Principle of Equal Pay for Equal Work Cannot be applied merely based on Designation: SC

Union of India Vs Manoj Kumar (Supreme Court of India)

In this case Para 3.1.3 which dealt with the disparity between the Secretariat and field offices has canvassed a case for parity between similarly placed persons employed in field offices and the Secretariat; in view of the field offices being at the cutting edge of administration. However, it came to the conclusion that parity would need to be absolute till the grade of Assistant. It was clearly stipulated that beyond that “it may not be possible or even justified to grant complete parity because the hierarchy and career progression will need to be different taking in view the functional considerations and relativities across the board.” If this principle is observed, the benefit cannot accrue to the respondents and we cannot accept the plea that as a result of parity being given up to the level of Assistant (which would put them in the grade of Rs.4200 (later Rs.4600)), the respondents, being one post higher, would automatically have to get one higher grade.

We are fortified in the view we are seeking to adopt in interpreting the aforesaid paragraphs of the Pay Commission by the observations in Union of India v. Tarit Ranjan Das,⁷ where it was opined that the principle of equal pay for equal work cannot be applied merely on basis of designation. While dealing with the 5^th Pay Commission recommendations with respect to functional requirements, it was held that there was no question of any equivalence on that basis. The said case dealt with Stenographers of the Geological Survey of India. While observing that as a general statement it was correct to state that the basic nature of work of a Stenographer remained by and large the same whether they were working for an officer in the Secretariat or for an officer in a subordinate office; it was held that Courts ought not to interfere if the Commission itself had considered all aspects and after due consideration opined that absolute equality ought not to be given.

In the end we would like to reiterate that the aspect of disparity between the Secretariat and the field offices was a matter taken note of by the Commission itself while making the recommendations. Yet to some extent, a separate recommendation was made qua Secretariat Organizations and non-Secretariat Organizations. Once these recommendations are separately made, to direct absolute parity would be to make the separate recommendations qua non-Secretariat Organizations otiose. If one may say, there would have been no requirement to make these separate recommendations if everyone was to be treated on parity on every aspect.

In view of the aforesaid reasons, we find the impugned judgment, which in turn relies upon other orders passed by different Tribunals and Courts unsustainable, and is accordingly set aside.

FULL TEXT OF THE SUPREME COURT JUDGMENT/ORDER

1. Indian Railways is the largest civilian employer in the country comprising of six production units and eighteen zones, with each zone having three to six divisions.¹ The total number of employees as on 31.03.2005 was stated to be about 14 lakh with the following distribution of staff strength:

* As per the Indian Railways Annual Report and Accounts 2019-20, the current strength is about 12,53,592 as on 31.03.2020.

2. The Sixth Central Pay Commission (“6^th CPC”) report in chapter 7.36 deals with the Ministry of Railways and shows that it has fourteen departments, including the Railway Board. The report examined the demands of these different departments seeking higher pay-scales and allowances for various categories in different departments. We are concerned in the present matter with claims made by Private Secretaries (Grade-II) (“PS-II”) employed in the Eastern Central Railways (Field Office/Zonal Railways),for parity in pay with their counterparts working in the Central Secretariat Stenographers Service (“CSSS”)/Railway Board Secretariat Stenographers Service (“RBSSS”)/Central Administrative Tribunal (“CAT”). We may note at this stage itself that there have been conflicting judicial views on the claim for such parity which we will come to later.

3. We may notice that the 6^th CPC referred to the demands made by common category posts relating to certain cadres in the Ministry of Railways in para 7.36.95.One of the common category posts is that of “Typists and Stenographers”. Thereafter, in para 7.36.96, it was observed that these common categories have been covered by the Commission elsewhere in the report. It was stated that the recommendations made therein shall apply in respect of the common category posts in the Ministry of Railways as well, there being no separate recommendations made for this category. In the aforesaid conspectus we have to turn to Chapter 3.1 of the report of the 6^th CPC, which deals with “Headquarters Organisations in Government of India & Office Staff in field offices”. The disparity between Secretariat and Field offices is set out in clauses

3.1.2 and 3.1.3, which read as under:

“Disparity between Secretariat and field offices

3.1.2 The senior administrative posts in the Secretariat are mainly filled by officers of All India Services and Central Group A services on deputation under the Central Staffing Scheme. Some of the posts in the middle level are also held by officers of the Central Secretariat Services, Railway Board Secretariat Service in Ministry of Railways, Defence Forces Headquarters Services in Ministry of Defence and by Indian Foreign services (B) in Ministry of External Affairs. Historically, various services in the Secretariat have been given an edge over analogous posts in the field offices. This was done on the ground that office staff in the Secretariat performs  complex duties and are involved in analyzing issues with policy implications whereas their counter parts in field offices perform routine work relating to routine matters concerning personnel and general administration, etc. Another argument that is used to justify the edge for various posts in Secretariat is that in Secretariat, level  jumping occurs and personnel in the grade of Assistant etc. submit  files directly to decision making levels of Under Secretary, Deputy Secretary, etc.”

3.1.3 Higher pay scales in the Secretariat offices may have been  justified in the past when formulation of proper policies was of paramount importance. The present position is different. Today, the  weakest link in respect of any Government policy is at the delivery stage. This phenomenon is not endemic to India. Internationally also, there is an increasing emphasis on strengthening the delivery lines and decentralization with greater role being assigned at delivery points which actually determines the benefit that the  common citizen is going to derive out of any policy initiative of the Government. The field offices are at the cutting edge of administration and may, in most cases, determine whether a particular policy turns out to be a success or a failure in terms of actual benefit to the consumer. Accordingly, the time has come to  grant parity between similarly placed personnel employed in field offices and in the Secretariat. This parity will need to be absolute till the grade of Assistant. Beyond this, it may not be possible or even justified to grant complete parity because the  hierarchy and career progression will need to be different taking in view the functional considerations and relativities across the board.”

(emphasis supplied)

4. The recommendations in para 3.1.9 have been made for various posts from the LDC to the Director including Section Officer, with a caveat that in the case of Sections Officers having pay scale of Rs. 8000­13500, the scale would only be available to such of these organizations/services which have had a historical parity with CSS/CSSS. We, however, note that before setting forth in a tabular form the revised pay-scales of the different posts, it has been observed in para 3.1.9 that: “these recommendations shall apply mutatis-mutandis to post of Private Secretary/equivalent in these services as well.”

5. We may note that the submission of the respondents is that it is this clause which ought to govern; and that it recommends parity between the post of Private Secretaries/equivalent and the post of a Section Officer. We now turn to clause 3.1.14 which deals with recommendations for non-Secretariat Organizations. According to the appellants, the aspects sought to be raised before us are specifically dealt with under this paragraph; and thus, the respondent’s claim that their pay-scale ought to be governed by para 3.1.9 is misplaced. These paragraphs read as under:

“Recommendations

3.1.9 Accordingly, the Commission recommends upgradation of the entry scale of Section Officers in all Secretariat Services (including CSS as well as nonparticipating ministries/departments/organizations) to Rs.7500-12000 corresponding to the revised pay band PB 2 of Rs.8700-34800 along with grade pay of Rs.4800. Further, on par with the dispensation already available in CSS, the Section Officers in other Secretariat Offices, which have always had an established parity with CSS/CSSS, shall be extended the scale of Rs.8000-13500 in Group B corresponding to the revised pay band PB 2 of Rs.8700-34800 along with grade pay of Rs.4800 on completion of four years service in the lower grade. This will ensure full parity between all Secretariat Offices. It is clarified that the pay band PB 2 of Rs.8700-34800 along with grade pay of Rs.4800 is being recommended for the post of Section Officer in these services solely to maintain the existing relativities which were disturbed when the scale was extended only to the Section Officers in CSS. The grade carrying grade pay of Rs.4800 in pay band PB-2 is, otherwise, not to be treated as a regular grade and should not be extended to any other category of employees. These recommendations shall apply mutatis-mutandis to post of Private Secretary/equivalent in these services as well. The structure of posts in Secretariat Offices would now be as under:-

* This scale shall be available only in such of those organizations/services which have had a historical parity with CSS/CSSS. Services like AFHQSS/AFHQSSS/RBSS and Ministerial/Secretarial posts in Ministries/Departments organizations like MEA, Ministry of Parliamentary Affairs, CVC, UPSC, etc. would therefore be covered.”

“Recommendations for non – Secretariat Organizations

3.1.14 In accordance with the principle established in the earlier paragraphs, parity between Field and Secretariat Offices is recommended. This will involve merger of few grades. In the Stenographers cadre, the posts of Stenographers Grade II and Grade I in the existing scales of Rs.4500-7000/Rs, 5000-8000 and Rs.5500-9000 will, therefore, stand merged and be placed in the higher pay scale of Rs.6500-10500. In the case of ministerial post in non- Secretariat Offices, the posts of Head Clerks, Assistants, Office Superintendent and Administrative Officers Grade III in the respective pay scales of Rs.5000-8000, Rs.5500-9000 and Rs.6500-10500 will stand merged. The existing and revised structure in Field Organization will, therefore, be as follows:-

A perusal of paragraph 3.1.14 would show that Steno (Grade-II) has specifically been mentioned under this paragraph and it deals with the aspect of parity between field and Secretariat offices.

6. We consider it appropriate to settle the aforesaid issue which is on a plain reading of the recommendations of the 6^th CPC as a lot of other arguments and claims of parity will flow from which clause would govern.

7. There is no doubt, in our considered view, that though there is an observation that the recommendations shall apply mutatis mutandis to Private Secretaries and posts equivalent thereto in the service under para 3.1.9; the subsequent paragraph 3.1.14 has specifically dealt with the aspect of parity between the field and Secretariat offices, which is really the subject matter of the claim before us.

8. The plea of the respondents is that para 3.1.9 of the recommendations of the 6^th CPC has been issued pursuant to paras 7.36.95 and 7.36.96. No separate recommendations for Stenographers in zonal offices of Railways have been made. Para 3.1.9, which relates specifically to Section Officers also provides that it applies mutatis mutandis to private secretaries in these services. The premise of this plea is therefore that para 3.1.14 deals with the recommendations for non-Secretariat Organizations other than the Railways, and that they should be treated as Secretariat organizations. In our view this becomes a crucial issue. In the spectrum of conflicting views of different Central Administrative Tribunals, the view of the CAT, Bangalore in Original Application Nos. 640-649 and 1001-1030 of 2014 seek to favour the case of the appellants.

9. If we turn to that judgment (V.N. Narayanappa & Ors. v. The Secretary, Railway Board Etc.) decided on 13.04.2016, the factual matrix deals with a case of similarly situated Private Secretaries (Grade II) in the Southern Railways. In considering this plea, the Tribunal took note of a different view in O.A. No.658/2010 decided on 05.06.2012 by the Madras Bench of the Tribunal, which the applicants therein sought to rely upon. That judgment in turn was based on an earlier view of the Principal Bench of the CAT at Delhi in the case of OA No.164/2009 decided on 19.02.2009 (S.R. Dheer & Ors. v. Union of India & Ors.), in respect of Private Secretaries (Grade-II) of the CAT. At this juncture, it may be important to note that the respondents herein in their OA before the CAT Patna, also claimed parity with the aforementioned decision of the CAT Madras. The Madras Bench of the CAT had noticed that no recruitment rules had been placed on record by the Government while stating that different standards of academic and professional qualifications, etc. exist. Thus, the view of the Madras Bench of the Tribunal was based on absence of material and on a reason of parity with the Principal Bench at Delhi, even though the Principal Bench at Delhi dealt with the case of CAT Stenographers (Grade II) officers and had allowed the OA on the basis of historical parity.

10. We may add here that the views of the Madras CAT have not been interfered with by this Court. Both an SLP challenging the decision and a subsequent Review Petition met with a summary dismissal and resultantly, the question to be decided in this case has not been specifically dealt with by this Court. This has resulted in the implementation of different orders in different matters, which are really contradictory in nature.

11. The Bangalore Bench of the CAT in seeking to determine the issue on merits sought strength from an earlier decision of the Principal Bench (Delhi) in OA No. 2102/2010 in Rabindra Nath Basu & Ors. v. Union of India & Ors. and other connected matters decided on 16.05.2011 dealing with the case of the Assistant Staff Officers of the Ordnance Factory Board. The CAT therein opined that the applicants belonged to a non-Secretariat organization and would therefore be covered by the pay-scale prescribed in para 3.1.14 of the 6^th CPC.

12. If we notice the discussion in N. Narayanappa & Ors.², historical parity is one of the aspects which has been examined. The factual matrix in the present case is that there was such historical parity under the first and second Pay Commissions’ recommendations. However, the third and fourth Pay Commissions did not give parity and the fifth Pay Commission gave parity to a limited extent. Thus, there is no continued history of parity insofar the present case is concerned, i.e., sometimes parity was given and sometimes not. The history as available from the brief note submitted by the respondents and is as under:

13. We now turn to the aspect of whether the post in the case in hand can be said to be that of a Secretariat or non-Secretariat organization. This aspect, once again, has been dealt with in the judgment in V.N. Narayanappa & Ors.³, taking note of Swamy’s Compilation of 6^th CPC Report Part I (pages 141 to 147) and Swamy’s Manual on Office Procedure 2006 and 2009. In the definition Chapter at entry 53, Secretariat Offices are said to have been defined as those which are responsible for formulation of the policies of the Government and also for the execution and review of those policies. Relying on this definition, it was opined that the organizations where the applicants in V.N. Narayanappa & Ors.⁴ were working, were not Secretariat Organizations, but were non-Secretariat Organizations or attached offices or subordinate offices thereto. The meaning of subordinate offices is stated to signify their function as field establishments or as agencies responsible for the detailed execution of the policies of Government. They function under the direction of an attached office or directly under a department. In that context, it was opined that there exists a distinction in the works, functions and responsibilities between Secretariat and non-Secretariat organizations. As such, it was noted that if there are functional dissimilarities between the cadres, there are bound to be financial disparities in pay and allowances. It would be useful to reproduce paras 38 and 39 of the judgment in V.N. Narayanappa & Ors.⁵, which read as under:

“38. As it would be evident from the discussions in the preceding paras, there is a significant difference in the recruitment rules, promotional hierarchy etc. between the applicants who are Private Secretaries Grade-II in the Zonal Railways with that of Private Secretaries in the Railway Board/Central Secretariat Services/CSSS or CAT. There also no case of any historical parity between the applicants and their counterparts in CSSS or CAT or RBSS. Therefore the applicants cannot claim the benefits of pay scales allowed to CSSS in the ratio of judgments in OA No.164/2009 in S.R. Dheer & Ors. v. Union of India wherein the Private Secretaries in the CAT were granted the benefit on the basis of establishment of a historical parity with CSS.

39. In this context, we also note the submission made by the respondents about the consequential implications on various other categories/groups under the respondents if such benefit is granted to the applicants even though they do not have any parity with RBSS and CSSS and are not entitled to the same. The Railways is a vast organization where there are many cadres/category of employees having identical pay scales and equal parity with that of Private Secretaries Grade-II in the Zonal Railways. A list of such groups has been highlighted in the reply statement. Therefore, grant of benefit which the applicants are otherwise not entitled to will also have an effect on the other cadres of Railways as contended.”

14. We do believe in the conspectus of the aforesaid discussion that the correct perspective has been taken in N. Narayanappa & Ors.⁶ insofar as which clause of the 6^th CPC recommendations would be applicable. We find that once we come to the conclusion that the regional offices of the Railways are to be treated as non-Secretariat Organizations, then the specific recommendations in para 3.1.14 relating to such non-Secretariat Organizations will apply. The observations made in para 3.1.9 which are qua Secretariat offices giving parity between the Private Secretary/equivalent to a Section Officer cannot be said to be mutatis mutandis applicable even to non-Secretariat Organizations. If we were to opine otherwise and equate everybody there would have been no purpose in the 6^th CPC making separate recommendations for non-Secretariat Organizations in their wisdom. It is not as if the Commission was unaware of the plea of disparity between the Secretariat and field offices as that was dealt with in paras 3.1.2 and 3.1.3 but despite having taken note of the same some difference was sought to be made between Secretariat and non-Secretariat offices.

15. The Pay Commission is a specialized body set up with the objective of resolving anomalies. It is relevant to note that the anomaly in question was referred to the Pay Commission at the request of candidates similarly situated to the respondents and thus, the 6^th CPC was aware of the claim for parity and the requirement of making a recommendation in that regard. In its wisdom while giving better scales it has still sought to maintain a separate recommendation for non-Secretariat Organizations.

16. We may also notice another aspect. There is a plea by the respondents that the recruitment process for the two cadres was common and persons used to be transferred from one to the other. Some illustrations have been given of this. In fact, the plea of the respondents is that there have been times when a common competitive exam was conducted and sometimes the exams were conducted separately. In this regard, it has been explained by the learned Additional Solicitor General on behalf of the appellants that the cadres are separate and the rules governing them are also separate. The Stenographers under the Railway Board are governed by the RBSS Rules, 1971, the Central Secretariat Stenographers are governed by the CSS Rules, 1969 and the CSSS Rules, 2010 and the Stenographers in the Central Administrative Tribunal are governed by the CATSS Rules, 2013. These are the posts with which the respondents sought parity. On the other hand, the respondents working in the Zonal Railways were governed by Rule 107 of the Indian Railway Establishment Code. The avenue and channel of promotion of stenographers in the Railway Board and the Zonal Railways, it has been stated, are entirely different.

17. Learned counsel for the appellants did accept that there were some cases of transfer, but those were persons who were brought to the Railway Board for exigency of work – it was not as if they were absorbed in the Railway Board. There were also cases where transfers took place from the Railway Board to the Zonal Railway offices, but that was on the specific request of such officers and considered on a case-to-case basis and they had to take then seniority at the bottom of the list.

18. Para 3.1.3 which dealt with the disparity between the Secretariat and field offices has canvassed a case for parity between similarly placed persons employed in field offices and the Secretariat; in view of the field offices being at the cutting edge of administration. However, it came to the conclusion that parity would need to be absolute till the grade of Assistant. It was clearly stipulated that beyond that “it may not be possible or even justified to grant complete parity because the hierarchy and career progression will need to be different taking in view the functional considerations and relativities across the board.” If this principle is observed, the benefit cannot accrue to the respondents and we cannot accept the plea that as a result of parity being given up to the level of Assistant (which would put them in the grade of Rs.4200 (later Rs.4600)), the respondents, being one post higher, would automatically have to get one higher grade.

19. We are fortified in the view we are seeking to adopt in interpreting the aforesaid paragraphs of the Pay Commission by the observations in Union of India v. Tarit Ranjan Das,⁷ where it was opined that the principle of equal pay for equal work cannot be applied merely on basis of designation. While dealing with the 5^th Pay Commission recommendations with respect to functional requirements, it was held that there was no question of any equivalence on that basis. The said case dealt with Stenographers of the Geological Survey of India. While observing that as a general statement it was correct to state that the basic nature of work of a Stenographer remained by and large the same whether they were working for an officer in the Secretariat or for an officer in a subordinate office; it was held that Courts ought not to interfere if the Commission itself had considered all aspects and after due consideration opined that absolute equality ought not to be given.

20. In the end we would like to reiterate that the aspect of disparity between the Secretariat and the field offices was a matter taken note of by the Commission itself while making the recommendations. Yet to some extent, a separate recommendation was made qua Secretariat Organizations and non-Secretariat Organizations. Once these recommendations are separately made, to direct absolute parity would be to make the separate recommendations qua non-Secretariat Organizations otiose. If one may say, there would have been no requirement to make these separate recommendations if everyone was to be treated on parity on every aspect.

21. In view of the aforesaid reasons, we find the impugned judgment, which in turn relies upon other orders passed by different Tribunals and Courts unsustainable, and is accordingly set aside.

22. The appeals are accordingly allowed.

23. We hope this puts to rest this controversy which has been agitated before different forums without receiving a final reasoned view of this Court.