Tag Archives: Article 14

Doctrine of Equal Pay for Equal Work – When can be invoked

In Deb Narayan Shyam v. State of West Bengal, (2005) 2 SCC 286, the Court summarized as to when doctrine of equal pay for equal work would apply:
“Large number of decisions have been cited with regard to the principle of ‘equal pay for equal work’. The principle is settled that if the two categories of posts perform the same duties and function and carry the same qualification then there should not be any distinction in pay scale between the two categories of posts similarly situated. But when they are different and perform different duties and qualifications for recruitment being different, then they cannot be said to be equated so as to qualify for equal pay for equal work.”
In State of Madhya Pradesh v. Ramesh Chandra Bajpai, 2009 (11) SCALE 619, the court said that it is well settled that the doctrine of equal pay for equal work can be invoked only when the employees are similarly situated. Similarity in designation or nature or equation of work is not determinative for equality in the matter of pay scales. The court has to consider the factors like the source and mode of recruitment/appointment, qualifications, nature of work, the value thereof, responsibility, reliability, experience, confidentiality, functional need, etc., In other words the equality clause can be invoked in the matter of pay scale only when there is a wholesale identity between the two posts.
That doctrine of equal pay for equal work can be invoked only when the employees are similarly situated and that similarity of the designation or nature or quantum of work is not determinative of equality in the matter of pay scales and that the court has to consider several factors and only when there was wholesale identity between the holders of two posts, equality clause can be invoked and not otherwise. Vishal Chand v. State of U.P., 2017 (1) AWC 841.

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Filed under Employment Law, Equal Pay for Equal Work

Service Related Claim – Based on a Continuing Wrong

In the case of Union of India v. Tarsem Singh, (2008) 8 SCC 648, it was held as under:
“To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue related to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc. affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principle relating to recurring/successive wrong will apply. Habib Ali v. State of U.P., 2015 (4) AWC 4174.

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Filed under Continuing Wrong, Employment Law

Appointment—Regularisation of

The Constitution Bench in Secretary, State of Karnataka v.Uma Devi, (2006) 4 SCC 1, has held that illegal appointments cannot be asked to be regularized as that would amount to violating the fundamental right of equal opportunity of employment to those who have been denied such opportunity. The Constitution Bench decision has overruled dozens of earlier decisions taking a view otherwise so as to show sympathy in favour of those who got or managed their appointments illegally, i.e., without complying the requirement of equal opportunity of employment to all others, came to the office on account of their individual resources and managing continuance for quite some time or long time, then claim a substantive right on the basis of long tenure, they have managed to continue. In other words, the incumbent comes to the office by virtue of a pick and choose method, usurps office by back door or whatever other term one may use, despite obviously it being short of compliance of requirement of Article 16(1) of the Constitution of India, but having maintained such benefit to continue for quite some time which normally has the support of appointing authorities also, the beneficiary comes to claim a sense of sympathy on the basis of such long continued usurpation of office. In other words, a violator of law claims a substantive right for having violated law continuously for quite a long time with regard to a public office.
In the matter of appointment there is no principle of adverse possession but a plea somewhat similar thereto many a times is raised that since one has continued to work for quite long time, now he should be allowed to stay in the office for rest of tenure otherwise his family would suffer. A situation is created where sympathy is sought not in favour of victims, i.e., those who were denied right of equal opportunity of employment but in favour od those who have violated law, contravened it, breached it with impunity and have continued to do so for quite some time, and now, boldly and blatantly claim a kind of right to retain such benefit of breach of law, for all times to come, and for that purpose, various pleas in the name of equity, sympathy, compassion etc., are raised and pleaded. Many a times, such claim has found favour in the Courts of Law. Fortunately, the Constitution Bench, after having a retrospect of all earlier authorities, has taken a clear stand against such kind of favour shown to those who have come in public office, by denying right of equal opportunity to others. The Court in unequivocal terms has observed that any favour shown to such violators would be a misplaced sympathy.
Regularisation Rules, if any, is an attempt to give a cover to such illegal appointments and therefore, may have to be tested on the anvil of Constitutional validity under Article 14 and 16(1) of the Constitution. Devi Prasad Misra v. State of U.P., (2014) 3 UPLBEC 2436.

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Filed under Employment Law, Regularisation of Appointment

Differentiation is not Discrimination

The Constitution permits the State to determine, by the process of classification, what should be regarded as a class for purposes of legislation and in relation to law enacted on a particular subject. There is bound to be some degree of inequality when there is segregation of one class from the other. However, such segregation must be rational and not artificial or evasive. In other words, the classification must not only be based on some qualities or characteristics, which are to be found in all persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. If the object itself is discriminatory, then explanation that classification is reasonable having rational relation to the object sought to be achieved is immaterial.
Undoubtedly, every differentiation is not a discrimination but at the same time, differentiation must be founded on pertinent and real differences as distinguished from irrelevant and artificial ones. A simple physical grouping which separates one category from the other without any rational basis is not a sound or intelligible differentia. The separation or segregation must have a systematic relation and rational basis and the object of such segregation must not be discriminatory. Subramanian Swamy v. Director, Central Bureau of Investigation, (2014) 8 SCC 682.

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Filed under Distinction