Hon'ble Dr. Kaushal Jayendra Thaker, J.
1. Heard learned counsels for parties and perused the record.
2. The grievance of petitioner is that pursuant to same advertisement published by Chhatrapati Sahu Ji Maharaj University, Kanpur Nagar (hereinafter referred to as "University") advertising same nature of posts in the same department, petitioner and another person, namely, Dr. Varsha Gupta, were appointed as Lecturer (Biotechnology). Still respondent-University has discriminated petitioner by appointing on a consolidated salary of Rs. 9000/- per month, while Dr. Varsha Gupta simultaneously has been given salary in regular pay scale of Rs. 8000-13,500/-.
3. An advertisement was published by University (copy whereof is Annexure-2 to writ petition) which advertised two vacancies on the post of Lecturer (Biotechnology and Environmental Science) in Institute of Bio-Science and Biotechnology . Selection Committee selected petitioner and one Dr. Varsha Gupta for the post of Lecturer (Biotechnology) in the Institute of Bio-Science and Biotechnology (SFS). Both were issued appointment letters on the same date, i.e., 03.04.2006 but petitioner's appointment has been made on the post of Lecturer (Biotechnology) on a consolidated salary of Rs. 9000/- while Dr. Varsha Gupta has been appointed as Lecturer (Biotechnology) in regular pay scale of 8000-13,500/-. All other terms and conditions of appointment letters are same as is evident from Annexure-3, copy of appointment letter of petitioner, and, Annexure-5, which is copy of appointment letter of Dr. Varsha Gupta.
4. Grievance of petitioner is that there is no justification for making discrimination in the matter of salary, when both were appointed pursuant to same advertisement on the post of Lecturer (Biotechnology) and this is patently arbitrary, illegal and violative of Articles 14 and 16(1) of the Constitution of India.
5. Respondents 2 to 4 have filed counter affidavit and in para 17 thereof, it is said that petitioner is a highly qualified and educated person and has been appointed on consolidated salary of Rs. 9000/-. With respect to distinction between salary of petitioner and Dr. Varsha Gupta, no reason has been assigned in the entire counter affidavit and respondents have kept conspicuous silence on this aspect.
6. The only objection raised by learned counsel for University is that appointment was made in 2006 and after appointment, petitioner worked for three years. This writ petition has been filed after almost three years, and, therefore, petitioner is not entitled for any relief.
7. However, we find no force in the above objection raised on behalf of respondent-2. Disparity in the matter of pay scale has continued from month to month and provides continuous cause of action. If a petitioner approaches a Court with delay in a case where cause of action is continuous, he may not be given relief for the past period treating him to be guilty of laches, but if he is being discriminated, Court may grant relief prospectively.
8. In the present matter, it is a clear case of denial of the principle of "equal pay for equal work" inasmuch same posts in the same Department for discharging same duties in the same recruitment have been filled in. While petitioner has been appointed as Lecturer (Biotechnology) on consolidated salary of Rs. 9000/-, another candidate appointed as Lecturer (Biotechnology) has been placed in regular pay scale of Rs. 8000-13,500/-. Neither in respect to the duties nor performance nor responsibilities nor otherwise, any distinction, whatsoever, has been pointed out or pleaded by respondent-University in respect to petitioner vis-a-vis Dr. Varsha Gupta who both have been appointed on the same post, i.e., Lecturer (Biotechnology) after undergoing same process of selection/recruitment and same criteria. Even it is admitted by respondent-University that petitioner is highly qualified and educated person. We find it difficult as to how and why respondent-University in such circumstances can discriminate petitioner vis-a-vis other similarly placed persons in the matter of salary/wages. Principle of equal pay for equal work is well recognized and in the past 30 years and more it has been reiterated time and again by the Courts that if in all other aspects, duties, responsibilities, obligations etc. two persons are similarly placed performing same duties, they cannot be denied equal pay and any otherwise treatment would amount to treating equals as un-equals and shall violate fundamental right of equality enshrined under Article 14 and 16 of Constitution of India.
9. In Randhir Singh v. Union of India and Ors., (1982) 1 SCC 618, Apex Court considering 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 Preamble and Article 39(d) of the Constitution, Apex Court held that 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 different scales of pay do identical work under the same employer.
10. In R.D. Gupta and Ors. v. Lt. Governor, Delhi Administration and Ors. (1987) 3 SCC 505, the Apex Court applying principle of equal pay for equal work, in para 20 of the judgment, considered correctness of defence taken by employer justifying non application of 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." (para 20)
11. In Jaipal and Ors. v. State of Haryana and Ors., (1988) 3 SCC 354, the Apex Court held:
"The doctrine of equal work equal pay would apply on the premise of similar work, but 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." (para 6)
12. In Grih Kalyan Kendra Workers' Union v. Union of India and Ors. JT 1991 (1) SC 60, it was observed:
"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." (para 7) (emphasis added)
13. In State of Orissa and Ors. v. Balaram Sahu and Ors. (2003) 1 SCC 250 : 2003 (1) AWC 273 (SC), 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." (para 11)
14. In State Bank of India and Anr. v. M.R. Ganesh Babu and Ors. (2002) 4 SCC 556, the 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."
15. In Deb Narayan Shyam and others Vs. State of West Bengal and others, 2005(2) SCC 286, the Court summarized as to when doctrine of equal pay for equal work would apply in the light of exposition of law laid down in catena of its earlier decisions and said:
"Large number of decisions have been cited before us with regard to the principle of 'equal pay for equal work' by both sides. We need not deal with the said decisions to overburden this judgment. Suffice it to say that the principle is settled that if the two categories of posts perform the same duties and function and carry the same qualification, then there should not be any distinction in pay scale between the two categories of posts similarly situated. But when they are different and perform different duties and qualifications for recruitment being different, then they cannot be said to be equated so as to qualify for equal pay for equal work."
16. In State of Madhya Pradesh and others Vs. Ramesh Chandra Bajpai, 2009(11) SCALE 619 the Court said that it is well settled that the doctrine of equal pay for equal work can be invoked only when the employees are similarly situated. Similarity in designation or nature or equation of work is not determinative for equality in the matter of pay scales. The Court has to consider the factors like the source and mode of recruitment/appointment, qualifications, nature of work, the value thereof, responsibility, reliability, experience, confidentiality, functional need, etc. In other words the equality clause can be invoked in the matter of pay scale only when there is a whole sale identity between the two posts.
17. In State of Madhya Pradesh and Ors. Vs. Ramesh Chandra Bajpai, 2009(13) SCC 635, the Court said that doctrine of equal pay for equal work can be invoked only when the employees are similarly situated and that similarity of the designation or nature or quantum of work is not determinative of equality in the matter of pay scales and that the Court has to consider several factors and only when there was wholesale identity between the holders of two posts, equality clause can be invoked and not otherwise.
18. In A.K.Behra Vs. Union of India & Anr., JT 2010 (5) SC 290, the Court, in paras 84 and 85, said:
"84. The principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of differences of circumstances. It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed.
85. The law can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognize even degree of evil, but the classification should never be arbitrary, artificial or evasive."
19. Looking to the entire dispute in the case in hand from various determining factors enumerated in the above authorities, we find no reason to discriminate petitioner vis-a-vis another incumbent appointed on the same post, i.e., Lecturer (Biotechnology) pursuant to the same advertisement, same recruitment process, same criteria and same selection etc. particularly when none has been pointed out by respondent-University in the counter affidavit.
20. Ex-facie, therefore, we have no hesitation in holding that respondent-University has acted illegally in discriminating petitioner vis-a-vis another incumbent appointed on the post of Lecturer (Biotechnology) in the matter of pay by providing a consolidated salary of 9000/- per month to petitioner while another counterpart, Dr. Varsha Gupta, has been appointed in regular pay scale of Rs. 8000 to 13,500/-. In our view, both are entitled to be treated alike and should have been given same salary.
21. The writ petition is allowed accordingly. Respondents are directed to pay salary to petitioner in regular pay scale applicable to the post of Lecturer (Biotechnology) but no arrears of salary shall be paid to petitioner from the date of his appointment till the date of filing this writ petition which has been filed in November' 2009. Benefit of salary in regular pay scale of Rs. 8000-13,500/- and arrears shall be made applicable to petitioner from the date of filing of this writ petition. However, for the purpose of increment, pay fixation and other benefits etc. regular pay scale shall be treated to be applicable to petitioner from the date of his appointment.
22. Petitioner shall also be entitled to cost which we quantify to Rs. 25,000/- against respondent-2.
Dt. 27.09.2016 PS