Supreme Court of India
GOVERNMENT OF WEST BENGALversusTARUN K. ROY AND ORS.
- Citation
- 2003 INSC 638
- Decided
- 18 November 2003
- Disposal
- Appeal(s) allowed
- Bench
- V N KHARE
Holding
The doctrine of equal pay for equal work does not apply where a reasonable classification based on educational qualifications exists, and the two posts are not similarly placed.
Summary
The Supreme Court heard a civil appeal filed by the Government of West Bengal against Tarun K. Roy and others, who were operators‑cum‑mechanics in the State Irrigation Department seeking the same pay scale as Sub‑Assistant Engineers on the ground of "equal pay for equal work". The petitioners argued that the two posts performed the same duties and that the doctrine under Articles 14 and 39(d) of the Constitution should compel parity, while the State contended that the posts were technically distinct and that educational qualifications constituted a reasonable classification. The Court held that the doctrine of equal pay for equal work does not apply where a valid classification based on higher educational qualifications exists, and that the two categories of employees are not similarly placed. It further ruled that the earlier High Court judgment could not be treated as a binding precedent because it was subject to a pending appeal, and that the petitioners’ delay and laches barred relief. Consequently, the appeal was allowed and the impugned judgment set aside.
Issues considered
- The applicability of the doctrine of "equal pay for equal work" to operators‑cum‑mechanics who lack a diploma in engineering.
- Whether educational qualification can constitute a reasonable classification under Article 14.
- If the High Court's earlier order in Nazimuddin's case is a binding precedent for the present case.
- Whether the petitioners' delay in filing the writ petitions bars them from relief under the doctrine of laches.
Legislation cited
- Constitution of Indias. Article 14, s. Article 141, s. Article 142, s. Article 226, s. Article 39(d)
Subjects
equal pay for equal workArticle 14educational qualification classificationservice lawpay scale disparityWest Bengal Service Rulesdelay and lachesjudicial precedentArticle 142
Judgment
A GOVERNMENT OF WEST BENGAL
v.
TARUN K. ROY AND ORS.
NOVEMBER 18, 2003
B
[V.N. KHARE, CJ., S.B. SINHA AND DR. AR. LAKSHMANAN, JI.]
Service Law :
C W.B. Services (Revision of Pay and Allowances) Rules, 1970: "Equal
pay for equal work"-Doctrine of-Applicability-Two categories of posts
viz., Sub-Assistant Engineer and Operator-cum-Mechanic existed in State
Irrigation Department-Sub-Assistant Engineers were Diploma holders in
Engineering whereas Operators-cum-Mechanics were Matriculates with
certificate from JTJ-Operators-cum-Mechanics claimed nomenclature ofSub-
D Assistant Engineers and pay scale prescribed therefor on the basis of 'equal
pay for equal work '-Validity of-Held: Art. 14 read with Art. 39(d) envisaged
applicability of the doctrine of 'equal pay for equal work '-But such doctrine
not automatically applicable merely on the basis of same nature of work
irrespective of educational qualifications, source of recruitment or other
E relevant considerations-Persons with higher educational qualifications
could be considered as a separate class and treated differently----Further,
parity in duties of these two categories of employment not substantiated--
Moreover, it was for the executive to lay down the prescribed qualification
for a post and not for the courts-Hence, claim of such Operators-cum-
mechanics rejected-Constitution of India, 1950, Arts. 14 and 39(d).
F
Constitution of India, 1950:
Article 142-Re/ief-Orant of-Held: A relief in violation of statutory
rules could not be granted.
G Article 226-Writ petition-Maintainability of-Delay and Laches-
C/aim for parity in pay scales on the basis of 'equal pay for equal work'-
First two writ petitions filed in 1976-But certain similarly affected employees
filed writ petition 16 years later-Jn between not only these two writ petitions
decided one way or the other but also even the matter was considered by
Supreme Court-Held: Jn such circumstances, the affected employees not
H 656
GOVERNMENT OF WEST BENGAL v. TAR UN K. ROY 657
entitled to any relief on the ground of gross delay and !aches. A
Article 141-Precedent-Binding nature of-Held: Judicial discipline
demanded that court followed its earlier binding precedent-A decision of
Single Judge binding on another Single Judge of the same High Court-
Practice and Procedure.
B
Doctrines:
Doctrine of "Equal pay for equal work".
In the Irrigation Department of the appellant-State there existed, inter
alia, two posts - Operator-cum-Mechanic and Sub-Assistant Engineer. The C
Sub-Assistant Engineers were directly recruited through Public Service
Commission whereas no such procedure was laid down for appointment in
the post of Operator-cum-Mechanic. The Sub-Assistant Engineers were
required to possess the qualification of Diploma in Engineering.
Some Operators-cum-Mechanics who possessed the qualification of D
Diploma in Engineering claimed the nomenclature of Sub-Assistant Engineers
and the scale of pay prescribed therefor. This claim was upheld by this Court
in Debdas Kumar's case.
Another group of Operators-cum-Mechanics who did not possess
Diploma in Engineering and were mere graduates or Matriculates, relying E
on the doctrine of 'equal pay for equal work' filed a similar claim before the
High Court in Nemai Chand Ghosh 's case. The said claim was rejected by a
Single Judge and appeal therefrom was pending before the Division Bench of
the High Court.
F
Subsequently, in Nazimuddin 's case, a Single Judge allowed the writ
petitions despite the fact that the writ petitioners therein were not diploma
holders in Engineering, subject to the result of the appeal in Nemai Chand
Ghosh 's case.
Thereafter, the respondents filed a writ petition before the High Court G
seeking similar relief. The respondents were Science graduates and did not
hold diploma in Engineering. Following the Nazimuddin 's case a Single Judge
allowed the writ petition. The Division Bench upheld this decision on the
ground that the judgment in Nazimuddin 's case had become final since it was
not challenged. Hence the appeal.
H
658 SUPREME COURT REPORTS [2003] SUPP. 5 S.C.R.
A On behalf of the appellant, it was contended that the order passed in
Nazimuddin 's case could no.t be treated as a precedent as the said judgment
was subject to the order passed in Nemai Chand Ghosh 's case; and that, in
any event, non-filing of an appeal could not be a ground to pass the same order
without considering the merit of the matter.
B On behalf of the respondent, it was contended that since the respondents
were performing the same duties as were being performed by the Sub-
Assistant Engineers they were entitled to the same relief; and that this Court
in exercise of its equity jurisdiction could grant appropriate relief confining
the same to the respondents.
c Allowing the appeal, the Court
HELD : 1. Article 14 read with Article 39(d) of the Constitution of India
envisages the doctrine of equal pay for equal work. The said doctrine, however,
does not contemplate that only because the nature of the work is same,
D irrespective of their source of recruitment or other relevant considerations,
the said doctrine would be automatically applied. The holders of higher
educational qualifications can be treated as a separate class. Such
classification, it is trite, is reasonable. Employees performing the similar job
but having different educational qualification can, thus, be treated differently.
(666-B-CI
E
State ofJammu and Kashmir v. Triloki Nath Khosa, AIR (1974) SC 1,
relied on.
2.1. The posts of Operator-cum-mechanic and Sub-Assistant Engineer
are technical posts. (666-E)
F
2.2. The Court, in exercise of its power of judicial review, cannot hold
that matriculates with a certificate from ITls or simply graduates in science
would be entitled to hold posts of Sub-Assistant Engineers. It is for the
executive to lay down the qualification required for holding a post and not for
the courts. [666-G)
G
State of W.B. v. Debdas Kumar, (19911 Supp. 1 SCC 138, held
inapplicable.
3. The question of violation of Article 14 of the Constitution of India on
the part of the State would arise only if the persons are similarly placed.
H Equality clause contained in Article 14, in other words, will have no
GOVERNMENT OF WEST BENGAL v. TARUN K. ROY 659
application where the persons are not similarly situated or when there is a A
valid classification based on a reasonable differentia. Doctrine of equal pay
for equal work, therefore, is not attracted in the instant case. (667-B-CI
4.1. There is nothing on record to show that the duties and functions of
the two categories of employment are at par, and, thus, parity in pay-scale is
not permissible. (667-D( B
4.2. The very fact that from the very beginning two different pay scales
were being maintained is itself suggestive of the fact that the duties and
functions are also different In fact, it is not disputed that of the two posts the
post of Sub-Assistant Engineer is a higher post. (667-D-El
c
Chairman-cum-Managing Director, National Textiles Corporation Ltd.
v. N.TC. (WBAB & 0) Ltd Employees Union, (2003) 8 SCALE 613 and Orissa
University of Agriculture & Technology v. Manoj K. Mohanty, JT (2003) 4
SC 104, relied on.
State of Haryana v. Jasmer Singh, (1996) ll SCC 77 and State Bank of D
India v. MR. Ganesh Babu, (2002( 4 SCC 556, referred to.
5. In a case of this nature, the courts are required to determine the
issue having regard to larger public interest. It is one thing to say that in a
given case the High Court may not exercise an equitable jurisdiction under E
Article 226 or this Court under Article 136 of the Constitution of India, but
it is another thing to say that courts shall grant a relief to a party only on the
ground that a contention which is otherwise valid would not be raised on the
ground that the same was not done in earlier proceedings. (668-G-H; 669-A(
6.1. The appellant has explained under what circumstances the order of F
the Single Judge had to be obeyed. If rule of law is to be followed, judicial
discipline demands that the court follows its earlier binding precedent. The
matter is pending in appeal. An order passed to the contrary by another Single
Judge in ignorance of the earlier binding precedent by itself would not
constitute a binding precedent and may be held to have been rendered per G
incuriam. (669-A-B)
6.2. Furthermore, in the order the Single Judge categorically directed
that the same would be subject to any order that may be passed in the appeal,
which is pending before the Division Bench from the judgment and order
passed in Nemai Chand Ghosh 's case. The said order, therefore, did not attain H
660 SUPREME COURT REPORTS [2003] SUPP. 5 S.C.R.
A finality. In such a situation, the Division Bench manifestly erred in refusing
to consider the contentions of the appellant on their own merit. (669-C-DI
State of Maharashtra v. Digambar, (1995( 4 SCC 683 and State ofBihar
v. Ramdeo Yadav, (1996) 3 SCC 493, relied on.
B State of W.B. v. Debdas Kumar, (19911 I Supp. I SCC 138, held
inapplicable.
Nemai Chand Ghosh v. State ofW.B., Matter No. 2564of1988, referred
to.
C 7. The respondents are merely graduates in science. They do not have
the requisite technical qualification. Only because they are graduates, they
cannot, claim equality with the holders of Diploma in Engineering. If any relief
is granted by this Court to the respondents on the aforementioned ground,
the same will be in contravention of the statutory rules. It is trite that this
Court even in exercise of its jurisdiction under Article 142 of the Constitution
D of India would not ordinarily grant such a relief, which would be in violation
of a statutory provision. [670-8-C)
Common Cause, A Registered Society v. Union of India, (1999) 6 SCC
667; MC. Mehta v. Kamal Nath, 12000) 6 SCC 213 and State of Punjab v.
E Rajesh Syal, (2002) 8 sec 158, relied on.
Supreme Court Bar Assn. v. Union ofIndia, (199814 SCC 409, referred
to.
8. The respondents are also not entitled to any relief on the ground of
F gross delay and laches on their part in filing the writ petition. The first two
writ petitions were filed in the year 1976 wherein the respondents approached
the High Court 16 years later. In between not only the two writ petitions had
been decided, one way or the other, but also even the matter had been considered
by this Court in Debdas Kumar's case. (671-A-BI
G State ofW.B. v. Debdas Kumar, (199111 Supp.1SCC138, referred to.
9. The other employees not being before this Court although they are
ventilating their grievances before appropriate courts of law no order should
be passed which would prejudice their cause. (671-B)
H Nazimuddin Ahmed v. State of W.B., C.R. No. 9167 (W)/1990 and Tarun
GOVERNMENT OF WEST BENGAL v. TAR UN K. ROY [S.B. SINHA, J.] 661
Kumar Roy v. State of WB., C.R. No. 8728 (W)/1991, referred to. A
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3527of1998.
From the Judgment and Order dated 3.12.97 of the Calcutta High Court
in F.M.A.T. No. 1505of1996.
B
B.P. Gupta, Rana Mukherjee and Siddharth Gautam for Goodwill Indeevar
for the Appellants.
M.N. Krishnamani, Abhiji Sengupta and T. Raja for the Respondents.
The Judgment of the Court was delivered by c
S.B. SINHA,. J. Applicability of the doctrine of 'equal pay for equal
work' is the question involved in this appeal which arises out of a judgment
and order dated 3rd December, 1997 passed by a Division Bench of the
Calcutta High Court in FMAT No. 1505/1996.
D
FACTUAL BACKGROUND;
In the Irrigation Department of the state of west Bengal inter alia there
existed two posts-operator-cum-Mechanic and Sub-Assistant Engineer. The
First pay commission of the State of west Bengal in its report dated 31.12.1969
recommended the following pay-scales relating thereto. E
Posts Pay scale recommended
Operator-cum-Mechanic Rs.200-250
Sub-Assistant Engineer Rs. 305-600 F
It is not in dispute that by reason of statutory rules the minimum
qualification required for recruitment for the said two posts were laid down
as under:
"operator-cum-Mechanic G
(a) Pass in School Final Examination or its equivalent;
(b) Pass in Certificate course in the trade of internal compustion
engine from !TI or Technical School recognized by the
H
662 tll SUPREME COURT REPORTS (2003] SUPP. 5 S.C.R.
A Government.
Sub-Assistant Engineer
(a) Pass in School Final Examination or its equivalent;
(b) Pass in Diploma Course in Engineering from any Government
B Polytechnic"
The Government of West Bengal framed The west Bengal Service
(Revision of Pay & Allowances) Rules, 1970 (hereinafter referred to as the
'ROPA Rules') whereby whereunder the pay scale for the post of operator-
cum-Mechanic was initially prescribed as Rs. 180-350 which was subsequently
C revised to Rs. 230-425 with effect from !st April, 1970. The pay-scale for the
post of Sub-Assistant Engineer, however, was prescribed at Rs. 300-600 with
higher initial start at Rs. 330 with effect from the same date. By a notification
No. 10303 F dated 19th November, 1974 in modification ofROPA Rules, 1970
it was laid down:
D "IV (i) Sub-Assistant Engineers having Engineering Degree shall have
an initial start in the existing scale of Rs. 300/- Rs. 600/- at the stage
of Rs. 360 p.m. They will also get the benefit of age relaxation for
direct recruitment either through the Public Service Commission or for
ad-hoc appointments.
E (ii) All Test Relief overseers and other Diploma holder Engineers will
henceforth be termed as Sub-Asstt. Engineers."
The Sub-Assistant Engineers, it is not disputed, are directly recruited
through Public Service commission whereas no such procedure is laid down
for appointment in the post of operator-Cum-Mechanic. It is not in dispute
F that some persons in the category of employees of operator-cum-Mechanic
who were possessing Diploma in Engineering claimed entitlement to the
nomenclature of the Sub-Assistant Engineer and the scale of pay prescribed
therefor by filing two writ petitions in Calcutta High Court. The matters
eventually came up to this court. A plea was taken in the said writ petitions
G by the appellants herein that the diploma holder engineers working as
Operators-Cum-Mechanic in the Irrigation Department were not entitled to the
s?id designation. The said plea was negatived by this court in its judgment
titled State of West Bengal and Ors. v. Debdas Kumar and Ors., [Reported
in [ 1991] Suppl. I SCC 138 holding:
H "15. It has been contended for the appellants that by construing the
GOVERNMENT OF WEST BENGAL v. TARUN K. ROY [S.B. SINHA, J.] 663
notification as including operators-cum-Mechanics in the lower time A
scale as Sub-Assistant-Engineer and giving them a higher scale, there
would be a division amongst the Operators-cum-Mechanics in the
matter of their pay scale and such an anomaly would not have been
contemplated by the rule makers. There is no force in this contention.
It is well settled that difference in pay of employees belonging to the B
same cadre post or educational qualification is constitutionally
valid and permissible and is not violative of Articles 14 and 16 of
the Constitution. The post of Sub-Assistant Engineer is a direct
recruitment post. It appears that the Division Bench assumed that the
post of Sub-Assistant Engineers were ultimately a promotional post
for the operators-cum-Mechanics through intennediary promotions in C
intennediary grades. This in incorrect. Under the Rules, the post of
Sub-Assistant Engineer is not at all a promotional post for any
categories of employees in the State, on the contrary, it is a direct
recruitment post. It is not contested that 17 other employees similarly
placed as the respondents herein were given the benefits of the said
amended notifications and were conferred both status of Sub-Assistant D
Engineers and also the pay scale thereof for the reason that they were
also diploma holder Engineers though they were not in the pay scale
of Rs. 300-600. This is a concurrent finding that these respondents
have been discriminated andi the State Government had acted
arbitrarily without any rationdt basis by conferring benefits of the E
notification to 17 other employees in other departments while denying
the said benefits to the said respondents in the Agriculture
Department.
[Emphasis Supplied]
F
Another group of Operators-cum-Mechanic who did not possess diploma
in engineering and were mere graduates or holding School Final Examination
filed a writ petition which was marked as matter No. 2564 of 1988 (Nemai
Chand Ghosh and Ors. v. State of West Bengal and Ors.,) claiming the higher
pay-scale of Rs. 300 Rs. 600 with higher initial start at Rs. 330 relying on the
doctrine of equal pay for equal work. The said writ petition was dismissed and G
appeal preferred thereagainst by the writ petitioners therein admittedly is still
pending for hearing before the Division Bench of the High Court.
A similar writ petition being C.R. No. 9167 (W)/1990 (Nazimuddin Ahmed
and Ors. v. State of West Bengal and Ors.) was, however, allowed by a
judgment and order dated 25th August, 1989 despite the fact that the writ H
664 SUPREME COURT REPORTS [2003] SUPP. 5 S.C.R.
A petitioners therein were not holders of diploma in engineering. The said
judgment is said to have been passed ex-parte and without noticing the
earlier judgment in Nemai Chand Ghosh (supra).
As allegedly the said judgment was not implemented, an application for
contempt of court was filed by the writ petitioners when the court's attention
B was drawn to the judgment of the earlier writ petition and its pendency before
the Division Bench, the learned single judge modified his order dated 25.8.1989
by an order dated I st October, 1991 directing the State to pay all benefits in
tenns of the earlier order dated 25.8.1989 with a rider that in the event the writ
petitioners in the appeal preferred against the judgment delivered in Nemai
C Chand Ghosh (supra) fails, the State would be entitled to recover the amount
by such easy instalments as would be decided by the authorities concerned.
With the aforementioned directions, rule issued in the contempt proceeding
was disposed of.
The respondents therein thereafter filed a writ petition which was marked
D as C.R. No. 8728 (W) of 1991 (Tarun Kumar Roy and Ors. v. State of West
Bengal and Ors.). Following the judgment dated 25.8.1989 passed in the case
of Nazimuddin Ahmed (supra) the said writ petition was allowed. The State
preferred an appeal thereagainst and by reason of the impugned judgment
the said appeal was dismissed holding that as no appeal had been preferred
against the order dated 25.8.1989 the same attained finality and, thus, the
E respondents herein became entitled to grant of similar relief holding:
"When the Diploma Holder Operator-cum-Mechanics got the above
benefits, those who were regularly appointed as Operator-cum-
Mechanics found that in their category of service those who were
having Diploma in Engineering, were placed in higher scale of pay.
F They moved this Court for equal pay for equal work which, as the
courts have held, is one of the facets of the right of equality before
law and equal protection of law as enshrined under Article 14 of the
Constitution of India. Since such Operator-cum-Mechanics who were
not having Diploma or Degree in Engineering and who were otherwise
G qualified to be appointed as operator-cum-Mechanics, got the relief as
aforementioned, the persons who were in the same category and were
left-out moved the court and the Learned Single Judge has granted
them the same relief as others pursuant to the order of the court in
C.R. No. 9167 (W) of 1980.
H There is some attempt made before us that the order passed by
GOVERNMENT OF WEST BENGAL v. TAR UN K. ROY [S.B. SINHA, J.] 665
the Ld. Single Judge in the contempt petition is enough for the A
appellants herein to revert the petitioners C.R. No. l 967(W)/l 980. This,
however, in our opinion, will not be possible unless the judgment in
the said case is reversed. In the absence of any appeal, the said
judgment has become final. A view contrary to the view in CR 9 l 67(W)/
1980, in the instant proceeding, shall place the petitioners in the B
instant proceeding at disadvantage as a class apart from others
similarity/similarly situated who were/are petitioners in C.R. 9167(W)/
1980."
SUBMISSIONS:
Mr. Bhaskar Gupta, learned senior counsel appearing on behalf of the C
appellant, inter alia would contend that the High Court committed a manifest
error in passing the impugned judgment insofar as it failed to take into
consideration that the order passed in the case of Nazimuddin Ahmed (supra)
could not be treated as a precedent as the said judgment was subject to the
order passed in the first writ petition filed by Nemai Chand Ghose. D
The learned counsel would submit that, in any event, non-filing of an
appeal could not be a ground to pass the same order without considering the
merit of the matter.
Mr. Krishnamani, the learned senior counsel appearing on behalf of the E
respondents, on the other hand, would submit that as indisputably the earlier
judgment passed by a learned Single Judge of the Calcutta High Court was
acted upon by the appellant they cannot be permitted now to tum round and
contend that similar scale of pay would not be granted. It was submitted that
whereas in CR 9167 (W)/i 980 there were 56 writ petitioners, oniy I 0 employees
are involved in the present case and as such they being graduates in scie.nce F
should be given the same relief as the minimum qualification laid down for
holding the post of Operator-cum-Mechanic is merely matriculate. Having
been better qualified, Mr. Krishnamani would urge, there is absolutely no
reason as to why the respondent should not be treated as a separate class
keeping in view of the fact that they have been performing the same duties G
as are being performed by the Sub-Assistant Engineers. The cases of the
respondents, Mr. Krishnamani would contend, being peculiar in nature this
court in exercise of its equity jurisdiction may grant appropriate relief confining
the same to the respondents on the ground that they are graduates and
declining the same to the matriculates holding the posts of Operator-cum-
H
666 SUPREME COURT REPORTS [2003) SUPP. 5 S.C.R.
A Mechanic.
The learned counsel would submit that in any event, having regard to
the fact that the respondents herein had approached the High Court in 1992,
even on the ground of delay, similar relief can be denied to those who are
only matriculates.
B
EQUAL PAY FOR EQUAL WORK:
Article 14 read with Article 39 (d) of the Constitution oflndia envisages
the doctrine of equal pay for equal work. The said doctrine, however, does
not contemplate that only because the nature of the work is same, irrespective
C of an educational qualification or irrespective of their source of recruitment
or other relevant considerations the said doctrine would be automatically
applied. The holders of a higher educational qualification c:an be treated as
a separate class. Such classification, it is trite, is reasonable. Employees
performing the similar job but having different educational qualification can,
D thus, be treated differently.
In State of Jammu & Kashmir v. Triloki Nath Khosa and Ors., AIR
( 1974) SC I, this Court held:
"Educational qualifications have been recognized by this Court as a
safe criterion for determining the validity of classification."
E
The Post of Operator-cum-Mechanic and Sub-Assistant Engineers are
technical posts. As noticed hereinbefore, whereas for the posts of Operator-
cum-Mechanic the qualification of school final examination and a certificate
obtained from the Industrial Training Institute would be sufficient; for the
F posts of Sub-Assistant Engineer the person must have a diploma from a
polytechnic apart from being a matriculate.
It is also not in dispute that such qualification was prescribed as far
back as in the year 1971 and the respondents herein were appointed thereafter.
G The Court, in exercise of its power of judicial review cannot hold that
matriculates with a certificate from ITis or simply graduates in science would
be entitled to hold the posts of Sub-Assistant Engineers. It is for the executive
to lay down the qualification required for holding a post and not for the
courts.
H
GOVERNMENT OF WEST BENGAL v. TARUN K. ROY [S.B. SINHA, J.J 667
In Debdas Kumar (supra) the issue which fell for determination by this A
Court was as to whether those Operators-cum-Mechanic who were diploma
holders, having regard to the aforementioned notification dated 19th November,
1974 were entitled to be designated as Sub-Assistant Engineers. This Court
noticed that the post of Sub-Assistant Engineer is direct recruitment post and
not a promotional post and, thus, they are entitled to be designated as Sub- B
Assistant Engineers, particularly, when such a status had been conferred
upon 17 persons similarly situated. This Court granted relief to Debdas Kumar
(supra) only on the ground that they had been discriminated against.
Question of violation of Article 14 of the Constitution of India on the
part of the State would arise only ifthe persons are similarly placed. Equality C
clause contained in Article 14, in other words, will have no application where
the persons are not similarly situated or when there is a valid classification
based on a reasonable differentia. Doctrine of equal pay for equal work,
therefore, is not attracted in the instant case.
There is nothing on record to show that the duties and functions of two D
categories of employment are at par, and, thus, parity in pay-scales is not
permissible.
The very fact that from the very beginning two different pay scales
were being maintained is itself suggestive of the fact that the duties and
functions are also different. In fact it is not disputed that the two post of Sub- E
Assistant Engineer is a higher post.
In Chairman-cum-Managing Director, National Textiles Corporation
Ltd and Ors. v. N. T.C. (WBAB & 0) Ltd. Employees Union and Ors., (2003)
8 SCALE 613 this Court held:
F
"In view of the fact that the nature of duties of the staff in the two
categories has been found to be not at part, parity in pay scales may
not be possible.
In Orissa University of Agriculture & Technology and Anr. v. Manoj
K. Mohanty, JT (2003) 4 SC 104 this Court noticed: G
"It is clear from the averments made in the writ petition extracted
above, nothing is stated as regards the nature of work, responsibilities
attached to the respondent without comparing to the regularly recruited
Junior Assistants. It cannot be disputed that there was neither
H
668 SUPREME COURT REPORTS (2003] SUPP. 5 S.C.R.
A necessary avennents in the writ petition nor any material was placed
before the High Court so as to consider the application of principle
of 'equal pay 0•r ~qua! work'."
This Court further noticed:
B "..... .In the absence of material relating to other comparable employees
as to the qualifications, method of recruitment, degree of skill,
experience involved in performance of job, training required,
responsibilities undertaken and other facilities in addition to pay scales,
the learned Single Judge was right when he stated in the order that
in the absence of such material it was not possible to grant relief to
c the respondent.
Before giving such direction, the High Court also did not keep in mind
as to what would be its implications and impact on the other employees
working in the appellant-University. From the avennents made in the
writ petition extracted above, it is clear that no details were given and
D no material was placed before the High Court for comparison in order
to apply the principle of 'equal pay for equal work'. The Court in State
of Haryana and Ors. v. Jasmer Singh and Ors., [1996] 11 SCC 77
observed that the principle of 'equal pay for equal work' is not always
· easy to apply. There are inherent difficulties in comparing and
E evaluating work done by different persons in different organizations
or even in the same the organization.
13. Yet, in another decision in State Bank of India and Anr. v. MR.
Ganesh Babu and Ors., [2002] 4 SCC 556, a Bench of three learned
Judges of this court, while dealing with the same principle, in para 16
F has expressed that:-
" .. .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 qualitative difference as regards reliability and responsibility.
Functions may be the same but the responsibilities made a difference ..."
G
In a case of this nature, the courts are required to determine the issue
having regard to larger public interest. It is one thing to say that in a given
case the High Court or this Court may not exercise an equitable jurisdiction
under Article 226 or Article 136 of the Constitution of India, but it is another
thing to say that the courts shall grant a relief to a party only on the ground
H
GOVERNMENT OF WEST BENGAL v. TARUN K. ROY [S.B. SINHA, J.] 669
that a contention which is otherwise valid would not be rajsed on the ground A
that the same was not done in an earlier proceedings.
In the instant case, the appellant has explained under what circumstances
the order of the learned Single Judge of the Calcutta High Court had to be
obeyed. If rule of law is to be followed, judicial discipline demands that the
court follows its earlier binding precedent. The Calcutta High Court itself has B
rejected such a plea. The matter is pending in appeal. An order passed to the
contrary by another learned Single Judge in ignorance of the earlier binding
precedent by itself would not constitute a binding precedent and may be held
to have been rendered per incuriam.
Furthermore, in the order dated !st October, 1991, the learned Judge C
categorically directed that the same would be subject to any order that may
be passed in the appeal which is pending before the Division Bench from the
judgment and order dated 20th January, 1989 passed in Nemai Chand Ghose
(supra). The said order, therefore, did not attain finality.
D
Jn the aforementioned situation, the Division Bench of the Calcutta
High Court manifestly erred in refusing to consider the contentions of the
appellant on their own merit, particularly, when the question as regard
difference in the grant of scale of pay on the ground of different educational
qualification stands concluded by a judgment of this Court in Debdas Kumar
(supra). If the judgment of Debdas Kumar (supra) is to be followed a finding E
of fact was required to be arrived at that they are similarly situated to the case
of Debdas Kumar (supra) which in tum would mean that they are also holders
of diploma in engineering. They admittedly being not, the contention of the
appellant could not be rejected. Non-filing of an appeal, in any event, would
not be a ground for refusing to consider a matter on its own merits. (See State F
ofMaharashtra v. Digambar, [1995] 4 SCC 683).
In State ofBihar and Ors. v. Ramdeo Yadavand Ors., [1996]3 SCC 493,
wherein this court noticed Debdas Kumar (supra) holding:
"Shri B.B. Singh, the learned counsel for the appellant contended that G
though an appeal against the earlier order of the High Court has not
been filed, since larger public interest is involved in the interpretation
given by the High Court following its earlier judgment, the matter
requires consideration by this court. We find force in this contention.
In the similar circumstances, this court in State of Maharashtra v.
Digambar, [1995] 4 SCC 683: (1995) AIR SCW 3116 and in State of H
670 SUPREME COURT REPORTS [2003) SUPP. 5 S.C.R.
A Vest Bengal v. Debdas Kumar, [1991] Suppl. SCC 138: [1991] AIR
sew 704, had held that though an appeal was not filed against an
earlier order, when public interest is involved in interpretation of law
the court is entitled to go into the question.
EQUITABLE CONSIDERATION;
B
The respondents are merely graduates in science. They do not have the
requisite technical qualification. Only because they are graduates, they cannot,
in our opinion, claim equality with the holders of diploma in engineering. If
any relief is granted by this court to the respondents on the aforementioned
ground the same will be in contravention of the statutory rules. It is trite that
C this court even in exercise of its jurisdiction under Article 142 of the Constitution
of India would not ordinarily grant such a relief which would be in violation
of a statutory provision.
In Common Cause. A Registered Society v. Union of India and Ors.,
D [1998] 6 sec 667, this Court held:
"Even under Article 142 of the Constitution, such a direction cannot
be issued. While passing an order under Article 142 of the Constitution,
this court cannot ignore the substantive provision of law much less
the constitutional rights available to a person. (See: Supreme Court
E Bar Asson. v. Union ofIndia, [1998] 4 SCC 409, AIR (1998) SC 1895).
In MC. Mehta v. Kamal Nath and Ors., [2000] 6 SCC 213 this Court
observed:
" ............The Court further observed that though the powers
conferred on the court by Article 142 are curative in nature, they
F
cannot be construed as powers which authorize the court to ignore
the substantive rights of a litigant. The court further observed that
this power cannot be used to "supplant" substantive law applicable
to the case or cause under consideration of this court.
G Further in State of Punjab and Anr. v. Rajesh Syal, [2002] 8 SCC 158
this Court opined:
This court has ample jurisdiction to pass orders under Article 142(1) of
the constitution which may be necessary for doing complete justice in any
case or matter. But even in exercising this power, it is more than doubtful that
H an order can be passed contrary to law.
GOVERNMENT OF WEST BENGAL v. TARUN K. ROY [S.B. SINHA, J.] 671
The respondents furthermore even are not entitled to any relief on the A
ground of gross delay and latches on their part in filing the writ petition. The
first two writ petitions were filed in the year 1976 wherein the respondents
herein approached the High Court in 1992. In between 1976 and 1992 not only
two writ petitions had been decided. But one way or the other, even the matter
had been considered by this Court in Debdas Kumar (supra). The plea of
delay, which Mr. Krishnamani states, should be a ground for denying the B
relief to the other persons similarly situated would operate against the
respondents. Furthermore, the other employees not being before this Court
although they are ventilating their grievances before appropriate courts of law
no order should be passed which would prejudice their cause. In such a
..sit\lation, we are not prepared to make any observation only for the purpose C
of grant of some relief to the respondents to .which they are not legally
entitled to so as to deprive others therefrom who may be found to be entitled
thereto by a court of law.
For the reasons aforementioned, the impugned judgment cannot be
sustained which is set aside accordingly. This appeal is allowed. No costs. D
v.s.s. Appeal allowed.
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