Holding

There is no employer‑employee relationship between the companies and the teachers, mandamus cannot be issued against them, the State cannot be compelled to take over the school without a request, and the teachers are not entitled to pay parity with BCCL clerks.

Summary

The Supreme Court examined appeals filed by teachers and staff of a proprietary school who claimed they were employees of Hindustan Copper Ltd (HCL) and Bharat Coking Coal Ltd (BCCL) and sought mandamus to compel payment of salaries and pay parity with clerks of the companies. The Court held that HCL and BCCL merely provided financial assistance and did not manage the school, so no employer‑employee relationship existed and mandamus could not be issued against them. It also held that the State could not be directed to take over the school under the Bihar Non‑Government Secondary Schools Act unless the managing committee formally requested such takeover. The teachers could not claim equal pay for equal work with BCCL clerks because the two groups were not identical in duties, qualifications, or employment conditions, and Article 39(d) does not impose such parity. Consequently, all appeals were dismissed.

Issues considered

Whether HCL (or BCCL) is the employer of the teachers and staff of the proprietary school.
Whether a writ of mandamus can be issued against HCL/BCCL to compel payment of salaries.
Whether the State Government can be directed to take over the proprietary school under the Bihar Non‑Government Secondary Schools (Taking over of Management and Control) Act, 1981.
Whether the teachers are entitled to pay parity with BCCL clerks under the principle of equal pay for equal work and Article 39(d) of the Constitution.

Legislation cited

Bihar Non-Government Secondary Schools (Taking Over of Management and Control) Act, 1981s. 19, s. 2(d), s. 3
Companies Acts. 617

Subjects

proprietary schoolmandamusemployer-employee relationshipequal pay for equal workArticle 39(d)Bihar Non-Government Secondary Schools ActHindustan Copper LtdBharat Coking Coal Ltdpay parityseparation of powers

Judgment

A S.C. CHANDRA AND ORS..
~-

.~ '
v.
' I

ST~TE OF J.I-IARKHAND AND ORS.

1.
".f.
: AUGUST 21, 2007

B [AK.MA THURAND MARKANDEY KA TJU, JJ.]

t ~, . Bihar N?n-Government Secondary Schools (Taking over ofManagement
and Control) Act, 1981-ss. 2(d), 3 and 19:

c Proprietary school-HCL, a Government enterprise was giving financial •
aid to it-Due to financial difficulties, HCL stopped financial aid-Teachers
and staff working in the school did not get salaries-They filed writ petitfon
before High Court seeking writ of mandamus against the management of
HCL-Held: Giving financial assistance does not necessarily mean that all
D teachers and staff working in the school became employees of HCL-School
was not run by management of HCL which merely provided funds-Hence,
no writ of mandamus could be issued against the management of HCL to ..
provide relief to the teachers and staff of the school-Alternative plea for J

issuance of mandamus to State Government to take over management of the
school also not tenable since there was no such request from Managing
E Committee of the school-Constitution of India, 1950-Article 226-Service
Law-Employer-employee relationship.

Proprietary school-Respondent-company (BCCL) providing funds to
it-Teachers of the school seeking pay parity with clerks working in
Respondent-company-Held: Respondent-company was only extending
F financial assistance-School was essentially managed by a body independent
of the management of Respondent-company-Therefore, Respondent-company
cannot be saddled with the responsibilities of granting the teachers salaries
equated to that of the clerks working in Respondent-company-Principle of
equal pay for equal work not applicable, since the two groups viz. teachers
G and the clerks in Respondent-company are not identical-There is no question
of pay parity, more so when the teachers are not employees of Respondent-
company-Constitution of India, 1950-Article 39(d)-Service Law-Equal
pay for equal work.

HCL, a Government Enterprise, used to provide financial aid to a
H 130
S.C. CHANDRA v. STATE OF JHARKHAND 131

proprietary school as defined in Section 2(d) of the Bihar Non-Government A
Secondary Schools (Taking over of Management and Control) Act, 1981. Most
employees of HCL were in Managing Committee of the said school. The
management ofHCL however came to be closed on account of financial stress,
consequently no financial aid could be extended to the school and the teachers
as well as the non-teaching staff of the school could not get their salaries.
They filed writ petition before High Court seeking relief. The petition was B
dismissed.

In appeal to this Court the questions which arose for consideration are
1) Whether the management of the school was the direct responsibility of
HCL and a writ of mandamus could be issued against it and that 2) Whether, C
even if the school is not a part of the management of HCL, a direction could
be given to the State Government under the Act of 1981 to take over
management of the school.

In the connected set of appeals, teachers of a proprietary school sought
pay parity with the clerks of Bharat Coking Coal Limited (BCCL) which used D
to provide financial assistance to the school from time to time. The question
which arose for consideration before this Court is whether the claim of pay
parity was tenable.

Dismissing all the appeals, the Court
E
HELD (Per A.K. Mathur, J.J:

1.1. Though through various communications an impression was sought
to be given that the school is being run by the HCL but in substance the HCL
only used to provide financial assistance to the school and the management of
the school was entirely different than the management of the HCL. Giving F
financial assistance does not necessarily mean that all the teachers and staff
who are working in the school have become the employees of the HCL.
Therefore, there was no relationship of the management of the HCL with the
management of the school though most of the employees of the HCL were in
the managing committee of the school. But by that no inference can be drawn G
that the school had been established by the HCL. The children of workers of
HCL were being benefited by the education imparted by this school. Therefore,
the management of HCL was giving financial aid but by that it cannot be
construed that the school was run by the management of HCL.
(Para 5) [136-E, F, G)
H
132 SUPREME COURT REPORTS (2007) 9 S.C.R.

A 1.2. So far as issuance of mandamus to the State Government for taking
over of the proprietary school is concerned, that cannot be issued because
the proprietary school, as defined under section 2(d) read with Section 19 of
the Bihar Non Government Secondary Schools (Taking over of Management
and Control) Act, 1981, will have to make a request to the State of Jharkhand
that they will bear all the financial responsibilities. If the Managing Committee
B makes a request to this effect to the State of Jharkhand, then the Government
may consider but at present there is no such offer by the Managing Committee
and as such no direction can be given to the State of Jharkhand to grant
recognition to proprietary school because nobody is prepared to take the
financial responsibilities of the management of the school.
C (Para 6J (138-A, BJ

2.1. As far as the other proprietary school is concerned, firstly, the same
is not being managed by the DCCL as from the facts it is more than clear
that the DCCL was only extending financial assistance from time to time. By
that DCCL cannot be saddled with the liability to pay the teachers of the school
D as being paid to the clerks working with it or in the Government of Jharkhand.
The school is essentially managed by a body independent of the management
of DCCL. (Para ll) (140-A, BJ

2.2. For application of the principle of equal pay for equal work, there
should be total identity between both groups i.e. the teachers of the school on
E the one hand and the clerks in BCCL on the other, and, as such, the teachers
cannot be equated with the clerks of the State Government or of the BCCL.
Moreso, when the teachers are not employees of BCCL, there is no question
seeking any parity of the pay with that of the clerks of BCCL.
(Para 12) (140-C, F)

F State of Haryana & Ors. v. Charanjit Singh & Ors., (2006) 9 SCC 321,
relied on.

HELD (Per Markandey Katju, J. (Supplementing)):

I.I. Fixation of pay scale is a delicate mechanism which requires various
G considerations including financial capacity, responsibility, educational
qualification, mode of appointment, etc. and it has a cascading effect. Fixing
pay scales by Courts by applying the principle of equal pay for equal work
upsets the high Constitutional principle of separation of powers between the
three organs of the State. Realizing this, this Court has in recent years
avoided applying the principle of equal pay for equal work, unless there is
H complete and wholesale identity between the two groups (and there too the
S.C. CHANDRA v. STATE OF JHARKHAND 133
matter should be sent for examination by an expert committee appointed by
the Government instead of the Court itself granting higher pay). It is well
settled by the Supreme Court that only because the nature of work is the
same, irrespective of educational qualification, mode of appointment,
experience and other relevant factors, the principle of equal pay for equal work
cannot apply. [Paras 4, 13 and 141 [141-D; 145-D, E, Fl B
1.2. Granting pay scales is a purely executive function and hence the
Court should not interfere with the same. It may have a cascading effect
creating all kinds of problems for the Gover.nment and authorities. Hence,
the Court should exercise judicial restraint and not interfere in such executive
function. IPara 11) (143-E) C
State of Haryana v. Tilak Raj, 12003) 6 SCC 123; State of Haryana &
Ors. v. Charanjit Singh & Ors., 12006) 9 SCC 321; State of U.P. and Ors. v.
Ministerial Karamchari Sangh, AIR (1998) SC 303; State of Haryana v.
Jasmer Singh and Ors., AIR (1997) SC 1788; Federation ofAll India Customs D
and Excise Stenographers (Recognized) and Ors. v. Union of India and Ors.,
AlR (1988) SC 1291; Indian Drugs & Pharmaceuticals Ltd. v. Workmen,
Indian Drugs and Pharmaceuticals Ltd., 12007) 1 SCC 408; Asif Hameed v.
State ofJam mu and Kashmir, AIR (1989) SC 1899; Government of West Bengal
v. Tarun K. Roy and Ors., (2004) 1 SCC 347; State of Haryana and Anr. v.
Haryana Civil Secretariat Personal Staff Association, 1200216SCC72 and E
Union of India and Ors. v. Pradip Kumar Dey, 12000) 8 SCC 580, relied on.

Dhirendra Chamoli and Anr. v. State ofU.P., (1986) 1SCC637; Surinder
Singh v. Engineer-in-Chiet C.P. WD., (1986) 1SCC639 and Randhir Singh v.
Union of India, (1982) 1 SCC 618 etc., referred to.
F
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1532 of2005.

From the final Judgment and Order dated 04.03.2004 of the High Court
of Jharkhand at Ranchi in Writ Petition (S) No. 3666 of 2001.

WITH G
C.A. Nos. 6595, 6601, 6602-6003 of2005.

Sunil Kumar, Shree Praksh Sinha, Abhishek Singh, Anshuman Kumar
S. Chandra Shekhar, Braj K. Mishra, Uljwal K. Jha, Apama Jha, Vikram Abhishek
Yadav, M.P. Jha Ram Erbal Roy, Harshvardhan Jha and Anil K. Chopra for the H
Appellants.
134 SUPREME COURT REPORTS [2007) 9 S.C.R.

A Manish Kumar Sharan, Deba Prasad Mukherjee, Naodini Sen, Sushma
Suri, Shreekant N. l_"erdal, Ajit Kumar Sinha, Mohit Shah, Gopal Singh, Rituraj
Biswas and Anukul for the respondents.

The Judgments of the Court were delivered by

B A.K.MATHUR,J.C.A.N0.1532of2005.

I. This appeal is directed against the order dated 4.3.2004 passed by
learned Single Judge of High Courtof Jharkhand at Ranchi in Writ Petition
No.3666 of 200 I whereby the learned Single Judge dismissed the writ petition
following the decision given by the Division Bench of the Jharkhand High
C Court in Chatradhar Mahto & Ors. v. State of Jharkhand & Ors.

2. Brier' facts which are necessary for disposal of this appeal are that
the writ petitioners- appellant filed a writ petition in the High Court of Jharkhapd
seeking a writ of mandamus against respondent Nos.3 to 6 to release and pay
D.A. with arrears along with interest and further a direction was sought to
D be issued to respondent Nos.3 to 6 not to close the school or .in the alternative
a direction was sought to be issued to respondent Nos. I & 2 to take over
the management and control of the school in question. All the writ petitioners
claimed themselves as teachers and non-teaching staff of the School and
claimed themselves to be the employees of the Hindustan Copper Limited
E (hereinafter to be referred to as 'HCL'). It was alleged that in .the year 1933
1
Indian Copper Corporation, a private sector unit, registered in the United
Kingdom started a Lower Primary School at Moubhander for the children of
its employees which was named as Moubhander Lower Primary School. In the
year 1944-45, the school was upgraded to Upper Primary School i.e. upto
Class V. In 1958-59 the School was upgraded to a Middle School and
F recognition to Middle School was accorded by the then District Superintendent
of Education, Chaibasa. Thereafter on 21. 9.1972 the Indian Copper Corporation
(Acquisition of Undertaking) Act, 1972 was notified and the Indian Copper
Corporation was taken over by the Central Government and it became a part
of HCL, a Government of India enterprise. It was alleged that thereafter the
G School was sought to be taken over by the State Government but this was
resisted by the Managing Committee of the School. It was alleged that the
management of HCL was running two schools, one at Mosabani and another
at Moubhander as proprietary school_s and they were managed by the
Managing Committee. The present school was getting the financial assistance
from the management of the HCL. The Bihar Non-Government Secondary
H
S.C. CHANDRA v. ST ATE OF JHARKHAND [A.K. MATHUR, J.] 135

Schools (Taking over of Management and Control) Act, 1981 (hereinafter to A
be referred to as the 'Act' ) was passed. Section 19 of the Act laid down
certain conditions for grant of recognition to such proprietary schools run
through the Managing Committee and therefore, it was contended that the
school was run by the Managing Committee and the service conditions of
staff of the school were approved by the Executive Director and thereafter B
request was made by the HCL to the Education Commission for grant of
recognition as a High School. The school was recognized by the State
Government under the provisions of the Act of 1981. It was alleged that the
Managing Committee of the School was constituted and reconstituted by the
Management of the HCL. Thereafter l O+ 2 stream was introduced in the said
School and a request was made by the President of the School to the Director, C
Bihar Secondary Education seeking permission to upgrade the ICC High
School, Moubhander to +2 stage and the same was recognized by the
Government of Bihar. However, in the meanwhile because of critical financial
situation the managing committee of the school requested the management
of the HCL to approach the State Government for taking over of the school
at the earliest. The school was not taken over under the Act of 1981 by the D
newly formed State of Jharkhand. Since the management of HCL was closed
on account of financial stress, therefore, no financial aid could be extended
to the school and the writ petitioners could not get their salaries as the
financial aid was not coming from the management of the HCL and therefore,
they approached the High Court of Jharkhand for issuance of writ of mandamus E
against respondent nos. 3 to 6 to release pay and arrears along with dearness
allowance and they also sought a further direction not to close down the
school and in the alternative a direction was also sought to be issued against
respondent nos. I & 2 to take over the management of the school.

3. A reply was filed by the Management of HCL. It took the stand that F
there was no relationship of employer and employee between the management
of HCL and the school and it was stated that the company was merely
providing grant for imparting education and the school was run by the
Managing Committee. It was also contended that the school was not the
liability of the management of the HCL. The school was being managed by G
the Managing Committee and only financial aid was provided by the
·management ofHCL from time to time but since the management of HCL was
in financial doldrums it was unable to manage the school. However, it was
. categorically stated that there was no relationship of employer and employee
between the management of HCL and the staff of the school.
H
136 SUPREME COURT REPORTS [2007] 9 S.C.R.

A 4. Learned Single Judge after considering the matter in number of
petitions, came to the conclusion that the school was not the dominant object
of the HCL and it found that there was no relationship of employer and
employee between the Management of HCL and the teachers and other staff
of the School. Therefore, no direction was given and the writ petition was
B dismissed by the learned Single Judge relying on the aforesaid judgment in
the case of Chatradhar Mah to & Ors. v. State of Jharkhand & Ors.. Hence
the writ petitioner- appellants approached this Court by filing the special
leave petition against the order of learned Single Judge dated 4.3.2004.

5. We have heard learned counsel for the parties and perused the
C records. The basic question before us is whether a writ of mandamus could
be issued against the management of HCL. Learned Single Judge relying on
the Division Bench in an identical matter pertaining to Bharat Coking Coal
limited dismissed the writ petition of the appellants. This issue was examined
in an analogous writ petition and in the aforesaid case, this issue was
extensively considered as to whether the management of the school is the
D direct responsibility of the, HCL or not. After considering the matter in detail,
learned Single Judge relying on the aforesaid judgment found that there is no
relationship of master and servant with that of the teachers and other staff
of the school with the HCL as the management of the school was done by
the Managing Committee through liberal financial grant was being made by
E the Corporation. By that there was no direct connection of the management
of the HCL with that of the management of the school. Though through
various communication an impression was sought to be given that the school
is being run by the HCL but in substance the HCL only used to provide
financial assistance to the school but the management of the school was
entirely different than the management of the HCL. Giving fmancial assistance
F does not necessarily mean that all the teachers and staff who are working in
the school have become the employees of the HCL. Therefore, we are of the
view that the view taken by learned Single Judge appears to be correct that
there was no relationship of the management of the HCL with that of the
management of the school though most of the employees of the HCL were
G in the managing committee of the school. But by that no inference can be
drawn that the school had been established by the HCL. The children of
workers of HCL were being benefited by the education imparted by this
school. Therefore, the management of HCL was giving financial aid but by
that it cannot be construed that the school was run by the management of
HCL. Therefore, under these circumstances, we are of opinion that the view
H taken by the learned Single Judge appears to be correct.
.\) -

S.C. CHANDRA v. STATE OF JHARKHAND[A.K. MATHUR, J.) 137
6. Next, it was contended that even if the school is not a part of the A
management of the HCL, yet a direction could be given to the State of
Jharkhand under the Act of 1981 to take over the management of the school
and in that connection our attention was invited to the definition of proprietary
school as defined in Section 2(d) of the Act which reads as under :

"(d) "Proprietary secondary school" means such secondary school B
whose entire financial liability is borne out by (any Registered Trust,
Association or corporate body, individuals or a group of individuals)
and which according to such conditions and registrations laid down
from time to time by the State Government, may be declared by it
proprietary secondary school." C
Section 3 laid down taking over control and management of non-
government secondary schools by State Government. Section 19 laid down
that proprietary secondary school can be established. Section 19 only says
that if any registered Trust (Association, Corporate Body, individual or group
of individuals) applies for setting up a secondary school and promises in D
writing to bear the entire financial burden of the school, the State Government
shall have the power to permit establishment of such school after fulfillment
of the prescribed conditions for recognition under section 19. By this it does
not mean that writ of mandamus can be issued to the State Government for
taking over the management of the school. The proprietary secondary school
is defined under Section 2(d) of the Act. The State Government can declare E
a particular school as proprietary secondary school under Section 19 of the
Act on fulfilling certain conditions but the basic thing is that the entire
finance will have to be burdened by the Trust, Association, Corporate Body,
... individual or group of individuals. By that the employees of the school will
not be State Government employees. A counter affidavit was filed on behalf F
of the State of Jharkhand supported by the affidavit of Shri Rajendra Nath
Tripathy, Regional Deputy Director of Education, South Chhota Nagpur
Division, Ranchi and in paragraph 12 of the counter affidavit it was pointed
out that in order to fulfill the constitutional mandate that all children between
6 -14 years of age shall be given free and compulsory education, the Jharkhand
Government has given consent and directed the concerned authorities to take G
the students of this school and admit them in State Committee managed
schools or in other Government schools within the same area in equivalent
classes in which they were studying. Copy of the letter dated 15.3.2003 has
been annexed as Annexure-R-1. Therefore, the Government of Jharkhand in
order to fulfill the constitutional mandate has got these students admitted to H
-+
\

138 SUPREME COURT REPORTS [2007) 9 S.C.R.

A various schools. Therefore, the studies of the students have not been affected.
So far as issuance of mandamus to the State Government for taking over of
the proprietary school is concerned, that cannot be issued because the
proprietary school as defined under section 2(d) read with Section 19 of the
Act will have to make a request to the State of Jharkhand that they will bear
B all the financial responsibilities. If the Managing Committee makes a request
to this effect to the State of Jharkhand, then the Government may consider
but at present there is no such offer by the Managing Committee and as such
no direction can be given to the State of Jharkhand to grant recognition to
proprietary school because nobody is prepared to take the financial
responsibilities of the management of the school. Hence, no direction can be
C issued to the State Government to take over the management of the School.

7. In this view of the matter, we are of opinion that the vie~ taken by
. ·t.. • .,
learned Single Judge of the High Court of Jharkhand appears to be correct'
and there is no ground to interfere with the impugned order. Consequently,
the Civil Appeal is dismissed with no order as to costs.
D
C.A.No.6595 , CA.Nos. 6602-6603 and C.A.No.6601 of 2005.

8. All these appeals involve common question of law, therefore, they are
disposed of by this common judgment. For the sake of convenient disposal
of these appeals, the facts stated in C.A.No.6595 of 2005 are taken into
E consideration.

9. The writ petitioner-appellants prayed before the High Court of
Jharkhand by filing writ petition that direction and order may be given to the
respondents to fix their pay scale at par with the pay scale of Government
Secondary School teachers or at par with Grade. I and II Clerks of the
F respondent-company. They also prayed that the facilities such as, provident
fund, gratuity, pension and other retrial benefits should also be made available
to them and it was further prayed that the Statoe Government should take over
the management of Ram Kanali School under the provisions of the Bihar Non-
Government Secondary Schools (Taking over of Management and Control)
G Act, 1981 (hereinafter to be referred to as the 'Act'). A counter affidavit was
filed bythe Bharat Coking Coal Limited (hereinafter to be referred to as BCCL)
that the present Ram Kanali School was not owned by the said BCCL and the
school was run by the Managing Committee and the writ petitioners were
never appointed by the BCCL and therefore, they were not the employees of
BCCL. It was also submitted that BCCL used to release non-recurring grants
H to the privately managed schools on the recommendation of the Welfare
-+-
S.C. CHANDRA v. STATE OF JHARKHAND (A.K. MATHUR, J.] 139

Committee. But this release of grant was subject to certain conditions. This A
non-recurring grant-n-aid did not make the school a part of the management
of BCCL and th~refore any teacher in such privately managed school cannot
be said to be the employee of BCCL thereby entitling him all benefits as are
available to the regular employees of BCCL. It was also pointed out that the
managing committee of Ram Kalai school was given grant-in-aid but_ that has
been stopped and they totally disowned the responsibilities for any benefits B
whatsoever. However, learned Single Judge allowed the writ petition and
directed that these teachers who were working in the school were entitled to
the pay scale given to the clerks working in BCCL with effect from the date
of the judgment with all consequential benefits such as provident fund,
gratuity and other service benefits available to the employees of BCCL. So C
far as taking over of the school by the State of Jharkhand was concerned,
no direction was given by learned Single Judge. Aggrieved against this order
passed by the learned Single Judge, appeal was prepared and along with this
appeal two more appeals were filed by the BCCL before the Division Bench.
Therefore, all these three appeals were taken up by the Division Bench
together and the same were disposed of by the common order. The Division D
Bench examined the matter at a greater detail and came to the conclusion that
the incumbents were not entitled to the pay scale of the employees of BCCL
or equivalent to the Government employees and accordingly set aside the
order of learned Single Judge by order dated 21.1.2004. Hence, aggrieved
against this order, all these three appeals have been preferred by the private E
respondents.

10. We have heard learned counsel for the parties and perused the
records. The Division Bench after considering the matter came to the
conclusion that from the record available the existence of relationship of
employer and employee between the management of BCCL and the teachers F
working the school could not be established. The Division Bench further held
that BCCL is not an instrumentality of the State as per section 617 of the
Companies Act as its dominant function is to raise coal and sell and imparting
education b not its dominant functiqn. The Division Bench further held that
the plea that a direction may be issued to the State Government in terms of G
the Act to take over the school in question was totally misconceived. As
such, the Division Bench set aside the order of learned Single Judge and
dismissed the writ petitions.

11. After going through the order of the Division Bench we are of
opinion that the view taken by the Division Bench of the High Court is H
-+
140 SUPREME COURT REPORTS [2007) 9 S.C.R.

A correct. Firstly, the school is not being managed by the BCCL as from the
facts it is more than clear that the BCCL was only extending fmancial assistance
from time to time. By that it cannot be saddled with the liability to pay these
teachers of the school as being paid to the clerks working with BCCL or in
the Government of Jharkhand. It is essentially a school managed by a body
B independent of the management of BCCL. Therefore, BCCL cannot be saddled
with the responsibilities of granting the teachers the salaries equated to that
of the clerks working in BCCL.

12. Learned counsel for the appellants have relied on Article 39 (d) of
the Constitution. Article 39 (d) does not mean that all the teachers working
C in the school should be equated with the clerks in the BCCL or Government
of Jharkhand. For application of the principle of equal pay for equal work.
There should be total identity between both groups i.e. the teachers of the
school on the one hand and the clerks in BCCL, and as such the teachers
cannot be equated with the clerks of the State Government or of the BCCL.
The question of application of Article 39(d) of the Constitution has recently
D been interpreted by this Court in State of Haryana & Ors. v. Charanjit Singh
& Ors., [2006] 9 SCC 321 wherein their Lordships have put the entire
controversy to rest and held that the principle, 'equal pay for equal W()rk' must
satisfy the test that the incumbents are performing equal and identical work
as discharged by employees again.st whom the equal pay is claimed. Their
E Lordships have reviewed all the cases bearing on the subject and after a
detailed discussion have finally put the controversy to rest that the persons
who claimed the parity should satisfy the court that the conditions are
identical and equal and same duties are being discharged by them. Though
a number of cases were cited for our consideration but no useful purpose will
be served as in Charanjit Singh (supra) all these cases have been. reviewed .,_
F by this Court. More so, when we have already held that the appellants are
not the employees of BCCL, there is no question seeking any parity of the
pay with that of the clerks of BCCL.

13. Hence, as a result of our above discussion, we do not find any merit
in these appeals and the same are dismissed with no order as to costs.
G
MARKANDEY KATJU, J. l. The facts of the case have been stated in
the judgment of my learned brother Hon'ble A.K. Mathur, J. which I have
perused. I respectfully agree with him that these appeals deserve to be
dismissed. However, I am writing a separate concurrent judgment since I am
H of the view that the principle of equal pay for equal work needs to be clarified.
t
S.C.CHANDRA v. STATEOFJHARKHAND [MARKANDEYKATJU,J.) 141

2. The principle of equal pay for equal work was propounded by this A
Court in certain decisions in the 1980s, e.g. Dhirendra Chamoli and Anr. v.
State ofUP. (1986) I SCC 637, Surinder Singh v. Engineer-in-Chief. C.P. W.D.,
(1986) l SCC639,RandhirSinghv. Union ofIndia, (1982) l SCC618etc. This
was done by applying Articles 14 and 39(d) of the Constitution. Thus, in
Dhirendra Chamoli's case (supra) this Court granted to the casual, daily B
rated employees the same pay scale as regular employees.

3. It appears that subsequently it was realized that the application of
the principle of equal pay for equal work was creating havoc. All over India
different groups were claiming parity in pay with other groups e.g. Government
employees of one State were claiming parity with Government employees of C
another State.

4. Fixation of pay scale is a delicate mechanism which requires various
considerations including financial capacity, responsibility, educational
qualification, mode of appointment, etc. and it has a cascading effect. Hence,
in subsequent decisions of this Court the principle of equal pay for equal D
work has been considerably watered down, and it has hardly ever been
applied by this Court in recent years.

5. Thus, in State of Haryana v. Tilak Raj, (2003) 6 SCC 123, it was held
that the principle can only apply if there is complete and wholesale identity
between the two groups. Even if the employees in the two groups are doing E
identical work they cannot be granted equal pay if there is no complete and
wholesale identity, e.g., a daily rated employee may be doing the same work
as a regular employee, yet he cannot be granted the same pay scale. Similarly,
two groups of employees may be doing the same work, yet they may be given
different pay scales if the educational qualifications are different. Also, pay F
scale can be different ifthe nature of jobs, responsibilities, experience, method
of recruitment, etc. are different.

6. In State of Haryana and Ors. v. Charanjit Singh and Ors., (2006] 9
SCC 321, discussing a large number of earlier decisions it was held by a three-
Judge Bench of this Court that the principle of equal pay for equal work G
cannot apply unless there is complete and wholesale identity between the
two groups. Moreover, even for finding out whether there is complete and
wholesale identity, the proper forum is an expert body and not the writ court,
as this requires extensive evidence. A mechanical interpretation of the principle
of equal pay for equal work creates great practical difficulties. Hence in recent
decisions the Supreme Court has considerably watered down the principle of H
SUPREME COURT REPORTS (2007) '9 S.C.R.
+
142
A equal pay for equal work and this principle has hardly been ever applied in
recent decisions.

7. In State of Haryana & Anr. v. Tilak Raj & Ors;, [2003) 6 SCC 123,
the Supreme Court considered the doctrine of equal pay for equal work in the
context of daily wagers of the Haryana Roadways. After taking note of a
B series of earlier decisions the Supreme Court observed:

"A scale of pay is attached to a definite post and in case of a daily
wager, he holds no post. The respondent workers cannot be held to
hold any posts to claim even any comparison with the regular and
pennanent staff for any or all purposes including a claim for equal pay
c and allowances. To claim a relief on the basis of equality, it is for the
claimants to substantiate a clear cut basis of equivalence and a resultant
hostile discrimination before becoming eligible to claim rights on a par
with the other group vis-a-vis an alleged discrimination. No material
was placed before the High Court as to the nature of duties of either
D categories and it is not possible to hold that the principle of 'equal
pay for equal work' is an abstract one ..

'Equal pay for equal work' is a concept which requires for its
applicability complete and wholesale identity between a group of
emplQyees claiming identical pay scales and the other group of
E employees who have already earned such pay scales. The problem
about equal pay cannot always be translated into a mathematical
formula".

(Emphasis supplied)
")

F 8. In State of U.P. · and Ors. v. Ministerial Karamchari Sangh, AIR
( 1998) SC 303, the Supreme Court observed that even ifpersons 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. Where the mode of recruitment, qualification and promotion
are totally different in the two categories of posts, there cannot be any
G application of the principle of equal pay for equal work.
9. In State of Haryana v. Jasmer Singh and Ors., AlR (1997) SC 1788,
the Supreme Court observed that the prindple of equal pay for equal work
is not always easy to apply. There are inherent difficulties in comparing and
H evaluating the work of' different persons in different organizations. Persons
t
S.C. CHANDRA v. STATE OF JHARKHAND [MARKANDEY KATJU, J.) 143

doing the same work may have different degrees ofresponsibilities, reliabilities A
and confidentialities, and this would be sufficient for a valid differentiation.
The judgment of the 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 B
court.

10. In Federation of All India Customs and Excise Stenographers
(Recognized) and Ors. v. Union of India and Ors., AIR ( 1988) SC 1291, this
Court observed :

"In this case ~e differentiation has been sought to be justified in C
view of the nature and the types of the work done, that is, on ·
intelligible basis. 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. The
problem about equal pay cannot always be translated into a D
mathematical formula".

11. It may be mentioned that granting pay scales is a purely executive
function and hence the Court should not interfere with the same . .It may have
a cascading effect creating all kinds of problems for the Government and
authorities. Hence, the Court should exercise judicial restraint and not interfere E
in such executive function vide Indian Drugs & Pharmaceuticals Ltd v.
Workmen, Indian Drugs and Pharmaceuticals Ltd., [2007] I SCC 408.

12. There is broad separation of powers under the Constitution, and the
judiciary should not ordinarily encroach into the executive or legislative
domain. The theory of separation of powers, first propounded by the French F
philosopher Montesquieu in his book 'The Spirit of Laws' still broadly holds
the field in India today. Thus, in Asif Hameedv. State ofJammu and Kashmir,
AIR (1989) SC 1899 a three Judge bench of this Court observed (vide paragraphs
17 to 19) :

"17. Before adverting to the controversy directly1 involved in these G
appeals we may have a. fresh look on the inter se functioning of the
three organs of democracy under our Constitution. Although .the
doctrine of separation of powers has not been recognized under the
Constitution in its absolute rigidity but the constitution makers have
meticulously defined the functions of various organs of the State. H
+
144 SUPREME COURT REPORTS (2007) 9 S.C.R.

A . Legislature, executive and judiciary have to function within their own
spheres demarcated under the Constitution. No organ .can usurp the
functions assigned to another.The Constitution trusts to the judgment
of these organs to function and exercise their discretion by strictly
following the procedure prescribed therein. The functioning of
democracy depends upon the strength and independence of each of
B its organs. Legislature and executive, the two facets of people's will,
they have all the powers including that of finance. Judiciary has no
power over sword or the purse nonetheless it has power to ensure
that the aforesaid two main. organs of State function within the
constitutional limits. It is the sentinel of democracy. Judicial review is
c a powerful weapon to restrain unconstitutional exercise of power by
the legislature and executive. The expanding horizon of judicial review
has taken in its fold the concept of social and economic justice. While
exercise of powers by the legislature and executive is subject to
judi~ial restraint, the only check on our own exercise of power is the
self imposed discipline of judicial restraint.
D
18. Frankfurter, J. of the U.S. Supreme Court dissenting in the
controversial expatriation case of Trop v. Dulles (1958) 356 US 86
observed as under :

"All power is, in Madison's phrase, "of an encroaching nature".
E Judicial powers is not immune against this human weakness. It also
must be on guard against encroaching beyond its proper bounds, and
not the less so since the only restraint upon it is self restraint... ............ .

Rigorous observance of the difference between limits of power
and wise exercise of power-between questions of authority and
F questions of prudence-requires the most alert appreciation of this
·decisive but subtle relationship of two concepts that too easily
coalesce. No less does it require a disciplined will to adhere to
the difference. It is not easy to stand aloof and allow want of
wisdom to prevail to disregard one's own strongly held view of
what is wise in the conduct of affairs. But it is not the business
G of this Court to pronounce policy. It must observe a fastidious
regard for limitations on its own power, and this precludes the
Court's giving effect to its own notions of what is wise or politic.
That self-restraint is of the essence in the observance of the
judicial.'oath, for the Constitution has not authorized the judges
H to sit in judgment on the wisdom of what Congress and the
t

S.C. CHANDRA v. STATE OF JHARKHAND [MARKANDEY KATJU, J.] 145

Executive Branch do." A
19. When a State action is challenged, the function of the court is to
examine the action in accordance with law and to determine whether
the legislature or the executive has acted within the powers and
functions assigned under the constitution and if not, the court must
strike down the action. While doing so the court must remain within B
its self-imposed limits. The court sits in judgment on the action of a
coordinate branch of the Government. While exercising power of
judicial review of administrative action, the court is not an appellate
authority. The constitution does not permit the court to direct or
advise the executive in matters of policy or to sermonize qua any
matter which under the constitution lies within the sphere of legislature C
or executive, provided these authorities do not transgress their
constitutional limits or statutory powers."

(Emphasis supplied)

13. In our opinion fixing pay scales by Courts by applying the principle D
of equal pay for equal work upsets. the high Constitutional principle of
separation of powers between the three organs of the State. Realizing this,
this Court has in recent years avoided applying the principle of equal pay for
equal work, unless there is comptete and wholesale identity between the two
groups (and there too the matter should be sent for examination by an expert E
committee appointed by the Government instead of the Court itself granting
higher pay).

14. It is well settled by the Supreme Court that only because the nature
of work is the same, irrespective of educational qualification, mode of
appointment, experience and other relevant factors, the principle of equal pay F
for equal work cannot apply vide Government of West Bengal v. Tarun K. Roy
and Ors., [2004] I SCC 347.

15. Similarly, in State of Haryana and Anr. v. Haryana Civil Secretariat
Personal Staff Association, [2002] 6 SCC 72, the principle of equal pay for
equal work was considered in great detail. In paragraphs 9 and I0 of the said G
judgment the Supreme Court observed that equation of posts and salary is
a complex matter which should be left to an expert body. The Courts must
realize that the job is both a difficult and time consuming task which even
experts having the assistance of staff with requisite expertise have found it
difficult to undertake. Fixation of pay and determination of parity is a complex H
+;
I

146 SUPREME COURT REPORTS [2007] 9 S.C.R.

A matter which is for the executive to discharge. Granting of pay parity by the
Court may result in a cascading effect and reaction which can have adverse
consequences vide Union of India and Ors. v. Pradip Kumar Dey, [2000] 8
SCC580.

16. In view of the above, I concur with the conclusion arrived at by my
B learned brother Hon'ble A.K. Mathur, J. that the appeals preferred by the
appellants deserve to be dismissed. Ordered accordingly. \
B.B.B. Appeals dismissed.