Equal pay for equal work is a fundamental principle advocating fairness in the workplace. It ensures that individuals performing the same job, with similar skills, qualifications, and responsibilities, receive equal compensation, regardless of gender, ethnicity, or any other discriminatory factor. By eliminating wage gaps, this principle promotes equity, enhances workplace morale, and fosters an inclusive environment where merit and effort are duly rewarded. Equal pay is not just a matter of justice; it is a cornerstone of economic growth and societal progress.
Equal Pay For Equal Work, What Constitution of India Says?
The principle of “Equal pay for Equal work” has its roots in the Constitution of India. The Preamble of Constitution, Article 14, 16 and Article 39(d) provide this principle conducive legal support to be recognised as a legal right even though it is not regarded as a fundamental right. The directive principles of state policy make it a goal to be achieved by the government or at least the government shall strive to achieve this through its policies. The judicial pronouncement of the constitutional courts in various judgements give divergent views about the applicability of principle of “Equal pay for Equal work”. The indecisiveness and financial constraints of the different government bodies including the State and Central Government make the understanding of the principle of “Equal pay for Equal work” difficult.
Article 39(d) of the Constitution provides Equal pay for Equal work for both men and women as a directive principle of State Policy. “Equal pay for equal work for both men and women mean equal pay for equal work for everyone particularly among all the genders.
Article 14 of the Constitution enjoins the State not to deny any person equality before the law or the equal protection of the laws 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 may mean nothing for working class of Indians if they have no concern with the work they do and the pay they get. Equality clauses will have some substance if equal work results in equal pay. Concern of equal wages and the like, mundane they may be, are yet matters of vital concern to the majority of Indian people and these equality clauses are often pressed into service to claim parity in pay on the ground of parity of work.
The Preamble to the Constitution declares the solemn resolution of the people of India to constitute India into a Sovereign Socialist Democratic Republic. The word “socialist” must mean something even if it does not mean ‘to each according to his need’, it is expected by public at large that at least it must mean “equal pay for equal work”.
International code on Equal Pay For Equal Work
“The principle of “equal pay for equal work” is expressly recognized by all socialist systems of law such as Hungarian Labour Code, Czechoslovak Code, Bulgarian Code, Code of the German Democratic Republic, the Rumanian Code. Several western Labour Codes incorporated this principle The Preamble to the Constitution of the International Labour Organisation recognises the principle of ‘equal remuneration for work of equal value’ as constituting one of the means of achieving the improvement of conditions “involving such injustice, hardship and deprivation to large numbers of people resulting in unrest so great that the peace and harmony of the world are imperilled”.
Constitution Bench Judgements on the principle of Equal Pay For Equal Work
Kishori Mohanlal Bakshi v. Union of India
In Kishori Mohanlal Bakshi v. Union of India MANU/SC/0389/1961 -The dispute was between class-I and class-II income tax officers. The main contention was both categories of officers are having same nature of duties however only class-I officers are entitled to be promoted as the Asst Commissioner and Commissioner. Whie rejecting the claim of equal pay for equal work, the constitution bench of the Apex court held that (Five Judges bench, Judgement pronounced by Das Gupta J) The only other contention raised is that there is discrimination between class I and Class I Officers inasmuch as though they do the same kind of work their pay-scales are different. This, it is said, violates Article 14 of the Constitution. If this contention had any validity, there could be no incremental scales of pay fixed dependent on the duration of an officer’s service. The abstract doctrine of equal pay for equal work has nothing to do with Article 14. The contention that Article 14 of the constitution has been violated therefore also fails.
State of Punjab v. Joginder Singh
In State of Punjab v. Joginder Singh MANU/SC/0363/1962 : 1963 Suppl. 2 SCR 169 the validity of the Punjab Government Notification No. 12832-ED-II-59/2935 dated January 27, 1960, and the Rules framed under Art. 309 of the Constitution by the Governor of Punjab, on February 13, 1961 in so far as they purport to prescribe a scheme for Promotion of “provincialised” junior teachers to the selection grade is challenged. Respondent Joginder Singh was working as a teacher in a District Board High School in Hoshiarpur before 1.10.1957. By reason of government decision taken in September, 1957, which came into effect on 1.10.1957 all teachers like Respondent Joginder Singh, employed in District Board and Municipal Board Schools, became State employees. Before such decision was taken, the State had decided to have two categories of teachers working in the State service. 15% of the total strength of teachers were put in a middle scale of a salary scale while the rest of 85% were put in a lower scale. The former, thus, had better chances of promotion to further levels. After taking over the schools run by District Board and Municipal Boards, which was called ‘provincialization’ the teachers like Respondent Joginder Singh, though became State employees, were part of cadre of provincialized teachers which was distinct from the cadre of State teachers. A decision was also taken not to make any further appointments in the provincialized cadre and thus said cadre was to be a dying or vanishing cadre. It was also decided that the provincialized cadre would stand bifurcated on the same pattern of 15:85 as was done in the State cadre but any retirements in the provincialized cadre would not result in fresh appointments in that cadre but the appropriate number would get added to the State cadre and fresh appointments would be made only in the State cadre. It must be noted that the employees in both the cadres were given the same pay-scale but their chances of promotion were completely different.
The main contention that with the passage of time, the strength of provincialized cadre would keep reducing and as such, the chances of promotion and being part of 15% group would keep diminishing and as such the employees in provincialized cadre would be put to prejudice was accepted by the High Court.
In Apex Court, Justice N. Rajgopala Ayyangar articulating the majority view held that underlying this submission are two postulates: (1) equal work must receive equal pay, and (2) if there be equality in pay and work there have to be equal conditions of service. So far as the first proposition is concerned it has been definitely ruled out by this Court in Kishori Mohanlal v. Union of India (MANU/SC/0389/1961 : 1962 SC AIR 1139) The second also, is, in our opinion, unsound. If, for instance, an existing service is recruited on the basis of a certain qualification, the creation of another service for doing the same work, it might be in the same way but with better prospects of promotion cannot be said to be unconstitutional, and the fact that the Rules framed permit free transfers of personnel of the two groups to places held by the other would not make any difference. We are not basing this answer on any theory that if a government servant enters into any contract regulating the conditions of his service he cannot call in aid the constitutional guarantees because he is bound by his contract. But this conclusion, rests on different and wider public grounds viz. that the government which is carrying on the administration has necessarily to have a choice in the constitution of the services to man the administration and that the limitations imposed by the constitution are not such as to preclude the creation of such services. Besides, there might, for instance, be a temporary recruitment to meet an exigency or an emergency which is not expected to last for any appreciable period of time. To deny to the Government the power to recruit temporary staff drawing the same pay and doing the same work as other permanent incumbents within the cadre strength but governed by different Rules and conditions of service, it might be including promotions, would be to impose restraints on the manner of administration which we believe was not intended by the Constitution. For the purpose of the decision of this appeal the question here discussed is rather academic but we are expressing ourselves on it in view of the arguments addressed to us. Besides the disparity in the chances of promotion between teachers of the provincialized and the State Cadre created by Rule 3 of the impugned rules, the learned Judges of the High Court have held that there was a further disparity by reason of the teachers of the State Cadre being borne on a Divisional list, while under the Rules the inter se seniority and promotions of “provincialized” teachers was determined district wise. It was pointed out by the learned Solicitor-General for the Appellant that the State Cadre was kept on a Divisional basis because of the very small number of the members of that Service, whereas it was found administratively inconvenient to have a similar geographical classification of members of the provincialized service and for that reason and no other, district wise seniority, promotion and transfers was laid down for provincialized teachers. Learned Counsel for the Respondent did not rely on this reasoning of the learned Judges of the High Court in deciding the case now under appeal. We therefore do not consider it necessary to make any further reference to it. As we have stated already, the two services started as independent Services. The qualifications prescribed for entry into each were different, the method of recruitment and the machinery for the same were also different and the general qualifications possessed by and large by the members of each class being different, they started as two distinct classes. If the Government Order of September 27, 1957 did not integrate them into a single service, it would follow that the two remained as they started as two distinct services. If they were distinct services, there was no question of inter se seniority between members of the two services, nor of any comparison between the two in the matter of promotion for founding an argument based upon Article 14 or Article 16(1). They started dissimilarly and they continued dissimilarly and any dissimilarity in their treatment would not be a denial of equal opportunity, for it is common ground that within each group there is no denial of that freedom guaranteed by the two articles. The foundation therefore of the judgment of the learned Judges of the High Court that the impugned Rules created two classes out of what was formerly a single class and introduced elements of discrimination between the two, has no factual basis if, as we hold the order of September 27, 1957 did not effectuate a complete integration of the two Services. On this view it would follow that the impugned Rules cannot be struck down as violative of the Constitution. Before concluding it is necessary to point out that, as explained earlier, the source of the prejudice caused by the impugned Rules to the “provincialized” teachers lies not in the fact that the two cadres were kept separate but on account of the fact that the “provincialized” cadre was intended to be gradually extinguished. The real question for consideration would therefore be whether there was anything unconstitutional in the Government decision in the matter. In other words, had the Respondent and his class any fundamental right to have their cadre strength maintained undiminished? This is capable of being answered only in the negative. If their cadre strength became diminished, the proportion thereof who could be in the grade viz. 15% of the total strength being predetermined, there must necessarily be a progressive reduction in the number of selection posts. In other words a mere reduction of the cadre strength would bring about that result and unless the Respondent could establish that the Government were bound in Law to fill up all vacancies in the provincialized cadre by fresh recruitment to that cadre and thus keep its strength at the level at which it was on October 1, 1957, he should fail. It is manifest that such a contention is obviously untenable.
Zabar Singh and Ors. v. The State of Haryana and Ors.
In Zabar Singh and Ors. v. The State of Haryana and Ors.(1972) 2 SCC 275. The position which emerges from the aforesaid analysis is that prior to October 1, 1957, the two categories of teachers, those serving in the local bodies schools and those in government schools were distinct. Though the minimum qualifications and scales of pay might have been uniform, there were differences in other matters such as methods of recruitment, retiral benefits, Rules for determining seniority, etc. It is also clear that whereas a government school teacher was liable to be transferred to any place throughout the Commissioner’s division, a local body teacher could only be transferred within the territorial limits of that body. Appointments in Local Bodies schools, no doubt, were made by Inspectors appointed by government, but they could do so only in consultation with the Chairman or President of such a body. That was the position also in regard to disciplinary matters. Further, although the prescribed minimum qualifications were the same, in point of fact 50% or more of the Local Bodies teachers were non- matriculates and quite a number of such non-matriculate teachers were also without the qualification of Basic Training as against a few non-matriculates and none without such Basic Training in the Government schools. In any event the mere fact that minimum qualifications and scales of pay were the same could not mean, in view of other dissimilar conditions of service, that the two categories of teachers formed one class. Indeed, Mr. Tarkunde conceded, as is even otherwise clear, that prior to October 1, 1957, teachers in local bodies and in government schools did not form one class. So far as the position on October 1, 1957, is concerned, as already noticed, the Government schools teachers were and continued to be governed by the Rules of 1955, which, no doubt, came into force with effect from May 30, 1957 and which prescribed the minimum qualifications as Matriculation in addition to Basic Training. Government school teachers who, under the 1937-Rules, were recruited by the Director of Public Instruction, were since 1954 selected by the Selection Board after their initial pay had been raised from Rs. 47-1/2 to Rs. 50 per month. The Local Bodies teachers, on the other hand, were recruited by Inspectors in consultation with the Presidents or Chairmen of those bodies till July 1957 when fresh appointments in vacancies falling in those schools were stopped. Under the new Rules of 1955, Government provided for a selection grade for 15% posts. In fact, such a grade was given to them even before 1955-Rules were framed and the new Rules merely continued that benefit. Broadly speaking, the position on October 1, 1957, was that the two categories of teachers formed distinct classes. Though they were performing similar duties, they could not be said to form one integrated class. The question then is, whether in spite of the Government school teachers and the provincialised teachers forming two distinct classes on October 1, 1957, they were, during the period between that date and February 13, 1961, integrated into one class, which was split up into two cadres by those Rules? It would perhaps appear from the statement of the Education Minister made at the Press Conference on the eve of provincialisation that Government had in the beginning the idea of bringing about integration between the two types of teachers. But no such concrete decision was ever taken. A few dates at this stage may clarify the position. As aforesaid, the decision to provincialise the local bodies schools was taken on July 19, 1957. In pursuance of that decision. Government on August 2, 1957, placed a ban against any fresh recruitment of teachers in the Local Bodies schools. On September 27, 1957, the Governor sanctioned the scheme of provincialisation and at the same time sanctioned 20,000 and odd new posts to absorb the existing staff of the provincialised schools. Simultaneously with the provincialisation, the Government on October 1, 1957, gave the same scales of pay to the provincialised teachers as were available to government schools teachers. The problem, however, was how to fix and adjust the provincialised teachers in government service and fix their inter se seniority as also their seniority vis-a-vis the government schools teachers. It is fairly clear from the memorandum published along with 1961-Rules that Government was seeking to discover a proper formula to solve these questions. This process was, it appears, going on since November 23, 1959, when alternative proposals were framed for discussion and those proposals were communicated to the recognised associations of the teachers. Since no agreed consensus was forthcoming from the teachers themselves, Government formed its own decisions as formulated by the Secretary, Education Department in his letter of January 27, 1960, to the Director of Public Instruction. These decisions were made around three basic principles: (i) that the two cadres will continue to be separate as before; (ii) that the provincialised cadre would be a diminishing cadre; and (iii) following upon (i) and (ii), vacancies arising as a result of promotions, retirements, resignations, etc., in the provincialised cadre should be transferred to the State cadre so that ultimately after about thirty years the provincialised cadre would vanish altogether leaving the State cadre alone in the field. These events leave no doubt that at no time after October 1, 1957, any decision for integrating the two categories of teachers was taken although after October 1, 1957, new teachers were appointed and posted in both the provincialised as well as government schools who carried out the same duties and were given the same scales of pay as the provincialised teachers. But such new teachers had to be deemed to have been appointed in the State cadre by reason of the two principles decided upon by the Government, (i) the diminishing character of the provincialised cadre, and (ii) that cadre having been frozen from even before October 1, 1957. Thus, the two categories continued to be separate and were never integrated. The Government schools teachers and those appointed after October 1, 1957, were governed by 1955- Rules while the provincialised teachers continued to be presumably governed by the District Boards’ Rules until new Rules were framed for them by Government. Thus the Rules of 1961 could not be said to have split up the teachers, who formed one integrated cadre into two new cadres. These Rules had to be made as the inter-seniority among provincialised teachers appointed by different local bodies in different districts had to be determined and their position in the service had to be adjusted. The Rules were framed on the principles formulated in the decisions taken by Government on July 27, 1960. It will be observed that though the provincialised teachers were given the same scales of pay as the teachers in the State cadre, the Rules provided that unlike the latter they could be transferred only within the District where they were serving. Those who were already confirmed prior to the provincialisation were also deemed to be confirmed under these Rules. That meant that for purposes of their seniority their entire service, including service before such confirmation would be taken into account, except that inter se seniority of those promoted to the selection grade was to be determined from the date of their confirmation in that grade. 33. Thus, although the teachers in both the cadres were given the same scales of pay and did the same kind of work and those appointed after October 1, 1957, were posted and worked in the same provincialised schools as teachers in the provincialised cadre, the fact was that the State cadre teachers were and continued to be governed by 1955-Rules while the provincialised teachers were governed by 1961-Rules. This fact, coupled with the fact that one was a district and the other a divisional cadre, meant that the two cadres continued to be separate cadres as before. The principal effect of the new Rules, however, was that the number of posts in the cadre would gradually diminish and together with that the total number of posts in the selection grade, despite the percentage of fifteen remaining intact. But that was the inevitable result of the freezing of the cadre, on the one hand, and its being a diminishing cadre on the other. The State cadre became correspondingly an expanding cadre, the total number of posts for all the schools, Government and provincialised, remaining more or less constant. The controversy thus really turns on the question whether Government was bound to integrate the two categories of teachers into one and not to continue them as separate cadres as before, and whether its refusal to do so meant violation either of Article 14 or Article 16. It is true that notwithstanding this Court upholding the validity of the 1961-Rules in State of Punjab versus Joginder Singh, the then Government of Punjab in 1965 adopted a uniform running scale for both the cadres of Rs. 60- Rs. 175 with a common 15% for higher grade posts. But that decision has nothing to do with the question of the validity of 1961-Rules, and if those Rules were valid, with the validity of the decision of the new State of Haryana to implement those Rules instead of the common running scale adopted by Punjab State. The principles on which discrimination and breach of Articles 14 and 16 can be said to result have been by now so well settled that we do not think it necessary to repeat them here once again. As already seen, ever since 1937 and even before, the two categories of teachers have always remained distinct, governed by different sets of rules, recruited by different authorities and having, otherwise than in the matters of pay-scales and qualifications, different conditions of service. This position remained as late as February 13, 1961. On that day whereas the State cadre teachers were governed by 1955- Rules, Rules had yet to be framed for the provincialized teachers. The two cadres thus being separate, Government was not bound to bring about an integrated cadre especially in view of its decision of making the provincialized cadre a diminishing one and bringing about ultimately through that principle one cadre only in the field in a phased manner. If through historical reasons the teachers had remained in two separate categories, the classification of the provincialized teachers into a separate cadre could not be said to infringe Article 14 or Article 16. It was also not incumbent on the Government to frame the 1961-Rules uniformly applicable to both the categories of teachers, firstly, because a rule-framing authority need not legislate for all the categories and can select for which category to legislate (See Sakhawat Ali v. State of Orissa MANU/SC/0093/1954 : (1955) 1 SCR 1004; Madhubhai Amathalal Gandhi v. Union of India MANU/SC/0023/1960 : (1961) 1 SCR 191 and Vivian Joseph Ferreira v. Municipal Corporation of Greater Bombay MANU/SC/0603/1971 : (1972) 1 SCC 70) and secondly, because it had already come to a decision of gradually diminishing the provincialized cadre so that ultimately only the State cadre would remain in the service. That was one way of solving the intricate difficulty of inter-seniority. There can be no doubt that if there are two categories of employees, it is within Government’s power to recruit in one and not recruit in the other. There is no right in a government employee to compel it to make fresh appointments in the cadre to which he belongs. It cannot also be disputed that Government had the power to make Rules with retrospective effect, and therefore, could provide therein that appointments made between October 1, 1957 and February 13, 1961, shall be treated as appointments in the State cadre. That had to be done for the simple reason that the provincialized cadre was already frozen even before October 1, 1957 and Government had decided not to make fresh appointments in that cadre since that cadre was to be a diminishing one.
Supreme Court Judgements not following the three constitution bench judgements
Almost 20 years later, the doctrine of ‘equal pay for equal work’ was accepted by this Court in Randhir Singh v. Union of India and Ors. MANU/SC/0234/1982 : (1982) 1 SCC 618. A Bench of three Judges stated that though the principle of ‘equal pay for equal work’ had not expressly been declared by the Constitution to be a Fundamental Right, it was certainly a constitutional goal. The issue in this case was parity of wages sought by the Driver of Delhi Police with the Drivers of Railway Protection Force. Allowing the parity i.e. Equal pay for Equal Work the court had discussed is as follows:-
The discussion was :- Our attention was drawn to Binoy Kumar Mukerjee v. Union of India MANU/DE/0267/1972 : ILR (1973) 1 Del 427 and Makhan Singh v. Union of India MANU/DE/0278/1974 : ILR (1975) 1 Del 227, where reference was made to the observations of this Court in Kishori Mohanlal Bakshi v. Union of India MANU/SC/0389/1961 : AIR 1962 SC 1139 describing the principle of “equal pay for equal work” as an abstract doctrine which had nothing to do with Article 14. We shall presently point out how the principle, “equal pay for equal work”, is not an abstract doctrine but one of substance. Kishori Mohanlal Bakshi v. Union of India MANU/SC/0389/1961 : AIR 1962 SC 1139 is not itself of any real assistance to us since what was decided there could be different scales of pay for different grades of a service. It is well known that there can be and there are different grades in a service, with varying qualifications for entry into a particular grade, the higher grade often being a promotional avenue for officers of the lower grade. The 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. The principle of “equal pay for equal work” would be an abstract doctrine not attracting Article 14 if sought to be applied to them.
The ratio of Randhir Singh v. Union of India MANU/SC/0234/1982 : (1982) 1 SCC 618 was reiterated and applied in several cases– Dhirendra Chamoli v. State of U.P. MANU/SC/0338/1985 : (1986) 1 SCC 637, Surinder Singh v. CPWD MANU/SC/0506/1986 : (1986) 1 SCC 639, Daily Rated Casual Labour v. Union of India MANU/SC/0434/1987 : (1988) 1 SCC 122, Dharwad Distt. PWD Literate Daily Wage Employees Assn. v. State of Karnataka MANU/SC/0164/1990 : (1990) 2 SCC 396 and Jaipal v. State of Haryana MANU/SC/0206/1988 : (1988) 3 SCC 354 and it was held that even a dailywage employee who is performing duties similar to regular employees is entitled to the same pay.
Supreme Court judgements taking different view on equal pay for equal work
However, in Federation of All India Customs and Central Excise Stenographers v. Union of India MANU/SC/0155/1988 : (1988) 3 SCC 91, Mewa Ram Kanojia v. AIIMS MANU/SC/0316/1989 : (1989) 2 SCC 235, V. Markendeya v. State of A.P. MANU/SC/0639/1989 : (1989) 3 SCC 191, Harbans Lal v. State of H.P. MANU/SC/0212/1989 : (1989) 4 SCC 459, State of U.P. v. J.P. Chaurasia MANU/SC/0502/1988 : (1989) 1 SCC 121, Grih Kalyan Kendra Workers’ Union v. Union of India MANU/SC/0287/1991 : (1991) 1 SCC 619, GDA v. Vikram Chaudhary MANU/SC/0460/1995 : (1995) 5 SCC 210, State of Haryana v. Jasmer Singh MANU/SC/1808/1996 : (1996) 11 SCC 77, State of Haryana v. Surinder Kumar MANU/SC/0516/1997 : (1997) 3 SCC 633, Union of India v. K.V. Baby MANU/SC/1457/1998 : (1998) 9 SCC 252, State of Orissa v. Balaram Sahu MANU/SC/0895/2002 : (2003) 1 SCC 250, Utkal University v. Jyotirmayee Nayak MANU/SC/0283/2003 : (2003) 4 SCC 760, State of Haryana v. Tilak Raj MANU/SC/0460/2003 : (2003) 6 SCC 123, Union of India v. Tarit Ranjan MANU/SC/0792/2003 : (2003) 11 SCC 658, Apangshu Mohan Lodh v. State of Tripura MANU/SC/0898/2003 : (2004) 1 SCC 119, State of Haryana v. Charanjit Singh MANU/SC/1298/2005 : (2006) 9 SCC 321, Hindustan Aeronautics Ltd. v. Dan Bahadur Singh MANU/SC/7373/2007 : (2007) 6 SCC 207, Kendriya Vidyalaya Sangathan v. L.V. Subramanyeswara MANU/SC/2322/2007 : (2007) 5 SCC 326 and Canteen Mazdoor Sabha v. Metallurgical & Engg. Consultants (India) Ltd. MANU/SC/3434/2007 : (2007) 7 SCC 710, the Court consciously and repeatedly deviated from the ruling of Randhir Singh v. Union of India MANU/SC/0234/1982 : (1982) 1 SCC 618 and held that similarity in the designation or quantum of work are not determinative of equality in the matter of pay scales and that before entertaining and accepting the claim based on the principle of equal pay for equal work, the Court must consider the factors like the source and mode of recruitment/appointment, the qualifications, the nature of work, the value judgment, responsibilities, reliability, experience, confidentiality, functional.
In Secretary, Finance Department and Ors. v. West Bengal Registration Service Association and Ors. MANU/SC/0226/1992 : 1993 Supp (1) SCC 153, the Apex court noted various factors which bring out how a ‘pay structure’ is evolved. The relevant portion of said paragraph was: “Ordinarily a pay structure is evolved keeping in mind several factors, e.g., (i) method of recruitment, (ii) level at which recruitment is made, (iii) the hierarchy of service in a given cadre, (iv) minimum educational/technical qualifications required, (v) avenues of promotion, (vi) the nature of duties and responsibilities, (vii) the horizontal and vertical relativities with similar jobs, (viii) public dealings, (ix) satisfaction level, (x) employer’s capacity to pay, etc. We have referred to these matters in some detail only to emphasise that several factors have to be kept in view while evolving a pay structure and the horizontal and vertical relativities have to be carefully balanced keeping in mind the hierarchical arrangements, avenues for promotion, etc. Such a carefully evolved pay structure ought not to be ordinarily disturbed as it may upset the balance and cause avoidable ripples in other cadres as well.
After discussing and relying on the above judgements the Apex Court in State of Bihar and others Vs Bihar Teachers Asson Struggle Committee, Munger and other (MANU/SC/0748/2019), has held that We, therefore, have to proceed on the following basic premise: a) It was open to the State to have two distinct cadres namely that of ‘Government Teachers’ and ‘Niyojit Teachers’ with Government Teachers being a dying or vanishing cadre. The incidents of these two cadres could be different. The idea by itself would not be discriminatory. b) The pay structure given to the Niyojit Teachers was definitely lower than what was given to Government Teachers but the number of Government Teachers was considerably lower than the number of Niyojit Teachers. As stated above, presently there are just about 66,000 Government Teachers 08-03-2024 in the State as against nearly 4 lakh Niyojit Teachers. There is scope for further appointment of about 1 lakh teachers which could mean that as against 5 lakh teachers the number of State Teachers would progressively be going down. c) The parity that is claimed is by the larger group with the lesser group as stated above which itself is a dying or a vanishing cadre. d) The mode of recruitment of Niyojit Teachers is completely different from that of the Government Teachers as stated above. 77. If a pay structure is normally to be evolved keeping in mind factors such as “method of recruitment” and “employer’s capacity to pay” and if the limitations or qualifications to the applicability of the doctrine of ‘equal pay for equal work’ admit inter alia the distinction on the ground of process of recruitment, the stand taken on behalf of the State Government is not unreasonable or irrational. Going by the facts indicated above and the statistics presented by the State Government, it was an enormous task of having the spread and reach of education in the remotest corners. Furthermore, the literacy rate of the State which was lagging far behind the national average was also a matter which required attention. The advances made by the State on these fronts are quite evident. All this was possible through rational use of resources. How best to use or utilise the resources and what emphasis be given to which factors are all policy matters and in our considered view the State had not faltered on any count. As laid down by this Court in the decisions in Joginder Singh MANU/SC/0363/1962 : 1963 Suppl. 2 SCR 169 and Zabar Singh(1972) 2 SCC 275, the State was justified in having two different streams or cadres. The attempt in making over the process of selection to Panchayati Raj Institutions and letting the cadre of State Teachers to be a dying or vanishing cadre were part of the same mechanics of achieving the spread of education. These issues were all part of an integrated policy and if by process of judicial intervention any directions are issued to make available same salaries and emoluments to Niyojit Teachers, it could create tremendous imbalance and cause great strain on budgetary resources. It is true that the budgetary constraints or financial implications can never be a ground if there is violation of Fundamental Rights of a citizen. Similarly, while construing the provisions of the RTE Act and the Rules framed thereunder, that interpretation ought to be accepted which would make the Right available Under Article 21A a reality. As the text of the Article shows the provision is essentially child-centric. There cannot be two views as regards the point that Free and Compulsory Education ought to be quality education. However, such premise cannot lead to the further conclusion that in order to have quality education, Niyojit Teachers ought to be paid emoluments at the same level as are applicable to the State Teachers. The modalities in which expert teachers can be found, whether by giving them better scales and/or by insisting on threshold ability which could be tested through examinations such as TET Examination are for the Executive to consider. 79. In our considered view, there has been no violation of the Rights of the Niyojit Teachers nor has there been any discrimination against them. We do not find that the efforts on part of the State Government could be labelled as unfair or discriminatory. Consequently, the submissions as to how the funds could and ought to be generated and what would be the burden on the State Government and the Central Government, do not arise for consideration. In our view, great strides have been made by the State in the last decade. It has galvanised itself into action and not only achieved the objectives of having schools in every neighbourhood but has also succeeded in increasing the literacy rate. It has also succeeded in having more girl children in the stream of education and consequently the TFR, as indicated above, has also improved to a great extent. If these are the benefits or rewards which the society stands to gain and achieve, the State ought to be given appropriate free play. The tabular charts placed on record by the State also show continuous improvements made by the State in the packages made available to the Niyojit Teachers. Said attempts also show that the State is moving in the right direction and the gap which is presently existing between the Government Teachers and the Niyojit Teachers would progressively get diminished. Considering the large number of Niyojit Teachers as against the Government Teachers, the steps taken by the State as evident from various tabular charts presented by it are in the right direction. At this juncture, any directions as have been passed by the High Court, may break even tempo which the State has consistently been able to achieve. 80. At the same time, the submission that at the initial stage the Niyojit Teachers are given such emoluments which are lesser than peons and clerks in the same school is a matter which requires attention. It is true that after having put in two years of service, the emoluments made available to Niyojit Teachers show some improvements but the disparity at the initial stage is more than evident. The State may certainly be entitled to devise a pay structure for Niyojit Teachers and the courts may not interfere in policy matters but, if there is an imbalance of the nature as presented before this Court, the matter raises concern. The teachers must be entitled to decent emoluments. In the chart referred to in para 32(c) above, after two years of service with proposed enhancement as per recommendations of the three member Committee the scales payable to Niyojit Teachers would show some increase as against those in respect of peons and clerks. The State may consider raising the scales of Niyojit Teachers at least to the level suggested by the Committee, without insisting on any test or examination advised by the Committee. Those who clear such test or examination, may be given even better scales. This is only a suggestion which may be considered by the State.
After discussing and relying on the above judgements the Apex Court in State of Bihar and others Vs Bihar Teachers Asson Struggle Committee, Munger and other (MANU/SC/0748/2019), has held that We, therefore, have to proceed on the following basic premise: a) It was open to the State to have two distinct cadres namely that of ‘Government Teachers’ and ‘Niyojit Teachers’ with Government Teachers being a dying or vanishing cadre. The incidents of these two cadres could be different. The idea by itself would not be discriminatory. b) The pay structure given to the Niyojit Teachers was definitely lower than what was given to Government Teachers but the number of Government Teachers was considerably lower than the number of Niyojit Teachers. As stated above, presently there are just about 66,000 Government Teachers 08-03-2024 in the State as against nearly 4 lakh Niyojit Teachers. There is scope for further appointment of about 1 lakh teachers which could mean that as against 5 lakh teachers the number of State Teachers would progressively be going down. c) The parity that is claimed is by the larger group with the lesser group as stated above which itself is a dying or a vanishing cadre. d) The mode of recruitment of Niyojit Teachers is completely different from that of the Government Teachers as stated above. 77. If a pay structure is normally to be evolved keeping in mind factors such as “method of recruitment” and “employer’s capacity to pay” and if the limitations or qualifications to the applicability of the doctrine of ‘equal pay for equal work’ admit inter alia the distinction on the ground of process of recruitment, the stand taken on behalf of the State Government is not unreasonable or irrational. Going by the facts indicated above and the statistics presented by the State Government, it was an enormous task of having the spread and reach of education in the remotest corners. Furthermore, the literacy rate of the State which was lagging far behind the national average was also a matter which required attention. The advances made by the State on these fronts are quite evident. All this was possible through rational use of resources. How best to use or utilise the resources and what emphasis be given to which factors are all policy matters and in our considered view the State had not faltered on any count. As laid down by this Court in the decisions in Joginder Singh MANU/SC/0363/1962 : 1963 Suppl. 2 SCR 169 and Zabar Singh(1972) 2 SCC 275, the State was justified in having two different streams or cadres. The attempt in making over the process of selection to Panchayati Raj Institutions and letting the cadre of State Teachers to be a dying or vanishing cadre were part of the same mechanics of achieving the spread of education. These issues were all part of an integrated policy and if by process of judicial intervention any directions are issued to make available same salaries and emoluments to Niyojit Teachers, it could create tremendous imbalance and cause great strain on budgetary resources. It is true that the budgetary constraints or financial implications can never be a ground if there is violation of Fundamental Rights of a citizen. Similarly, while construing the provisions of the RTE Act and the Rules framed thereunder, that interpretation ought to be accepted which would make the Right available Under Article 21A a reality. As the text of the Article shows the provision is essentially child-centric. There cannot be two views as regards the point that Free and Compulsory Education ought to be quality education. However, such premise cannot lead to the further conclusion that in order to have quality education, Niyojit Teachers ought to be paid emoluments at the same level as are applicable to the State Teachers. The modalities in which expert teachers can be found, whether by giving them better scales and/or by insisting on threshold ability which could be tested through examinations such as TET Examination are for the Executive to consider. 79. In our considered view, there has been no violation of the Rights of the Niyojit Teachers nor has there been any discrimination against them. We do not find that the efforts on part of the State Government could be labelled as unfair or discriminatory. Consequently, the submissions as to how the funds could and ought to be generated and what would be the burden on the State Government and the Central Government, do not arise for consideration. In our view, great strides have been made by the State in the last decade. It has galvanised itself into action and not only achieved the objectives of having schools in every neighbourhood but has also succeeded in increasing the literacy rate. It has also succeeded in having more girl children in the stream of education and consequently the TFR, as indicated above, has also improved to a great extent. If these are the benefits or rewards which the society stands to gain and achieve, the State ought to be given appropriate free play. The tabular charts placed on record by the State also show continuous improvements made by the State in the packages made available to the Niyojit Teachers. Said attempts also show that the State is moving in the right direction and the gap which is presently existing between the Government Teachers and the Niyojit Teachers would progressively get diminished. Considering the large number of Niyojit Teachers as against the Government Teachers, the steps taken by the State as evident from various tabular charts presented by it are in the right direction. At this juncture, any directions as have been passed by the High Court, may break even tempo which the State has consistently been able to achieve. 80. At the same time, the submission that at the initial stage the Niyojit Teachers are given such emoluments which are lesser than peons and clerks in the same school is a matter which requires attention. It is true that after having put in two years of service, the emoluments made available to Niyojit Teachers show some improvements but the disparity at the initial stage is more than evident. The State may certainly be entitled to devise a pay structure for Niyojit Teachers and the courts may not interfere in policy matters but, if there is an imbalance of the nature as presented before this Court, the matter raises concern. The teachers must be entitled to decent emoluments. In the chart referred to in para 32(c) above, after two years of service with proposed enhancement as per recommendations of the three member Committee the scales payable to Niyojit Teachers would show some increase as against those in respect of peons and clerks. The State may consider raising the scales of Niyojit Teachers at least to the level suggested by the Committee, without insisting on any test or examination advised by the Committee. Those who clear such test or examination, may be given even better scales. This is only a suggestion which may be considered by the State.
Recently, the Apex court in its decision in State of Madhya Pradesh Vs RD Sharma and another reported in 2022 Live Law (SC)97 has held that “Equal pau for Equal work” is not a fundamental right vested in any employee though it is a constitutional goal to be achieved by the Government. It is further held that equation of post and determination of pay scales is the primary function of the executive and not the judiciary and therefore ordinarily courts will not enter upon the task of job evaluation which is generally left to the expert bodies like the Pay Commissions. This is because such job evaluation exercises may include various factors including the relevant data and scales for evaluating performances of different group of employees and such evaluation would be both difficult and time consuming apart from carrying financial implications. Therefore, it has always been held to be more prudent to leave such task of equation of post and determination of pay scales to be best left to the expert bodies. Unless there is cogent material on record to come to a firm conclusion that a grave error had crept in while fixing the pay scale to a given post and that the court’s interference was absolutely necessary to undo the injustice the courts would not interfere with such complex issues.
Conclusion
The accepted legal position is thus “Equal Pay for equal work” is not a fundamental right though it is the goal of the government. The Courts should not interfere in complex issues in evaluation of jobs and evaluation of pay scales to deal with the issue of equal pay for equal work unless there appears complete injustice which requires intervention of the court. The job of evaluation of pay scales and nature of work should be left upon the expert committees. The three judgements of the constitution bench are still holding their respective field yet the Supreme Court and different High Courts have taken a divergent view in number of cases.
