) and  B. Ed.  In connection with the implementation of UNICEF Aided  Science Education Programme one temporary post of Science  Supervisor was  created by order dated September 1, 1973 in the scale of Rs. 200-500. By order dated November 29,  1973   the  respondent   was  transferred   as  Science Supervisor in  his own  pay scale  in the State Institute of Education,  Chandigarh   Administration  against  the  newly created  post   under  UNICEF  Scheme.  The  respondent  has continued to  hold the  said post  of Science Supervisor. In the meanwhile, by order October 6, 1976, he was confirmed on the post  of Science Master in the scale of Rs. 220-500 with effect from  July 31,  1975. In  1980, the pay scale for the post of  Science Master  was revised from Rs. 220-500 to Rs. 620-1200 with  effect from January 1, 1978. Subsequently the said pay scale has been revised to Rs. 1640-2925 with effect from July 1, 1986.      In the  state of Punjab there exists the Class II  post of District Science Supervisor. Initially, the said post was in the  pay scale  of Rs.  700-1100. By  notification  dated February 2, 1980, the pay scale of the said post was revised to Rs.  1200-1700 with effect from July 1, 1976. Thereafter, the said  pay scale  has been  revised to Rs. 2400-4000 with effect from July 1, 1986.      Ever  since   his  transfer  on  the  post  of  Science Supervisor by  order dated  November 29, 1973 the respondent

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has been drawing pay as per scale prescribed for the post of Science Master. In 1987 the respondent moved the Tribunal by filing O.A.  No. 490/CH/1987,  wherein he claimed for salary in the  pay scale  of RS.  700-1100 from  the dated  of  his appointment as  Science Supervisor  and in  the scale of Rs. 1200-1700 from  the date  the said  pay scale was revised by the Government  of Punjab.  The case  of the  respondent was that he is performing the same duties which are performed by a District  Science Supervisor  in the  state of  Punjab and that the  scale of  Punjab Government  employees as  revised from time to time have been adopted by the Administration of the Union Territory of Chandigarh and that the action of the Chandigarh Administration in not granting to him the revised pay scale  as  is  given  to  the  Discriminatory.  he  said application filed  by the  respondent was  contested by  the appellants on  the ground  that there is no post of District Science Supervisor  under the  Chandigarh Administration and that the post of District Science Supervisor in the class II post and the qualification required for the post of District Science Supervisor  in the  state of Punjab is M.Sc. (Second Class) in  Physics or Chemistry or Botany or Zoology and the duties of the said post are different from the duties of the post  of  Science  Supervisor  in  the  Union  Territory  of Chandigarh  inasmuch  as  District  Science  Supervisors  in Punjab  perform   the  duties   of  checking   the   Science Laboratories in  Middle Schools  as  also  High  and  Senior Secondary  Schools   while  Science   Supervisor  in   Union Territory of  Chandigarh has to perform the duty of checking the Laboratory  work in  Primary Schools  only and  the said post is  a Class  III post.  It was  also  stated  that  the respondent is  actually holding  the post  of Science Master and has  been placed at serial No. 114 in the seniority list for the  Science Masters  and he was only transferred to the post of Science Supervisor in his own pay scale.      The Tribunal has held that the respondent was appointed as Science  Supervisor after  being interviewed  by  a  duly constituted Selection  Committee and  the fact  that he  was asked to  work in  his own pay scale would not be sufficient to hold  that the  respondent continued  to be  borne on the cadre  of  Science  Supervisors  Master.  The  tribunal  has observed that the Science Supervisors both in the State of O Punjab and Union Territory of Chandigarh have been appointed under a  scheme framed and implemented jointly by the UNICEF and NCERT  and that  in a number of letters from the Central Co-ordinator of NCERT to the Education Secretary, Government of  Union   Territory,  Chandigarh,   the  post  of  Science Supervisor  has   been   described   as   District   Science Supervisor. The  Tribunal has  also stated  that since there are no  separate in  the Union  Territory of Chandigarh, the post  of  Science  Supervisor  has  not  been  described  as District Science  Supervisor. As  regards the  qualification for the  post of District Science Supervisor in the State of Punjab being  different from  the qualification required for the post  of Science  Supervisor in  the Union  Territory of Chandigarh, the  Tribunal has held that no document had been placed on  record by  the appellant  which could support the view that  the District  Science Supervisors in the State Of Punjab were  required to  hold the  basic  qualification  of M.Sc. (Second  Class) in  Physics or  Chemistry or Botany or Zoology before  they were  duly appointed and in the absence of any  such  rules  or  instructions,  there  could  be  no justification in  refusing  equal  pay  equal  work  to  the respondent.      Shri K.  Madhava  Reddy,  the  learned  senior  counsel appealing for  the appellants,  has submitted  that Tribunal

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was in  error in  applying the  principle of  ’equal pay for equal work’  in the  facts of  the present case. It has been urged that  the post  of District  Science Supervisor in the state of  Punjab is  not comparable with the post of Science Supervisor held by the respondent inasmuch as the respondent was in the cadre of Science Master which is a Class III Post while the  post of  District Science Supervisor in the state of Punjab  is a  Class II  post. It has also been urged that the principle  of ’equal  pay for equal work’ can be applied only in cases where there is discrimination in the matter of fixation of  pay scales  in respect  of two equivalent posts under the  same employer,  and that  the said  principle can have no  application to  claim parity  in pay  between posts held under different employers.      We find  considerable force  in the said submissions of Shri Reddy. The principle of ’equal pay for equal work’ is a facet  of  the  principle  of  equality  in  the  matter  of employment guaranteed  under  Articles  14  and  16  of  the Constitution of  India. The  right to  equality can  only be claimed when  there is  discrimination by  the State between two persons  who are  similarly situate.  The said principle cannot be  invoked in cases where discrimination sough to be shown  is   between  acts   of  two   different  authorities functioning as  State under  Article 12 of the Constitution. Shri  Jagdish  Singh  Khehar,  the  learned  senior  counsel appearing  for   the  respondent,   does  not  dispute  this proposition. He has, however, submitted that since the Union Territory of  Chandigarh has  adopted the same pay scales as those applicable  in the  State of Punjab, the respondent is justified in  claiming the  same pay  scale as  is given  to District Science Supervisors in the State of Punjab. In this context, the  learned counsel  has invited  our attention to the  provisions   of  Rule  2  of  the  Union  Territory  of Chandigarh Employees Rules, 1966 which prescribes as follows      "Rule 2.  Condition of  Service  of      persons appointed  to  the  Central      Civil Services  and posts under the      Administrative Control  of  certain      Administrations.      The  conditions   of  services   of      persons appointed  to  the  Central      Civil Services  and posts  Class I,      Class II,  Class III  and Class  IV      under  the   Union   Territory   of      Chandigarh shall,  subject  to  any      other   provision   made   by   the      President,  be   the  same  as  the      conditions of  service  of  persons      appointed  to  other  corresponding      Central Civil Services and posts be      governed  by  the  same  rules  and      orders as  are for  the time  being      applicable to  the latter  category      of persons;      Provided that the scales of pay and      dearness   and   other   allowances      granted to  such  employees,  shall      until any  other provision  is made      in  this  behalf,  continue  to  be      governed by  the  orders  in  force      immediately before the commencement      of these rules;      Provided further  that in  the case      of persons  appointed  to  services      and  posts   under   Administrative

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    Control   of   the   Administrator,      Chandigarh, if  they drawing pay at      the     rates     admissible     to      corresponding     categories     of      employees  of   the  Government  of      Punjab, It  shall be  competent for      the Administrator  to revise  their      scales of  pay from time to time so      as to  bring them  on par  with the      scales  of   pay   which   may   be      sanctioned  by  the  Government  of      Punjab from  time to  time for  the      corresponding     categories     of      employees."      It is  urged that  since the  pay scale in the State of Punjab has  been revised  by notification dated February 22, 1980 and  similar  revision  has  been  made  in  the  Union Territory, Chandigarh  by notification  dated May  16, 1980, the respondent is entitled to revised pay scale for the post of District Science Supervisor. We find no substance in this contention. Rule  2 referred  to above  cannot be invoked in the present  case. Neither  the main  part of Rule 2 not the first proviso  have any  application  to  the  case  of  the respondent. The  second proviso also cannot apply because it deals with persons appointed to services and posts under the administrative control of Administrator, Chandigarh, who are drawing  pay   at  the  rates  admissible  to  corresponding categories of  employees of  the Government  of Punjab.  The respondent was not such a person because the post of Science Supervisor in  the Union  Territory  of  Chandigarh  was  no having the  same pay  scale as  that of the District Science Supervisors in  the State  of Punjab  prior to  notification dated February  22, 1980 issued by the Government of Punjab. That was  the reason  why in notification dated May 16, 1980 that was  no revision  of pay  scale for the post of Science Supervisor on the basis of the revision of pay scale for the post District Science Supervisor in the State of Punjab. The respondent cannot,  therefore, claim  the same  pay scale as that of  District Science Supervisors on the basis of Rule 2 of the Union Territory Chandigarh Employees Rules, 1966.      Even though  the post  of Science  Supervisor, on which the respondent  has been  working, was created in connection with  the   implementation  of   the  UNICEF  Aided  Science Education Programme,  the said post cannot be treated at par with the post of District Science Supervisor in the State of Punjab. The post of District Science Supervisor in the State of Punjab  is a  II post  governed by  the Punjab  Education Services (Class  II) Rules. Since the respondent has claimed that the post of District Science Supervisor in the State of Punjab is at par with the post of Science Supervisor held by him in  the Union  Territory of  Chandigarh, it  was for the respondent to  produce the  necessary material  to show that the qualification  prescribed for  the two posts is the same is on  his part.  He has  not produced  any material in this regard. The Tribunal was in error in proceeding on the basis that  it   was  for   the  appellants   to  show   that  the qualification prescribed  for the  post of  District Science Supervisors is  higher viz.,  M.Sc. (Second Class) and since the appellant  had failed  to produce  any material  to show that the  qualification prescribed  for the post of District Science Supervisor  is M.Sc.  (Second Class);  the two posts should be treated as equivalent posts.      In so  far as  the respondent is concerned, it is fully established from the records that he was holding the post of Science Master on temporary basis on November 29, 2973, when

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he was  transferred to the post of Science Supervisor and in the order of transfer it is expressly directed that he would continue in  his own  pay scale,  i.e., the scale of Science Master.  After  his  appointment  on  the  post  of  Science Supervisor, the  respondent continued  to be  borne  in  the cadre of  Science Master and he was confirmed on the post of Science Master  by order  dated October  6, 1976 with effect from July  31, 1975.  In the  Provisional Gradation  List of Master/ Mistresses  recruited by  the Education  Department, Chandigarh Administration  as it  stood on  January 1, 1986, the respondent  is placed at serial No. 114. This would show that inspite  of his  working on  post of Science Supervisor since 1973,  the respondent  is continuing  in the  cadre of Science Masters  and he  has been paid the salary payable to Science Masters.      On behalf  of the respondent it has been submitted that for the  purpose of  appointment  on  the  post  of  Science Supervisor a selection was made through interview and out of a  number   of  persons   who  appeared  for  interview  the respondent was  selected and, therefore, the respondent must be treated  as having  been substantively  appointed on  the newly created  post Science  Supervisor  under  order  dated November 19,  1973. On  behalf of the appellants it has been disputed that  any selection  was held  for the  purpose  of appointment  on  the  post  of  Science  Supervisor.  It  is submitted that  since the  pay scale  for the  newly created post of  Science Supervisor  was Rs. 200-500 and it was less than the  pay scale of Rs. 220-500 of Science Master none of the Science Masters, who were senior to the respondent, were interested in joining the post of Science Supervisor and the respondent, who  was much  junior as  Science  Master,  was, therefore,  appointed.   Since  the   appointment   of   the respondent on  the post  of Science Supervisor was by way of transfer on  his own  pay shown  that the  post  of  Science Supervisor on  which the  respondent was appointed was not a post higher  than the  post of  Science Master  but  was  an equivalent post. There was, therefore, no question of making any selection  for making  appointment on the said post. The case of  the respondent  in this  regard is negatived by the fact that  after his  appointment as  Science Supervisor  by order dated November 29, 1973 the respondent continued to be borne in  the cadre  of Science  Master and was confirmed on the said  post with effect from July 31, 1975 by order dated October 6,  1976 and his name is shown in the Gradation List for Master  as on  January 1,  1986, therefore, be held that while  working  as  Science  Supervisor  the  respondent  is substantively holding  the post  of Science  Master  and  he cannot claim salary higher than that of Science Master which is being paid to him.      For the reasons aforementioned, we are unable to uphold the impugned  judgment  of  the  Tribunal.  The  appeal  is, therefore, allowed,  the  judgment  of  the  Tribunal  dated August 17,  1994 is set aside and O.A. No. 490/CH/1987 filed by the  respondent is  dismissed. But  in the  circumstances there is no order as to costs.