Vijay Kumar L vs The State Of Assam And 4 Ors on 5 June, 2024
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GAHC010154502022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5223/2022
1. VIJAY KUMAR L.
S/O LATE. LAKSHMIPATHY A RESIDENT OF TIPLING NAHARKATIA ROAD,
NEAR MANN NURSERY,
P.O. AND P.S.- DULIAJAN,
DISTRICT DIBRUGARH,
ASSAM,
PIN- 786602.
2: SUBHASH NATH MAZUMDAR
S/O LATE SUKUMAR NATH MAZUMDAR
R/O RANGABAK PART-II
P.O. AND P.S.- KATLICHERRA
DIST.- HAILAKANDI
ASSAM
PIN- 788161.
3: RASHMI REKHA SARMA
W/O SRI MONORANJANSARMA
R/O BHEBARGHAT
WARD NO. 9
P.O.- MANGALDOI
DIST.- DARRANG
ASSAM
PIN- 784125.
4: SUHANA YEASMIN
W/O ABDUL LATIF MOLLAH
COLLEGE NAGAR
P.O.- GOALPARA
ASSAM
PIN- 783101.
5: RAJESH PAUL
S/O RAMENDRA PAUL
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VILL.- KUMARPARA
P.O.- ARUNACHAL
P.S.- SILCHAR
DIST.- CACHAR
ASSAM
PIN- 788025.
6: JADAV GOGOI
S/O SRI PRAVIN GOGOI
VILL.- MELENGIAL
P.O.- LAHOWAL
DIST.- DIBRUGARH
ASSAM
PIN- 786010.
7: PRAMOTH DAS
S/O LATE DHANANJAY DAS
VILL.- KOCHARIGAON
TEZPUR- 784001
ASSAM.
8: KAMAL KUMAR SARDA
S/O LATE SRICHAND SARDA
R/O JANIGANJ BAZAR
DIST.- CACHAR
ASSAM
PIN- 788001
VERSUS
1. THE STATE OF ASSAM AND 4 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
FOOD, CIVIL SUPPLIES AND CONSUMER AFFAIRS DEPARTMENTS,
DISPUR, GUWAHATI- 06.
2:THE ADDITIONAL CHIEF SECRETARY
GOVT. OF ASSAM
FOOD
CIVIL SUPPLIES AND CONSUMER AFFAIRS DEPARTMENTS
DISPUR
GUWAHATI- 06.
3:THE ADDITIONAL SECRETARY
GOVT. OF ASSAM
FOOD
CIVIL SUPPLIES AND CONSUMER AFFAIRS DEPARTMENTS
DISPUR
GUWAHATI- 06.
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4:THE LEGAL REMEMBRANCER AND SECRETARY TO THE GOVERNMENT
OF ASSAM
JUDICIAL DEPARTMENT
DISPUR
GUWAHATI- 06.
5:THE COMMISSIONER AND SECRETARY
FINANACE DEPARTMENT
GOVT. OF ASSAM
DISPUR
GUWAHATI- 06
Advocate for the Petitioner : MR. M DUTTA
Advocate for the Respondent : GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE KARDAK ETE
JUDGMENT
Date : 05-06-2024 Heard Mr. M. Dutta, learned counsel for the petitioners. Also heard Mr. D. Mazumdar, learned Addl. Advocate General, Assam assisted by Mr. M. Bhattacharjee, learned Addl. Senior Government Advocate, Assam and Mr. R. Borpujari, learned Standing Counsel for the Finance Department.
2. By filing this Writ Petition, the petitioners have prayed for a direction to the respondents to pay the minimum scale of pay and other allowances equal to the rank of Deputy Secretary of the State Government, in terms of the Consumer Protection (Salary, Allowances and Conditions of Service of President and Members of the State Commission and District Commission) Model Rules, 2020 (hereinafter referred to as "the Model Rules, 2020"), from the date of adoption of the said Rules by the State Government, including the arrears payable by Page No.# 4/25 adjusting the amount paid as Honorarium for the relevant period.
3. The petitioners, eight in numbers, are serving as Members in various District Consumer Disputes Redressal Forum (hereinafter referred to as 'the District Forum') in the State of Assam. Except the petitioner Nos.1 and 5, others were initially appointed in the year 2013 and 2014 and have been subsequently re-appointed on various dates. The petitioner Nos.1 and 5 were appointed in the year 2020. The petitioners were appointed earlier pursuant to different advertisements. It is contended that the qualification to the post of Members in the District Forum, on which the petitioners were appointed is similar to the advertisement issued in the year 2019. In terms of the advertisement, the candidates must possess Bachelor's Degree from any recognized University apart from being a person of ability, integrity and standing and having adequate knowledge and experience of at least ten years in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration. The post was shown to be part time and the consolidated honorarium for the post was Rs.600/- plus conveyance of Rs.150/- per day of sitting. The petitioners as a Member of the District Forum were appointed and re-appointed, till 2020. The tenure of the Member of the District Forum was for a period of five years or till they attain the age of 65 years, whichever is earlier.
4. The appointment and re-appointment of the petitioners were made prior to coming into force of the Consumer Protection Act, 2019 and the honorarium was fixed in terms of the Assam State Consumer Protection (Amendment) Rules 2010, framed under the Consumer Protection Act, 1986. The Consumer Protection Act, 2019 came into force on 20.07.2022, repealing the Consumer Protection Act, 1986. The Model Rules, 2020 also came into force on 20.07.2022. The Government of Assam has adopted and notified on 23.11.2020, Page No.# 5/25 providing that the Model Rules, 2020 of the Government of India shall apply till the Rules are made by the Government of Assam. In terms of the Rule 3, a Member of the District Commission shall receive the pay equal to the pay at the minimum of the pay scale of the Deputy Secretary of the State Government and other allowances admissible to such officer.
5. The Consumer Protection (Qualification for Appointment, Method of recruitment, Procedure of appointment, Term of office, Resignation and Removal of the President and members of the State Commission and District Commission) Rules, 2020,framed under the Consumer Protection Act, 2019, has also came into force on the 20.07.2020.
6. Section 31 of the Consumer Protection Act, 2019 provides that any person appointed as President or as a Member of the District Commission immediately before the commencement of said Act shall hold office of the President or the Member till the completion of his term for which he has been appointed. Thus, as per section 31 of the 2019 Act, the services of the petitioners are protected by allowing them to complete their tenure.
7. It is the case of the petitioners that despite adoption of the Model Rules, 2020, by the Government of Assam on 23.11.2020, the honorarium of the petitioners are being paid as per their appointment, i.e. Rs.600/- plus conveyance allowance of Rs.150/- per day of sitting in terms of the Consumer Rules, 2010. In the meanwhile, in the month of December, 2021 and January, 2022, some new appointment of Members were made, who are being paid salaries with pay scale and other allowance as per the Rules, 2020, framed under Consumer Protection Act, 2019 and adopted by the Government of Assam on 23.11.2020. The appointment of these newly appointed Members is for 4 (four) years and Members are eligible for reappointment/renewal. The Page No.# 6/25 maximum age for continuance as Members is 65 years. The new appointments were made pursuant to the advertisement No FAS 65/2013/383, dated 26.08.2021. In terms of the said advertisement, the qualification for the post is possession of Bachelor's Degree from any recognized university apart from being a person of ability, integrity and standing and having special knowledge and professional experience of at least fifteen years of dealing with problems relating to Consumer Affairs, Law, Public Affairs, Administration, Economics, Commerce, Industry, Finance, Management, Engineering, Technology, Public health or Medicine, which is similar except the tenure and years of experience. It is contended that the representations to Government of Assam for implementation of the Model Rules, 2020 for the existing Members like the petitioners followed by a joint memorandum submitted to the Addl. Chief Secretary, State of Assam, in January/February, 2022, and for grant of minimum scale of pay and allowances equivalent to the rank of Deputy Secretary to the State Government, have not yielded any result whatsoever from the authorities, till date. Hence, this Writ Petition.
8. Mr. M. Dutta, learned counsel for the petitioners submits that non-payment of minimum scale equivalent to the Deputy Secretary to the petitioners has resulted in infringement of petitioners' right to receive salary in terms of Model Rules, 2020, as adopted by the State Government. The disparity in not granting the equal pay is discriminatory in nature causing injustice to all the existing Members like the petitioners in discharging similar nature of duties and responsibilities, as the newly appointed Members are being paid minimum scale and allowances payable to the rank of the Deputy Secretary of the State. There is no dispute that the petitioners are discharging similar duties as that of newly appointed members under the new Act. The duties of the petitioners are not Page No.# 7/25 only same but their responsibilities are also same with same work conditions.
9. Mr. Dutta, learned counsel, submits that in view of the new Consumer Protection Act, 2019, the qualifications for the post of Member of the District Forum by and large have not been changed since the petitioners were appointed. However, the experience now sought is 15 years in dealing with the problems relating to Consumer Affairs, Law, Public Affairs, Administration, Economics, Commerce, Industry, Finance, Management, Engineering, Technology, Public Health or Medicine. He submits that most of the petitioners were required to have similar experience of 10 years, when they were appointed but by virtue of their service as a Member of District Forum, they have more than 15 years of professional experience and in fact all the Members have fifteen years' experience in various disciplines and are eligible to be appointed under the new Act and Rules. He further submits that the petitioners are all qualified to be reappointed under the new Rules. Although the petitioners were appointed as part time Members but the fact remains that their duties are similar to the Members appointed under the new Rules, which has no provision for any part time Members. He submits that the duties, functions and responsibilities of the petitioners and the newly appointed Members, who are receiving scale as per the Model Rules, 2020 are same in all respect and they have to spend similar time in their jobs. He submits that the honorarium paid to the petitioners is not only discriminatory but is not commensurate to the post, duties and responsibilities as well as status of the post, the petitioners are holding.
10. Mr. M. Dutta, learned counsel, referring to the Section 31 of the 2019 Act, submits that same protects the service of the Members like the petitioners who were appointed prior to coming into force of the new Act, till the completion of Page No.# 8/25 their term. Therefore, the non-payment of minimum scale of pay and other allowances as per Model Rules, 2020 is arbitrary and illegal. He further submits that there is no embargo to pay the petitioners the scale of pay and other allowances as granted to the new Members, as per the Model Rules, 2020 and there is no revision of the honorarium being paid to the petitioners which is too meagre. Therefore, the disparity is writ large and as such he submits that direction may be issued to the respondent authorities to grant minimum scale of pay and other allowances equivalent to the rank of Deputy Commissioner of the State Government, in terms of the Model Rules, 2020, from the date of adoption of the same Rules, including the arrears payable by adjusting the amount paid as honorarium for the relevant period.
11. In support of his submissions, Mr. M. Dutta, learned counsel the learned counsel for the petitioners, has relied upon the following case laws:
(i). Bhagwan Dass and others vs. State of Haryana & others, reported in1987 (4) SCC 634 (para 8 & 10),&
(ii). State of Bihar and others vs. Bihar Secondary Teachers Struggle Committee, Munger and others, reported in (2019) 18 SCC 310.
12. On the other hand, Mr. D. Mazumdar, learned Addl. Advocate General, Assam, submits that the Members of the District Forum who have been appointed under the Consumer Protection Act, 1986 are receiving honorarium as prescribed under the Assam State Consumer Protection (Amendment) Rules, 2010 and as per terms and conditions of their appointment orders. Therefore, there cannot be parity of pay with Members who have been appointed under the provisions of Consumer Protection Act, 2019 and the Model Rules, 2020.He submits that under the Consumer Protection Act, 1986, the required experience Page No.# 9/25 sought was 10 years in dealing with Consumer Affairs, Law, Public Affairs etc., to be eligible for appointment as Member, whereas, under the Consumer Protection Act, 2019, 15 years of special knowledge and professional experience is required to be eligible for appointment as Member and the existing Members shall have the scope of resigning from the present post and then can re-apply to be appointed under the new Rules, on the basis of advertisement issued when the post falls vacant.
13. Mr. D. Mazumdar, learned Addl. Advocate General, submits that the representations received from the petitioners and Members of various District Forum regarding revision of salary/remuneration as per the Model Rules, 2020, framed under the Consumer Protection Act, 2019 have been perused and thoroughly examined and on careful consideration, it is found to be unacceptable. Accordingly, the representations were disposed of vide Speaking order dated 05.09.2022. Mr. Mazumdar, learned Addl. Advocate General, Assam, therefore, submits that the petitioners have miserably failed to make out even a prima facie case, warranting interference by this Court and as such the Petitioners are not entitled to any relief and for this reason alone, the present Writ Petition is liable to be dismissed.
14. Mr. D. Mazumdar, learned Addl. Advocate General, has relied upon the judgment in the case of State of Punjab and ors vs. Jagjit Singh and others reported in (2017)1 SCC 148, to project that for placement in a regular pay scale, the claimant has to be a regular appointee and should have been selected on the basis of a regular process of recruitment. An employee appointed on a part time basis, cannot claim to be placed in the regular pay scale.
15. Due consideration has been extended to the submissions of learned counsel for the parties and also perused the materials available on record.
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16. Undisputedly, the petitioners were appointed and re-appointed since 2013 till 2020, under the old Consumer Protection Act, 1986. They were appointed as a part time Members of the District Forum, clearly prescribing the honorarium and remuneration in terms of the Rules framed by the State Government under the old Act and they have been allowed to continue as on date. The new Members of the District Forum have been appointed under the new Act in force i.e. the Consumer Protection Act, 2019 and the Model Rules, 2020, framed by the Central Government, which has been adopted by the State Government.
17. Under the Consumer Protection Act, 1986, the composition of District Forum as well as requisite qualifications of President and its members are prescribed in section 10, which is reproduced here-in-below:
"10. Composition of the District Forum.
(1)Each District Forum shall consist of,--
(a)a person who is, or has been, or is qualified to be a District Judge, who shall be its President;
[(b)two other members, one of whom shall be a woman, who shall have the following qualifications, namely:--
(i)be not less than thirty-five years of age,
(ii)possess a bachelor's degree from a recognised university,
(iii)be persons of ability, integrity and standing, and have adequate knowledge and experience of at least ten years in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration:
Provided that a persons shall be disqualified for appointment as a member, if he--
(a) has been convicted and sentenced to imprisonment for an offence which, in the opinion of the State Government, involves moral turpitude; or
(b) is an undischarged insolvent; or Page No.# 11/25
(c) is of unsound mind and stands so declared by a competent court; or
(d) has been removed or dismissed from the service of the Government or a body corporate owned or controlled by the Government; or
(e) has, in the opinion of the State Government, such financial or other interest as is likely to affect prejudicially the discharge by him of his functions as a member; or
(f) has such other disqualifications as may be prescribed by the State Government;]] [(1A) Every appointment under sub-section (1) shall be made by the State Government on the recommendation of a selection committee consisting of the following, namely:--
(i)President of the State Commission --Chairman.
(ii)Secretary, Law Department of the State --Member.
(iii)Secretary, incharge of the Department --Member:
dealing with consumer affairs in the State.
[Provided that where the President of the State Commission is, by reason of absence or otherwise, unable to act as Chairman of the Selection Committee, the State Government may refer the matter to the Chief Justice of the High Court for nominating a sitting Judge of that High Court to act as Chairman.] [(2)Every member of the District Forum shall hold office for a term of five years or up to the age of sixty-five years, whichever is earlier:
Provided that a member shall be eligible for re-appointment for another term of five years or up to the age of sixty-five years, whichever is earlier, subject to the condition that he fulfils the qualifications and other conditions for appointment mentioned in clause (b) of sub-section (1) and such re-appointment is also made on the basis of the recommendation of the Selection Committee:
Provided further that a member may resign his office in writing under his hand addressed to the State Government and on such resignation being Page No.# 12/25 accepted, his office shall become vacant and may be filled by appointment of a person possessing any of the qualifications mentioned in sub-section (1) in relation to the category of the member who is required to be appointed under the provisions of sub-section (1A) in place of the person who has resigned:
Provided also that a person appointed as the President or as a member, before the commencement of the Consumer Protection (Amendment) Act, 2002, shall continue to hold such office as President or member, as the case may be, till the completion of his term.] (3)The salary or honorarium and other allowances payable to, and the other terms and conditions of service of the members of the District Forum shall be such as may be prescribed by the State Government:
[Provided that the appointment of a member on whole-time basis shall be made by the State Government on the recommendation of the President of the State Commission taking into consideration such factors as may be prescribed including the work load of the District Forum].
18. The Parliament has enacted the Consumer Protection Act, 2019, which came into force on 20.07.2020. Section 31provides a Transitional Provision as under:
"31. Transitional provision.- Any person appointed as President or, as the case may be, a member of the District Commission immediately before the commencement of this Act shall hold office as such as President or, as the case may be, as member till the completion of his term for which he has been appointed."
19. The Consumer Protection (Qualification for Appointment, Method of recruitment, Procedure of appointment, Term of office, Resignation and Removal of the President and members of the State Commission and District Commission) Rules, 2020 provides the qualification for being appointed as President and Members of the District Commission which is reproduced here-in below:
Page No.# 13/25 "4. Qualifications for appointment of President and member of District Commission (1) A person shall not be qualified for appointment as President, unless he is, or has been or is qualified to be a District Judge.
(2) A person shall not be qualified for appointment as member unless he-
(a) is of not less than thirty-five years of age,
(b) possesses a bachelor's degree from a recognised University; and
(c) is a person of ability, integrity and standing, and having special knowledge and professional experience of not less than fifteen years in consumer affairs, law, public affairs, administration, economics, commerce, industry, finance, management, engineering, technology, public health or medicine.
(3) At least one member or the President of the District Commission shall be a woman."
20. The Central Government has framed the Model Rules, 2020 under the Consumer Protection Act, 2019, The State of Assam has adopted the said Model Rules, 2020, till the State makes the Rules under the new Act, 2019, which is still in force.
21. Rule 3 of the Model Rules, 2020 provides for the Salaries and Allowances of the President and Members of the District Commission which is reproduced here-in below:
"3. Salaries and allowances payable to President and members of District Commission.- (1) The President shall be entitled to the salary and allowances as are admissible to a District Judge in the super time scale of pay.
(2) A Member shall receive a pay equal to the pay at the minimum of the scale of pay of a Deputy Secretary of the State Government and other allowances as admissible to such officer.
(3) The pay of a person appointed as President or member, who is in receipt of any pension, shall be reduced by the gross amount of pension drawn by him."
22. On a bare reading of the Consumer Protection Act, 1986 (now repealed) and the new Consumer Protection Act, 2019, reflects the difference in the pay and allowances of the Members and the requirement of having adequate Page No.# 14/25 knowledge and experience of atleast 10 years in dealing with the problems relating to economics, law, commerce, accountancy, industry, public affairs or administration. In the new Act, it is 15 years with special knowledge and professional experience in the above field. The salary or honorarium and other allowances payable to the Members and other terms and conditions of service of the members of the District Forum under the old Act of 1986, was to be as such as may be prescribed by the State Government. The State Government has framed the Rules, 2010, for salary or honorarium and other allowances under the old Act, under which the petitioners were appointed and paid as on date. The Model Rules, 2020, framed under the new Consumer Protection Act, 2019, provides that the Member of the District Forum shall entitled to be paid to the minimum scale of pay of the Deputy Secretary of the State Government along with other allowances.
23. It is true that the honorarium, allowances and service conditions of the petitioners are regulated by the old Consumer Protection Act, 1986 and the Rules, 2010,framed thereunder and as per the terms and conditions in their appointment orders. However, one cannot brush aside the fact that the Members have been appointed and re-appointed and allowed to continue by virtue of Section 31 of the Consumer Protection Act, 2019.
24. Section 31 of the new Act, 2019, relates to Transitional Provision and clearly prescribed that any person appointed as a Member of the District Commission, immediately before the commencement of the Act shall hold office as such Member till the completion of his term for which he has been appointed. It is also not in dispute that the nature of the duties, responsibilities and functions and authority of the petitioners are same and identical to those Members, who have been appointed under the new Act, with only a difference Page No.# 15/25 of appointment on part time and full time.
25. Having considered that the nature of duties, responsibilities and functioning of the petitioners as member, who have been appointed under the old Act and Rules and allowed to continue are same with that of the Members who have been appointed on full time under the new Act, this Court is of the considered view that non-granting of similar or equal pay to the Members who have been allowed to continue by virtue of Transition Provision under Section 31 of the new Act, amounts to treating the equal unequal which would be discriminatory as the nature of the duties, responsibilities, functions and authority of the petitioners are same and identical.
26. No doubt, the petitioners have been appointed on part time basis under the Old Act of 1986 and Rules 2010 thereunder, however, they have been allowed to continue as Members of the District Forum with same and identical nature of the duties, responsibilities, functions and authority with the members who have been appointed on full time under the new Act, 2019. It is inevitable that the petitioners though appointed on part-time basis,they are functioning on full time basis. Therefore,not granting same minimum pay scale and allowances with members appointed on full time only on the ground that they are appointed on part-time basis, in my opinion would be unfair and unjust.
27. Now I would refer to the cases relied on by the learned counsel for the parties. In Bhagwan Dass (Supra), the Hon'ble Supreme Court has observed which is reproduced herein below :-
"8. It is therefore futile to contend that the petitioners in their capacity as Supervisors were required only to perform part-time work. As per clause (d) of the aforesaid extract, the supervisors were required to stay for the whole day in the village and were Page No.# 16/25 required to visit the Informal Education Centre and the Adult Education Centre in the night. They were also required to go on tour and to remain at the headquarter once a week from 9.30 a.m. to 4.00 p.m. The conclusion is therefore inevitable that the petitioners were not part- time functionaries but were whole-time functionaries.
10. With regard to the first ground for not granting salary on the same basis as of respondents 2 to 6, viz. that they are part-time employees whereas respondents 2 to 6 are full-time employees, having examined the aforesaid records placed before the court, we are of the opinion that there is no substance in this contention."
28. In Bihar Secondary Teachers Struggle Committee, Munger, (Supra),the Hon'ble Supreme Court has heldwhich is reproduced herein below :-
"87. In order to consider the applicability of the doctrine of "equal pay for equal work", one of the fundamental aspects to be considered is nature of duties. As was rightly submitted by Mr Kapil Sibal and Dr A.M. Singhvi, learned Senior Advocates, the nature of duties performed by Niyojit Teachers are certainly same or similar to those performed by the government teachers. As a matter of fact, both the sets of teachers are teaching in the same school and teaching same syllabus. The pointers placed by Dr Singhvi in his submission as well as the example given by him evidently show that there is no distinction or difference as regards nature of duties performed and responsibilities discharged by the Niyojit Teachers. Some of the Niyojit Teachers have also been acting as Headmasters, However, the Rules in question viz. the 2006 Rules clearly indicate that the method of recruitment of Niyojit Teachers was completely different from the one under which government teachers were recruited. The Selection Committee contemplated under the provisions of the 2006 Rules comprised of officials at the Panchayat or Block levels. The selection was also at local levels and not through Bihar Public Service Commission or Page No.# 17/25 Schools Selection Board. The distinction brought out in that behalf by the State in Para 13 of its supplementary counter-affidavit filed in the High Court clearly shows the difference in mode of recruitment. It is thus clear that the mode of 9 recruitment and the standards of selection were different but the nature of duties performed by the Niyojit Teachers have been absolutely identical. Could there be a distinction between these two streams of teachers. We may, therefore, at this stage see the development of the doctrine of "equal pay for equal work" and whether it admits of any qualifications or exceptions.
96. Analysis of the decisions referred to above shows that this Court has accepted the following limitations or qualifications to the applicability of the doctrine of "equal pay for equal work":
96.1. The doctrine of "equal pay for equal work" is not an abstract doctrine.
96.2. The principle of "equal pay for equal work" has no mechanical application in every case.
96.3. The very fact that the person has not gone through the process of recruitment may itself, in certain cases, make a difference.
96.4. The application of the principle of "equal pay for equal work"
requires consideration of various dimensions of a given job. 96.5. Thus, normally the applicability of this principle must be left to be evaluated and determined by an expert body. These are not matters where a writ court can lightly interfere.
96.6. Granting pay scales is a purely executive function and hence the court should not interfere with the same. It may have a cascading effect creating all kinds of problems for the Government and authorities.
96.7. Equation of posts and salary is a complex matter which should be left to an expert body.
96.8. Granting of pay parity by the court may result in a cascading effect and reaction which can have adverse consequences. 96.9. 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. 96.10. In a given case, mode of selection may be considered as one Page No.# 18/25 of the factors which may make a difference."
29. In the case of Jagjit Singh (Supra),the Hon'ble Supreme Court has observed and held as under:-
"42. All the judgments noticed in paragraphs 7 to 24 hereinabove, pertain to employees engaged on regular basis, who were claiming higher wages, under the principle of 'equal pay for equal work'. The claim raised by such employees was premised on the ground, that the duties and responsibilities rendered by them, were against the same post for which a higher pay-scale was being allowed, in other Government departments. Or alternatively, their duties and responsibilities were the same, as of other posts with different designations, but they were placed in a lower scale. Having been painstakingly taken through the parameters laid down by this Court, wherein the principle of 'equal pay for equal work' was invoked and considered, it would be just and appropriate, to delineate the parameters laid down by this Court. In recording the said parameters, we have also adverted to some other judgments pertaining to temporary employees (also dealt with, in the instant judgment), wherein also, this Court had the occasion to express the legal position with reference to the principle of 'equal pay for equal work'. Our consideration, has led us to the following deductions:
42.1. 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 who approaches the Court has to establish, that the subject post occupied by him, requires him to discharge equal work of equal value, as the reference post (see - the Orissa University of Agriculture & Technology case10, Union Territory Administration, Chandigarh v. Manju Mathur15, the Steel Authority of India Limited case16, and the National Aluminum Company Limited case18). 42.2. The mere fact that the subject "different department" vis-à-
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 matter of their pay, merely because differently in the they belong to different departments of the Government(see Randhir Singh case and D.S. Nakara cases).
42.3. The principle of "equal pay for equal work", applies to cases Page No.# 19/25 of unequal scales of pay, based on no classification or irrational classification see Randhir Singh case"). For equal pay, the employees concerned with (whom equation is sought, should be performing work, which besides being functionally equal, should be of the same quality and sensitivity (see Federation All India Customs and Central Excise Stenographers case, Mewa Ram of Kanojia case11, Grih Kalyan Kendra Workers' Union case12 and S.C. Chandra case 19).
42.4. Persons holding the same rank/designation (in different departments), but having dissimilar powers, duties and responsibilities, can be placed in different scales of pay and cannot claim the benefit of the principle of "equal pay for equal work" (see Randhir Singh case, State of Haryana v. Haryana Civil Secretariat Personal Staff Assn. 15 and Hukum Chand Gupta case30). Therefore, the principle would not be automatically invoked merely because the subject and reference posts have the same nomenclature.
42.5. 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 also, 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 permissible (see Federation of All India Customs and Central Excise Stenographers case and SBI case14). The nature of work of the subject post should be the same and not less onerous than the reference post. Even the volume of work should be the same. And so also, the level of responsibility. If these parameters are not met, parity cannot be claimed under the principle of "equal pay for equal work" (see State of U.P. v. J.P. Chaurasia 10 and Grih Kalyan Kendra Workers' Union case12). 42.6. For placement in a regular pay scale, the claimant has to be a regular -appointee. The claimant should have been selected on the basis of a regular process of recruitment. An employee appointed on a temporary basis cannot claim to be placed in the regular pay scale (see Orissa University of Agriculture & Technology case16).
42.7. Persons performing the same or similar functions, duties Page No.# 20/25 and responsibilities, can also be placed in different pay scales. Such as - "selection grade", in the same post. But this difference must emerge out of a legitimate foundation, such as merit, or seniority, or some other relevant criteria (see State of U.P. v. J.P. Chaurasia10).
42.8. If the qualifications for recruitment to the subject post vis-à- vis the reference post are different, it may be difficult to conclude that the duties and responsibilities of the posts are qualitatively similar or comparable (see Mewa Ram Kanojia case11 and State of W.B. v. Tarun K. Roy17). In such a case the principle of "equal pay for equal work" cannot be invoked.
42.9. The reference post with which parity is claimed under the principle of "equal pay for equal work" has to be at the same hierarchy in the service as the subject post. Pay scales of posts may be different, if the hierarchy of the posts in question, and their channels of promotion, are different. Even if the duties and responsibilities are same, parity would not be permissible, as against a superior post, such as a promotional post (see Union of India v. Pradip Kumar Dey13 and Hukum Chand Gupta case30). 42.10. A comparison between the subject post and the reference post under the principle of "equal pay for equal work" cannot be made where the subject post and the reference post are in different establishments, having a different management. Or even, where the establishments are in different geographical locations, though owned by the same master (see Harbans Lal case, Persons engaged differently, and being paid out of different funds, would not be entitled to pay parity (see Official Liquidator v. Dayanand). 42.11. Different pay scales, in certain eventualities, would be permissible even for posts clubbed together at the same hierarchy in the cadre. As for instance, if the duties and responsibilities of one of the posts are more onerous, or are exposed to higher nature of operational work/risk, the principle of "equal pay for equal work" would not be applicable. And also when the reference post Includes the responsibility to take crucial decisions, and that is not so for the subject post (see SBI case14).
42:12. The priority given to different types of posts under the prevailing policies of the Government can also be a relevant factor for placing different posts under different pay scales. Herein also, the principle of "equal pay for equal work" would not be applicable Page No.# 21/25 (see State of Haryana v. Haryana Civil Secretariat Personal Staff Assn.15), 42:13. The parity in pay, under the principle of "equal pay for equal work". d 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 (see State of W.B. v. Minimum Wages Inspectors Assn.22).
42.14. 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 (see U.T. Chandigarh, Admn. v. Manju Mathur27), 42.15. 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 (see Hukum Chand Gupta case30), when the duties are qualitatively dissimilar.
42.16. 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 (see Hukum Chand Gupta case30).
42.17. Where there is no comparison between one set of employees of one organisation, and another set of employees of a different organisation, there can be no question of equation of pay scales under the principle of "equal pay for equal work", even if two organisations have a common employer. Likewise, if the management and control of two organisations is with different Page No.# 22/25 entities which are independent of one another, the principle of "equal pay for equal work" would not apply (see S.C. Chandra case 19 and National Aluminium Co.Ltd. case33).
57. There is no room for any doubt that the principle of "equal pay for equal work" has emerged from an interpretation of different provisions of the Constitution. The principle has been expounded through a large number of judgments rendered by this Court, and constitutes law declared by thisCourt. The same is binding on all the courts in India under Article 141 of the Constitution of India. The parameters of the principle have been summarised by us in para 42 hereinabove. The principle of "equal pay for equal work"
has also been extended to temporary employees (differently described as work-charge, daily wage, casual, ad hoc, contractual, and the like). The legal position, relating to temporary employees has been summarised by us, in para 44 hereinabove. The above legal position which has been repeatedly declared, is being reiterated by us yet again.
58. In our considered view, it is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work cannot be paid less than another who performs the same duties and responsibilities. Certainly not, in a welfare State. Such an action besides being demeaning, strikes at the very foundation of human dignity. Anyone, who is compelled to work at a lesser wage does not do so voluntarily. He does so to provide food and shelter to his family, at the cost of his self-respect and dignity, at the cost of his self- worth, and at the cost of his integrity. For he knows that his dependants would suffer immensely, if he does not accept the lesser wage. Any act of paying less wages as compared to others similarly situate constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation.
60. Having traversed the legal parameters with reference to the application of the principle of 'equal pay for equal work', in relation to temporary employees (daily-wage employees, ad-hoc appointees, employees appointed on casual basis, contractual employees and the like), the sole factor that requires our determination is, whether the concerned employees (before this Court), were rendering similar duties and responsibilities, as were being discharged by regular employees, holding the same/corresponding posts. This exercise would require the Page No.# 23/25 application of the parameters of the principle of 'equal pay for equal work' summarized by us in paragraph 42 above. However, insofar as the instant aspect of the matter is concerned, it is not difficult for us to record the factual position. We say so, because it was fairly acknowledged by the learned counsel representing the State of Punjab, that all the temporary employees in the present bunch of appeals, were appointed against posts which were also available in the regular cadre/establishment. It was also accepted, that during the course of their employment, the concerned temporary employees were being randomly deputed to discharge duties and responsibilities, which at some point in time, were assigned to regular employees. Likewise, regular employees holding substantive posts, were also posted to discharge the same work, which was assigned to temporary employees, from time to time. There is, therefore, no room for any doubt, that the duties and responsibilities discharged by the temporary employees in the present set of appeals, were the same as were being discharged by regular employees. It is not the case of the appellants, that the respondent-employees did not possess the qualifications prescribed for appointment on regular basis. Furthermore, it is not the case of the State, that any of the temporary employees would not be entitled to pay parity, on any of the principles summarized by us in paragraph 42 hereinabove. 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."
30. In the case of Jagjit Singh (supra), the Hon'ble Supreme Court has settled the legal position, after analyzing the earlier decisions on the parameters of principle of equal pay for equal work. It has held, inter alia, 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 who approaches the Court has to establish, that the subject post occupied by him, requires him to discharge equal work of equal value, as the reference post. For placement in a regular pay-scale, the claimant has to be a regular appointee. The claimant should have been selected, on the basis of a regular process of recruitment. An employee appointed on a Page No.# 24/25 temporary basis, cannot claim to be placed in the regular pay-scale.
31. It is clearly observed by the Hon'ble Supreme Court that it is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work cannot be paid less than another who performs the same duties and responsibilities. Such an action besides being demeaning, strikes at the very foundation of human dignity. Anyone, who is compelled to work at a lesser wage does not do so voluntarily. He does so to provide food and shelter to his family, at the cost of his self-respect and dignity, at the cost of his self- worth, and at the cost of his integrity. For he knows that his dependants would suffer immensely, if he does not accept the lesser wage. Any act of paying less wages as compared to others similarly situate constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation.
32. In the present case, there is no dispute that the duties and responsibilities discharged by the petitioners, though appointed on part time basis, are the same as are being discharged by full time members of the District Forum. It is not the case of the respondents that the petitioners did not possess the qualifications prescribed for appointment on full time basis. It is the case of the respondents that petitioners would not be entitled to pay parity as they were appointed and re-appointed under the old Act and Rules and as such they are regulated by the terms of the appointment order. It is the further case of the respondents that for placement in a regular pay-scale, the claimant has to be a regular appointee. The claimant should have been selected, on the basis of a regular process of recruitment. An employee appointed on a part time basis, cannot claim to be placed in the regular pay-scale. But it is not the case of the respondents that the petitioners were appointed without regular selection Page No.# 25/25 process. Therefore, I am of the considered view that the principle of 'equal pay for equal work' would be applicable to the petitioners so as to vest in them the right to claim equal pay and allowances at par with the minimum of the pay- scale of full-time members holding the same post as the petitioner could able to establish that they are rendering same duties, functions, responsibilities and authority with that of the full-time members of the District Forum.
33. In view of the discussions made herein above and in the light of the settled position of law laid down by the Hon'ble Supreme Court, I am of the considered view that the petitioners are entitled to the minimum scale of pay and other allowances, in terms of the Model Rules, 2020, as their duties, functions and responsibilities are same with those Members, who were appointed as per the new the Consumer Protection Act, 2019 and the Model Rules, 2020.
34. Consequently, it is provided that the petitioners be provide minimum scale of pay and other allowances at par with the full-time members of District Forum, in terms of the Model Rules, 2020.
35. Accordingly, the Writ Petition stands allowed and disposed of. No order as to costs.
JUDGE Comparing Assistant
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