The petitioner is a Registered Trust under the Bombay Public Trusts Act and established in the year 1949 having Registration No.E-73 dated 29th October, 1952. The petitioner-Trust runs four institutions, namely, Boys Observation Home, Bal Kalyan Kutir, Balika Kalyan Kutir and Palak Mata Pita ni Yojna.
2. According to the petitioner, the Trust maintains and runs the Boys Observation Home for the purpose of care and protection of Juvenile offenders and the Observation Home is recognized by the Government of Gujarat through its Social Welfare Department and, therefore, a relief is claimed for issuance of an appropriate writ, order or direction directing the respondent to give grant-in-aid to the petitioner-Trust for giving benefits like medical allowance, leave travel concession, uniform washing allowance, leave encashment, gratuity, bonus, pension, etc., and other allowance which is granted to the employees of the observation homes/remand homes run by the Government. In short, parity is claimed by the petitioner-Trust to confer all the benefits pertaining to the service conditions which are being conferred to the employees of the remand homes run by the Government. It is also submitted that the petitioner-Trust also runs similar nature of charitable activities and, therefore, there is no justification for the State Government to deprive similar benefits to the employees of the petitioner-Trust.
3. Learned counsel for the petitioner submits that this Court, by order dated 14th June, 2006 in Special Civil Application No.3570 of 1993, directed the State Government to confer certain benefits to the petitioners of those petitions and release grant-in-aid in their favour for the benefits like medical allowance, leave travel concession, uniform, washing allowance, leave encashment, festival and food allowance and all other allowances as granted to the employees of observation homes/remand homes run by the Government along with the benefits like, bonus, pension, gratuity and other similar benefits which are granted to the employees of observation homes/remand homes run by the Government. It is submitted that the above decision rendered by the learned Single Judge of this Court, being in identical subject matter, is binding to this Court. She has also relied on the order dated 25th February, 2008 passed by the learned Single Judge of this Court in Special Civil Application No.20406 of 2006 with Special Civil Application No.20405 of 2006 and submitted that, in the above cases also, considering the fact that the State Government is the controlling authority and the employees of the petitioner-Trust were discharging similar duties and grant may be released for payment of salary equal to what was paid to the employees of the remand home. Similar nature of directions were issued in the aforesaid decisions.
4. Another prayer is to challenge the order dated 19th May 2008, wherein, Rs.1,09,912/- is recovered from the amount of grant of Rs.1,35,424/- from the petitioner-Trust.
5. Learned counsel for the petitioner submits that the State has full control over the remand home in the matter of recruitment to dismissal of any employee. The statutory head of the Institution is a Superintendent appointed by the State, who is a Government Officer. The functions of the remand home and the entire staff of the remand home works under the instructions of the Head, namely, Superintendent, and also functions under the Juvenile Justice Act. The employees of the petitioner-Trust are entitled to the pay-scale given to the employees of remand home run by the Government. Reliance is placed on the Government Resolution dated 14.8.1984 that the Social Welfare Department extended benefits of grant-in-aid to the Institution of physically handicapped and, therefore, the petitioner-Trust also doing the charity work for the welfare of the children, deserves similar treatment and any denial of similar benefit amounts to violation of 'equality clause' and, therefore, it is in the interest of justice to exercise power under Article 226 of the Constitution of India.
5.1 It is lastly contended that the Social Defence Department of the State of Gujarat is having a direct control over the administration and the management of remand home and even in the matter of appointment also, the Institute has no authority to give any direct appointment until and unless a representative of Social Defence Department participates in the interview and such appointment is approved by the Social Defence Department. Therefore, the employees of the petitioner Trust are entitled to get equal pay for equal work available to the employees of the remand home run by the Department of Social Defence itself.
5.2 On the above basis, even claim is made that the employees of the petitioner Trust are entitled for pension, gratuity and other retiral dues at par with the employees of the State of Gujarat.
6. Having heard the learned counsel for the petitioner, when a question was raised, under what provision of the Statute or any Government Resolution, the petitioner-Trust is entitled to claim parity in the matter of pay-scale, allowance, gratuity, pension and retiral dues, it is submitted by the learned counsel for the petitioner that, since the employees of the petitioner-Trust are discharging similar duties and the nature of the work is also the same to that of the Government run remand homes, parity of pay-scale can be extended. No Rule or Regulation or any other statutory provision is pointed out for claiming parity of the above nature.
7. It is to be noted that in support of submissions, except Government Resolution dated 14.8.1984 pertaining to pension scheme to the employees of Physically Handicapped Institutions under the Directorate of Social Defence and oral judgment dated 14th June, 2006 rendered in Special Civil Application No.3570 of 1993 and another decision dated 25th February, 2008 in Special Civil Applications No.20406 of 2006 and 20405 of 2006, no other document or any relevant material is placed on record. What are the Rules for recruiting the employees in different cadre of the petitioner Trust and what emoluments are given to such employees is also not available. At the same time, what is the object of the Trust, as mentioned in the trust deed and/or any copy of such trust deed, is also not available. No material with regard to pay scale given to the employees of the remand home run by the State Government is found from the record of the case and, therefore, even a bare comparison about rules and regulations pertaining to the recruitment of the employees in the Trust and the Government, nature of duties to be performed on various posts etc. for considering the case of the petitioner on the basis of equal pay for equal work is not made available to this court.
7.1 So far as Annexure 'A' is concerned, it is the order dated 19th May, 2008 which refers to grant given from the contingency fund towards first instalment for the period beginning from March, 2008 to May, 2008 for the year 2008-2009 and establishes that salary and other expenses including maintenance is being paid from the contingency fund and not from the Consolidated Fund of India. Thus, some financial assistance rendered by the Department of Social Defence of State of Gujarat towards salary and maintenance grant of the employee cannot confer any right upon the employees of the petitioner Trust to claim parity in pay scale and/or towards retiral dues with that of employees of the remand home run by the Social Welfare Department of Government of Gujarat.
8. That, mere administrative or financial control of the State Authority cannot be said to be a pervasive control and merely because the petitioner-Trust is doing some charity work in the nature of maintaining a remand home for boys and running institutions like Bal Kalyan Kutir etc. no liability can be fastened upon the Government by issuing a direction to confer parity of pay-scale.
9. So far as the Government Resolution dated 14.8.1984 with regard to the pension scheme to the employees of the Physically Handicapped Institutions is concerned, after careful consideration, the said Resolution was passed by the State Government granting pension and other retiral benefits. By the above Resolution, the retiral benefits are made applicable to the employees of the Physically Handicapped Institutions to whom 100% grant-in-aid on expenditure of pay and allowances of employees is paid by the Social Defence Department. Hence, whether to confer certain benefits to a particular Institute considering its nature is exclusively within the domain of the executives and the public charitable trusts like the petitioner or any other non-governmental association, if they do some charity work, cannot claim parity on the ground of 'equality clause'.
10. The decisions rendered by the learned Single Judge of this Court, as referred to hereinabove, were based on consideration of discharge of similar duties by the employees of the public trust and that of the employees of the remand home run by the Government. However, according to this Court, in absence of any relevant material, discharge of similar duties by employees of 'X' or 'Y' Institute at par with the Institute run and managed by the State Government cannot be a ground for conferring parity. The benefits conferred upon the employees of the Institute run by the State Government cannot be extended to the employees of other institutions managed and run by the Public Charitable Trusts like the petitioner or the registered Societies on the basis of performing similar nature of duties. Not only that, the grant of parity in pay-scale is left to the wisdom of the experts and executives.
10.1 In the case of S.C. CHANDRA AND OTHERS VS. STATE OF JHARKHAND AND OTHERS, reported in [2007] 8 SCC Page 279, the Apex Court considered similar facts of employees of the school which was receiving financial assistance from the State authority. After considering earlier decisions of the Apex Court in the case of STATE OF HARYANA VS. TILAK RAJ reported in [2003] 6 SCC Page 123 where it was held that the principle of equal pay for equal work can only apply if there is complete and wholesale identity between the two groups. Even if the employees in the two groups are doing identical work, they cannot be granted equal pay if there is no complete and wholesale identity and pay scale can be different if the nature of jobs, responsibilities, experience, method of recruitment etc. are different. The Apex Court further referred to earlier decisions of STATE OF HARYANA VS. CHARANJIT SINGH reported in [2006] 9 SCC Page 321 and STATE OF U.P. VS. MINISTERIAL KARAMCHARI SANGH reported in [1998] 1 SCC Page 422 where the Apex Court observed that even if persons holding the same post are performing similar work but if the mode of recruitment, qualification, promotion etc. are different, it would be sufficient for fixing different pay scale. Then another decision of STATE OF HARYANA VS. JASMER SINGH reported in [1996] 11 SCC Page 77 where the Apex Court found that the principle of equal pay for equal work is not always easy to apply and there are inherent difficulties in comparing and evaluating the work of different persons in different organisations. Then, the Apex Court in para 33 of S.C. Chandra's case (supra) by referring to the decision of INDIAN DRUGS AND PHARMACEUTICALS LTD. VS. WORKMEN reported in [2007] 1 SCC Page 408 emphasised for judicial restraint by not interfering in executive action in granting pay scales which is purely an executive function.
10.2 Even in the case of UNION OF INDIA AND OTHERS VS. HIRANMOY SEN AND OTHERS, reported in [2008] 1 SCC 630, the Apex Court has reiterated the above principles of equal pay for equal work.
11. In view of the above, according to this Court, the decisions relied upon by the learned counsel for the petitioner, wherein, the decisions of the Apex Court were not considered at all, are not helpful to the case of the petitioner.
12. Thus, it is clear from the above verdicts of the Apex Court that granting pay scale to a class of employees is purely an executive function and in absence of relevant data and material about nature of recruitment rules/regulations, duties to be performed, no parity of pay scale or retiral dues can be extended to the employees of the petitioner Trust who only receive financial assistance towards grant-in-aid for salary and maintenance of the Trust from contingency fund. No case is made out for accepting the prayer, as prayed for in this petition.
13. So far as the recovery of grant is concerned, the order passed by the respondents cannot be said to be in any manner unjust, arbitrary, unreasonable or violative of Articles 14 and 16 of Constitution of India since it was towards dues of gratuity to be paid by the Trust. No other ground for assailing deduction of grant is raised.
14. Considering the above, this petition is rejected summarily.
( ANANT S. DAVE, J. ) (swamy)