JUDGMENT Sudhir Agarwal, J.
1. All the petitioners are appointed and working as Secretaries Grade-Ill, class II in various marketing committees of U.P. Rajya Krishi Utpadan Mandi Paishad and have approached this Court under Article 226 of the Constitution of India seeking writ of mandamus directing the respondents to give parity in employment in the matter of pay to the petitioners like other Secretaries of U.P. Krishi Utpadan Mandi Paishad (herein after referred as "Parishad"), Regulation 4 of U.P. Agricultural Products Market Committee (Centralized ) Services Regulation, 1884( in short- Regulation, 1984) has been sought to be declared ultravires and further a mandamus has been sought to enforce equal pay for equal work as enshrined under Articles 14 and 16 of the Constitution of India in the matter of petitioners.
2. In brief the petitioners' case is that all of them are working as Secretaries Grade III class II in various Mandi Samitis in the pay scale of Rs. 1640-2900. They further claim that all the Secretaries in various Mandi Samitis are discharging similar and identical duties and there is no difference in work, performance, duty, liability, qualification or otherwise of the various secretaries yet arbitrarily the administration by placing the secretaries of Mandi Samitis in different pay scale and grades has acted illegally. It is also submitted that the posts are interchangeable irrespective of business of Mandi Samitis' quantum of work etc. Any secretary can work in the Mandi Samiti of any grade or class as well as they can also work in any of the Mandi Samitis at different places. The secretaries in different grades have no co-relation with the work, they are required to perform and the classification is illusory, irrational and infringes the principle of equal pay for equal work as guaranteed under Article 14 and 16 of the Constitution of India.
3. It is further submitted that a similar dispute arose before this Court in Writ petition No. 30319 of 2001 Shahjade v. Chairman, Rajya Krishi Utpadan Mandi Paishad and Ors. and a Division Bench of this Court vide its judgment dated 23.4.2002 held the aforesaid classification of the secretaries of different cadre being irrational, arbitrary and discriminatory and accordingly allowed the writ petition directing for higher pay scale to the petitioner in the aforesaid case w.e.f. 1.1.86. It is stated that the respondents filed review petition No. 104056 of 2002 which was also dismissed by this Court vide order dated 23.5,2003, against which an Special Leave Petition was filed in the Apex Court which is still pending.
4. A counter affidavit has been filed by the respondents wherein the provisions pertaining to statute have not been disputed. It is however stated with reference to various provisions of Regulations, 1984 that since the mode of recruitment, selection, qualification, experience etc. of secretaries of various grades is different, it cannot be said that all the secretaries can be placed in higher pay scale i.e. Rs. 3000-4500 which is payable to Secretaries Class I. However, it is not disputed that although the power and duties of the Secretaries have been defined in Section 24 which are general, but in practice the working of different Mandi Samiti is also different. Duties and responsibilities in bigger Mandis are more strenuous than that of smaller Mandis due to quantum of arrival of agricultural produce. It is said that number of staff in big Mandi is much higher considering the magnitude of transaction of bigger Mandi. The staff of bigger Mandi needs to be more experienced. It is also sated that the Board has determined the sanctioned strength of all the classes of the Secretaries. The sanctioned strength of the secretaries in different grades is as follows:
The respondents in para 14 of the Counter affidavit have also stated that the Board in its meeting has decided that to improve the working of the Mandi Samitis, where receipt of market fee is more than two crores, Secretaries class I should be appointed. Such places are at Muzaffarnagar, Agra, Bareilly, Shahjahanpur, Kanpur and Varanasi. It is also stated in para 17 of the counter-affidavit that the Secretaries Grade III class II and class III working in pay scales of Rs. 1400-2600 and 1350-2200, respectively have been merged in a common pay scale of Rs. 1650-2900 with effect from 1.10.1995. The respondents submit that the petitioners are working as Secretary Grade III class II in pay scale of Rs. 1640-2900. The appointment of class I secretary was S0% by promotion and 50% by direct recruitment, secretary class grade II are appointed 100% by promotion and the appointment of Grade III Secretaries is 75% by promotion from Secretary Grade IV and 25% by promotion of Mandi Supervisors. It is stated that merely because the duties are similar, the petitioner cannot claim higher scale of salary since principle of equal pay for equal work is inapplicable in view of the aforesaid facts.
5. Rejoinder affidavit has been filed by the petitioners stating therein that there is no classification of various marketing committees either under the Act, Rules and Regulations or otherwise and in the absence thereof, the classification of Secretaries for the purpose of pay scale is arbitrary and discriminatory. It is pointed out as also admitted by the respondents and mentioned by the Director, Mandi Samitis, in its order dated 22.5.2001 ( Annexure-3 to the writ petition) that categorization of Mandi Samitis Class A, B, C, D as mentioned in Regulation 3(1) of 1984 Regulations has been abolished by 1991 amendment of Regulations. In the aforesaid Regulation, as claimed by the petitioner the same class and status has been given to all Mandis. The classification of the Secretaries thus only remains in respect to pay scale which is arbitrary and discriminatory.
6. We have heard Sri Shashindra Tripathi for the petitioners, Standing counsel for respondent No. 1 and Sri B.D.Mandhyan, Senior Advocate, appearing on behalf of respondent Nos. 2 and 3, and have perused the record.
7. Before considering the rival submissions it would be appropriate to have a bird eye view of the relevant statutory provisions.
8. U.P. Krishi Utpadan Mandi Adhiniym, 1964 (hereinafter referred to as the Act of 1964) was enacted by the State Legislature providing for the regulation of sale and purchase of agricultural produce and for the establishment, superintendence and control of markets in the State of U.P. The legislature by its experience found that farmers and agricultural producers were being exploited in agricultural produce markets in different ways causing not only undue exactions but also lesser share of the agricultural produce to the owners. In the matter of dispute, the producers used to surfer due to disadvantageous position lacking bargaining power. They also suffer due to user of defective weights and scales in the market. The producers used to be denied lion's share of their produce. The situation was causing lot of dissatisfaction amongst the farmers citizen of the State attracting the Government to consider the matter and to take care by providing suitable legislation. Even the planning Commission recommended for a legislation in respect of regulation of market in pursuant whereto many other States enacted such laws and ultimately the U.P. Legislature also enacted U.P. Act 25 of 1964, U.P. Krishi Utpadan Mandi Adhiniym, 1964 ( hereinafter referred to as Act of 1964 ). The broad outlines and objective as mentioned in statement of object and reasons were as under:
(i) to reduce the multiple trade chares, levies and exactions charged at present from the producer-sellers,
(ii) to provide for the verification of accurate weights and scales and see that the producer-seller is not denied his legitimate due;
(iii) to establish market committees in which the agricultural producer will have his due representation;
(iv) to ensure that the agricultural producer has his say in the utilization of market funds for the improvement of the market as a whole;
(v) to provide for fair settlement of disputes relating to the sale of agricultural produce;
(vi) to provide amenities to the producer-seller in the market;
(vii) to arrange for better storage facilities;
(viii) to slop inequitable and unauthorized charges and levies from the producer-seller; and
(ix) to make adequate arrangements for market intelligence with a view to posting the agricultural producer with the latest position in respect of the markets dealing with his produce.
9. Section 12 of the Act of 1964 provides for establishment and incorporation of Mandi Samiti of a Market Area declared under Sections 5 and 6 of the Act. Section 13 of the Act provides for constitution of the Committee and Section 23 provides for appointment of officers and servants of the Mandi Samiti which includes Secretaries of the Committee. It provides that every committee shall have a secretary and such other officers as may be considered necessary by the Board for the efficient discharge of the functions of the Committee, appointed by the Board on such terms and conditions as being provided in the regulations made by it.
10. It was amended vide U.P. Act No. 10 of 1991, w.e.f. 1.9.1990 and Section 23(2), thereafter read as under. -
Section 23 (2)- Every Committee shall have such number of secretaries and such other officers as may be considered necessary by the Board for the efficient discharge of the functions of the Committee, appointed by the Board on such terms and conditions as may be provided for in the regulations made by it.
11. Section 23-A was inserted by U.P. Act No. 13 of 1973 and re-enacted by U.P. Act No. 30 of 1974 providing Constitution c: Centralized service and transfer of employees. The said section is reproduced herein as under-
Section 23-A. Constitution of Centralized service and transfer of employees:-
(1) Notwithstanding anything contained in any other provision of this Act, the Board may constitute cadres of secretaries and such other officers common to all Committees as it may deem fit to appoint under Sub-section (2) of Section 23.
(2) Subject to the provisions of Sub-section (2-B)-
(a) every person, other than a government servant, serving in any Committee on deputation, who holds a post comprised in the cadre referred to in Sub-section (1), and
(b) every Government servant, serving in any Committee on deputation on a post in the said cadre, who is not found to be unsuitable, suitability being determined in such manner as may be laid down in regulations.
shall on and from the date of the constitution of the said cadre (hereinafter in this section to be referred to as the said date) become member of the cadre on the terms and conditions mentioned in Sub-section (2-A).
12. Section 24 provides for functions, powers and duties of the Secretary, and the provision as amended vide U.P. Act 10 of 1991 is reproduced as under:
24. Functions, powers and duties of the Secretary-
(1) The secretary of a committee shall be its chief executive officer, and shall, subject to the provisions of this Act, perform such functions exercise such powers and discharge such duties, as may he prescribed, or provided for in the bye-laws or as the Board or the Director may, by order in writing direct:
Provided that when more than one secretaries are posted in a Committee, the Director shall nominate one of the Secretaries to be its chief executive officer and shall determine the functions to be performed, powers to be exercised and duties to be discharged by each of them.
(2) Without prejudice to the generality of the foregoing provisions, but subject to the provisions of this Act and the rules and bye-laws made thereunder, the Secretary shall.
(a) -exercise all powers of superintendence and control over-
(i) all officers and servants of the Committee so as to ensure less proper and efficient discharge of the duties assigned to them less by or under this Act; and
(ii) the affairs of the Committee;
(b) report cases of neglect, misconduct or dereliction of duty by an employee of the Committee to the appointing authority for necessary action, and where so empowered, take disciplinary action against any of the employees of the Committee;
(c) ensure proper execution of all orders issued by the Board, the Chairman or the Committee;
(d) ensure proper maintenance of-
(i) accounts of all money received and of all moneys expended for and on behalf of the Committee;
(ii) records of disputes coming up for decision under this Act or the rules or bye-laws framed thereunder; and
(iii) a record of the disputes settled by him in such form as may be prescribed.
(3) All licences under this Act shall be issued under his signatures.
13. Section 25-A provides for prescription of terms and conditions of employment of officers and servants of Committees by the Regulations. Section 40 confers powers upon the State Government to frame rules.
14. Exercising the rule framing power, the State Government has enacted U.P. Krishi Utpadan Mandi Niyamavali, 1965 (hereinafter referred to as "Rules, 1965"). Chapter V of Rules 1965 deals with the officers and servants of the Committee. Prior to 30.6.1984 Rule 59 reads as under:
59- Secretary of the Market Committee-(Sec. 23) (1) Persons who are approved by the public Service Commission U. P. for a post in U.P. Subordinate Agriculture Service and possess at least two years experience in Agricultural Marketing and have successfully completed one years Training course in Agricultural Marketing or the training course of market Secretary organized by the Directorate of Marketing and Inspection. Government of India, shall be eligible for appointment's Secretary of the market committee.
(2) The cadre of Secretary shall have the following three grades namely;
a. Grade I-For A Class Markets.
b. Grade II-For B Class Markets.
c. Grade III-For C Class Markets.
(3) The scale of pay of the market Secretary in each grade shall he such is may he approved by the Slate Government and shall carry the usual allowances as may be admissible to Government Servants of the State in corresponding scales of pay from lime to time.
(4) The Seniority of the incumbents in each grade of the cadre of market secretary shall he reckoned from the date of the order of their first appointment as secretary in that grade, hut in case the date of appointment of two or more incumbents as secretary in any grade is same, their seniority shall he in accordance with the order of their appointment.
(5) The secretary shall he liable to be transferred from one market committee to another in any part of the stale by the appointing authority and his transfer traveling allowances shall be borne by the committee to which he is transferred.
(6) The secretary shall be entitled to raveling allowance as admissible to the Government servants of the state in the corresponding scales of pay.
(7) The secretary of every committee shall he governed by such rules and regulations as are applicable to Government Servants on foreign services as laid down in Fundamental Rules 110 to 127 of Financial Handbook volume II Part-II
15. Vide notification dated 30.6.84, the entire Rule 59 was substituted as under-
59- Secretary of the Market Committee (Sec. 23) That qualifications, method of recruitment and other conditions of service of the secretaries and other officers and employees of centralized service constituted under Section 23-A shall he such as may be laid down by Regulations.
16. Rule 60 provides the qualifications, designations, grades, salaries and allowance of the posts of officers and servants whose appointing authority is the Committee, shall be approved by the Director.
Rule 63 provides the functions, powers and duties of the secretary which is reproduced herein as under-
63. Functions, powers and duties of the Secretary ( Section 24)-
(1) The Secretary shall be the Chief Executive Officer of the Market Committee and shall carry into effect the resolutions of the Market Committee.
(2) All other officers and servants of the Committee shall he subject to his control. He shall also be responsible for directing their work in such manner as to ensure proper and efficient working of the Market committee.
(3) It shall be the duty of the Secretary to supervise the work of the officers and servants of the committee and to take necessary disciplinary action against any of the officers and servants of the committee for their neglect, misconduct, dereliction of duty etc. subject to the approval of the Chairman of the Committee.
(4) The secretary shall be responsible for the proper execution of all orders issued by the Chairman or the Committee. He shall take or cause action to be taken against any of the officers and servants of the Committee in accordance with the directions given by the Chairman of the Committee.
(5) Subject to the control of the Chairman, or in his absence of the vice-Chairman of the Market Committee, the secretary shall be responsible for maintaining proper accounts of money received and/or expended for or on behalf of the Committee.
(6) The Secretary shall conduct all routine correspondence and attend to other office work and all correspondence with the Director or Officers subordinate to the Director shall be conducted through the Chairman or with the previous approval of the Chairman.
(7) The Secretary shall he responsible for maintaining complete records of all the disputes which come up for decision before the Disputes Sub-Committee in such manner as may be specified in the bye-laws of the Committee.
(8) The Secretary shall maintain a record of the disputes settled by him in the form and manner as may he specified in the bye-laws of the Committee.
(9) On receipt of a complaint either written or oral regarding any matter concerning sale or purchase of specified agricultural produce in the Market Area, the Secretary shall conduct an enquiry and shall make a report of he same to the Chairman for taking such action as he may think necessary in accordance with the provisions of the Act, these rules and the bye-laws.
(10)It shall be the duty of the Secretary to ensue that proper payments to sellers in the Market Yards are made and no irregularities in making weighment of the specified agricultural produce in the Market Yards are committed.
(11)The secretary shall advise the Committee and its Chairman in all mailers elating to the regulation of the sale and purchase of agricultural produce in the light of the provisions of the Act, these rules and the bye-laws framed thereunder and his opinion shall be recorded in the proceedings of the Committee.
(12)The Secretary shall grant casual leave to the officers and servants of the Committee. For other kinds of leave the Secretary shall recommended he same to the Chairman who shall take action to sanction such leave in accordance with the leave rules applicable to officers and servants of the Committee.
(13)The Secretary shall submit to the Chairman by thirtieth April each year his annual confidential remarks in respect of the work and worth of the officers and servants appointed by the Committee.
(l4)The Secretary shall submit to the Chairman his recommendations in respect of the annual increments of the officers and servants appointed by the Committee within thirty days from the date any such increment falls due.
(15)The Secretary shall, on the orders or with the prior approval of the Chairman or on the orders of Director call meetings of the Market Committee and shall have right to attend, speak at, and otherwise take part in the meetings of the Committee;
Provided that the secretary shall not have the right to vote in the meetings of the committee.
17. In exercise of power under Section 25-A read with 26-X of the Act of 1964, the Board has framed U.P. Agricultural Produce Market Committees (Centralized) Services Regulations, 1984 (hereinafter referred to as "1984 Regulations")
18. Regulation 4 of 1984 Regulations provides for creation of centralized services of the Secretaries and others and prior to 5.3.1991, it reads as under-
Regulation-4 : with effect from the commencement of these regulations there shall be a centralized services for the market committees consisting of the cadres and post given below-
(i) Secretaries:
(a) Secretaries, Grade-I, for 'A ' Class Markets,
(b) Secrelaries, Grade-II, For 'B' Class Markets,
(c) Secretaries, Grade-III, for 'C' Class Markets,
(d) Secretaries, Grade-IV, for 'D' Class Market,
(ii) Market Staff:
(a)Mandi Paryavekshak
(b)A min/Auctioneers
(iii) Accounts Staff:
(a) Account ant
(b) Accounts Clerk
(c) Cashier-cum-clerk,
(iv) General Staff:
(a) Head Clerk
(b)Clerk-cum-Typist.
The aforesaid Regulation 4 was amended on 5.3.1991 and in respect to the Secretaries It was substituted as under-
1. Secretaries.
(a) Secretaries Grade -I
(b) Secretaries Grade -II
(c) Secretaries Grade -III Class I
(d) Secretaries Grade -III Class II
(c) Secretaries Grade III Class III
19. However after amendment of 1991 in Regulation 4, it appears that corresponding amendment in Regulation 13 has not been made and it continue to read as under:
(13) Quota.-Subject to the provisions of Sub-rule (2) recruitment to various categories of posts in the cadres of the service shall be made from the source and in the proportion indicated below:
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Regulation 23 provides that seniority of persons in any category or grade of any post shall be determined from the date of the order of substantive appointment. It is further stated that after 1991 and 1995 amendment of the Regulations, 1984, there are four grades of the Secretaries which are as follows:
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i Secretary Class I 3000-4500 ----------------------------------------------------------------------- ii Secretary Class II 2200-4000 ----------------------------------------------------------------------- iii Secretary Class III Grade I 2000-3500 Grade II 1400-2600*] merged with scale Grade III 1350-2200*] of 1640-2900 * 1640-2900 w.e.f. 1.10.95 -----------------------------------------------------------------------
20. A perusal of the Rules and the Regulations aforesaid makes It clear that the rule framing authority contemplated a specified hierarchy of the secretaries at different level and for recruitment thereto different qualifications, eligibility conditions etc, have been provided. The appointment and posting of secretaries belonging to different cadres depends upon various factors, namely Mandi Samiti of highest class having highest quantum of transaction and business shall be maintained by the secretaries working in the highest grade or there may be more than one secretary in such Mandis of same grade or different grades and the secretaries of lower grade may be posted in smaller Mandi Samitis. It is worth to notice that prior to amendment of this Act, each Mandi Samiti had to have one Secretary and therefore, classification of the Mandi Samitis was also relevant and the hierarchy of the Secretary would have Its application accordingly. However, vide 1991 amendment' while omitting the provision pertaining to classification of Mandi Samitis, simultaneously it has been provided under Section 23 read with Section 24 of the Act that there can be more than one secretary in a Mandi Samiti and in such case the Director shall have the authority to nominate one Secretary as Chief Executive Officer of the Mandi Samiti. Obviously, pursuant to the existing provision, more than one Secretaries may be posted in a Mandi Samiti considering its size, quantum of business etc. Further the Director while nominating Chief Executive Officer is bound to take into account the qualifications, hierarchy of the Secretaries, grade and seniority etc. working in the Mandi Samitis. In view of the aforesaid, ex facie the aforesaid scheme can neither be said to be Irrational nor It violates any right enshrined under Articles 14 and 16 of the Constitution. It is always open to the rule framing authority to provide different pay scales and hierarchy of their employees taking into account relevant factors justifying such creation of hierarchy and different pay scale and grade.
21. In order to analyze what could have been circumstances and factors justifying different pay scale and classification of employees In different grade, it would be appropriate to have a brief retrospect of the law laid down by Apex Court, since this issue has consistently cropped up before the Apex Court in the last few decades and is no more res integra.
22. In Randhir Singh v. Union of India and Ors. , the Apex Court considering the principle of equal pay for equal work held that it is not an abstract doctrine but one of substance, Construing Articles 14 and 16 In the light of the Preamble and Article 39(d) of the Constitution, the Apex Court held that the principle of equal pay for equal work is deducible from those Articles and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though those drawing the different scales of pay do identical work under the same employer.
23. However it was also held -
It is well known that there can be and there are different grades in a service, with varying qualifications for entry into a particular grade, the higher grade often being a promotional, avenue for officers of the lower grade. The higher qualifications for the higher grade, which may be either academic qualifications or experience based on length of service, reasonably sustain the classification of the officers into two grades with different scales of pay. The principle of 'equal pay for equal work' would be an abstract doctrine not attracting Article 14 if sought to be applied to them...
24. In R.D. Gupta and Ors. v. Lt. Governor, Delhi Administration and Ors. , the Apex Court applying the principle of equal pay for equal work, in para 20 of the judgment, considered the correctness of the defence taking by the employer justifying non application of the said principle and held -
the ministerial staff in the NDMC constitute a unified cadre. The recruitment policy for the selection of the ministerial staff is a common one and the recruitment is also done by a common agency. They are governed by a common seniority list. The ministerial posts in the three wings of the BDNC viz, the general wing, the electricity wing and the waterworks wing are interchangeable posts and the postings an made from the common pool according to administrative convenience and exigencies of service and not on the basis of any distinct policy or special qualifications. Therefore, it would be futile to say that merely because a member of the ministerial staff had been given a posting in the electricity wing, either due to force of circumstances or due to voluntary preferment, he stands on a better or higher footing or in a more advantageous position than his counterparts in the general wing. It is not the cast of the respondents that the ministerial staff in the electricity wing perform more onerous or more exacting duties than the ministerial staff in the general wing. It therefore follows that all sections of the ministerial staff should be treated alike and all of them held entitled to the same scales of pay for the work of equal nature done by them.
(emphasis added)
25. In Federation of All India Customs and Central excise Stenographers and Ors. v. Union of India and Ors. , it was held that-
there may be qualitative difference as regards reliability and responsibility justifying different pay scale. Functions may be the same but the responsibilities make a difference. One cannot deny that often the difference is a mater of degree and that there is an element of value judgment by those who are charged with the administration infixing the scales of pay and other conditions of service. So long as such value judgment is made bonafide, reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination (emphasis added) It was further observed that-
the same amount of physical work may entail different quality of work, some more sensitive, some requiring more tact, some less, it varies from nature and culture of employment, (emphasis added)...
26. In Jaipal and Ors. v. State of Haryana and Ors. (1988) 3 SCC 354, the Apex Court held as under-
The doctrine of equal work equal pay would apply on the premise of similar work, hut it does not mean that there should be complete identity in all respects. If the two classes of persons do same work under the same employer, with similar responsibility, under similar working conditions the doctrine of 'equal work equal pay would apply and It would not be open to the State to discriminate one class with the other in paying salary. The State is under a constitutional obligation to ensure that equal pay is paid for equal work .
(emphasis added) ...
27. In State of U.P. and Ors. v. J.P. Chaurasia and Ors. , the Apex Court while considering the justification of two pay scales of the Bench Secretaries of the High Court observed as under-
Entitlement to the pay scale similar would not depend upon either the nature of work or volume of work done by Bench Secretaries. Primarily it requires among others, evaluation of duties and responsibilities of the respective posts. More often functions of two posts may appear to be the same or similar, but there may be difference in degrees in the performance. The quantity of work may be the same, but quality may be different that cannot be determined by relying upon averments in affidavits of Interested parties. The equation of posts or equation of pay must be left to the executive Government. It must be determined by expert bodies like Pay commission. They would be the best judge to evaluate the nature of duties and responsibilities of posts. If there is any such determination by a Commission or Committee, the court should normally accept it. The Court should not try to linker with such equivalence unless it is shown that it was made with extraneous consideration (emphasis added)....
28. In Grih Kalyan Kendra Workers' Union v. Union of India and Ors. , it was observed that-
the question of parity in pay scale cannot be determined by applying mathematical formula. It depends upon several factors namely nature of work, performance of duties, qualifications, the quality of work performed by them. It is also permissible to have classification in services based on hierarchy of posts, pay scale, value of work and responsibility and experience. The classification must, however, have a reasonable relation to the object sought to be achieved.
(emphasis added)
29. In The Secretary, Finance Department and Ors. v. The West Bengal Registration Service Association and Ors. , the Apex Court observed as under-
job valuation is both a difficult and time consuming task which even expert bodies having the assistance of staff with requisite expertise have found difficult to undertake sometimes on account of want of relevant data and scales for evaluating performances of different groups of employees. The factors which may have to be kept in view for job evaluation may include (1) the work programme of his department (ii) the nature of contribution expected of him (iii) the extent of his responsibility and accountability in the discharge of his diverse duties and functions (iv) the extent and nature of freedoms/limitations available or imposed on him in the discharge of his duties (v) the extent of powers vested In him (vi) the extent of his dependence on superiors for the exercise of his powers (vii) the need to coordinate with other departments etc. It was further observed that normally a pay structure is evolved keeping in mind several factors e.g., ((i) method of recruitment, (ii) level at which recruitment is made, (in) the hierarchy of service in a given cadre, (iv) minimum educational/technical qualifications required, (v) avenues of promotion (vi) the nature of duties and responsibilities, (vii) the horizontal and vertical relativities with similar jobs, (viii) public dealings, (ix) satisfaction level, (x) employer 's capacity to pay. etc. (emphasis added).
30. In Jaghnath v. Union of India and Anr. , the Apex Court following the earlier judgment observed that-
classification of officers into two grades with different, scales of pay based either on academic qualification or experience, or length of service is sustainable. Apart from that, higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues is very common in career service. There is selection grade for District Judges. There is senior time scute in Indian Administrative Service. There is suppertime scale in other like services. The entitlement to these higher pay scales depends upon seniority-cum-merit or merit-cum-seniority. The differentiation so made in the same cadre will not amount to discrimination. The classification based on experience is a reasonable classification. It has a rational nexus with the object thereof. To hold otherwise, it would be detrimental to the Interest of the service itself...
31. In State of Madhya Pradesh and Anr. v. Pramod Bhartiya and Ors. , the Apex Court held as under-
It would he evident from this definition that the stress is upon the similarity of skill, effort and responsibility when performed under similar conditions. Further, as pointed out by Mukharji, J. (as he then was) in Federation of All India Customs and Excise Stenographers the quality of work may vary from post to post. It may vary from institution to institution We cannot ignore or overlook this reality. It is not a matter of assumption but one of proof. The respondents (original petitioners) have failed to establish that their duties, responsibilities and functions are similar to those of the non-technical lecturers in Technical Colleges. They have also failed to establish that the distinction between their scale of pay and that of non technical lecturers working in Technical Schools is either irrational and that it has no basis, or that it is vitiated by mala fides, either in law or in fact (see the approach adopted in Federation case). It must be remembered that since the plea of equal pay for equal work has to be examined with reference to Article 14. the burden is upon the petitioners to establish their right to equal pay, or the plea of discrimination, as the case may be This burden the original petitioners (respondents herein) have failed to discharge.
32. In Shyam Babu Verma and Ors. v. Union of India and Ors. , the Apex Court observed that-
the principle of equal pay for equal work should not be applied in a mechanical or casual manner. Inequality of the men in different groups excludes applicability of the principle of equal pay for equal work to them. Unless it is established that there is no reasonable basis to treat them separately in matters of payment of wages or salary, the Court should not Interfere holding different pay scale as discriminatory
33. In Sher Singh and Ors. v. Union of India and Ors. , the Apex Court rejected the claim of the library staff of Delhi University and its constituent colleges regarding parity in pay with the teaching staff on the ground that the nature of duties, work load, experience and responsibilities of the two sets of employees in question are totally different from each other.
34. In Union of India and Ors. v. Delhi Judicial Service Asstt. and Anr. , the Apex Court reversing the judgment of the High Court allowing the same scale of pay to all the officers of Higher Judicial Services, held as under;-
We think that the high Court was not right in giving selection grade scale of pay to all the officers on the principle of equal pay for equal work. If that be so the Dist. Munsif (Junior civil Judge, Junior subordinate Judge) etc. lowest officer in judicial hierarchy is entitled to the pay of the Senior most super-time scale district Judge as all of hem are discharging judicial duty. The marginal difference principle also is equally inappropriate. Similarly of posts or scale of pay in different services are not relevant. The nature of the duty, nature of the responsibility and degree of accountability etc. are relevant and germane considerations Grant of selection grade, suppertime scale etc. would be akin to a promotion. The result of the impugned direction would wipe out the distinction between the time Scale and Selection grade officers. The learned Counsel for the Union of India, pursuant to our order, has placed before us the service conditions prevailing in the Higher Judicial Services in other States in the country. Except Gujrat which had wiped out the distinction after the judgment in all India Judges Association's case, all other States maintained the distinction between the Grade I and tirade II Higher Judicial offices or Time Scale and Selection Grade or Suppertime scales etc. In fact this distinction is absolutely necessary to inculcate hard work, to maintain character, to improve efficiency, to encourage honesty and integrity among the officers and accountability. Such distinctions would not only be necessary in the Higher Judicial Service but also, indeed in all services under the State and at every stage.
35. In Sita Devi and Ors. v. State of Haryana and Ors. , the Apex Court upheld different pay scale on the basis of qualification relying on the earlier judgments of the Apex Court in The State of Mysore and Anr. v. P. Narasinga Rao ; State of Jammu and Kashmir v. Triloki Nath Khosa and P. Murugesan and Ors. v. State of Tamil Nadu .
36. In State of Haryana v. Jasmer Singh and Ors. , the Apex Court Justified different pay scale on various factors observing as under:
It is therefore, clear that the quality of work performed by different sets of persons holding different Jobs will have to be evaluated There may be differences in educational or technical qualifications which may have a bearing on the stills which the holders bring to their job although the designation of the job may be the same. There may also be other considerations which have relevance to efficiency in service which may justify differences in pay scales on the basis of criteria such as experience and seniority, or a need to prevent stagnation in the cadre, so that good performance can be elicited from persons who have reached the top of the pay scale. There may be various other similar considerations which may have a hearing on efficient performance in a job. This Court has repeatedly observed that evaluation of such jobs for the purposes of pay scale must be left to expert bodies and, unless there are any mala fides, its evaluation should be accepted.
37. In Garhwal Jal Sansthan Karmachari Union and Anr. v. State of U.P. and Ors. (1997) SCC 24, the Apex Court in para 8 of the Judgment rejected the claim of pay parity between the employees of Jal Nigam and Jal Sansthan on the ground of qualitative difference in the duties, function and responsibilities in the two organizations.
38. In Union of India and Ors. v. Pradip Kumar Dey , the question of parity of pay scale of Naik, Radio Operator In CRPF and the employees working as Radio Operator in Directorate of Coordination Police Wireless came up for consideration on the principle of equal pay for equal work and the Apex Court negated the parity observing that the different pay scale prescribed taking into account hierarchy In service and other relevant factors cannot be interfered as it would disturb the entire chain of hierarchy.
39. In State of Orissa and Ors. v. Balaram Sahu and Ors. , the Apex Court observed as under:
Though "equal pay for equal work" is considered to be a concomitant of Article 14 as much as "equal pay for unequal work" will also be a negation of that right, equal pay would depend upon not only the nature or the volume of work, tint also on the qualitative difference as regards reliability and responsibility as well and though the functions may be the same, but the responsibilities do make a real and substantial difference.
40. In State of Haryana and Anr. v. Haryana Civil Secretariat Personal Staff Association (2002) 6 SCC 72, it was held In para 10 -
It is to be kept in mind that the claim of equal pay for equal work is not a fundamental right vested in any employee though it is a constitutional goal to be achieved by the Government. Fixation of pay and determination of parity in duties and responsibilities is a complex matter which is for the executive to discharge, While taking a decision in the matter, several relevant factors, some of which have been noted by this Court in the decided case, are to be considered keeping in view the prevailing financial position and capacity of the State Government to hear the additional liability of a revised scale of pay. It is also to be kept in mind that the priority given to different types of posts under the prevailing policies of the Slate Government is also a relevant factor for consideration by the State Government. In the context of the complex nature of issues involved, the far-reaching consequences of a decision in the matter and its impact on the administration of the State Government, courts have taken the view that ordinarily courts should not try to delve deep into administrative decisions pertaining to pay fixation and pay parity. That is not to say that the matter is not Justiciable or that the courts cannot entertain any proceeding against such administrative decision taken by the Government. The 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...
41. In State Bank of India and Anr. v. M.R. Ganesh Babu and Ors. , the Apex Court observed in para 16-
The principle of equal pay for equal work has been considered and applied in may reported decisions of this Court. The principle has been adequately explained and crystallized and sufficiently reiterated in a catena of decisions of this Court. It is well settled that equal pay must depend upon the nature of work done. It cannot he judged by the mere volume of work; there may be qualitative difference as regards reliability and responsibility Functions may be the same but the responsibilities make a difference. One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as value judgment is made bona fide, reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination. The principle is not always easy to apply as there are inherent difficulties in comparing and evaluating the work done by different persons in different organizations, or even in the same organization. Differentiation in pay scales of persons holding same posts and performing similar work on the basis of difference in the degree of responsibility, reliability and confidentiality would be a valid differentiation. The judgment of administrative authorities concerning the responsibilities which attach to the post, and the degree of reliability expected of an incumbent, would be a value judgment of the authorities concerned which, if arrived at bona fide, reasonably and rationally, was not open to interference by the court.
42. In State of Haryana v. Chiranjit Singh 2005 (8) Scale 432, in para 17 the Apex Court observed as under:
Having considered the authorities and the submissions we are of the view that the authorities in the cases of Jasmer Singh, Tilak Raj. Orissa University of Agriculture- & Technology and Tarun K. Roy lay down the correct law Undoubtedly, the doctrine of "equal pay for equal work" is not an abstract doctrine and is capable of being enforced in a Court of law But equal pay must be for equal work of equal value. The principle of "equal pay for equal work" has no mechanical application in every case. Article 14 permits reasonable classification based on qualities or characteristics of persons recruited and grouped together, as against those who were left out. Of course, the qualities or characteristics must have a reasonable relation to the object sought to be achieved. In service matters, merit or experience can be a proper basis for classification for the purposes of pay in order to promote efficiency in administration. A higher pay scute to avoid stagnation or resultant frustration for lack of promotional avenues is also an acceptable reason for pay differentation. The very fact that the person has not gone through the process of recruitment may itself, in cerium cases, make a difference. If the educational qualifications are different, then also the doctrine may have no application. Even though parsons may do the name work, their quality of work may differ. Where persons are selected by a Selection Committee on the basis of merit with due regard to seniority a higher pay scale granted to such persons who are evaluated by competent authority cannot be challenged, A classification based on difference in educational qualifications justifies a difference in pay scales A mere nomenclature designating a person as say a carpenter or a craftsman is not enough to come to the conclusion that he is doing the same work as another carpenter or craftsman in regular service. The quality of work which is produced may be different and even the nature of work assigned may be different. It is not just a comparison of physical activity. The application of the principle of "equal pay for equal work" requires consideration of various dimensions of a given job. The accuracy required and the dexterity that the job may entail may differ from job to job. It cannot be judged by the mere volume of work. There may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities made a difference Thus normally the applicability of this principle must he left to he evaluated and determined by an expert body. These are not matters where a writ court can lightly interfere. Normally a party claiming equal pay for equal work should be required to raise a dispute in this regards.
(emphasis added)
43. The aforesaid analysis of some of the numerous case law of the last more than four decades makes it clear that it is always permissible to provide different pay scales on numerous factors including the objective of creating hierarchy, based on experience or other relevant factors. In the present case the Act of 1964, Rules of 1965 and regulation of 1984 make it clear that all the secretaries have been kept in different level in hierarchy and recruitment to such post is based on different criteria and source of recruitment, namely at the lowest, the recruitment is 100% from open market while in higher grade it Is either by promotion or by direct recruitment or both. The qualifications and eligibility for direct recruitment has also been prescribed differently under Regulation 7. In view of the aforesaid statutory provisions the prescription of different pay scales to the various categories of the secretaries is neither ex facie arbitrary and discriminatory nor is violative of Articles 14 and 16 of the Constitution of India. The differentiation of the pay scale on the basis of source of recruitment, method of recruitment, eligibility, qualification, and status in hierarchy valid and based on relevant factors justifying different pay scales.
44. In para 16 of the counter affidavit, it has been said that as per the decision taken by the respondents the secretaries class II in the pay scale of Rs. 2200-4000 who have completed 8 years' regular satisfactory service can be allowed higher scale of Rs. 3000-4500. The aforesaid averment has not been denied in the rejoinder-affidavit and the petitioners on the other hand have stated that para 16 of the counter affidavit has no relevance to the issue in question. Again in para 17 of the counter affidavit, the decision of the respondents has been referred that the secretaries grade III class II in the pay scale of Rs. 1400-2600 and secretaries Grade III Class III in pay scale of Rs. 1350-2200 have been merged as secretaries Grade III Class II in the scale of Rs. 1650-2900 with effect from 1.10.1995. In para 18 of the counter affidavit it is stated that the aforesaid resolution was further amended vide order dated 4.12.1995 and the pay scale of Rs. 1640-2900 has. been allowed to all the secretaries Grade III Class II w.e.f. 1.1.1986. The petitioners have not disputed the aforesaid averments contained In paras 17 and 18 of the counter-affidavit.
45. In paras 21 to 28 of the counter affidavit various distinctions and reasons in respect of different Grade have been stated. It would be appropriate to reproduce paras 21 to 28 of the counter affidavit-
21. that the petitioners were wonting as class III Grade III Secretaries and their pay stale was Rs. 1640-2900. The appointment of class I secretary was 100% by promotion, secretary class grade II are appointed 50% by promotion and 50% by direct recruitment and the appointment of class III Grade III secretaries is 100% by direct requitment,
22. that the duties, functions and power of secretaries are provided under Section 24 and the rules framed thereunder, merely because the duties are similar hey would not be entitled to highest scale of the secretary in the name of equal pay for equal work. The Board has passed the resolution that Mandi Samities having income more than Rs. 2 Crores there would be more than one secretary and the senior secretary would be the executive officer. Therefore, this would not entitle the petitioners to get pay scale of secretary Grade I. The qualifications for the post of Secretaries are also not the same.
23. That earlier, prior to amendment in the Regulations, 1984 the classification of Mandis was on the basis of their income and grades and post of the secretaries were with reference to the classification of Mandis, and thereafter the grades and posts of the secretaries were delinked with the classification of Mandis in order to provide further promotional avenues and other exigencies. Six posts were duly approved by the 58 Board's meeting dated 10.1.91. These six posts were to be filled by promotion amongst the next below cadre.
24. that since those six new posts in class 1 in the pay scale of Rs. 3000-4500 were created, therefore suitable appointments were made under Regulation No. 4 (1) of 1984. It is further submitted that due to aforesaid amendment in regulation No. 4 (1) of 1984, some consequential amendments were to be made, therefore, these amendments were also passed with pay scale of each category of the post of secretaries which were duly approved in the 62th Board's meeting.
25. that since the six posts were created, therefore suitable candidates were considered as per seniority list and after considering, the five persons were promoted from Class II to Class I in the pay scale of Rs. 3000-4500.
26. that before the Regulations of 1991 the highest scale of Secretaries under Regulation 4 was Rs. 2200-4000 and by amendment of 1991 six new posts of secretaries were created in the new pay scale of Rs. 3000-4500 which were designated as Secretary I and previous Secretary classes I, II and III were redesignated as Secretaries Class II, HI and IV. Before amendment there were four classes and after amendment there are five classes of the Secretaries. Secretary class III has further been bifurcated in grades I, II and III with different pay scales. Now after 1.5.1991 the scales of different categories of the secretaries are as under:
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i Secretary Class I 3000-4500 ----------------------------------------------------------------------- ii Secretary Class II 2200-4000 ----------------------------------------------------------------------- iii Secretary Class III Grade I 2000-3500 Grade II 1400-2600*] merged with scale Grade III 1350-2200*] of 1640-2900 * 1640-2900 -----------------------------------------------------------------------
27. that it may be slated that the Board has determined sanctioned strength of all the classes of the Secretaries Strength of class I secretaries is six, strength of class II is 24, strength of class Grade I is 54, strength of class II Grade II is 80 and strength of Grade III is 98
28. that the mode of recruitment, selection qualification, experience etc are different fur different categories of the secetaries: Therefore, alt the secretaries cannot be placed in one scale and that too of Rs. 3000-4500 which is the highest scale of the secretaries
46. In rejoinder affidavit the averments of para 21 of the counter affidavit have been said to be irrelevant while the averments of para 22 have not been denied but it has been contended that there is no rational basis for classification and all the secretaries are discharging the same duties. It Is also said that In no Market committee there is more than one secretary and anyone Secretary incur the entire responsibility of the Market Committee, were ever they are posted, irrespective of quantum of work and income of the Committee. It is also stated that educational qualification of the post is Graduate and there is no difference. The averments of paras 23,24 and 25 of the counter affidavit have however, been denied in para 16 of the rejoinder affidavit stating therein that there is no rule and regulation in respect of the market committee. However, the averments of paras 26,27 and 28 of the counter affidavit have not been denied in para 17 of the rejoinder affidavit, but it is stated that these averments would not improve the case of the respondents.
47. The entire case set up by the petitioners in order to claim the pay scale applicable to secretary Class I rests solely on the contention that the duties, responsibilities and functions of all the secretaries of the Mandi samities are same. However, it ignores the fact that in order to avoid stagnation in service, to provide further avenues of promotion with higher grade, if different pay scale is prescribed based on length of service, qualification, source of recruitment, mode of recruitment etc. such classification has been upheld in a catena of cases, some of which have been discussed hereinabove and in such circumstances, the classification of the secretaries under Regulation 4 of Regulations 1984 cannot be said to be arbitrary and discriminatory. The petitioners have relied heavily upon earlier Division Bench Judgment of this Court in Shahjade (Supra). A perusal of the aforesaid judgment would show that Shahzade was initially an employee of Agriculture marketing Department and was working on deputation in the Mandi samiti in scale of Rs. 400-615. After creation of Krishi Utpadan Mandi Samiti Centralized Services, he alongwith some other became member of centralized services on the post of secretary. According to his post, status and pay scale etc, In parent department he was absorbed as secretary Grade II in the cadre of secretaries. With the revision of pay scale Shahzade was upgraded as Secretary Grade III Class II in the pay scale of Rs. 1640-2900. He was the senior most Secretarry in the department and this fact was not disputed. It is apparent from the operative part of the aforesaid judgment which is reproduced as under:
It is not denied by the U.P. Krishi Utpadan Mandi Samiti that the petitioner is the senior most sachiv in the department and there is no difference in the functions duties and powers of the Sachivs in different Mandi Samitis. It is also not disputed by the Mandi Samin that any Sachiv can be posed in any Mandi Samiti, In the Centralized Service Rules, no pay scales have been provided to any category of the Secretaries in the Mandi Samiti. The classification of four categories of Sachiv by order dated 25.1.85 is for various Mandi Samities but has no effect on the powers, duties and functions and other conditions. Hence there is no reason to deny the pay scale of Rs. 3000-4500 to the petitioner.
48. The hierarchy of the secretaries has been specified by the statutory regulation and different pay scales have been prescribed, considering the status, difference in qualification, mode of recruitment and other relevant factors. From the judgment of Division Bench relied upon by learned Counsel for the petitioner, it appears that the classification considered by the Court was pursuant to the order dated 25.1.1985 and the statutory provisions were not taken into account. It is also no doubt true that earlier the classification of the Secretaries was with respect to the category of Mandi Samitis, namely Class A, B, C and 0, but classification of Mandi Samitis has been done away vide 1991 amendment but the classification of the Secretaries has been maintained. Much arguments have been advanced on the ground that once all the Mandi Samitis have been placed in the same category, then classification of Secretaries should also ought to have been done away, a further continuation of this classification is illusory. This argument ignores the fact that prior to 1991 amendment Section 23 (2) provided that each Mandi Samiti shall have one Secretary and such other officers as may be considered necessary. However, by virtue of U.P. Act 10 of 1991 which came into effect from 1.9.90, now there can be more than one number of Secretary in one Mandi Samiti and proviso to Section 24 which was also amended in the year 1991, empowers the Director to nominate one of the Secretaries as Chief Executive Officer of the Mandi Samit where more than one Secretaries are posted in Committee. This amendment, therefore, contemplates that in a Mandi Samiti where the quantum of work etc. is much more, considering the requirement, more than one Secretaries may be posted and in such case the Director can nominate one Secretary as Chief Executive Officer. We have no manner of doubt and anything otherwise, has also not been placed before us that wherever such contingency would arise the Secretary working in high grade would have to be nominated as Chief Executive Officer in the Mandi Samiti. In fact this is also borne out from the various averments In the counter-affidavit. This amendment and its effect has also not brought to the notice of this Court in the case of Shajade (Supra) and therefore, it cannot be said that the aforesaid judgment as a general law is applicable to all the Secretaries of the Mandi Samitis entitling for highest scale of Rs. 3000-4500 ignoring the classification and hierarchy of the Secretaries under the Regulation.
49. Besides, neither validity of Regulation was challenged in the aforesaid case nor this Court had any occasion to consider the provisions pertaining to mode and method of recruitment etc.. On the facts and circumstances and the pleadings of the aforesaid case, this Court finds that Shahjade was the senior most secretary in his cadre and therefore, he should not have been placed in lower pay scale. It is not the case in hand. The petitioners have nowhere stated that they are senior most secretaries and are being discriminated denying posting in higher scale. The respondents have clearly stated that on the basis of merit and seniority etc. the various secretaries have been placed In different pay scales. Therefore, in our view the aforesaid judgment would not be applicable to the present case.
50. Although as discussed above, the case of Shahjade (Supra) was decided on the facts and circumstances of the aforesaid case and therefore is clearly distinguishable, however, any other view would render the aforesaid judgment per incuriam inasmuch as the statutory rule and regulations, amendment in the Act as well as the exposition of law in catena of cases, referred to above has not been noticed by this Court and it cannot thus be said to be a binding precedent. Instead of burdening this judgment on the doctrine of per incuriam, it would be useful to refer a recent Division Bench judgment of this Court in J.K. Construction Engineers v. Union of India Allahabad daily Judgment 471, has held as under-
The doctrine of per incuriam is applicable where by inadvertence a binding precedent or relevant provisions of the Statute have not been noticed by the Court.
51. Similar view has been taken by another Bench consisting of one of us (Hon. V.M. Sahai, J) in Brahma Prakash v. State of U.P. and Ors. 2006 (2) ESC 1017. In para 40 of the Judgment this Court held as under-
Thus in view of aforesaid discussion, it is clear that while rendering the decision in Radha Krishna Gupta's case earlier Division Bench of this Court with all respect did neither ascertain the ratio of decisions referred in the judgment, nor discussed, as to how the factual situation fits in with the fad and situation of the decision on which reliance was placed. Contrary to it the decision of Hon'ble Apex Court which requires consideration of various factors in this regard, referred herein before in our judgment has been completely ignored by the Division Bench, therefore, being a decision given per incuriam, cannot be held to be binding authority under law.
52. In the judgments referred to above, the aforesaid doctrine of per incuriam has been discussed in detail and it has been held that a judgment per incuriam does not lay down a binding precedent.
53. We thus, are of the considered opinion that Regulation 4 of Regulations 1984 is neither arbitrary nor discriminatory, therefore, it cannot be said to be ultra-vires of the provision of the Act of 1964 or Articles 14 and 16 of the Constitution of India.
54. In the result, no relief can be granted as sought by the petitioners. The writ petition is accordingly dismissed without any order as to costs.