By: Parmanand Pandey

‘Equal pay for equal work’ is the underlying principle of the constitution of India as enshrined in Articles 14 and 39(d). Although our constitution came into force some 66 years ago yet the equality is elusive and the discrimination continues in many fields. In certain areas women are still paid less than their male counterparts. The example of temporary employees is even more glaring because they are paid less than regular employees even in the government sectors, not to say of the private sectors. This inequality is continuing despite catena of decisions of the Supreme Court that there can be no discrimination between two sets similarly placed employees and doing same work regardless of being temporary or permanent.

Recent judgment of the Supreme Court in ‘State of Punjab vs Jagjit Singh’ has further reinforced this principle of ‘equal pay for equal work’. The bench of Justice Jagdish Singh Khehar and Justice S.A. Bobde held that the principle of ‘equal pay for equal work’ would be applicable to all the concerned temporary employees, to vest in them the right to claim wages, at par with the minimum of the pay-scale of regularly engaged Government employees, holding the same post. The Bench was hearing an appeal against the High Court order which had held that temporary employees were not entitled to the minimum of the pay-scale, as was being paid to similarly placed regular employees.

The principle of ‘equal pay for equal work’ constitutes a clear and unambiguous right and is vested in every employee – whether engaged on regular or temporary basis. However, the Apex Court has said that the ‘onus of proof’, of parity in the duties and responsibilities of the ‘subject post’ with the ‘reference post’-, under the principle of ‘equal pay for equal work’, lies on the person who claims it. He/she who approaches the Court must establish, that the ‘subject post’ occupied by him/her, requires him/her to discharge equal work of equal value. The mere fact that the subject post occupied by the claimant, is in a “different department” vis-a-vis the reference post, does not have any bearing on the determination of a claim, under the principle of ‘equal pay for equal work’. Persons discharging identical duties, cannot be treated differently, in the matter of their pay, merely because they belong to different departments of Government The principle of ‘equal pay for equal work’, applies to cases of unequal scales of pay, based on no classification or irrational classification.

In determining equality of functions and responsibilities, under the principle of ‘equal pay for equal work’, it is necessary to keep in mind, that the duties of the two posts should be of equal sensitivity and qualitatively similar. Differentiation of pay-scales for posts with difference in degree of responsibility, reliability and confidentiality, would fall within the realm of valid classification, and therefore, pay differentiation would be legitimate and. The nature of work of the subject post should be the same and not less onerous than the reference post.
The parity in pay, under the principle of ‘equal pay for equal work’, cannot be claimed, merely on the ground, that at an earlier point of time, the ‘subject post’ and the ‘reference post’, were placed in the same pay-scale. The principle of ‘equal pay for equal work’ is applicable only when it is shown, that the incumbents of the ‘subject post’ and the ‘reference post’, discharge similar duties and responsibilities. For parity in pay-scales, under the principle of ‘equal pay for equal work’, equation in the nature of duties, is of paramount importance. If the principal nature of duties of one post is teaching, whereas that of the other is non-teaching, the principle would not be applicable. If the dominant nature of duties of one post is of control and management, whereas the ‘subject post’ has no such duties, the principle would not be applicable. Likewise, if the central nature of duties of one post is of quality control, whereas the ‘subject post’ has minimal duties of quality control, the principle would not be applicable. There can be a valid classification in the matter of pay-scales, between employees even holding posts with the same nomenclature i.e., between those discharging duties at the headquarters, and others working at the institutional/sub-office level. The principle of ‘equal pay for equal work’ would not be applicable, where a differential higher pay-scale is extended to persons discharging the same duties and holding the same designation, with the objective of ameliorating stagnation, or on account of lack of promotional avenues.

In D.S. Nakara v. Union of India, decided by a five-judge constitution bench of the Supreme Court said that since the advent of the Constitution, the State action must be directed towards attaining the goals set out in Part IV of the Constitution which, when achieved, would permit us to claim that we have set up a welfare State. Article 38 (1) enjoins the State to strive to promote welfare of the people by securing and protecting as effective as it may a social order in which justice – social, economic and political shall inform all institutions of the national life. In particular, the State shall strive to minimise the inequalities in income and endeavour to eliminate inequalities in status, facilities and opportunities. Art. 39 (d) enjoins a duty to see that there is equal pay for equal work for both men and women and this directive should be understood and interpreted in the light of the judgment of in Randhir Singh v. Union of India & Ors.’

Where the court held that ‘persons holding identical posts may not be treated differently in the matter of their pay merely because they belong to different departments. If that can’t be done when they are in service, can that be done during their retirement? Expanding this principle, one can confidently say that if pensioners form a class, their computation cannot be by different formula affording unequal treatment solely on the ground that some retired earlier and some retired later. Art. 39 (e) requires the State to secure that the health and strength of workers, men and women, and children of tender age are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength. Art. 41 obligates the State within the limits of its economic capacity and development, to make effective provision for securing the right to work, to education and to provide assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. Art. 43 (3) requires the State to endeavour to secure amongst other things full enjoyment of leisure and social and cultural opportunities.’

In ‘State of Haryana vs Haryana Civil Secretariat Staff Association’ the Supreme Court delineated the parameters for the application of ‘equal pay for equal work’. The court said that ‘it is to be kept in mind that the claim of equal pay for equal work is not a fundamental right vested in any employee though it is a constitutional goal to be achieved by the Government. Fixation of pay and determination of parity in duties and responsibilities is a complex matter which should be left for the executive to discharge. While taking a decision in the matter several relevant factors, some of which have been noted by this Court in the decided case, are to be considered keeping in view the prevailing financial position and capacity of the State Government to bear the additional liability of a revised scale of pay.

In the context of complex nature of issues involved, the far reaching consequences of a decision in the matter and its impact on the administration of the State Government, the Apex Court has taken the view that ordinarily courts should not try to delve deep into administrative decisions pertaining to pay fixation and pay parity. That is not to say that the matter is not justiciable or that the courts cannot entertain any proceeding against such administrative decision taken by the Government. The courts should approach such matters with restraint and interfere only when they are satisfied that the decision of the Government is patently irrational, unjust and prejudicial to a section of employees and the Government while taking the decision has ignored factors which are material and relevant for a decision in the matter. Even in a case where the courts hold the order passed by the Government to be unsustainable then ordinarily a direction should be given to the State Government or the authority taking the decision to reconsider the matter and pass a proper order. The courts should avoid giving a declaration granting a particular scale of pay and compelling the government to implement the same. As noted earlier, in the present case the High Court has not even made any attempt to compare the nature of duties and responsibilities of the two sections of the employees, one in the State Secretariat and the other in the Central Secretariat. It has also ignored the basic principle that there are certain rules, regulations and executive instructions issued by the employers which govern the administration of the cadre.’

The Supreme Court has also referred to the International Covenants on Economic, Social and Cultural Rights. India is one of the signatories, which makes it mandatory for all signatories to ensure that ‘fair wages and equal remuneration for work of equal value’ without distinction of any kind is to be ensured. This principle needs to be strictly observed particularly in case of women. The conditions of work for women should be guaranteed not to be inferior to those enjoyed by men.

Therefore, there can be no doubt, that the principle of ‘equal pay for equal work’ would be applicable to all the concerned temporary employees, so as to vest in them the right to claim wages, at par with the minimum of the pay-scale of regularly engaged Government employees, holding the same post. There is no denying that the Central Government or the State Governments should be the model of employment but it is a sad commentary on their functioning that lakhs of employees have been denied the equal pay for equal work in many government departments. This discrimination has caused myriad of litigation in various courts. As a matter of fact, if governments follow the constitutional provisions in their letter and spirit then the dockets of judiciary will be considerably cleared. But the million-dollar question is: will the governments go by the constitution in matters related to employment?