The Bombay High Court (Aurangabad Bench) asserted that where all relevant considerations are same, then the persons holding identical posts may not be treated differently in the matter of pay. The Court admitted that the principle of ‘equal pay for equal work’ is not expressly declared by the Constitution to be a fundamental right, but it is certainly a constitutional goal.
The Court clarified that higher qualifications for the higher grade, which may be either academic qualifications or experience based on length of service, reasonably sustain the classification of the officers into two grades with different scales of pay. However, the principle of ‘equal pay for equal work’ would be an abstract doctrine not attracting Article 14 of the Constitution of India if sought to be applied to them.
Essentially, the High Court ruled that a senior teacher holding an identical post cannot be treated differently in the matter of pay compared to a junior in the same cadre, where all relevant considerations are the same. A pay anomaly caused by the timing of acquiring a qualification (like a Ph.D.) relative to the implementation of a new pay commission is discriminatory and violates the principle of ‘equal pay for equal work’.
The provisions for stepping up pay, such as Notes 5 and 6 of the Government Resolution dated 12.08.2009, are designed to rectify such situations and must be applied, added the Court, while directing the respondents (State government) to step up the pay of the petitioner with effect from 01.09.2008 to bring it at par with that of Dr. Nathrekar, provided all relevant service conditions are identical.
The Court also made it clear that the respondents shall not discriminate against the petitioner only because Dr. Nathrekar acquired her Ph.D. degree during the 6th Pay Commission period. Further, the respondents must re-fix the petitioner’s salary and pay the arrears within three months from the date of the judgment. If the arrears are not paid within the stipulated period, they shall carry interest at the rate of 8% per annum, which would be recovered from the respondents. Also, the Court stated that if the petitioner has retired, his pension shall be re-fixed and paid accordingly.
The Division Bench comprising Justice Kishore C. Sant and Justice Sushil M. Ghodeswar observed that as Article 39(d) of the Constitution proclaims ‘equal pay for equal work’ for both men and women as a directive principle of the State Policy, the Directive principles will have to be read into the fundamental rights as a matter of interpretation.
Article 14 envisages that the State should not deny any person equality before the law or the equal protection of law and Article 16 declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. These equality clauses of the Constitution must mean something to everyone, added the Bench.
The Bench analysed Notes 5 and 6 of the Government Resolution dated 12.08.2009, and observed that Note 5 mandates that if a senior teacher’s pay is fixed at a lower stage than a junior’s in the revised pay band, it must be stepped up to the same stage as the junior. Note 6 addresses the anomaly where a senior promoted before 01.01.2006 draws less pay than a junior promoted after that date, requiring the senior’s pay to be stepped up from the date of the junior’s promotion.
Differentiation of two teachers only on the basis that one teacher having acquired Ph.D. degree subsequently after implementation of the 6th pay commission, would be discriminatory to place a person who is not only senior in service but also equally qualified in a disadvantageous position, as if it were a “fault to have acquired Ph.D. qualification earlier”, concluded the Bench.
Briefly, the petitioner acquired his Ph.D. on 13.12.2000, was awarded the position of Reader on 01.07.2002, and was designated as a Senior Associate Professor on 01.01.2006. On the other hand, Dr. Nathrekar was awarded her Ph.D. on 04.04.2007, became a Reader on 04.04.2007, and was designated as an Associate Professor on 04.04.2010. Until 01.07.2007, both individuals drew equal pay. However, a disparity arose from 01.07.2008, where the petitioner’s pay was Rs. 51,950, while Dr. Nathrekar’s was Rs. 56,360. This gap continued, and as per the 7th Pay Commission, the petitioner was placed in a pay scale of Rs. 1,62,300, whereas Dr. Nathrekar was placed in a scale of Rs. 1,81,800.
The petitioner relied on Notes 5 and 6 of the Government Resolution dated 12.08.2009 to claim that his pay should be stepped up to match his junior’s. Despite representations to the authorities, no action was taken. Opposing the same, the State argued that Dr. Nathrekar was not junior to the petitioner by date of appointment and that the pay difference arose because she received three increments upon acquiring her Ph.D. after the 6th Pay Commission was implemented.
Appearances:
Advocate Dr. R.J. Godbole, for the Petitioner
AGP B.V. Virdhe and Advocate M.S. Karad, for the Respondent
