JUDGMENT Tarun Agarwala, J.
1. The petitioner No. 1 was appointed as a Reader in the year 1996 and the petitioner No. 2 was appointed as a Reader in the year 1999 in the office of the District Consumer Forum II at Moradabad in the pay scale of Rs. 4000-100-6000. The petitioners' contends that 13 Readers, working in the District Consumer Forum, are getting the salary in the pay scale of Rs. 4500-7000 whereas the petitioners are being given the pay scale of Rs. 4000-6000. The petitioners have filed the present writ petition alleging that they are doing the same kind of work and therefore, are liable to be paid the same pay scale of Rs. 4500-7000 and the denial of this pay scale amounts to a hostile discrimination and is also against the principles of 'equal pay for equal work'. The petitioners therefore, prayed that a mandamus be issued to the respondents commanding them to pay the salary in the scale of Rs. 4500-7000 and also pay the arrears.
2. A counter affidavit has been filed by the respondents stating that on 5.2.1988, 13 posts of Reader were sanctioned in the District Consumer Forum in the pay scale of Rs. 470-735. On the basis of the recommendation of the Samta Samiti, the State Government issued a Government Order dated 12.12.1989 revising the pay scale of Rs. 470-735 to Rs. 1200-2040. By another Government Order dated 23.7.1997, the pay scale of Rs. 470-735 was revised to Rs. 1350-2000 in so far as its related to the 13 Readers and that the Readers appointed after the Government Order of 12.12.1989 were kept in the pay scale of Rs. 1200-2040. At the present moment, the pay scale of Rs. 1200-2040 has been revised to Rs. 4000-6000 and the pay scale of Rs. 1350-2200 has been revised to Rs. 4500-7000. The respondents submitted that the Government Order dated 23.7.1997 made it very clear that only the 13 Readers, who were initially appointed were only entitled to get the benefit of the pay scale of Rs. 1350-2200 and those who are appointed after the Government Order dated 12.12.1989 would not be entitled to this pay scale. Since the petitioners were appointed in the year 1996 and 1999 respectively, they were not entitled to be given the pay scale as claimed by them.
3. Heard Sri Ashok Khare, Senior Counsel assisted by Sri V.D. Chauhan and Sri N.K. Mishra, the learned counsel for the petitioners and the learned Standing Counsel for the respondents.
4. The learned Counsel for the petitioners submitted that the nature of work which the petitioners are performing is the same which the original 13 Readers are performing and therefore, the principle of equal pay for equal work should be adopted and that the petitioners should also be placed in the same pay scale. The learned counsel for the petitioners submitted that since the petitioners are performing the same kind of work and they hold the same degree of responsibilities, consequently giving a different pay scale was not only violative of Article 14 of the Constitution of India, but also amounted to a hostile discrimination.
5. The petitioners have invoked the principle of equal pay for equal work and contended that having regard to the nature of work and the responsibilities shouldered by them and taking into consideration the relevant facts, they are entitled to the same benefits as granted to the 13 Readers.
6. The principle of equal pay for equal work has been considered, explained and criticised in a number of decisions by the Supreme Court of India.
7. Article 39(d) of the Constitution provides 'equal pay for equal work for both men and women i.e. equal pay for equal work for everyone and as between the sexes. Even though this directive principle under the Constitution is not a fundamental right, nonetheless, is certainly a Constitutional goal and therefore, Article 39(d) of the Constitution has to be read alongwith the Articles 14 and 16 of the Constitution. Article 14 of the Constitution contemplates that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Article 16 of the Constitution declares that there shall be equality of opportunity to all the citizens in the matter relating to the employment or an appointment to any office under the State. The equality clause under Articles 14 and 16 of the Constitution enshrines the principle of equal pay for equal work.
8. In Randhir Singh v. Union of India and Ors. , the Supreme Court held-
" Construing Articles 14 and 16 in the light of the Preamble and Article 39(d), we are of the view that the principle ' 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."
9. The Supreme Court in the aforesaid case held that the drivers working in the Delhi Police Force were performing the same functions and duties like any other drivers in the service of the Delhi Administration and the Central Government and therefore entitled for the same pay scale and that the principle of equal pay for equal work was clearly applicable. The Supreme Court further held that the denial of the same pay scale was irrational.
10. In P.K. Ram Chandra Iyer v. Union of India, , the existing incumbent to the post, even though they were fulfilling the qualifications and the experience, were deprived of the revised pay scale, whereas the newly selected incumbent were given the revised scale, the Supreme Court held that the action of the respondents was arbitrary, discriminatory and violative of the principle of equal pay for equal work as enshrined under Articles 14, 16 and 39(d) of the Constitution and that the revised pay scale was liable to be given to all the incumbents.
11. In Bhagwan Sahai Carpenter v. Union of India and Anr.,, out of 15 trades in the skilled grade, six of these trades were given a higher pay scale, the Supreme Court held that the employees of the 15 trades in the skilled grade cannot be treated differently and that giving different pay scale was discriminatory and contrary to the equality clause envisaged under Articles 14 and 16 of the Constitution and the principle of equal pay for equal work. The Supreme Court issued a mandamus that all the employees in different trade in the skilled grade were liable to be treated equally.
12. In State of Haryana and Ors. v. Ram Chander and Ors., , the Supreme Court held that the teachers teaching students of XI and XII standard in Haryana Government vocational education institution and those teachers teaching student of XI and XII standard in Higher Secondary Institutions were entitled for the same pay scale on the principle of equal pay for equal work. The Supreme Court held that the work performed by the teachers in a vocational school and those performed by the teachers in a Secondary School was qualitatively and quantitatively the same and therefore, they were entitled for the same pay scale.
13. In State Bank of India and Anr. v. M.R. Ganesh Babu and Ors., , the Supreme Court held-
"The principle of equal pay for equal work has been considered and applied in many reported decisions of this Court. The principle has been adequately explained and crystallised 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 be judged by the mere volume of work; there may be equalitative 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 such 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."
14. In M.P. Rural Agriculture Extension Officers Association v. State of M.P. and Anr., , two different pay scales were provided in the same cadre on the basis of educational qualification even though the nature of work was the same and the posts were also interchangeable. The said classification was challenged which was rejected by the High Court. The Supreme Court while dismissing the., appeal held that despite the fact that the employees had been performing similar duties and functions and even though their posts were interchangeable, nonetheless, a valid classification was made on the basis of their educational qualifications and therefore the doctrine for equal pay for equal work was not applicable. The Supreme Court further held that Article 14 of the Constitution does not forbid a reasonable classification and that Article 14 forbids a class legislation but permits reasonable classification subject to the conditions that it was based on an intelligible differentia and that the differentia must have a rational relation to the object sought to be achieved. The Supreme Court held that the classification done by the State Government was not discriminatory in nature, inasmuch, as there was a reasonable classification based on the educational qualifications.
15. In view of the aforesaid, it is clear that the principle of equal pay for equal work would depend upon the nature of work done and that the same cannot be judged by the mere volume of work. If the responsibilities that carries with the post are different, then the same would make a difference. The differentiation in the pay scale of person holding the same post and performing similar work on the basis of the degree of responsibilities would be a valid differentiation. Difference of pay scale in the same cadre based on education qualification can be made a valid classification. However, while comparing and evaluating the work done by different persons either in the same department or in different department a reasonable classification can be made on intelligible criterion which has a rational nexus with the object of differentiation. In such a case, the differentiation would not amount to discrimination, but where two classes of employees perform identical duties with the same measure of responsibility and have the same qualification for the appointment on the said post, in that event, they would be entitled for equal pay and denial of equal pay would be violative of Articles 14 and 16 of the Constitution.
16. In Mewa Ram Kanojia v. All India Institute of Medical Science and Ors., held-
" While considering the question of application of principle of 'equal pay for equal work' it has to be borne in mind that it is open to the State to classify employees on the basis of qualifications, duties and responsibilities of the posts concerned. If the classification has reasonable nexus with the objective sought to be achieved, efficiency in the administration, the State would be justified in prescribing different pay scales but if the classification does not stand the test of reasonable nexus and the classification is founded on unreal and unreasonable basis it would be violative of Articles 14 and 16 of the Constitution. Equality must be among the equals. Unequal cannot claim equality."
17. In V. Markendeya and Ors. v. State of Andhra Pradesh and Ors., held-
" In view of the above discussion we are of the opinion that where two classes of employees perform identical or similar duties and carrying out the same functions with the same measure of responsibility having same academic qualifications, they would be entitled to equal pay. If the State denies them equality in pay, its action would be violative of Articles 14 and 16 of the Constitution and the court will strike down the discrimination and grant relief to the aggrieved employees. But before such relief is granted the court must consider and analyse the rationale behind the State action in prescribing two different scales of pay. If on an analysis of the relevant rules, orders, nature of duties, functions, measure of responsibility and educational qualifications required for the relevant posts, the court finds that the classification made by the State in giving different treatment to the two classes of employees is founded on rational basis having nexus with the objects sought to be achieved, the classification must be upheld. Principle of equal pay for equal work is applicable among equals, it cannot be applied to unequals. Relief to an aggrieved person seeking to enforce the principles of equal pay for equal work can be granted only after it is demonstrated before the court that invidious discrimination is practised by the State in prescribing two different scales for the two classes of employees without there being any reasonable classification for the same. If the aggrieved employees fail to demonstrate discrimination, the principle of equal pay for equal work cannot be enforced by court in abstract. The question what scale should be provided to a particular class of service must be left to the executive and only when discrimination is practised amongst the equals, the court should intervene to undo the wrong and to ensure equality among the similarly placed employees. The court however cannot prescribe equal scales of pay for different class of employees."
18. From the aforesaid, it is clear that Article 14 prohibits discriminatory legislation against an individual or against a class of individual. It does not forbid reasonable classification. In the light of the aforesaid, the plea for equal pay for equal work has to be analysed with reference to Articles 14 and 16 of the Constitution of India and the burden is upon the petitioners to establish their right to equal pay or the plea of discrimination, as the case may be.
19. The petitioners in their writ petition have only stated that 13 Readers are getting the salary in the grade of Rs. 4500-7000 and that the petitioners are getting the salary in the grade of Rs. 4000-6000 and therefore, on the principle of equal pay for equal work, they are entitled to be given the same pay scale. No details have been furnished as to how they are doing the same kind of work. The mere fact that they are working as Reader in the District Consumers Forum does not mean that they are performing the same kind of work and shoulder the same kind of responsibilities as that being performed by the 13 Readers. In my view, the foundation for equal pay for equal work has not been laid down by the petitioners in the writ petition.
20. On the other hand, the respondents justify their action in making a reasonable classification alleging that persons who were appointed as Reader prior to 1989 would be given a higher pay scale and those who were appointed as Readers after 1989 would be given a lower pay scale. The difference in the pay scale is only on this ground itself and, is not on the ground of volume of work or educational qualifications or qualitatively difference in quality of work and responsibilities. In my opinion, the classification made by the respondents in giving different cadre to the Readers is not based on any intelligible criterion nor does it have a rational nexus and in my opinion, such differentiation amounts to a hostile discrimination. It would have been a different scenario, if persons holding the same post and performing similar work had separate responsibilities or educational qualifications, but merely by making a differentiation on the ground that persons appointed prior to a particular date would be given a higher pay scale than that of a person appointed after the said date would be a clear case of hostile discrimination and violative of Articles 14 and 16 of the Constitution of India.
21. In D.S. Nakara and Ors. v. Union of India, , the Supreme Court granted pensionary benefits even to those employees who had retired before the revision of the pension scheme observing that the pensioners form a class as a whole and cannot be micro classified in an arbitrary and in a unreasonable manner. The Supreme Court held that the specified date dividing the pensioners between those who retired prior to the specified date and those who retired subsequent to that date was arbitrary as well as discriminatory. The classification was not based on any rational principle and therefore, the classification could not stand the test of Article 14 of the Constitution of India.
22. The Supreme Court held -
"Thus the fundamental principle is that Article 14 forbids class legislation but permits reasonable classification for the purpose of legislation which classification must satisfy the twin tests of classification being founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by the statute in question."
and again held-
"The artificial division stares into face and is unrelated to any principle and whatever principle, if there be any, has absolutely no nexus to the objects sought to be achieved by liberalising the pension scheme. In fact this arbitrary division has not only no nexus to the liberalised pension scheme but it is counter productive and runs counter to the whole gamut of pension scheme. The equal treatment guaranteed in Article 14 is wholly violated inasmuch as the pension rules being statutory in character, since the specified, date the rules accord differential and discriminatory treatment to equals in the matter of commutation of pension."
and further held-
"...The date of retirement is irrelevant. But the revised scheme would be operative from the date mentioned in the scheme and would bring under its umbrella all existing pensions and those who retired subsequent to that date."
23. The aforesaid principle squarely applies to the present facts and circumstances of the case. The classification made by the Government by its Government Order dated 23.7.97 was not based on any rational principle and the classification made, does not stand the test of reasonableness under Article 14 of the Constitution. Consequently, the Government Order dated 23.7.1997 in so far as its provides the grade of 1200-2040, which has now been revised to 4000-6000 for the Readers working in the District Consumer Forum is arbitrary and violative of Article 14 of the Constitution of India and to that extent, the said Government Order is quashed. The writ petition is allowed.
24. Since relevant details of the petitioners with regard to the qualifications and the work performed and the responsibilities which carries with the work is lacking in detail, consequently the matter is remitted to the respondents to consider the nature of the work performed by the petitioners and the responsibilities that carries with the post and if their qualifications, nature of the work and responsibilities is the same as that being performed by the 13 Readers, in that eventuality, the same pay scale would be given to the petitioners as that given to the 13 Readers. This exercise shall be done by the respondents within three months from the date of receiving a certified copy of this judgment.