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CASE NO.: Appeal (civil)  5087 of 2007

PETITIONER: Union of India and another

RESPONDENT: Mahajabeen Akhtar

DATE OF JUDGMENT: 01/11/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T (ARISING OUT OF SLP (C) NO. 6635 OF 2005)

S.B. Sinha, J.

1.      Leave granted.

2.      Applicability of the doctrine of \021equal pay for equal work\022 is in  question in this appeal which arises out of a judgment and order dated  19.08.2004 passed by a Division Bench of the High Court of Delhi in Civil  Writ Petition No.3719 of 2002 dismissing the writ petition filed by the  appellant questioning an order dated 11.9.2000 passed in Original  Application No.52 of 2000 by the Central Administrative Tribunal directing  to consider the question of grant of replacement pay-scale of Rs.6500-10500  to the respondent, with consequential benefits in her favour.   3.      Basic fact of the matter is not in dispute.  4.       Respondent herein was appointed as Technical Assistant of Urdu  Language in the Bureau of Promotion of Urdu Language.  She was placed in  the pay scale of Rs.425-700.  She was promoted as Research Assistant in the  scale of pay of Rs.550-900.  The said scale of pay was revised to Rs.1640- 2900 on the recommendations of the Fourth Pay Revision Commission.  5.       The Central Government constituted National Council for Promotion  of Urdu Language (NCPUL) in place of the Bureau of Promotion of Urdu  Language.  NCPUL started functioning from 1.4.1996.  Employees of the  Bureau were given an option either to continue to work in the Government  Department or get themselves transferred to NCPUL.  Respondent opted for  Government service.  Her name was, therefore, referred to surplus cell for  redeployment.  She was redeployed as Librarian in National Gallery of  Modern Art and designated as Assistant Librarian and Information Assistant.   Her pay was upgraded in the scale of Rs.6500-10500. 6.      Indisputably, the scale of pay of Rs.1640-2900 was revised to  Rs.5500-9000. 7.      Consequent upon the recommendations of the Fifth Pay Commission,  Respondent filed a representation for upgradation of her pay-scale which  was not acceded to.  She thereafter filed an application before the Central  Administrative Tribunal.  By reason of an order dated 11.9.2000, the learned  Tribunal allowed the said application opining : \023In the above view of the matter the application  succeeds and is accordingly allowed.  The  respondents are directed to consider the grant of  the replacement scale of Rs.6500-10500/- to the  applicant, keeping in view the similarity in  essential qualification, functions in responsibilities  with those in CHD, CIIL, CSIT w.e.f 01.01.96,  with consequential benefits.  This should be done  within four months from the receipt of this order.   Parties to bear their own costs (sic manner) .\024

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       In arriving at the said conclusion, the Tribunal held :

\023All the institutes including BPU were functioning  on 01.01.1996 when the recommendations of the  5th Pay Commission were implemented.  BPU  came to be abolished only on 31.3.1996, and,  therefore, there is no reason why the Research  Assistant in BPU should have been treated in a  different matter.\024

8.      A writ petition filed by the appellant herein against the said order has  been dismissed by the High Court by reason of the impugned judgment  stating : \023The case of the respondent in her OA was that the  post of Research Assistant in the Bureau of Urdu  and also in the other sister departments was in the  pay scale of Rs.1640-2900 upto 31.12.1995 and  that qualifications required for the incumbents also  were the same and that duties, functions performed  were also similar in nature and, therefore, if post of  Research Assistant was placed in the pay scale of  Rs.6500-10500 in those Department under the  same Education Department, she was also entitled  to the same pay scale on the principle of equality.   We find that there is no specific denial or rebuttal  to this by the petitioners in their reply to the OA.   Their stands seems to be couched in general terms.   They also seem to be suffering from some  misconception that since the post of Research  Assistant was abolished in the Bureau of Urdu  (NCPUL) and, therefore, the analogy of the pay  scale granted to Research Assistant in other sister  Departments could not be applied to her case.   What is missed is that respondent was asking for  the revised pay scale at par with the Research  Assistants in other offices under the Education  Department on the basis of similarity in the nature  of discharging of duties etc. which was not  controverted by the petitioner and to which she  was entitled in the absence of any denial in this  regard.  Therefore, it can\022t be said the Tribunal has  gone wrong in directing petitioner to consider this  respondent for grant of pay scale of Rs.6500- 10500 from 1.1.1996 on the analogy of the scale  granted to Research Assistant in other Offices in  the Education Department, in view of the  similarity in qualifications functions and  responsibilities of the post of Research Assistant in  the Bureau on one hand and in the CHD, CSTT,  CIIL on the other.  The Tribunal order is  accordingly affirmed and petition is disposed of.\024

9.      Mr. Amrendra Sharan, learned Additional Solicitor General of India  appearing on behalf of the appellants, submitted that the Tribunal and  consequently the High Court committed a serious error in arriving at the  aforementioned conclusion in so far as they failed to take into consideration  the fact that the nature of qualification and other relevant factors clearly  point out that the post of Librarian is not equivalent to that of the post of  Research Assistant in other regional languages. 10.     Mr. Kulshreshtha, learned counsel appearing on behalf of the

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respondent,  on the other hand, would submit that as the respondent had been  in the job of the Bureau of Promotion of Urdu Language as on 1.1.1996  from which date the recommendations of the Fifth Pay Commission came to  be implemented, the impugned judgment and order should not be interfered  with.   11.     Promotion of regional languages is undertaken by various bodies  including Central Hindi Directorate of the Ministry of Human Resources  Development, Department of Education, Central Institute of Indian  Language, Commission for Scientific and Technical Terminology, Ministry  of Human Resources Development, Department of Education and Bureau  for Promotion. 12.     So far as the educational and other qualifications required by direct  recruits for promotion of the Urdu language are concerned, following are  stated to be the essential qualifications : \023(i) Master\022s Degree of a recognized University  or equivalent. (ii)    Must have taken Urdu as optional subject at  the graduation level for 3 years/2 years  degree course in the case of M.As. or must  have taken Urdu as a second language upto  2nd years of 3 years degree graduation in  case of MA/M.Sc. M.Com or must have  taken Urdu at High School/Higher  Secondary School level in the case of  M.Sc/M.Com where offering Urdu as a  second language at degree level is not  furnished. (iii)   One years experience of teaching or  terminological and/or translation/editing  work in Urdu  Note 1 : Qualifications are relaxable at the  discretion of the Union Public Service  Commission in case of candidates otherwise well  qualified. Note 2 : The qualification regarding experience is  relaxable at the discretion of the Union Public  Service Commission in the case of candidates  belonging to the scheduled castes and Schedules  Tribes if, at any stage of selection, the Union  Public Service Commission is of the opinion that  sufficient number of candidates from these  communities possessing the requisite experience  are not likely to be available to fill up the  vacancies reserved for them. Desirable : Working knowledge of one or more,  modern Indian languages other than Urdu.\024

13.     However, in respect of Hindi language, the qualifications prescribed  are as under : \023(i) For post of Research Assistant (Hindi) :  Master\022s Degree in Hindi or Sanskrit with  Hindi as an elective subject at Degree stage  from a recognized university or equivalent  and should have studied English as a  compulsory/optional subject at degree level. (ii)    For Post of Research Assistant (Regional  Language) Master\022s Degree in Hindi with  knowledge of regional language concerned  and English at Secondary School level or  Master\022s Degree in the regional language  concerned with Hindi and English as  compulsory/optional subject at secondary  school examination level. (Regional  language includes only those languages  which have been specified in the Eighth

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Schedule of the Constitution of India, as  amended from time to time, baring Hindi  and Sanskrit) (iii)   For post of requiring knowledge of  Medicine : Degree in Integrated System of  Indian Medicine Bachelor of Indian  Medicine and Surgery/Bachelor of  Ayurvedic Medicine and Surgery or  Ayurveda/Pharmacy or equivalent from a  recognized university or board with Hindi  and English as compulsory/optional subject  at secondary school examination level. (iv)    For post requiring knowledge of  Engineering : (Civil, Mechanical, Electrical,  Electronics, Computer Science, Textile,  Mineral Leather Technology) : Diploma of a  recognized Institution/University or  equivalent in the subject concerned with  Hindi and English as compulsory/optional  subject as secondary school examination  level. (v)     For post of Research Assistant  (Management)/Research Assistant (Public  Administration) : Post-graduate diploma in  Management/Public Administration  respectively from a recognized university or  equivalent with knowledge of English and  Hindi as compulsory/optional subject at  secondary school examination level or  equivalent. (vi)    For post of Research Assistant (Journalism):  Master\022s degree in Hindi with Diploma in  Journalism/Mass Communication with  English as compulsory/optional subject at  secondary school examination level. (vii)   For posts in any subject other than these  mentioned above : Master\022s Degree of  recognized University or equivalent in the  subject concerned with English and Hindi as  compulsory/optional subject at Secondary  School Examination level. Note 1 : Qualification are relaxable at the  discretion of the Union Public Service  Commission in case of candidates otherwise well  qualified. Note 2 : Selected candidates will have to complete  a departmental training programme during their  probation.  Desirable : Only for posts of Research Assistant  (Hindi) : Certificate/Diploma from a recognized  Institute in Translation or Applied Linguistics or  Functional Hindi.\024

14.     The essential qualifications required for other languages in CIIL are  stated to be as under : \023(i) Master\022s Degree in Linguistic/Comparative  Philology/Indian Language and Literature/  Psychology/Education/Sociology/  Anthropology/Folklore/Statutics from  recognized University or equivalent. (ii)    One years research/teaching experience. (iii)   Proficiency in any Indian Language as a  subject at the Secondary School Level in the  case of Master of Arts in Linguistics or

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Comparative Philology or as a subject at the  degree level in the case of Master of Arts in  Subject other than Linguistics and  Comparative philology. Note 1 : Specific requirement will be indicated at  the time of recruitment.\024

15.     We may also note that in the case of recruitment by promotion,  deputation, transfer and grades from which promotion or deputation or  transfer to be made, the following are the requisite qualifications : Urdu Promotion : Technical Assistant (Urdu) working in the Bureau  for Promotion of Urdu with 5 years regular service  in the grade. Transfer or deputation : (a)     Officers under the Central Government/State  Government : (i)     holding analogous posts; or (ii)    with 5 years service in posts in the  scale of pay of Rs.425-700 or  equivalent; and  (b)     Possessing the Education qualifications and  experience prescribed for direct recruits  under column-7.  Period of deputation  including period of deputation in another ex- cadre post held immediately preceding this  appointment in the same  organization/department shall ordinarily not  exceed 3 years.\024 Hindi Transfer on deputation/transfer : Officers under the Central Governments  (a) (i) Holding analogous posts in regular posts on  regular basis, or (ii)    With 5 years regular service in post in the  scale of pay of Rs.1400-2300/2600 or (iii)   with 15 years regular service in post in the  scale of Rs.950-1500 or equivalent. (b)     possessing the educational qualifications and  experience prescribed for direct recruitment  under column 8. (period of deputation  including period of deputation in another ex  cadre post held immediately preceding this  appointment in the same or some other  organization/department of the Central  Government shall ordinarily not to exceed 3  years.  The maximum age limit for  appointment by transfer on deputation  including transfer shall be not exceeding 56  years, as on the closing date of receipt of  applications.\024

16.     We may now consider different nature of duties required to be  performed by the these categories of officers : \023Urdu To assist the officer with whom they are attached  in implementing the publication programme BPU  at various stages.  This includes organizing of  subjects panel melting, implementing their  decisions, checking and editing mss, organizing  Terminology committee meeting and preparing of  glossary of technical terms maintenance of record  of all the above mentioned activity and  programming the duty allotted from time to time in

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furtherance of the activity of BPU. Hindi To assist in the implementation of schemes  relating to periodicals, preparation of Dictionaries  \026 Lingual Bilingual, Trilingual and Multilingual,  preparation of Dictionaries in Foreign Languages  under Cultural Exchange Programme. Other Regional Languages To assist in Linguistic and in material production  in various Indian Languages including the non- scheduled languages.\024

17.     The requisite criteria in regard to such appointment, promotion,  transfer as well as the nature of duties required to be performed by the  incumbents of posts vis-‘-vis that of Research Assistant (Urdu) therefor, are  different.  Knowledge of English for Research Assistant (Urdu) is not  necessary whereas for the Research Assistant (Hindi) and other regional  languages, the same is essential.   18.     So far as the Research Assistant for CIIL is concerned, the essential  qualifications therefore are absolutely different.  So far as the educational  qualifications required for promotion to the said post by the incumbents of  the Research Assistant to Research Assistant (Hindi) is concerned, therefore  also different educational qualifications are required.  Not only that, the  nature of duties is also different.  Whereas the Research Assistants in respect  of Urdu language are required to assist the officer with whom they are  attached, the Research Assistants in Hindi and Research Assistants of CIIL  are required to assist implementation of the scheme.  The Tribunal and  consequently the High Court might not, thus, be correct in opining that the  educational qualifications as also the nature of duty being the same,  respondent was entitled to the benefit of the said scale of pay. 19.     The question came to be considered in a large number of decisions of  this Court wherein it unhesitantly came to the conclusion that a large number  of factors, namely, educational qualifications, nature of duty, nature of  responsibility, nature of method of recruitment etc. will be relevant for  determining equivalence in the matter of fixation of scale of pay.   {See  Secretary, Finance Department & Ors. v. West Bengal Registration Service  Association & Ors. [1993 Supp.(1) SCC 153]; State of U.P. & Ors. v. J.P.  Chaurasia & Ors. [(1989) 1 SCC 121]; Union of India & Ors. v. Pradip  Kumar Dey [(2000) 8 SCC 580] and State of Haryana & Anr. v. Haryana  Civil Secretariat Personal Staff Association [(2002) 6 SCC 72]}. 20.     In Government of West Bengal v. Traun K. Roy & Ors. [(2004 (1)  SCC 347], this Court held as under : \023Question of violation of Article 14 of the  Constitution of India on the part of the State would  arise only if the persons are similarly placed.   Equality clause contained in Article 14, in other  words, will have no application where the persons  are not similarly situated or when there is a valid  classification based on a reasonable differentia.\024

21.     In U.P. State Sugar Corporation Ltd. & Anr. v. Sant Raj Singh & Ors.  [(2006) 9 SCC 82], this Court opined : \023The doctrine of equal pay for equal work, as  adumbrated under Article 39(d) of the Constitution  of India read with Article 14 thereof, cannot be  applied in a vaccum.  The constitutional scheme  postulates equal pay for equal work for those who  are equally placed in all respects.  Possession of a  higher qualification has all along been treated by  this Court to be a valid basis for classification of  two categories of employees\024   22.     Same principle was reiterated by a Three Judge Bench of this Court in  State of Haryana & Ors. v. Charanjit Singh & Ors. [(2006) 9 SCC 321].

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23.     We are not oblivious of some decisions of this Court wherein salary  on the basis of revised pay scales has been directed to be paid on the premise  that no change in the duties and functions of employees similarly situated  had taken place although the concerned employees were working in the  different public sector undertakings {See The Employees of Tennery and  Footwear Corporation of India Ltd. & Anr. v. Union of India & Ors. [1991  Supp.(2) SCC 565]} or where scale of pay is to be fixed for the judicial  officers posted in the State cadre vis-‘-vis Union Territory Cadre {[Alvaro  Noronha Ferriera & Anr. v. Union of India & Ors.  [(1999) 4 SCC 408]} but  such a question does not arise herein, as different scale of pay was  recommended by an expert body having regard to the nature of duties and  functions.  It is not a case where discrimination is sought to be made on the  basis of territory or posting in public sector undertaking.   24.     On the facts obtaining in this case, therefore, we are of the opinion  that the doctrine of equal pay for equal work has no application.  The matter  may have been different, had the scales of pay have been determined on the  basis of educational qualification, nature of duties and other relevant factors.   We are also not oblivious of the fact that ordinarily the scales of pay of  employees working in different departments should be treated to be at par  and the same scale of pay shall be recommended.  Respondent did not opt  for her services to be placed on deputation.  She opted to stay in the  Government service as a surplus.  She was placed in list as Librarian in  National Gallery of Modern Art.  She was designated as Assistant Librarian  and Information Assistant.  Her pay scale was determined at Rs.6500-10500  which was the revised scale of pay.  Her case has admittedly not been  considered by the Fifth Pay Revision Commission.  If a scale of pay in a  higher category has been refixed keeping in view the educational  qualifications and other relevant factors by an expert body, no exception  thereto can be taken.  Concededly it was for the Union of India to assign  good reasons for placing her in a different scale of pay.  It has been done.   We have noticed hereinbefore that not only the essential educational  qualifications are different but the nature of duties is also different.  Article  39(d) as also Article 14 of the Constitution of India must be applied, inter  alia, on the premise that equality clause should be invoked in respect of the  people who are similarly situated in all respects. 25.     Mr. Kulshreshtha has placed strong reliance on State of U.P. & Ors. v.  U.P. Sales Tax Officers Grade II Association 2003 (6) SCC 250].  In that  case the Pay Revision Commission did not consider cases of a group of  employees.  On the aforementioned premise, they were held to be entitled to  the scale of pay which had been granted to the persons similarly situated.   We are not concerned with such an issue herein as the case of the respondent  has been considered and she has been given the benefit of a revised scale.  It  was not necessary for the Government which had the requisite jurisdiction to  remove anomaly as has been held by this Court in Haryana State Adhyapak  Sangh & Ors. v. State of Haryana & Ors. [(1988) 4 SCC 571], whereupon  Mr. Kulshreshtha relied on.  As the Union of India has already applied its  mind and revised the respondent\022s pay in the scale of pay of Rs.5500-9000,  it was for the respondent to show that she had been discriminated against.   We have noticed hereinbefore that neither in fact nor in law, any case of  discrimination has been made out. 26.     Our attention has been drawn to the findings of the Tribunal that the  incumbents to the post of Research Assistants in the Bureau and Institutions  like Central Hindu Directorate and Central Institution of Indian Languages  etc. are similarly qualified and they have been performing similar functions.   There was no factual foundation for arriving at the same finding.   Consequently, the said conclusion was wrongly drawn by the Tribunal.   Furthermore, no formula having mathematical exactitude can be pressed into  service in a situation of this nature.  The Tribunal and consequently the High  Court, in our opinion, therefore, was not correct in arriving at the said  decision.   27.     Another aspect of the matter, however, cannot be ignored.   Respondent has been paid the amount by way of difference in the scale of  pay only for a short period.  She has been held to be entitled only for a sum  of Rs.7,000/- and odd.  We are, therefore, of the opinion that this Court, in  exercise of its jurisdiction under Article 142 of the Constitution, should

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direct that the amount already paid need not be recovered.  Similar direction  has been passed by this Court in Haryana Civil Secretariat Personal Staff  Association (supra) stating : \023The courts should approach such matters with  restraint and interfere only when they are satisfied  that the decision of the Government is patently  irrational, unjust and prejudicial to a section of  employees and the Government while taking the  decision has ignored factors which are material  and relevant for a decision in the matter.  Even in a  case where the court holds the order passed by the  Government to be unsustainable then ordinarily a  direction should be given to the State Government  or the authority taking the decision to reconsider  the matter and pass a proper order.  The court  should avoid giving a declaration granting a  particular scale of pay and compelling the  Government to implement the same.\024

       {[See also Punjab National Bank & Ors. v. Manjeet Singh & Anr.  [(2006) 8 SCC 647]} 28.     We, therefore, although agree with the submissions of learned  Additional Solicitor General, in the facts and circumstances of this case,  decline to grant any relief in favour of the appellant.  The appeal is  dismissed in view of our observations aforementioned.  There shall,  however, be no order as to costs.