UNION TERRITORY, CHANDIGARHversusKRISHAN BHANDARI

A                    UNION TERRITORY, CHANDIGARH
                                  v.
                          KRISHAN BHANDARI

                              OCTOBER 31, 1996

B                [S.C. AGRA WAL AND G.T. NANA VA TI, JJ.]

          Service Law :

          Union Territory ofChandigarh Employees Rules, 1966: Rule 2 Second
C proviso. Equal pay for equal work-Science Supervisor in the Institute of
  Education, Union Territory-Pay scale of-Lower than that of District
  Science Supervisor in State prior to pay revision notification-Parity in
  pay scale-Held: not entitled to same pay scale as given to District Science
  Supervisor as second proviso to R.2 did not apply to such a case. Equal
  pay for equal work-Equivalence oftwo posts for purpose of-Held: Onus
D to prove lay on employee not on employer.

           Equal pay for equal work-Equivalence of two posts for purpose
     of-Held: post of Science Supervisor in the Institute of Education, Union
    ·Territory not equivalent to post of District Science Supervisor in State.

E         Appointment-Nature of-Science Master appointed on temporary
    basis in Union Territory in his own pay scale-Later on confirmed informer
    post and his name shown in gradation list for Masters-Held: In such
    circumstances, his appointment to post of Science Supervisor not
    substantive-Hence, could not claim salary higher than that of Science
    Master.
F                                         '
          Equal pay for equal work-Applicability ofprinciple of-Held: not




G
    applicable when discrimination was between acts oftwo different authorities
    functioning as State under Article 12-Constitution of India, 1950 Arts.
    12, 14, 16 and 39(d).
                                                                                  -
        The respondent was appointed as Science Master on temporary
  basis. At that time the respondent was having the qualifications of
  B.Sc. (III Class) and B.Ed. In connection with the implemenatation
  of UNICEF Aided Science Education Programme on temporary post
  of Science Supervisor was created. The respondent was transferred as
H Science Supervisor in his own pay scale in the State Institute of
                                  270
    UNION TERRITORY, CHANDIGARH v. KRIS HAN BHANDARI [S.C. AGRAWAL, J .] 27 l


Education, Union Territory against the newly created post under                 A
UNICEF Scheme. The respondent was subsequently confirmed on
the post of Science Master.

     In the State there existed the Class III post of District Science
Supervisor. The pay scale of the said post was higher than that
prescribed for the post of Science Master. Ever since his transfer on           B
the post of Science Supervisor the respondent had been drawing pay
as per the pay scale prescribed for the post of Science Master. The
respondent filed an application before the Central Administrative
Tribunal claiming for the scale of pay fixed for the post of District
Science Master.
                                                                                c
      The case of the respondent was that he was performing the same
duties which were performed by a District Science Supervisor in the
State and that the scales of State Government employees had been
adopted by the Administration of the Union Territory and that the
action of the Administration in not granting to him the revised pay
scale as was given to the District Science Supervisor in the State was          D
wholly discriminatory.

      The case of the appellants was that there was no post of District
Science Supervisor under the Administration and that the post of
District Science Supervisor in the State was a Class II post and the            E
qualification required for the post of District Science Supervisor in
the State was M.Sc. (Second class) and the duties of the said post
were different from the duties of the post of Science Supervisor In the
Union Territory. Moreover, the respondent was actually holding the
post of Science Master and had been placed at serial No. 114 in the
seniority list for the Science Masters and he was only transferred to           F
the post of Science Supervisor in his own pay scale.

     The Tribunal allowed the application on the ground that the
appellants had not produced any rules or instructions to prove that
the qualification prescribed for the post of District Science Supervisor        G
was M.Sc. (Second Class) and that there was no justification in refusing
equal pay for equal work to the respondent. Being aggrieved the
appellants preferred the present appeal.

      On behalf of the appellants It was contended that the. principle
of 'equal pay for equal' work could be applied only where there was             H
    272                    SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R.


A discrimination in the pay scales of two equivalent posts under the
    same employer and that the said principle had no application in the
    case of posts held under different employers.

       On behalf of the respondent it was contended thatthe respondent
  was entitled to the same pay scales as applkable in the State vide
B Rule 2 of the Union Territory of Chandigarh Employees Rules, 1966;
  and that the respondent was selected for the po•:t of Science Supervisor
  and, therefore, he must be treated as having been substantively
  appointed to the said post of Science Supervisor.

          Allowing the appeal, this Court
c
        HELD : I. The second proviso to Rule 2 of the Union Territory
  of Chandigarh Employees Rules, 1966 cannot apply to the case of the
  respondent because it deals with persons appointed to services and
  posts under the administrative control of the Administration of the
D Union Territory, who are drawing pay at the rates admissible to
  corresponding categories of employees of the State Government. The
  respondent was not such a person because the post of Science Supervisor
  in the Union Territory was not having the same pay scale as that of the
  District' Science Supervisors in the State prior to the notification issued
  by the State Government. That was the reason why in the notification
E that was issued by the Union Territory there was no revision of pay
  scale for the post of Science Supervisor on the basis of the revision of
  pay scale for the post of District Science Supervisor in the State. The
  respondent cannot, therefore, claim the same pay scale as that of
  District Science Supervisors on the basis ofRule 2 of the Union Territory
  Chandigarh Employees Rules, 1966. (277 GH, 278 A,B)
F
       2.1. Since the respondent has claimed that the post of District
  Science Supervisor in the State is at par with the post of Science
  Supervisor held by him in the Union Territory, it was for the
  respondent to produce the necessary material to show that the
G qualification prescribed for the two posts is the same. He has not
  produced any material in this regard. The Tribunal was in error in
  proceeding on the basis that it was for the appellants to show that the
  qualification prescribed for the post of District Science Supervisor is
  higher viz., M.Sc. (Second Class) and since the appellant had failed
  to produce any material. to show that the qualification prescribed for
H the post of District Science Supervisor is M.Sc. (Second Class), the
              UNION TERRITORY, CHANDIGARH'· KRISHAN BHANDARI         273

two posts should be treated as equivalent posts. [278 C-El                 A

      2.2. Even though the post of Science Supervisor, on which the
respondent has been working, was created in connection with the
implementation of the UNICEF Aided Science Education Programme,
the said post cannot be treated at par with the post of District Science
Supervisor in the State. The post of District Science Supervisor in the    8
State is a Class II post governed by the Punjab Educational Services
(Class II) Rules. [278 C,D[

      2.3. Since the appointment of the respondent on the post of
Science Supervisor was by way of transfer on his own pay shows that
the post of Science Supervisor on which the respondent was appointed       C
was not a post higher than the post of Science Master but was an
equivalent post. There was, therefore, no question of making any
selection for making appointment on the said post. The case of the
respondent in this regard in negatived by the fact that after his
appointment as Science Supervisor the respondent continued to be
borne in the cadre of Science Master and was confirmed on the said         D
post and his name is shown in the Gradation List for Masters. It
cannot, therefore, be held that while working as Science Supervisor
the respondent is substantively holding the post of Science Master;
and he cannot claim salary higher than that of Science Master which
is being paid to him. [279 D-FJ
                                                                           E
      3. The principle of equal pay for equal work is a facet of the
principle of equality in the matter of employment guaranteed under
Articles 14 and 16 of the Constitution of India. The right to equality
can only be claimed when there is discrimination by the State between
two persons who are similarly situate. The said principle cannot be        F
invoked in cases where discrimination sought to be shown is between
acts of two different authorities functioning as State under Article 12
of the Constitutidn. [276 EF)

        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3976 of            G
1996.

    From the Judgment and Order dated 17 .8. 94 of the Central
Administrative Tribunal Chandigarh in O.A.No.490 of 1987.

        K. Madhava Reddy and Ms. Kamini Jaiswal for the Appellant.         H
    274                     SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R.


A         Jagdish Singh Khehat and Ashok K. Mahi~an for the Respondent.

          The Judgment of the Court was delivered by

        S.C. AGRA WAL, J. This appeal by special leave has been filed
  against the judgment of the Central Administrative Tribunal, Chandigarh
B Bench (hereinafter referred to as 'the Tribunal') dated August 17,1994 in
  0.A.No.490/CH/1987 tiled by the respondent, By the said judgment the
  Tribunal, invoking the principle of 'equal pay for equal work' has held
  that the respondent, who is working as Science Supervisor in the Union
  Territory of Chandigarh is entitled to be placed on the scale of Rs. 1200·
   1700, the pay scale for the post of District Science Supervisors, in the
C State of Punjab.

        The respondent was appointed as Science Master on temporary basis
  by order dated August 21, 1973. At that time the respondent was having
  the qualifications of B.Sc. (III Class) ahd B.Ed, In connection with the
  implementatlort of UNICEF Aided Science Education l'togramme otie
D Temporary post of Science Supetvisor was created by order dated
  September I, I 97.i in the scale of Rs. 200-500. By order dated November
  29, 1973 the respondent was transferted as Science Supervisor ih his own
  pay scale in the State Institute of Educatioh, Chandigarh Administration
  against the newly created post under UNICEF Scheme. The respondent
E has continued to hold the said post of Science Supervisor. In the meanwhile,
  by order October 6, 1976, he was confirmed on the post of Science Master
  in the scale of Rs. 220·500 with effect from Jul:13l, 1975. In 1980, the
  pay scale for the post of Science Master was revised from Rs. 220-500 to
  Rs. 620" 1200 with effect from January I, 1978. Subsequently the said pay
  scale has beeh revised to Rs. 1640·2925 with effect from July I, 1986.
F
        ln the State of Punjab there exists the Class II post of District Science
  Supervisor. Initially, the said post was in the pay scale of Rs. 700-1100.
  By notification dated February 2, 1980, the pay s1:ale of the said post was
  revised to Rs. 1200· I 700 with effect from July I, 1976. Thereafter, the
G said pay scale has been revised to Rs. 2400-4000 with effect from July I,
  1986.

        Ever since his transfer on the post of Science Supetvisor by order
  dated November 29, 1973 the respondent has beet1 drawing pay as per the
  pay scale prescribed for the post of Science Master. In 1987 the respondent
H moved the Tribunal by filing O.A. No. 490/CHll 987, wherein he claimed
        UNION TERRITORY, CHANDIGARH"· KRISHAN BHANDARI [S.C. AGRA WAL, I) 27 5


    for salary in the pay scale of Rs, 700·1 JOO from the date of his appointment A
    as Science Supervisor and in the scale of Rs. 1200· I 700 from the date the
    said pay scale was revised by the Government of Punjab, The case of the
    respondent was that he is performing the same duties which are performed
    by a District Science Supervisor in the State of Punjab and that the scales
    of Punjab Government employees as revised from time to time have been
    adopted by the Administration of the Union Territory of Chandigarh and B
    that the action of the Chandigarh Administration in not granting to him
    the revised pay scale as is given to the District Science Supervisors in the
    State of Punjab is wholly discriminatory, The said application filed by the
    respondent was contested by the appellants on the ground that there is no
    post of District Science Supervisor under the Chandigarh Administration
    and that the post of District Science Supervisor in the State of Punjab is a C
    Class II post and the qualification required for the post of District Science
    Supervisor in the State of Punjab is M.Sc. (Second class) in Physics or
    Chemistry or Botany or Zoology and the duties of the said post are different
    from the duties of the post of Science Supervisor in the Union Territory
    of Chandigarh in as much as District Science Supervisor in Punjab perform
    the duties of checking the Science Laboratories in Middle Schools as also D
    High and Senior Secondary Schools while Science Supervisor in Union
    Territory of Chandigarh has to perform the duty of checking the Laboratory
    work in Primary Schools only and the said post is only a Class IJl post, It
    was also stated that the respondent is actually holct'ing the post of Science
    Master and has been placed at serial No. 114 in the seniority list for the
    Science Masters and he was only transferred to the post of Science E
    Supervisor in his own pay scale.

          The Tribunal has held that the respondent was appointed as Science
    Supervisor after being interviewed by a duly constituted Selection
    Committee and the fact that he was asked to work in his own pay scale
    would not be sufficient to hold that the respondent continued to be borne F
    on the cadre of Science Master. The Tribunal has observed <hat the Science
    Supervisors both in the State of Punjab and Union Territory of Chandigarh
•
    have been appointed under a scheme framed and implemented jointly by
    the UNICEF and NCERT and that in a number of letters from the Central
    Co-ordinator ofNCERT to the Education Secretary, Government o-fUnion G
    Territory, Chandigarh, the post of Science Supervisor has been described
    as District Science Supervisor. The Tribunal has also stated that since
    there are no separate districts in the Union Territory of Chandigarh, the
    post of Science Supervisor has not been described as District Science
    Supervisor. As regards the qualification for the post of District Science
    Supervisor in the State of Punjab being different from the qualification H
    276                      SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R.


A required for the post of Science Supervisor in the Union Territory of
    Chandigarh, the Tribunal has held that no document had been placed on
    record by the appellants which could support the view !hat the District
    Science Supervisors in the State of Punjab were required to hold the basic
    qualification of M.Sc. (Second Class) in Physics or Chemistry or Botany
    or Zoology before they were duly appointed and in the absence of any
B   such rules or instructions, there could be no justification in refusing equal
    pay for equal work to the respondent.

          Shri K. Madhva Reddy, the learned senior counsel appearing for the
    appellants, has submitted that the Tribunal was in error in applying the
    principle of 'equal pay for equal work' in the facts of the present case. It
C   has been urged that the post of District Science Supervisor in the State of
    Punjab is not comparable with the post of Science Supervisor held by the
    respondent inasmuch as the respondent was in the c:adre of Science Master
    which is a Class III post while the post of District Science Supervisor in
    the State of Punjab is a Class II post. It has also been urged that the
    principle of 'equal pay for equal work' can be applied only in cases where
D   there is discrimination in the matter of fixation of pay scales in respect of
    two equivalent posts under the same employer, and that the said principle
    can have no application to claim parity in pay between posts held under
    different employers.

E       We find considerable force in the said submissions of Shri Reddy.
  The principle of 'equal pay for equal work' is a facet of the principle of
  equality in the matter of employment guaranteed under Articles 14 and 16
  of the Constitution of India. The right to equality can only be claimed
  when there is discrimination by the State between two persons who are
  similarly situate. The said principle cannot be invoked in cases where
F discrimination sought to be shown is between acts of two different
  authorities functioning as State under Article 12 of the Constitution. Shri
  Jagdish Singh Khehar, the learned. senior counsel appearing for the
  respondent, does not dispute this proposition. He has, however, submitted
  that since the Union Territory of Chandigarh hils adopted the same pay
G scales as those applicable in the state of Punjab, the respondent is justified
  in claiming the same pay scale as is given to District Science Supervisors
  in the State of Punjab. In this context, the learned counsel has invited our
  attention to the provisions of Rule 2 of the Union Territory of Chandigarh
  Employees Rules, 1966 v:hich prescribes as follows:-

H                  "Rule 2. Condition of Service of persons appointed to the
    UNION TERRITORY, CHANDIGARH v. KRISHAN BHANDARI [S.C AGRAWAL, l.] 277


             Central Civil Services and posts under the Administrative          A'
             Control of certain Administration.

             The conditions of services of persons appointed to the Central
             Civil Services and posts Class I, Class II, Class III and Class
             IV under the Union Territory of Chandigarh shall, subject to
             any other provision made by the President, be the same as          B
             the conditions of service of persons appointed to other
             corresponding Central Civil Services and posts be governed
             by the same rules and orders as are for the time being
             applicable to the latter category of persons;

              Provided that the scales of pay and dearness and other            C
              allowances granted to such employees, shall until any other
              provision is made in this behalf, continue to be governed by
              the orders in force immediately before the commencement
              of these rules;

              Provided further that in the case of persons appointed to         D
              services and posts under the Administrative Control of the
              Administrator, Chandigarh, if they are drawing pay at the
              rates admissible to ·corresponding categories of employees
              of the Government of Punjab, it shall be competent for the
              Administrator to revise their scales of pay from time to time     E
              so as to bring them on par with the scales of pay which may
              be sanctioned by the Government of Punjab from time to
              time for the corresponding categories of employees."

      It is urged that since the pay scale in the State of Punjab has been
revised by notification dated February 22, 1980 and similar revision has        F
been made in the Union Territory, Chandig:irh by notification dated May
16, 1980, the respondent is entitled to revised pay scale for the post of
District Science Supervisor. We find no substance in this contention, Rule
2 referred to above cannot be invoked in the present case. Neither the
main part of Rule 2 not the first proviso have any application to the case      G
of the respondent. The second proviso also cannot apply because it deals
with persons appointed to services and posts under the administrative control
of Administrator, Chandigarh, who are drawing pay at the rates admissible
to corresponding categories of employees of the Government of Punjab.
The respondent was not such a person because the post of Science Supervisor
in the Union Territory of Chandigarh was not having the same pay scale as       H
    278                     SUPREME COURT REPORTS (1996] SUPP. 8 S.C.R.


A that of the District Science Supervisors in the State.of Punjab prior to
  notification dated February 22, 1980 issued by the Government of Punjab.
  That was the reason why in notification dated May 16, 1980 that was
  issued by the Union Territory of Chandigarh there was no revision of pay
  scale for the post of Science Supervisor on the basis of the revision of pay
  scale for the post District Science Supervisor in the State of Punjab. The
B respondent cannot, therefore, claim the same pay scale as that of District
  Science Supervisors on the basis, of Rule 2 of the Union Territory
  Chandigarh Employees Rules, 1966.

         Even though the post of Science Supervisor, on which the respondent
  has been working, was created in connection with the implementation of
C the UNICEF Aided Science Education Programme, the said post cannot
  be treated at par with the post of District Science Supervisor in the State
  of Punjab. The post of District Science Supervisor in the State of Punjab
  is a Class II post governed by the Punjab Education Services (Class II)
  Rules. Since the respondent has claimed that the post of District Science
  Supervisor in the State of Punjab is at par with the post of Science Supervisor
D held by him in the Union Territory of Chandigarh, it was for the respondent
  to produce the necessary material to show that the qualification prescribed
  for the two posts is the same is on his part. He has not produced any
  material in this regard. The Tribunal was in error in proceeding on the
  basis that it was for the appellants to show that the qualification prescribed
E for the post of District Science Supervisor is higher viz., M.Sc. (Second
  Class) and since the appellant had failed to produce any material to show
  that the q11alification prescribed for the post of District Science Supervisor
  is M.Sc. (Second Class), the two posts should b1i treated as equivalent
  posts.

F        In so far as the respondent is concerned, it is fully established from
  the records that he was holding the post of Science Master on temporary
  basis on November 19, 1973, when he was transferred to the post of Science
  Supervisor and in the order of transfer it is expressly directed that he
  would continue in his own pay scale. i.e., the scale of Science Master.
G After his appointment on the post of Science Supervisor, the respondent
  continued to be borne in the cadre of Science Master and he was confirmed
  on the post of Science Master by order dated October 6, 1976 with effect
   from July 31, 1975. In the Provisional Gradation List of Masters/Mistresses
   recruited by the Education Department, Chandigarh Administration as it
  stood on January 1, 1986, the respondent is placed at serial No. 114. This
H would show that inspite of his working on the post of Science Supervisor
    UNION TERRITORY, CHANDIGARH'· KRISHAN BP.ANDARI [S.C. AGRA WAL, J.] 279



since 1973, the respondent is continuing in the cadre of Science Masters        A
and he has been paid the salary payable to Science Masters.

      On behalf of the respondent it has been submitted that for the purpose
of appointment on the post of Science Supervisor a selection was made
through interview and out of a number of persons who appeared for
interview the respondent was selected and, therefore, the respondent must       B
be treated as having been substantively appointed on the newly created
post of Science Supervisor under order dated November 29, 1973. On
behalf of the appellants it has been disputed that any selection was held for
the purpose of appointment on the post of Science Supervisor. It is submitted
that since the pay scale for the newly created post of Science Supervisor
was Rs. 200-500 and it was less than the pay scale of Rs. 220-500 of            C
Science Master none of the Science Mastero, who were senior to the
respondent, were interested in joining the post of Science Supervisor and
the respondent, who was much junior as Science Master, was, therefore,
appointed. Since the appointment of the respondent on the post of Science
Su~ervisor was by way of transfer on his own pay shows that the post of
Science Supervisor on which the respondent was appointed was not a post         D
higher than the post of Science Master but was an equivalent post. There
was, therefore, no question of making any selection for making appointment
on the said post.. The case of the respondent in this regard is negatived by
the fact that after his appointment as Science Supervisor by order dated
November 29, 1973 the respondent continued to be borne in the cadre of
Science Master and was confirmed on the said post with effect from July         E
31, 1975 by order dated October 6, 1976 and his name is shown in the
Gradation list for Masters as on January l, 1986 therefore, be held that
while working as science supervisor the respondent is substantively holding
the post of Science Master and he cannot claim salary higher than that of
Science Master which is being paid to him.
                                                                                F
      For the reasons aforementioned, we are unable to uphold the impugned
judgment of the Tribunal. The appeal is, therefore, allowed, the judgment
of the Tribunal dated August 17, 1994 is set aside and 0.A.No 490/CH/
 1987 filed by the respondent is dismissed. But in .the circumstances there
is no order as to costs.                                                        G

v.s.s.                                                     Appeal allowed.